Opinion of the Advocate General — ECLI:EU:C:1997:468
Date: 1997-10-08
Language of the case: German
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Brussels Convention of 27 September 1968;Brussels Convention of 27 September 1968 - Jurisdiction
Procedure: Reference for a preliminary ruling
Origin: Germany

summary enforcement procedure, more 
simplified than ordinary enforcement 
6 — Case 150/80 Elefanten Schuh ν Jacqmain [1981] ECR 1671, 
paragraph 17. 
7 — Case 27/81 Rohr ν Ossberger [1981] ECR 2431, paragraph 8; 
Case 25/81 W. ν Η. [1982] ECR 1189, paragraph 13; and Case 
201/82 Gerling ν Amministrazione del Tesoro dello Stato 
[1983] ECR 2503, paragraph 21. 
8 — Case 145/86 Hoffmann ν Krieg [1988] ECR 645, paragraph 
10. 
I - 2282 
MIETZ ν INTERSHIP YACHTING SNEEK 
proceedings, which seeks to limit the require­
ments to which the enforcement of decisions 
given in one Contracting State may be sub­
jected to in another Contracting State. 
10. Thus, the first part of the procedure is 
not adversarial (Article 34, first paragraph). 
11. Moreover, the principle is that enforce­
ment is granted without the need for the court 
applied to to review the jurisdiction of the 
Court of the State of origin (Article 28, third 
paragraph). 9 
12. It is only on an exceptional basis that 
such review is carried out, in particular where 
certain rules of jurisdiction are at issue. That 
is why, under the second paragraph of Article 
34, 'The application may be refused only for 
one of the reasons specified in Articles 27 
and 28.' 
In particular, under the first paragraph of 
Article 28, enforcement may not be given to 
judgments given in disregard of the provi­
sions on jurisdiction in matters relating to 
insurance (Section 3, Articles 7 to 12a), or of 
those concerning consumer contracts (Section 
4: Articles 13 to 15), or of the rules relating 
to exclusive jurisdiction contained in Article 
16 (Section 5). 
Within this examination of the grounds of 
jurisdiction set out in the first paragraph of 
Article 28, 'the court or authority applied to 
shall be bound by the findings of fact on 
which the court of the State of origin based 
its jurisdiction' (Article 28, second paragraph). 
13. Finally, according to the third paragraph 
of Article 34, 'Under no circumstances may 
the foreign judgment be reviewed as to its 
substance'. 
Factual and procedural background 
14. The dispute in the main proceedings con­
cerns the enforcement of a contract between 
the creditor, Intership Yachting Sneek BV, a 
company incorporated under Dutch law and 
having its registered place of business in the 
Netherlands town of Sneek, and the debtor, 
Mr Mietz, who is domiciled in Lüchow, Ger­
many, where he runs a construction business 
and trades in construction materials. 
9 — This absence of review is justified by the existence of strict 
rules of jurisdiction and the confidence placed in the court of 
the State in which judgment is given, which has to cover the 
application by the court of the State in which judgment is 
given of the Convention rules (Report on the Convention of 
27 September 1968 concerning jurisdiction and the enforce­
ment of decisions in civil and commercial matters (OJ 1979 
C 59, p. 1), known as the 'Jenard Report', p. 46). 
I - 2283 
OPINION OF MR LÉGER — CASE C-99/% 
15. The parties agreed that the debtor would 
purchase an Intership boat of type 1.150 G. 
It was agreed that the boat would be subject 
to substantial modifications 10 before its final 
delivery. The total purchase price of DEM 
250 000 was payable in five successive instal­
ments, all due before final delivery. 1 1 This 
agreement was set down in writing in a docu­
ment called a 'contract of sale' signed at Sneek, 
Netherlands. 
16. Following partial failure by the debtor to 
make certain payments, the creditor, through 
the procedure of 'kort geding', 12 in which 
both sides were heard, obtained on 12 May 
1993 a provisionally enforceable judgment 
from the President of the Arrondissements­
rechtbank (District Court) of Leeuwarden, a 
Dutch court with interim jurisdiction, 
ordering the recovery of part of the debt 
(almost two thirds of the total amount 
payable). 
17. Enforcement of this judgment having been 
granted in Germany by the Landgericht 
(Regional Court), Lüneburg, the debtor lodged 
an appeal before the Oberlandesgericht 
(Higher Regional Court). 
18. In support of this appeal, the debtor con­
tested, for the first time, 13 the jurisdiction of 
the Dutch court of origin, which he claimed 
had disregarded the consumer protection pro­
visions of Articles 13 and 14 of the Conven­
tion granting jurisdiction to the courts of his 
place of domicile, Germany. Consequently, 
the court applied to, in examining the juris­
diction of the court of origin, could not, 
where it found an infringement of these pro­
visions, grant the enforcement sought in Ger­
many, in conformity with the second para­
graph of Article 34, which refers back to the 
first paragraph of Article 28. 
19. In order to claim the benefit of the provi­
sions of Title II, Section 4, he put forward the 
following two arguments. 
On the one hand, the boat ordered was only 
intended for strictly private use, so that his 
capacity as a 'consumer' under the first para­
graph of Article 13 was established. 
