Opposability of the jurisdiction clause

A company necessarily accepts the transfer of a contract to a new seller, including the jurisdiction clause it agrees to, by continuing to place orders and accept deliveries from that company.   

The judgment of the Court of Cassation of 18 December 2024 concerns a dispute between the French company BBI and the German company Ockenfels Group GmbH & Co., formerly Birkenstock & Co.This dispute originated in a series of distribution contracts concluded between BBI and Betula-Schuh, a German company, from 1 August 2007.The last contract, dated 21 September 2012, included a jurisdiction clause in favour of the German courts and provided for the application of German law. 

In 2014, Betula-Schuh informed BBI that Birkenstock & Co would resume billing and shipping operations from 1 October 2014. This restructuring led to the absorption of Betula-Schuh by Birkenstock Sales in 2015, which had already transferred its profits to Birkenstock & Co., renamed Ockenfels Group GmbH & Co. In 2016, Birkenstock Sales notified BBI of the termination of the distribution agreement by 31 December 2016, and Birkenstock Services also terminated the business relationship on that date. 

In 2020, BBI brought an action against Birkenstock & Co. KG before the Commercial Court of Marseille for sudden termination of established commercial relations. Birkenstock & Co. KG challenged the jurisdiction of the French court by invoking the jurisdiction clause of the 2012 contract. BBI

‘s appeal to the Court of Cassation was based on a single plea, contesting the enforceability of the jurisdiction clause.  

BBI argued that the jurisdiction clause in favour of the German courts could only be opposed if it had been accepted in the forms provided for by the Brussels I Regulation, which was not the case according to it.  

It referred more particularly to Article 25 of the Brussels I Regulation which provides that:

 “The agreement conferring jurisdiction shall be concluded: (a) in writing or orally with written confirmation; (b) in a form that is in accordance with the practices established between the parties; or (c) in international trade, in a form that is in accordance with a usage of which the parties are aware or were presumed to be aware and which is widely known and regularly observed in this type of trade by the parties to contracts of the same type in the branch of trade in question“.  

In addition, it criticized the Court of Appeal in particular:
 

• to have held that the acceptance of a jurisdiction clause stipulated in a distribution agreement could extend to the relations between the distributor and a third party on the grounds that the third party has taken over the producer’s sales and delivery obligations and that the distributor has agreed to be delivered by this third party;
   

• for not having explained how his acceptance to receive the deliveries of the new company also implied his acceptance of the transfer of the rights of the company Betula Schuh to the company Birkenstock, and especially that of availing himself of the clause conferring jurisdiction agreed for the benefit of the company Betula Schuh.
   

The Court of Cassation dismissed the appeal, upholding the decision of the Paris Court of Appeal.

  It held that BBI had accepted the transfer of the substantive rights and obligations resulting from the 2012 contract to Birkenstock & Co. KG Services, including the jurisdiction clause, by continuing to place orders and accept deliveries from this company. The Court held that this acceptance also implied the acceptance of the jurisdiction clause. 

The Court also decided that there was no need to refer a question to the Court of Justice of the European Union for a preliminary ruling, considering that there was no reasonable doubt as to the interpretation of the European regulations concerned.  

This judgment clearly shows how jurisdiction clauses, inserted in GTCs concluded between professionals, can be enforceable against the party who tries to evade them by alleging their unenforceability due to the lack of express acceptance. Indeed, case law holds that when renewing orders, a buyer necessarily has knowledge of the seller’s GTCs (concerning an Italian seller and a French buyer – CA Toulouse, 22 September 2010, No. 10/00787).    

Court of Cassation, Civil, Civil Division 1, December 18, 2024, 23-20.777, Unpublished