Can general terms and conditions be accepted electronically ?

Luxembourg law does not require that a party signs general terms and conditions (“GTC”). The principle under Luxembourg law is that GTC are binding on a party to a contract, if said party was in a position to read and approve them at the time when the contract was signed. The burden of proof concerning a party’s awareness and acceptance of the GTC is on the party who is offering the services under the contract. This being a general rule found in the Luxembourg Civil Code it applies to both business-to-business and business-to-customer contracts.


In the case where GTC are attached to the principal contract and are signed physically by a party (i.e. a wet ink signature) at the time when the principal contract is signed, there is no doubt as to the knowledge and acceptance by the party of the GTC.


There is some case law in Luxembourg, which considers that a party is aware of and accepted the GTC, if the party put their signature under a special mention in the contract, in bold clearly legible characters, declaring that they have read the GTC printed on the back of the contract and accept them without reservation or limitation.


The situation does become less clear when GTC are kept materially separate from the principal contract, for instance when the principal contract and the GTC are in a different document not attached one to the other, or even more so when these GTC are only available electronically, as Luxembourg case law does not give clear guidance or a conclusive answer as regards to meeting the burden of proof standard in these instances.


With the growth of digitalization and the impact of the COVID-19 pandemic, we have seen an increased move towards more and more contracts being exclusively concluded and signed by electronic means. This of course raises legitimate concerns around certainty, in terms of meeting the burden of proof standard as regards to a party’s awareness/acceptance of the GTC and consequently the enforceability of the GTC against a party.


The European legislation on e-commerce tries to bring some certainty and requires that GTC be communicated to a customer in writing, on a durable medium, such as an email or a PDF document, so that it can no longer be modified unilaterally, without the consumer having knowledge. A medium is durable, insofar as  it allows the consumer to store the information provided to him personally, guarantees the absence of alteration of their content, as well as access for an appropriate period of time and offers the customer the possibility of reproducing the information.


Different scenarios as regards to the form in which principal contracts and GTC take also exist and can cause additional confusion and uncertainty; for instance, both the principal contract and the GTC can be in electronic form and contained either on a single page or on different pages, or only the GTC are electronically available while the main contract has been signed physically, etc.


In this respect, it is recommended when a principal contract is concluded electronically that it contains a clear mention requiring the party to consult and/or download the GTC. A hyperlink should also direct the party to a page containing the full text of the GTC, with a mechanism to accept the GTC as a condition precedent for a valid and final conclusion of the principal contract, for instance through a “scrolling” mechanism obliging the client to scroll down through the GTC pages before accepting them with a “click” button and returning to the principal contract for final electronic acceptance of it.


Moreover, the system of access to the GTC should not dissuade the party from accessing and reading them. All parties to the contract should be able to access and accept the GTC easily and equally (e.g. should a contract be signed physically (i.e. wet ink signature) and contain a QR code allowing a party to access the GTC on his mobile device, an alternative should be offered to those parties who are not able to access via a mobile device (for instance GTC may be available in shop or communicated by e-mail). If the GTC are made accessible via a QR code, a specific reference should be inserted in the principal contract stating that “the client declares that he/she/it is aware of and accepts the GTC accessible via the QR code with the possibility of downloading them”.