On the other hand, the transcription in Sneek 
(Netherlands) of the earlier agreement was 
purely formal, the contract having been orally 10 — According to the referring court, the alterations were: two 
72 HP Solé-Mazda engines; double keel, stainless steel rail­
ings, convertible covering with tinted glass, 4 000 kW Volvo 
diesel heating system, ventilation outlet above the kitchen, 
descending spiral stairway, front dining area altered to seat 
four people and a kitchen with white tiling (order for refer­
ence, II, first paragraph). 
11 — These five instalments were divided in the following manner: 
15% on signing of the contract, 20% on commencement of 
construction, 30% on the fitting of the engine, 15% on com­
mencement of the wood work and 20% at the first sailing. 
12 — This procedure is provided for in Articles 289 to 297 of the 
Dutch Civil Procedure Code. 
13 — This point can be particularly inferred from the order for 
reference, II, third paragraph. The Bundesgerichtshof seems 
to indicate by this that the challenge to the jurisdiction had 
not been raised before the court of origin. It will be recalled 
that, as the procedure before the court of the State to which 
request is made is not adversarial (Article 34, first para­
graph), the debtor could not have put this argument before 
the Landgericht Lüneburg. 
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MIETZ ν INTERSHIP YACHTING SNEEK 
concluded in Germany prior to signature in 
the Netherlands. 14 It was at a visit to the 
creditor's exhibition stand at the Bootsmesse 
(Pleasure Boat Show) in Düsseldorf, Ger­
many, that the debtor indicated his intention 
to buy the boat there on display; this not 
being possible, it was agreed between the par­
ties that a boat of the same model would be 
built for him, incorporating the alterations 
specified by the debtor. 
This second argument appears to seek to 
demonstrate that the disputed contract falls 
within the scope of point 3 of the first para­
graph of Article 13 of the Convention. 
20. The Oberlandesgericht dismissed the 
appeal and, as a result, refused not to grant 
enforcement of the Netherlands judgment for 
failure to observe the consumer protection 
rules in Section 4 of Title II. 
21. Mr Mietz brought an appeal on a point 
of law before the Bundesgerichtshof. 
The questions referred for a preliminary 
ruling 
22. The court has set out in its order of 
referral the object and content of its inquiries 
which form the basis of the questions sub­
mitted to this court. It asks whether there is 
any reason that would justify it in refusing to 
grant enforcement of the judgment obtained 
in the Dutch court of origin. 
23. Its first two questions examine the argu­
ments put forward by the debtor and seek to 
determine whether the case before it is of a 
kind which deserves special protection, either 
because the disputed agreement constitutes a 
'sale of goods on instalment credit terms' 
(Article 13, first paragraph, point 1) or a 
'contract for the supply of goods or a con­
tract for the supply of services' concluded by 
a consumer (Article 13, first paragraph, 
point 3). 
24. In the context of the examination of point 
3 of the first paragraph of Article 13, the 
referring court wants to know whether it can 
take into account matters put forward by the 
debtor which were not considered in the 
judgment given in the court of origin. These 
concern matters of fact raised before the Ober-
landesgericht seeking to establish that the 
conditions required under (a) and (b) of this 
provision are satisfied (in particular, in this 
case, the fact that the contract was orally con­
cluded at the Bootsmesse in Düsseldorf). The 
Bundesgerichtshof observes that, by virtue of 
14 — According to the order for reference, the recording of such 
a contract under German law seems to be purely a matter 
of form. 
I - 2285 
OPINION OF MR LÉGER — CASE C-99/96 
the second paragraph of Article 28, in car­
rying out a review of the jurisdiction of the 
court of the State of origin under the rules of 
Section 4 of Title II, the court of the State to 
which request is made is 'bound by the find­
ings of fact on which the court of the State of 
origin based its jurisdiction'. In so far as the 
Dutch court did not base its jurisdiction on 
findings of fact, the referring court asks 
whether the wording of the second paragraph 
of Article 28 prevents it from taking account 
of these new matters. 
Those considerations form the basis of the 
third question. 15 
25. The national court points out that, if the 
answers to these first three questions ruled 
out the application of the first paragraph of 
Article 28, it could not review the jurisdic­
tion of the court of origin, and consequently 
could not oppose enforcement of the disputed 
decision. It would thus have to reject the 
appeal. 16 
26. Hence its fourth question, for which an 
answer is only sought if the first paragraph of 
Article 28 applies. In this case, if enforcement 
in principle could not be granted by reason of 
the misapplication by the court of origin of 
the rules contained in Section 4 of Title II, 
the referring court proposes to examine the 
question of enforcement from a different per­
spective, that of Article 24 of the Convention. 
