CELEX: 62002CJ0027
Language: en
Date: 2005-01-20 00:00:00
Title: Judgment of the Court (Second Chamber) of 20 January 2005.#Petra Engler v Janus Versand GmbH.#Reference for a preliminary ruling: Oberlandesgericht Innsbruck - Austria.#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.#Case C-27/02.

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)

      
      
      
      
      
      
      
      
      
      
      
      
      
      
      
            
            JUDGMENT OF THE COURT (Second Chamber)20 January 2005(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 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)
               
               
            In Case C-27/02, REFERENCE for a preliminary ruling under the Protocol of 3 June 1971 on the interpretation by the Court of Justice of 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 decision 14 January 2002, registered at the Court 31 January 2002, in the proceedings
            
            
             Petra Engler 
            
            
            v
            
             Janus Versand GmbH ,
            
            
            
            THE COURT (Second Chamber),,
            
             composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann and R. Schintgen (Rapporteur), Judges,
            
             Advocate General: F.G. Jacobs,Registrar: M.-F. Contet, Principal Administrator,
             having regard to the written procedure and further to the hearing 26 May 2004,after considering the observations submitted on behalf of:
            
            –
             Ms Engler, by K.-H. Plankel and S. Ganahl, Rechtsanwälte,
            
            –
             Janus Versand GmbH, by A. Matt, Rechtsanwalt,
            
            –
             the Austrian Government, by C. Pesendorfer, acting as Agent, and A. Klauser, Rechtsanwalt,
            
            –
             the Commission of the European Communities, by A.-M. Rouchaud and W. Bogensberger, acting as Agents, 
            
            
            
            after hearing the Opinion of the Advocate General at the sitting on 8 July 2004,
         gives the following
         
         
         Judgment
         1
            
          This reference for a preliminary ruling concerns the interpretation of Article 5(1) and (3) and Article 13, first paragraph,
         point 3, of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters
         (OJ 1978 L 304, p. 36), 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 (OJ 1978 L 304, p. 1 and – amended text – p. 77), by the Convention
         of 25 October 1982 on the Accession of the Hellenic Republic (OJ 1982 L 388, p. 1), by the Convention of 26 May 1989 on the
         Accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1), 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 (OJ 1997 C 15, p. 1) (‘the
         Brussels Convention’).
         
         
         
         2
            
          The reference was made in the course of proceedings between Ms Engler, an Austrian national domiciled in Lustenau (Austria),
         and Janus Versand GmbH, a mail order company incorporated under German law established in Langenfeld (Germany), concerning
         an action for an order requiring Janus Versand to award Ms Engler a prize, since in a letter personally addressed to her it
         had given Ms Engler the impression that she had won a prize.
         
         
            
                Legal background 
               
             The Brussels Convention 
         
         3
            
          The rules on jurisdiction laid down by the Brussels Convention are set out in Title II, which consists of Articles 2 to 24.
         
         
         
         4
            
          The first paragraph of Article 2 of the Brussels Convention, which forms part of Title II, Section 1, entitled ‘General provisions’,
         sets out the basic rule in the following terms:
         ‘Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality,
         be sued in the courts of that State.’
         
         
         
         5
            
          The first paragraph of Article 3 of the Brussels Convention, which appears in the same section, provides:
         
         ‘Persons domiciled in a Contracting State may be sued in the courts of another Contracting State only by virtue of the rules
         set out in Sections 2 to 6 of this Title.’
         
         
         
         6
            
          Articles 5 to 18 of the Brussels Convention, which make up Sections 2 to 6 of Title II thereof, lay down rules governing special,
         mandatory or exclusive jurisdiction.
         
         
         
         7
            
          Thus, under Article 5, which appears in Section 2, entitled ‘Special jurisdiction’, of Title II of the Brussels Convention:
         ‘A person domiciled in a Contracting State may, in another Contracting State, be sued:
         
         1)
            in matters relating to a contract, in the courts for the place of performance of the obligation in question; ...
         
