Case C-27/02

Petra Engler

v

Janus Versand GmbH

(Reference for a preliminary ruling from the Oberlandesgericht Innsbruck)

(Brussels Convention – Request for the interpretation of Article 5(1) and (3) and Article 13, first paragraph, point 3 – Entitlement of a consumer to whom misleading advertising has been sent to seek payment, in judicial proceedings, of the prize which he has ostensibly won – Classification – Action of a contractual nature covered by Article 13, first paragraph, point 3, or by Article 5(1) or in matters of tort, delict or quasi-delict by Article 5(3) – Conditions)

Opinion of Advocate General Jacobs delivered on 8 July 2004

Judgment of the Court (Second Chamber), 20 January 2005

Summary of the Judgment

1. Convention on Jurisdiction and the Enforcement of Judgments – Jurisdiction over consumer contracts – Article 13, first paragraph, point 3, of the Convention – Conditions of applicability – Action by a consumer domiciled in a Member State seeking an order that a mail-order company established in another Member State award a prize ostensibly won – In the absence of a connection with a contract for the supply of goods or services the action does not constitute an action of a contractual nature for the purpose of that provision

(Convention of 27 September 1968, Art. 13, first para., point 3)

2. Convention on Jurisdiction and the Enforcement of Judgments – Special jurisdiction – Jurisdiction in matters relating to contract – Action of a contractual nature – Meaning – Action by a consumer domiciled in a Member State seeking an order that a mail-order company established in another Member State award a prize ostensibly won – Included – Conditions – Letter addressed to the consumer designating him by name as the prize winner – Acceptance of the promise by the consumer and request for payment of the prize – Award of the prize not subject to an order for goods and no such order made – No effect

(Convention of 27 September 1968, Art. 5(1))

1. As regards Article 13, first paragraph, of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic, by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, and by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, relating to jurisdiction over consumer contracts, point 3 of that provision is applicable only in so far as, first, the claimant is a private final consumer not engaged in trade or professional activities, second, the legal proceedings relate to a contract between that consumer and the professional vendor for the sale of goods or services which has given rise to reciprocal and interdependent obligations between the two parties and, third, that the two conditions specifically set out in Article 13, first paragraph, point 3(a) and (b), are fulfilled.

Consequently, in a situation where a professional vendor made contact with a consumer by sending her a personalised letter containing a prize notification together with a catalogue and an order form for the sale of its goods in the Contracting State where she resides in order to induce her to take up the vendor’s offer, but where the vendor’s initiative was not followed by the conclusion of a contract between the consumer and the vendor for one of the purposes referred to in Article 13, first paragraph, point 3, of the Convention and in the course of which the parties assumed reciprocal obligations, the action brought by the consumer for the payment of the prize cannot be regarded as being contractual in nature for the purposes of that provision.

(see paras 34, 36, 38)

2. The rules of jurisdiction of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, by the Convention of 25 October 1982 on the Accession of the Hellenic Republic, by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic, and by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, must be interpreted in the following way:

– legal proceedings by which a consumer seeks an order, under the law of the Contracting State in which he is domiciled, that a mail order company established in another Contracting State award a prize ostensibly won by him is contractual in nature for the purpose of Article 5(1) of that convention, provided that, first, that company, with the intention of inducing the consumer to enter a contract, addresses to him in person a letter of such a kind as to give the impression that a prize will be awarded to him if he returns the ‘payment notice’ attached to the letter and, second, he accepts the conditions laid down by the vendor and does in fact claim payment of the prize announced;

– on the other hand, even though the letter also contains a catalogue advertising goods for that company and a request for a ‘trial without obligation’, the fact that the award of the prize does not depend on an order for goods and that the consumer has not, in fact, placed such an order has no bearing on that interpretation.

(see para. 61, operative part)