Thus it asks whether a measure granted by 
way of a procedure of 'kort geding' is a 'pro­
visional, including protective, measure' within 
the meaning of Article 24. In such a case, the 
Bundesgerichtshof thinks that 'Articles 13 and 
14 of the Brussels Convention would, from 
the outset, not preclude recognition'. 17 
27. The wording of the four questions which 
have been submitted is as follows: 
' 1 . Is there a sale of goods on instalment 
credit terms within the meaning of point 
1 of the first paragraph of Article 13 of 
the Brussels Convention in the case 
where, in a document described by the 
parties as a "contract of sale", one of the 
parties undertakes to manufacture a spe­
cific type of motor yacht with nine speci­
fied alterations and to transfer it to the 
other party, and the latter is required 
15 — The Bundesgerichtshof points out (III, point 3, third para­
graph of the order for reference) that 'those submissions 
have not been contested in the proceedings for recognition, 
with the result that, under Paragraph 138(3) of the Code of 
Civil Procedure, they might have to be regarded as true, 
with the consequence that the courts of the State of origin 
lacked jurisdiction. But even if it were still necessary to 
adduce evidence in that regard, the present court, as a court 
of appeal on a point of law, would not be in a position to 
do so. It would then have to set aside the contested decision 
of the Oberlandesgericht by a decision terminating the pro­
ceedings and refer the case back to the Oberlandes gericht 
for the taking of evidence.' 
16 — Order for reference, III, point 3, first paragraph. 17 — Ibid., III, point 3, second paragraph. 
I - 2286 
MIETZ ν INTERSHIP YACHTING SNEEK 
to pay DEM 250 000 for it in five instal­
ments? 
If the first question is answered in the nega­
tive: 
2. Is the contract described in the first ques­
tion a contract for the supply of goods 
within the meaning of point 3 of the first 
paragraph of Article 13 of the Brussels 
Convention? 
3. Under the second paragraph of Article 
34 of the Brussels Convention, in con­
junction with the second paragraph of 
Article 28 thereof, must account also be 
taken of new facts which, according to 
the debtor, establish that the court of the 
State of origin has infringed the provi­
sions of Section 4 of Title II of that 
Convention? 
If either the first or the second and third 
questions are answered in the affirmative: 
4. Does the possibility provided for in Arti­
cles 289 to 297 of the Netherlands Wet­
boek van Burgerlijke Rechtsvordering 
(Code of Civil Procedure) for obtaining 
a judgment ordering payment of con­
tractual consideration through applica­
tion for an immediate interim order by 
way of an abbreviated procedure ("kort 
geding") constitute a provisional meas­
ure within the meaning of Article 24 of 
the Brussels Convention?' 
Answers to the questions 
Position on the suggestion to deal first with 
Article 18 of the Convention 
28. As stated above, within the system of the 
Convention, Article 18 provides for volun­
tary or implied submission to jurisdiction. 
The Commission relies on this provision and 
argues, first of all,1 8 that the questions referred 
would be without purpose if the debtor had 
entered an appearance before the court of 
origin without any reservation. The United 
Kingdom Government has, in essence, put 
forward the same argument. 1 9 
29. However, it seems to me that a number 
of arguments prevent the adoption of such an 
approach. 
18 — IV, first paragraph, of its observations. 
19 — Sec paragraph 10 of its observations. 
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OPINION OF MR LÉGER — CASE C-99/96 
30. First of all, in my opinion, there is insuf­
ficient information before us in the present 
case to allow us to form an opinion as to the 
applicability of Article 18. 
That provision allows submission to jurisdic­
tion only in so far as the defendant's appear­
ance is entered solely to make submissions as 
to the substance of his defence. 20 However, 
as the parties have not taken part in the pro­
ceedings before this Court, we cannot be cer­
tain in this regard. The order for reference 
only permits vague assumptions. The Bundes­
gerichtshof has stated that the debtor con­
tested the jurisdiction of the court of origin 
only at the stage of the appeal against the 
decision of enforcement, 21 from which one 
can deduce that the debtor did not contest 
the jurisdiction of the Dutch court during the 
proceedings before that court, and limited 
himself to submissions as to the substance of 
his defence. However, it is conceivable that 
the debtor's submissions as to the substance 
of the case before the president of the 
Arrondissementsrechtbank te Leeuwarden 
were merely ancillary to a challenge to juris­
diction. In that case, in accordance with the 
abovementioned case of Elefanten Schuh, his 
appearance could not be deemed to amount 
to submission to jurisdiction. 
31. A further difficulty would arise if it were 
decided to apply Article 18 to the present 
matter: does this provision allow submission 
to jurisdiction irrespective of the rules of 
jurisdiction for the protection of consumers 
in Section 4 of Title II? If the contract at issue 
were to be regarded as within the types pro­
vided for in Article 13, this question would 
certainly have to be resolved as a preliminary 
point. 
An argument based on the wording of Article 
18 favours its applicability in such a case: the 
only limitation resulting from the wording of 
this provision is the existence of exclusive 
jurisdiction by virtue of Article 16. Con­
versely, Article 18 seems to allow the parties 
to submit to jurisdiction of the court of a 
State regardless of any other rules of jurisdic­
tion. In particular, the wording of Article 18 
appears to show that nothing prevents, by 
virtue of that implied consent, jurisdiction 
being conferred in consumer contract matters 
on a court other than that indicated by the 
second paragraph of Article 14. 22 
The case-law of this Court may also be inter­
preted as being in favour of this argument. 
This Court has not been reluctant to bring 
into operation the effect of submission to 
jurisdiction when the jurisdiction which was 
departed from resulted from a clause confer­
ring jurisdiction pursuant to Article 17: '... 
Article 18 of the Convention applies even 
where the parties have by agreement desig­
nated a court which is to have jurisdiction 
within the meaning of Article 17'. 23 If it is 
20 — See point 7 of the present Opinion. 
