Arrondissementsrechtbank Maastricht, uitspraak van 22/02/1996 5540/1992
Decision by national courts in the field of European Union law — ECLI:NL:RBMAA:1996:99
Date: 1996-02-22
Subject matter: Brussels Convention of 27 September 1968
Origin: Netherlands

81996NL0222(51)_ENG_SUMJURE
JURE SUMMARY
JURE SUMMARY
The defendant, domiciled in Germany, ordered goods from the plaintiff, seated in the Netherlands, as a consumer. After payment had remained outstanding, the plaintiff filed a claim before the Rechtbank of Maastricht (NL). The defendant disputed jurisdiction and cited Article 13 of the Brussels Convention. It was undisputed that the defendant had contacted the plaintiff by telephone. After that conversation, the plaintiff took the defendant's specifications and confirmed the defendant's order. At dispute between the parties was at which place the order confirmation was signed by the defendant.
The Rechtbank of Maastricht (NL) leaves open the question at which place the order confirmation was signed by the defendant with respect to Article 13(1)(3)(b) of the Brussels Convention. It first reviews Article 13(1)(3)(a) of the Convention, for the interpretation of which it turns, on the instruction of the Schlosser Report, to the Giuliano/Lagarde Report on Article 5 of the Brussels Convention. According to the Giuliano/Lagarde Report, Article 13(1)(3)(a) applies to cases where the seller has taken steps to market its goods or services in the State of the consumer's domicile either by distance sales or brick and mortar sales, for instance via newspaper advertisements or specially themed catalogues. The Rechtbank reasons that Article 13(1)(3)(a) of the Brussels Convention only applies to cases wherein the consumer was approached by the other contracting party, who thereby takes the initiative for the creation of the contract. The court finds that it was the consumer who took the initiative in the present case, as the defendant established the first contact with the plaintiff with his telephone call. The ensuing order confirmation issued by the plaintiff does not constitute an express offer within the meaning of Article 13(1)(3)(a) of the Brussels Convention. The Rechtbank declares itself as having jurisdiction.