General Terms and Conditions via Website Permitted More Often
In brief
- On 2 June 2023, the Dutch Supreme Court (Hoge Raad) ruled (ECLI:NL:HR:2023:835) that a wholesaler qualifies as a service provider within the meaning of EU law.
- Service providers are subject to more flexible requirements for making their general terms and conditions available (Article 6:230c of the Dutch Civil Code) than the stricter requirements for providing them under Article 6:234 of the Dutch Civil Code.
- As a result, a service provider may refer customers to its website for consultation of its general terms and conditions, making it more difficult to have those terms invalidated.
- This remains relevant in 2026: the concept of a “service” under EU law is so broad that many businesses, including trading companies, may be able to rely on it.
Key question of this article: Are general terms and conditions allowed to be made available merely by referring to a website…?
Why General Terms and Conditions Are So Important
Providing the text of your general terms and conditions (hereinafter the “GTC”) correctly before or at the time an agreement is concluded is crucial. GTC contain the standard provisions used in many common contracts, such as:
- limitations of liability;
- the timing of payment;
- the consequences of late payment.
Well-drafted GTC can make a significant difference. Provisions contained in GTC are often just as binding as the core terms of a contract. In practice, successfully relying on GTC can be decisive for claims worth tens of thousands, if not hundreds of thousands, of euros. If a set of GTC is declared void, this can substantially weaken a party’s position in a dispute.
Moreover, the use of GTC is indispensable in business practice. It would be impractical to negotiate separate terms with every customer and ensure that all of those arrangements are properly performed. As a result, many companies rely on their GTC on a daily basis.
The Case Behind the Supreme Court Judgment
The case concerned a meat wholesaler that, among other activities, imported frozen hare slaughter by-products from Argentina. A customer refused to pay several invoices after discovering that the slaughter by-products were contaminated with salmonella, among other things.
The wholesaler relied on a complaint period contained in its GTC: the customer was required to inspect, or have the goods inspected, within 2 days of delivery. Given the perishable nature of the products and the risk of contamination, such a short period is readily justifiable.
The invoices contained the following reference:
“All transactions are subject to our general terms and conditions of sale, which can be consulted on our [website].”
The Invalidity Argument: Article 6:234 DCC versus Article 6:230c DCC
The customer sought to invalidate the GTC on the grounds that they had not been provided in accordance with Article 6:234 of the Dutch Civil Code (DCC). The requirements for making general terms and conditions available under that provision are stricter; merely publishing the GTC on a website is not sufficient.
However, service providers are subject to the more flexible requirements of Article 6:230c DCC.
Both the District Court and the Court of Appeal held that the wholesaler was not a service provider. As a result, the stricter requirements of Article 6:234 DCC applied, and the wholesaler had failed to comply with them. Accordingly, both courts concluded that the GTC had been validly invalidated. The Supreme Court took a different approach.
The EU Concept of a “Service”: Much Broader Than You Might Think
The Supreme Court held that the wholesaler did, in fact, qualify as a service provider. The District Court and the Court of Appeal had therefore applied the wrong legal standard.
Earlier case law of the Court of Justice of the European Union (CJEU) had already established that the concept of a “service” under EU law is far broader than its ordinary meaning in everyday language. For example, in its Appingedam judgment of 2018, the CJEU ruled that the retail sale of shoes and clothing constitutes a service within the meaning of the relevant EU legislation.
The relevant definition is found in Article 4(1) of Directive 2006/123/EC (the Services Directive). Under that provision, a service is defined as:
“any self-employed economic activity normally provided for remuneration, as referred to in Article 50 of the EC Treaty, now Article 57 TFEU.”
Article 57 TFEU provides that services are activities normally provided for remuneration, insofar as the provisions relating to the free movement of goods, capital and persons do not apply. This is a very broad concept, far broader than what is ordinarily understood by “services” in everyday language.
Providing General Terms and Conditions: Easier for Service Providers
The Supreme Court also provided further guidance on the circumstances in which making GTC available online through a website is sufficient. For service providers, a reference to the website may, under the more flexible requirements of Article 6:230c DCC, be sufficient to validly incorporate the GTC into the contract.
What Does This Mean for You? (Practical Considerations for 2026)
Even today, in 2026, this judgment remains highly relevant. A few practical points to keep in mind:
- Assess whether you qualify as a service provider. Given the broad EU-law concept of a “service,” this is more often the case than businesses expect, including for trading companies and wholesalers.
- Refer to your GTC clearly and effectively. Ensure that any reference (for example, in quotations, order confirmations, and invoices) is clear and that the GTC are actually accessible and available for consultation.
- Keep your GTC up to date and easily accessible on your website.
- Not sure whether Article 6:230c DCC or Article 6:234 DCC applies to your situation? Have your position assessed. The distinction can be decisive for the validity and enforceability of your GTC.
Frequently Asked Questions (FAQ)
Can general terms and conditions be made available solely through a website?
For service providers, this may be sufficient under the more flexible requirements of Article 6:230c DCC. For businesses that do not qualify as service providers, the stricter requirements of Article 6:234 DCC apply, under which making the terms available only on a website will generally not be sufficient.
What did the Supreme Court decide on 2 June 2023?
The Supreme Court held that a wholesaler qualifies as a service provider within the meaning of EU law (ECLI:NL:HR:2023:835). As a result, the more flexible rules governing the provision of general terms and conditions apply.
What is the difference between Article 6:230c DCC and Article 6:234 DCC?
Article 6:230c DCC sets out more flexible requirements for service providers to make their GTC available, including by referring customers to a website. Article 6:234 DCC, by contrast, imposes stricter requirements for providing general terms and conditions.
Why is the concept of a “service” interpreted so broadly?
Because it is based on the Services Directive (2006/123/EC) and Article 57 TFEU. The Appingedam judgment of the Court of Justice of the European Union (2018) already confirmed that even retail activities can qualify as a “service” for the purposes of EU law.
Questions?
Do you have questions about your general terms and conditions or about whether your business qualifies as a service provider? Feel free to contact our Corporate Law Attorneys.