21 — Order for reference, II, third paragraph. 
22 — See, in this regard, Gaudemet-Tallon, H.: Les conventions de 
Bruxelles et de Lugano, L. G. D. J., 1996, paragraph 145; 
Gothot, P. and Holleaux, D.: La convention de Bruxelles du 
27.9.1968, Jupiter, 1985, paragraph 193, and the Jenard 
Report: 'the only cases...where jurisdiction by submission 
will not be allowed are those in which the courts of another 
State have exclusive jurisdiction by virtue of Article 16' 
(p. 38, emphasis added). 
23 — Elefanten Schuh, paragraph 11; Case 48/84 Spitzley v Sommer 
Exploitation [1985] ECR 787, paragraph 26. 
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MIETZ v INTERSHIP YACHTING SNEEK 
considered that the defendant's wishes at the 
time of the proceedings can derogate from 
the previous wishes of the parties, his appear­
ance should also permit derogations from the 
Convention rules which are favourable to 
him. The defendant is free, as it were, not to 
take advantage of the protection which is 
afforded to him. 
However, another argument based on the 
wording of the Convention can be made 
against this proposition. By virtue of the 
fourth paragraph of Article 17, the rules of 
jurisdiction in matters of insurance and con­
sumer contracts are expressly withdrawn from 
the intention of the parties. 24 In such mat­
ters, the choice of forum cannot come into 
operation; 25 the parties are, in a way, obliged 
to benefit from the protective rules provided 
for in their favour, without being able to 
depart from them by a demonstration of 
intent. It is true that such a limitation does 
not appear in the wording of Article 18. 
However, their observation alone could be 
considered insufficient to establish that, 
although the parties cannot depart from the 
protective rules by choosing a forum at the 
time of conclusion of the contract, their mere 
appearance results in de facto loss of the ben­
efit of the protection provided for. Yet, it 
seems to me that, in admitting contractual 
prorogation of jurisdiction 'after the dispute 
has arisen', point 1 of Article 15 covers not 
only clauses conferring jurisdiction under 
Article 17 but also implied submission to 
jurisdiction under Article 18. 
32. The purpose of the above exposition on 
this latter point is not to resolve the difficulty 
raised, but simply to highlight it. If the course 
suggested by the Commission and the United 
Kingdom Government were to be followed, 
it would first of all have to be decided whether 
the defendant's appearance in itself can over­
ride the Convention's protective rules pro­
vided for in his favour. I now turn to the last 
aspect of this examination of the applicability 
of Article 18 to the present case. 
33. We have already seen two of the difficul­
ties which this question raises: on the one 
hand, the examination to be undertaken might 
become, for want of factual elements in our 
possession, hypothetical or academic, on the 
other hand, it needs to be demonstrated, first 
of all, that voluntary appearance allows dero­
gation from the rules of jurisdiction provided 
for in the second paragraph of Article 14. 
34. But, above all, we must remember that 
we find ourselves at the stage of enforcement 
proceedings. We saw the importance within 
the system of the Convention of the fact that 
the court of enforcement cannot, in principle, 
examine the jurisdiction of the court of ori­
gin. 26 The only exceptions which are likely 
24 — That provision reads: " Agreements ... conferring jurisdic­
tion shall have no legal force if they are contrary to the pro­
visions of Articles 12 or 15... ". 
25 — Points 1 and 2 of Article 15 only provide for two situations 
where such clauses are lawful: in the first place, clauses 
agreed after the dispute has arisen, since the consumer is 
then aware of what he is agreeing to, and, secondly, clauses 
which allow the consumer to bring proceedings in the courts 
other than those having jurisdiction under Section 4 of the 
Convention. However, point 3 of Article 15 allows parties 
domiciled or habitually resident in the same Contracting 
State at the time of conclusion of the contract to confer 
jurisdiction on the courts of that State, provided that such 
an agreement is not contrary to the law of that State. 26 — See paragraph 11 of the present Opinion. 
I - 2289 
OPINION OF MR LÉGER — CASE C-*99/96 
to be of interest in the present case deal with 
the grounds of jurisdiction provided for in 
Sections 3, 4 and 5 of Title II. 
35. Therefore, the referring court can only 
examine the jurisdiction of the Dutch court 
of origin from the point of view of the rules 
provided for under those sections, to the 
exclusion of any other. Thus it can satisfy 
itself, as suggested by the debtor, that the 
rules of jurisdiction in the field of consumer 
protection have not been misapplied. On the 
other hand, the system of enforcement put in 
place does not entitle it to verify whether the 
court of origin has properly applied the rules 
of jurisdiction provided for in Article 18. 
Even if the Dutch court had, in applying this 
provision, assumed jurisdiction by virtue of 
the defendant's appearance, the court applied 
to would not be entitled to review the proper 
application of this provision. Yet, this would 
be the case if the court applied to was allowed 
to examine the question of the application of 
Article 18 by the court of origin. In so doing, 
the court applied to would carry out an 
analysis which could only be considered as a 
review, in a certain sense, of the jurisdiction 
of the court of origin in the light of Article 
18. It would in fact have to resolve the two 
types of difficulties I mentioned above. Was 
the purpose of the defendant's appearance 
solely to challenge the substance of the case 
without contesting jurisdiction? If so, does 
Article 18 allow the wishes of the parties to 
prevail over the protective rules of the Con­
vention? Even if the court applied to consid­
ered it had to answer these two questions in 
the affirmative, it would have to have carried 
out, beforehand, an analysis on the proper 
application of this provision by the court of 
origin, in order to reach that conclusion. 
