Opinion of the Advocate General — ECLI:EU:C:2008:483
Date: 2008-09-11
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Austria

Summary of the Judgment Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation No 44/2001 – Jurisdiction over consumer contracts (Council Regulation No 44/2001, Art. 15(1)(c)) In a situation in which a consumer seeks, in accordance with the legislation of the Member State in which he is domiciled and before the court for the place in which he resides, an order requiring a mail-order company established in another Member State to pay a prize which that consumer has apparently won, and – where that company, with the aim of encouraging that consumer to conclude a contract, sent a letter addressed to him personally of such a kind as to give him the impression that he would be awarded a prize if he requested payment by returning the ‘prize claim certificate’ attached to that letter, – but without the award of that prize depending on an order for goods offered for sale by that company or on a trial order, the rules on jurisdiction laid down by Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as follows: – such legal proceedings brought by the consumer are covered by Article 15(1)(c) of that regulation, on condition that the professional vendor has undertaken in law to pay that prize to the consumer; – where that condition has not been fulfilled, such proceedings are covered by Article 15(1)(c) of Regulation No 44/2001 only if the consumer has in fact placed an order with that professional vendor. The wording of Article 15(1)(c) of Regulation No 44/2001, which is essentially identical to that of Article 13 of the Brussels Convention, requires a contract to have been concluded by a consumer with a person who pursues commercial or professional activities. For a contract to exist within the meaning of that provision, it is necessary that the professional vendor should assume a legal obligation by submitting a firm offer which is sufficiently clear and precise with regard to its object and scope as to give rise to a link of a contractual nature, that is to say by declaring itself to be unconditionally willing to pay the prize at issue to consumers who so request. In the absence of such a legal commitment, Article 15(1) applies only on condition that the misleading prize notification was followed by the conclusion of a contract by the consumer with the mail-order company evidenced by an order placed with the latter. (see paras 53-55, 59-60, operative part)