Judgment of the Court (Second Chamber) of 20 January 2005 in Case C-27/02 (reference for a preliminary ruling by the Oberlandesgericht Innsbruck): Petra Engler v Janus Versand GmbH (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)
Date: 2005-03-05
Institutions: Court of Justice
Subjects: Austria, advertising malpractice, consumer protection, contract, interpretation of the law

C 57/2

EN

Official Journal of the European Union

5.3.2005

— a person who concludes a contract for goods intended for purposes
which are in part within and in part outside his trade or profes-
sion may not rely on the special rules of jurisdiction laid down in
Articles 13 to 15 of the Convention, unless the trade or profes-
sional purpose is so limited as to be negligible in the overall
context of the supply, the fact that the private element is predomi-
nant being irrelevant in that respect;

— it is for the court seised to decide whether the contract at issue
was concluded in order to satisfy, to a non-negligible extent, needs
of
the person concerned or whether, on the
contrary, the trade or professional purpose was negligible;

the business of

— to that end, that court must take account of all the relevant
factual evidence objectively contained in the file. On the other
hand, it must not take account of facts or circumstances of which
the other party to the contract may have been aware when the
contract was concluded, unless the person who claims the capacity
of consumer behaved in such a way as to give the other party to
the contract the legitimate impression that he was acting for the
purposes of his business.

(1) OJ C 56 of 02.03.2002.

JUDGMENT OF THE COURT

(Second Chamber)

of 20 January 2005

in Case C-27/02 (reference for a preliminary ruling by the
Innsbruck): Petra Engler v Janus
Oberlandesgericht
Versand GmbH (1)

(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 adver-
tising 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)

the Convention of 27 September 1968 on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters
from the Oberlandesgericht Innsbruck (Austria), made by deci-
the Court 31 January
sion 14 January 2002, registered at
2002,
in the proceedings between Petra Engler and Janus
Versand GmbH – the Court (Second Chamber) composed of
C.W.A. Timmermans, President of the Chamber, C. Gulmann
and R. Schintgen (Rapporteur), Judges; F.G. Jacobs, Advocate
General, M.-F. Contet, Principal Administrator, for the Regis-
trar, gave a judgment on 20 January 2005, in which it ruled:

The rules of jurisdiction of the Convention of 27 September 1968 on
Jurisdiction and the Enforcement of Judgments in Civil and Commer-
cial 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
in nature for the
prize ostensibly won by him is contractual
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 cata-
logue 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 interpreta-
tion.

(2005/C 57/03)

(1) OJ C 109 of 04.05.2002.

(Language of the case: German)

In Case C-27/02: reference to the Court under the Protocol of
3 June 1971 on the interpretation by the Court of Justice of