36. Given that the Convention does not entitle 
a review of the jurisdiction of the court of 
origin by the court applied to in the light of 
the Convention rules except in certain very 
specific instances, and that the jurisdiction 
provided for under Article 18 is not one of 
these instances, I think that the Court cannot 
ask the referring court to refrain from ver­
ifying that Articles 13 to 15 were complied 
with by suggesting that Article 18 should 
prevail. 
37. As a result, I propose that the Court 
answer the national court's questions without 
examining beforehand the application of 
Article 18 in this instance. 
The questions concerning the consumer 
protection rules 
38. The first three questions seek to deter­
mine whether the consumer protection rules 
(Section 4 of Title II) were misapplied by the 
Dutch court of origin, in which case the 
referring court cannot grant the enforcement 
sought. 
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MIETZ ν INTERSHIP YACHTING SNEEK 
39. I have no doubt as to the personal appli­
cation of these rules to the present case. 
40. The first paragraph of Article 13 of the 
Convention defines a 'consumer' as someone 
acting 'for a purpose which can be regarded 
as outside his trade or profession'. 2 7 
41. This Court has concluded that '...only 
contracts concluded for the purpose of satis­
fying an individual's own needs in terms of 
private consumption come under the provi­
sions designed to protect the consumer as 
the party deemed to be the weaker party 
economically'. 2 8 
42. This is very much the case here. The 
debtor acted not in a professional capacity, 
but as a private individual. The acquisition of 
the boat at issue was actually to satisfy his 
own private consumption needs. In particular, 
it was totally separate from the business 
activity of the debtor, who runs a construc­
tion business and trades in construction 
materials. 
43. The hesitation of the referring judge to 
consider the debtor as a 'consumer' under the 
first paragraph of Article 13, by reason of the 
size of the transaction, 2 9 seems to me to be 
without foundation. In fact, '... in order to 
determine whether a person has the capacity 
of consumer ... reference must be made to the 
position of the person concerned in a par­
ticular contract, having regard to the nature 
and aim of that contract, and not to the sub­
jective situation of the person concerned.' 3 0 
The status of consumer is thus not reserved 
only to those persons who are economically 
weak or disadvantaged. 
44. Mr Mietz's capacity as a consumer in the 
disputed transaction thus not being in any 
doubt, it must be considered whether this 
transaction falls within the scope of Section 4 
of Title II, since these provisions 'affect only 
... a consumer ... who is bound by one of the 
contracts listed in Article 13'. 3 1 
The first question: Article 13, first paragraph, 
point 1 
45. Can the disputed transaction be consid­
ered as a 'sale of goods on instalment credit 
terms' within the meaning of point 1 of the 
27 — This is also the definition contained in Article 5 of the Con­
vention on the law applicable to contractual obligations 
opened for signature in Rome on 19 June 1980 (OJ 1980 
L 266, p. 1, hereinafter the 'Rome Convention'), and in 
Article 2 of Council Directive 93/13/EEC of 5 April 1993, 
concerning unfair terms in consumer contracts (OJ 1993 
L 95, p. 29). 
28 — See, most recently, Case C-269/95 Benincasa v Dentalkit 
[1997] ECR I-3767, paragraph 17. 
29 — At III, fourth paragraph, of the order for reference: 'It could 
nevertheless be questioned whether someone who buys 
something at a price of DEM 250 000 for recreational use 
needs the special protection of the rules on jurisdiction over 
consumer contracts.' 
30 — Benincasa, paragraph 16. 
31 — Case C-89/91 Shearson Lehman Hutton v TVB [1993] ECR 
I-139, paragraph 22. 
I - 2291 
OPINION OF MR LÉGER — CASE C-99/96 
first paragraph of Article 13? All the inter­
veners in the present case have given a nega­
tive response to this first question. I propose 
that their analysis should be followed. 
46. The disputed contract was treated as a 
'works contract'32 by the President of the 
Arrondissementsrechtbank te Leeuwarden on 
the basis of Dutch law, whereas it might be a 
'mixed commercial and sale contract'33 in 
German law. 34 The parties, for their part, 
have called it a 'contract of sale'. The refer­
ring court also expresses an opinion that there 
is a sale of goods on instalment credit terms 
within the meaning of point 1 of the first 
paragraph of Article 13 only when a ready-
made item or an item manufactured for stock 
for general use is handed over.35 
47. In this context, this Court has empha­
sised that the need for 'eliminating obstacles 
to legal relations and to the settlement of dis­
putes in the context of intra-Community rela­
tions in matters of the sale of goods on instal­
ment credit terms' leads to 'consider that 
concept as being independent and therefore 
common to all the Member States'.36 
48. As a result, neither the parties' own des­
ignation in the particular case nor the solu­
tions adopted under differing national laws 
can prevail. 