         …
         
         3)
            in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred; 
         
         …’
         
         
         
         8
            
          Also under Title II of the Brussels Convention, Articles 13 and 14 form part of Section 4, entitled ‘Jurisdiction over consumer
         contracts’.
         
         
         
         9
            
          Article 13 of the Brussels Convention is worded as follows:
         ‘In proceedings concerning a contract concluded by a person for a purpose which can be regarded as being outside his trade
         or profession, hereinafter called “the consumer”, jurisdiction shall be determined by this Section, without prejudice to the
         provisions of point 5 of Articles 4 and 5, if it is:
         
         (1)
            a contract for the sale of goods on instalment credit terms; or
         
         
         (2)
            a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or
         
         
         (3)
            any other contract for the supply of goods or a contract for the supply of services, and
         
         
            
               (a)
                  in the State of the consumer’s domicile the conclusion of the contract was preceded by a specific invitation addressed to
                     him or by advertising; and
                  
               
         
         
         
            
               (b)
                  the consumer took in that State the steps necessary for the conclusion of the contract.
               
         
         
          Where a consumer enters into a contract with a party who is not domiciled in a Contracting State but has a branch, agency
         or other establishment in one of the Contracting States, that party shall, in disputes arising out of the operations of the
         branch, agency or establishment, be deemed to be domiciled in that State.
          This section shall not apply to contracts of transport.’
         
         
         
         10
            
          The first paragraph of Article 14 of the Brussels Convention provides:
         ‘A consumer may bring proceedings against the other party to a contract either in the courts of the Contracting State in which
         that party is domiciled or in the courts of the Contracting State in which he is himself domiciled.’
         
         
         
         11
            
          That rule of jurisdiction may be departed from only if there is compliance with the conditions laid down in Article 15 of
         the Brussels Convention.
         
          The relevant national provisions 
         
         12
            
          Paragraph 5j of the Konsumentenschutzgesetz (Austrian Consumer Protection Law) (BGBl. I, 1979, p. 140) is worded as follows:
         ‘Undertakings which send prize notifications or other similar communications to specific consumers, and by the wording of
         those communications give the impression that a consumer has won a particular prize, must give that prize to the consumer;
         it may also be claimed in legal proceedings.’
         
         
         
         13
            
          That provision was added to the Consumer Protection Law by Paragraph 4 of the Fernabsatz-Gesetz (Austrian Law on Distance
         Contracts) (BGBl. I, 1999, p. 185) when Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on
         the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19) was transposed into Austrian law.
         
         
         
         14
            
          That provision entered into force on 1 October 1999.
         
         
         
         15
            
          The Oberlandesgericht Innsbruck states in its order for reference that the aim of Paragraph 5j is to grant a right of action
         to the consumer in order to bring proceedings to enforce a ‘prize notification’, where the consumer was misled on account
         of the fact that a business person, who contacted him personally, gave him the impression that he had won a prize, whereas
         the real aim of that action, to induce him to place an order for goods, only appears in small print or in an obscure part
         of the letter and in terms which are not easily comprehensible.
         
          The dispute in the main proceedings and the question for a preliminary ruling 
         
         16
            
          It is apparent from the case file in the main proceedings that at the beginning of 2001 Ms Engler received a letter personally
         addressed to her at her domicile from Janus Versand, which carries on business as a mail order company. That letter contained
         a ‘payment notice’, whose form and content led her to believe that she had won a prize of ATS 455 000 in a ‘cash prize draw’
         organised by Janus Versand, and a catalogue of goods marketed by the latter (which apparently also called itself, in its relations
         with its customers, ‘Handelskontor Janus GmbH’) with a ‘request for a trial without obligation’. In the advertising brochure
         sent to Ms Engler Janus Versand stated that it could also be contacted on the Internet at the following address: www.janus-versand.com.
         