49. In the absence of a definition in the text 
of the Convention,37 the Court has consid­
ered '...that the sale of goods on instalment 
credit terms is to be understood as a transac­
tion in which the price is discharged by way 
of several payments or which is linked to a 
financing contract.' 38 
50. An operation by which the creditor agrees 
to transfer title in goods under construction 
to the debtor, in return for payment in a series 
of five instalments, could satisfy the above 
definition, were it not for a factor which 
seems to me to be decisive in the present case, 
but did not have to be examined in the Ber­
trand judgment. 
32 — Also called 'business contract' or 'industrial contract'. 
33 — That is to say including the provision of labour, as well as 
materials. 
34 — Order for reference, III, fifth paragraph. 
35 — Ibid., III, sixth paragraph. 
36 — Case 150/77 Bertrand ν OTT [1978] ECR 1431, paragraph 
14 (emphasis added). 
37 — The Jenard Report also limits itself to stating that Section 4 
of Title II 'relates to the sale of goods where the price is 
payable in a series of instalments, and to the sale of goods 
where the sale is contractually linked to a loan (Abzahlungs­
geschäfte)', p.33. The Report on the Convention of 9 October 
1978 on the accession of the Kingdom of Denmark, Ireland 
and the United Kingdom of Great Britain and Northern Ire­
land to the Convention on jurisdiction and the enforcement 
of judgments in civil and commercial matters and to the 
Protocol on its interpretation by the Court of Justice 
(OJ 1979 C 59, p. 118), known as the 'Schlosser Report', 
docs not clarify the matter any further but refers to 
Article 5 of the Rome Convention (p. 118). 
38 — Bertrand, ibid., paragraph 20. 
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MIETZ ν INTERSHIP YACHTING SNEEK 
51. This is because the series of instalments, 
in the case we are dealing with, all take place 
before the delivery of the goods contracted 
for. 
52. However, as stated in the abovemen-
tioned Bertrand judgment, '...a restrictive 
interpretation of the second paragraph of 
Article 14, in conformity with the objectives 
pursued by Section 4, entails the restriction of 
the jurisdictional advantage...to buyers who 
are in need of protection, their economic 
position being one of weakness in comparison 
with sellers'. 3 9 In this sense, a buyer who is 
granted credit by the seller is indeed in a 
position of weakness. However, this is cer­
tainly not the case where the buyer is billed 
for the total price before the delivery of the 
good, even if the obligation to pay is spread 
out over several instalments. Such a buyer 
cannot be regarded as having been '...induced 
to purchase by the system of payment by 
instalments, in so far as payment in a lump 
sum would have been the cause of economic 
difficulties for him'. 4 0 In reality, in a situation 
such as the present, the buyer does not require 
any special protection. 
53. Therefore, I am of the opinion that the 
disputed transaction cannot be considered as 
a sale of 'goods on instalment credit terms' 
within the meaning of point 1 of the first 
paragraph of Article 13 of the Convention 
in the absence of 'payments made after 
delivery'. 4 1 
54. Thus, enforcement of the Dutch court's 
judgment cannot be refused on the ground of 
misapplication of the applicable rules on con­
tracts of this kind. 
The second and third questions: Article 28, 
second paragraph and Article 13, first para­
graph, point 3 
55. If it does not fall within the scope of 
point 1 of the first paragraph of Article 13 of 
the Convention, can the transaction at issue 
nevertheless be regarded as falling under point 
3 of the first paragraph of Article 13? That is 
the purpose of the second question. 
56. Before examining this point, it seems nec­
essary to first consider the third question. In 
order to decide whether the disputed contract 
falls within the scope of point 3 of the first 
paragraph of Article 13, and in particular 
whether the conditions provided for in (a) 
and (b) of this provision are satisfied in this 
instance, it must be shown that the court of 
the State applied to is entitled to base its 
assessment on matters put forward by the 
39 — Paragraph 21. 
40 — Opinion of Advocate General Capotorti in Bertrand, at 
p. 1-1450, paragraph 3. 
41 — Gothot, P., and Holleaux, D., op. cit., point 135, paragraph 
2, emphasis added. 
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OPINION OF MR LÉGER — CASE C-99/96 
debtor which were not mentioned by the 
court of the State of origin in its decision. As 
a result, if the answer to the third question is 
in the negative, the second does not call to be 
answered. 
57. According to the second paragraph of 
Article 28 of the Convention, 'In its examina­
tion of the grounds of jurisdiction referred to 
in the foregoing paragraph, the court or 
authority applied to shall be bound by the 
findings of fact on which the court of the 
State of origin based its jurisdiction'. 
58. That provision, according to the Jenard 
Report, '...avoids recourse to time-wasting 
duplication in the exceptional cases where 
re-examination of the jurisdiction of the court 
of origin is permitted'. 42 
59. It seems to me that if we do not allow the 
court applied to to disregard the findings of 
fact made by the court of origin, we cannot 
equally accept that it should receive new mat­
ters of fact which had not been put before the 
court of origin. The justification is the same 
in both cases: it is a question of avoiding all 
delaying tactics. Such an objective could be 
jeopardised if the court of the State applied to 
had to take into account new submissions of 
the debtor, capable of calling into question 
the jurisdiction of the court first seised, in 
order to prevent the enforcement sought, 
when the debtor could have submitted those 
arguments in the original proceedings. If the 
production of new arguments of fact before 
the court applied to were to be admitted, it 
would be open to any defendant seeking to 
disrupt the course of the fast procedure pro­
vided for in the Convention deliberately not 
to put forward certain essential arguments 
until the enforcement stage, in order to pre­
vent enforcement of the judgment. 
60. Although the Court has not yet had the 
opportunity to rule on such a situation under 
the second paragraph of Article 28, the 
case-law concerning the third paragraph of 
Article 34 gives useful indications which can 
be applied by analogy to the present case. 
61. In the Van Dalfsen and Others case,43 
faced with '...the question whether the court 
with which the appeal is lodged may take 
into consideration, in a decision concerning 
an application for a stay of proceedings under 
the first paragraph of Article 38 of the Con­
vention, arguments unknown to the foreign 
court at the time of its judgment because the 
appellant had failed to put them before it ' ,4 4 
the Court ruled that, by reason of the prohi­
bition of review as to the substance set out in 
the third paragraph of Article 34, a court of 
appeal can take into account, in its decision 
42 — Page 46. 
43 — Case C-183/90 [1991] ECR I-4743, paragraph 34. 
44 — Paragraph 34. 
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MIETZ ν INTERSHIP YACHTING SNEEK 
concerning a request for a stay of proceed­
ings under Article 38, '...only such submis­
sions as the appellant was unable to put before 
the court of the State where the judgment 
was given'. 4 5 
62. In my opinion, in the same way as the 
court applied to can take into consideration, 
in its decision concerning a request for a stay 
of proceedings under Article 38, 'only such 
submissions as the appellant was unable to 
put before the court of the State where the 
judgment was given', similarly, the court 
applied to can take into account, in its deci­
sion concerning enforcement, only the argu­
ments which could not have been relied on 
before the court of origin. 
This is clearly not the case here: Mr Mietz 
was perfectly able to put forward before the 
Dutch court of origin the matters of fact 
which he alleged in the course of the pro­
ceedings in the State applied to. 
63. Consequently, I think that the matters 
put forward by the debtor before the courts 
of that State, seeking to establish that the dis­
puted contract was one of those referred to in 
point 3 of the first paragraph of Article 13, in 
that it consisted of a contract for the supply 
of goods or a contract for the supply of ser­
vices, concluded as a result of advertising 
taking place in the State of domicile of the 
consumer (the Bootsmesse in Düsseldorf) and 
with the consumer having taken in that State 
the steps necessary for the conclusion of the 
contract (contract concluded orally during the 
Bootsmesse), cannot be admitted by the court 
applied to, since they could have been put 
before the court of origin. 
64. In view of the answer proposed to be 
given to the third question, the second does 
not need to be answered. Since the court 
applied to cannot take into account the mat­
ters of fact put forward in support of the 
application of point 3 of the first paragraph 
of Article 13, it cannot review the jurisdiction 
of the court of origin under that provision. 
65. Thus it is only in the alternative that I 
offer the following observations on the second 
question submitted to the Court. 
66. In this regard, were it not for the inability 
of the German court in the present case to 
take into account the factual elements put 
forward by the debtor, this question would 
have to be given a positive reply in my 
opinion. 
67. Firstly, as noted above, the disputed con­
tract at issue was concluded by a consumer 
within the meaning of Article 13. 45 — Paragraph 37 and operative part. 
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OPINION OF MR LÉGER — CASE C-99/96 
68. Secondly, the subject of the contract, 
according to the information provided by the 
referring court, being the delivery of a boat to 
which a number of substantial modifications 
were to be made, the condition requiring, 
under point 3 of the first paragraph of Article 
13, the contract to be 'for the supply of goods 
or ... for the supply of services' appears to be 
satisfied in the present case. 
69. Finally, point 3 of the first paragraph of 
Article 13 requires that two cumulative con­
ditions are satisfied, 46 to ensure a sufficiendy 
close connection between the contract and 
the country of domicile of the consumer. 47 
70. The first of these conditions requires that 
the conclusion of the contract was preceded 
by a 'specific invitation addressed to him or 
by advertising' in that State. The Report by 
Professors M. Giuliano and P. Lagarde on the 
Rome Convention, 48 to which the Schlosser 
Report refers, 49 states that this includes all 
forms of advertising in the State where the 
consumer is domiciled, or a special offer 
addressed to him. 50 In the present case, a dis­
play on a stand during a pleasure boat fair in 
Düsseldorf certainly amounts to a form of 
advertising in the State where the consumer is 
domiciled. 51 It would in any event be for the 
court seised to satisfy itself as to the correct­
ness of this factual element. 
71. The second condition requires that the 
consumer has taken in his State of domicile 
'the steps necessary for the conclusion of the 
contract'. The aforementioned Giuliano-
Lagarde Report states that this expression 
avoids the problem of determining the place 
where the contract was concluded, and 
includes any written document (or any action) 
indicating the intention of the consumer to 
follow up the special offer or advertising. 52 
Likewise, if it were established, as Mr Mietz 
claims, that he indicated his intention to pur­
chase the boat contracted for at the Boots-
messe in Düsseldorf, this second condition 
would be satisfied. The court applied to would 
have to satisfy itself of this in any event. 
The classification of a measure taken following 
a procedure of 'kort geding' as a 'provisional, 
including protective' measure under Article 24 
of the Convention. 
72. The fourth question, by which the national 
court asks for the classification, from 
the point of view of Article 24 of the 
46 — Schlosser Report, point 158. 
47 — Ibid. 
48 — Report concerning the Convention on the law applicable to 
contractual obligations (OJ 1980 C 282, p.l), called the 
'Giuliano-Lagarde Report'. 
49 — Paragraph 158, in fine. 
50 — Pages 23 and 24. 
51 — The Giuliano-Lagarde Report thus refers to '.. situations 
where the consumer has addressed himself to the stand of a 
foreign firm at a fair or exhibition taking place in the con­
sumer's country...' (p. 24). 
52 — Page 24. 
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MIETZ ν INTERSHIP YACHTING SNEEK 
Convention, of a measure taken following a 
procedure of 'kort geding', would not need 
to be answered if the Court follows my pre­
vious argument. This question is only sub­
mitted on the basis that the Court considers 
the disputed contract to be one of the types 
referred to in point 1 of paragraph 1 of Article 
13 or point 3 of paragraph 1 of Article 13. 
73. Furthermore, it is significant that, in asking 
this question, the referring court seems to be 
prepared to undertake a review of the juris­
diction of the court of origin, which it is pro­
hibited from doing under the third paragraph 
of Article 28. In fact, the court applied to is 
permitted to verify that the court of origin 
has correctly applied the rules of the Conven­
tion only where the rules contained in Sec­
tions 3, 4 and 5 of Title II are at issue. Apart 
from these situations, any review is prohib­
ited. Thus, if it were concluded, following the 
examination of the first two questions, that 
the consumer protection provisions were 
indeed wrongly applied by the court of origin, 
the court applied to could not in any event 
grant enforcement of the disputed decision. It 
could not engage in a lengthy search of the 
other grounds of jurisdiction on which the 
court applied to could have based jurisdic­
tion, so as to 'make up for', as it were, its lack 
of jurisdiction under the consumer protection 
rules. Even should the fourth question have 
to be answered in the affirmative, this would 
not allow the court applied to to base the 
jurisdiction of the court of origin on Article 
24 of the Convention rather than on Article 
13, in order to avoid refusing enforcement on 
the ground of misapplication of the consumer 
protection provisions. 
74. In addition, I should again point out 53 
the complexity of the question raised, which 
the present case invites the Court to examine 
for the third time. 5 4 
75. While taking the opportunity to refer 
back to my Opinion in the afore-mentioned 
Van Uden case on this point, I emphasise, as 
I did there, that the wide range of measures 
which may be adopted under the 'kort geding' 
procedure does not, in my opinion, allow an 
absolute and abstract answer to be given to 
the question of their classification under 
Article 24 of the Convention. 5 5 Whereas, in 
the Van Uden case, it appeared to me that 
there were sufficient elements relating to the 
course of the Dutch proceedings and their 
subject-matter, to answer, in the alternative, 
the question posed, in the absence of any such 
elements in the present case, it seems dan­
gerous for me to express an opinion, even in 
the alternative. 
53 — See my Opinion of 10 June 1997 in the Van Uden case 
(C-391/95, pending, point 101 et seq.). 
54 — In the abovementioned W. ν Η. case, the referring court sub­
mitted the exact same question to this Court, but the Court 
did not need to answer the question. The Van Uden case, 
currently pending, raises a question in similar terms. 
55 — It is undoubtedly because of this variety of situations that 
the Commission, in the present case, has adopted a position 
on the question diametrically opposed to that it put forward 
in the Van Uden case. 
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OPINION OF MR LÉGER — CASE C-99/96 
Conclusion 
76. For the foregoing reasons, I propose to answer the questions submitted by the 
Bundesgerichtshof as follows: 
(1) The concept of 'sale of goods on instalment credit terms', within the meaning 
of point 1 of the first paragraph of Article 13 of the Convention of 27 Sep­
tember 1968 on jurisdiction and the enforcement of judgments in civil and 
commercial matters, cannot be understood as including a transaction having as 
its object the supply of goods to a person acting for a purpose which can be 
regarded as being outside his trade or profession, when the price, payable in 
instalments, is fully due before the final delivery of the goods to the consumer 
who has purchased them. 
(2) Within the system of the Convention, the second paragraph of Article 34 and 
the second paragraph of Article 28 must be interpreted as precluding the court 
of the State applied to from taking into account, in the exercise of its excep­
tional power of review of the jurisdiction of the court of origin under Section 
4 of Title II, matters of fact other than those that the court of origin has taken 
into account or could have taken into account if the party putting them for­
ward had not refrained from adducing them before it. 
In the alternative, 
(3) The concept of 'contract for the supply of goods or a contract for the supply 
of services', within the meaning of point 3 of the first paragraph of Article 13, 
must be interpreted as including the case of a contract for the supply of a motor 
boat, in so far as that contract fulfils the two cumulative conditions under (a) 
and (b) relating to its connection with the place of domicile of the consumer. 
(4) The system put in place by the Convention and, in particular, the second para­
graph of Article 34, in so far as it refers to the third paragraph of Article 28, 
does not permit the court of the State applied to to review the jurisdiction of 
the court of the State of origin under Article 24 of the Convention. 
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