         
         
         17
            
          On the ‘payment notice’ the word ‘confirmation’ appears in the title together with the winning number printed in bold characters.
         The name and address of the addressee and beneficiary of the payment notice are those of Ms Engler, and it is accompanied
         by the words ‘personal – not transferable’. The ‘payment notice’ states, also in bold print, the amount of the prize in figures
         (ATS 455 000) and the same amount in letters underneath, together with a confirmation signed by a Mr Ulrich Mändercke, certifying
         that ‘the amount of the prize stated is correct and in accordance with the document in our possession’, the words ‘chambers
         and office of certified and sworn experts’ accompany that signature. Furthermore, Ms Engler was requested to affix to the
         ‘payment notice’, in the space provided for that purpose, the ‘official stamp of the chambers’ accompanying the letter and
         to return the request for the ‘trial without obligation’ to Janus Versand. A box for the date and signature, a request to
         ‘fill it in’ and a reference in small print to the terms and conditions and the award of the prize supposedly won also feature
         on the ‘payment notice’. Ms Engler had to declare on the ‘payment notice’ that she had read and accepted those conditions.
         Finally, it also urged the addressee to return ‘today’ the document duly completed in order that it could be processed, and
         an envelope was attached for that purpose.
         
         
         
         18
            
          In those circumstances Ms Engler, as Janus Versand had requested, returned the ‘payment notice’ to it, as she believed that
         that was sufficient in order to obtain the promised prize of ATS 455 000.
         
         
         
         19
            
          At first Janus Versand did not react, it then refused to pay that sum to Ms Engler.
         
         
         
         20
            
          Ms Engler therefore brought an action against Janus Versand before the Austrian courts, based primarily on Paragraph 5j of
         the Konsumentenschutzgesetz, for an order that Janus Versand pay her the sum of ATS 455 000, plus costs and ancillary amounts.
         Ms Engler argues that that claim is a contractual claim since Janus Versand, by promising to award a prize, had encouraged
         her to conclude a contract with that company for sale of goods. However, such a claim is also founded on other grounds, in
         particular, the breach of pre-contractual obligations. In the alternative, Ms Engler takes the view that her claim is brought
         in tort, delict or quasi-delict.
         
         
         
         21
            
          Janus Versand contested the jurisdiction of the Austrian courts to hear the claim stating, first of all, that the letter on
         which that claim is founded did not come from it but from Handelskontor Janus GmbH, a company which is a separate legal entity;
         second, that it had not promised any prize to Ms Engler and, finally, that it did not have any contractual relationship with
         her.
         
         
         
         22
            
          On 2 October 2001 the Landesgericht Feldkirch (Austria) dismissed Ms Engler’s action for lack of jurisdiction, since it held
         that she had not shown the connection between Janus Versand and the sender of the prize notification, namely ‘Handelskontor
         Janus GmbH, Postfach 1670, Abt. 3 Z 4, D-88106 Lindau’.
         
         
         
         23
            
          Ms Engler appealed against that judgment to the Oberlandesgericht Innsbruck.
         
         
         
         24
            
          The Oberlandesgericht Innsbruck takes the view that in order to decide the question of jurisdiction regard must be had to
         the Brussels Convention. In that connection, it is necessary to establish whether the action brought by Ms Engler must be
         regarded as being founded on a contractual right for the purpose of Article 5(1) of the Brussels Convention, whether the action
         is in tort, delict or quasi-delict for the purpose of Article 5(3), or whether it is covered by Article 13, first paragraph,
         point 3, of that convention.
         
         
         
         25
            
          The national court points out that a similar question had already been referred to the Court by the Oberster Gerichtshof (Austria)
         in the case which gave rise to the judgment in Case C-96/00  Gabriel  [2002] ECR I-6367, a judgment given after this reference for a preliminary ruling was made to the Court, but that the facts
         forming the basis of that case are different from those in the present case. In  Gabriel  the undertaking in question had made the participation in the lottery and, therefore, the payment of the prize allegedly
         won, dependent on an order which had to be placed beforehand by the consumer, whereas in this case the award of the prize
         is not subject either to the placing of an order for goods by the consumer or their delivery by Janus Versand. Sending the
         ‘payment notice’ was sufficient for that purpose.
         
         
         
         26
            
          However, at the same time as the communication relating to the alleged prize, the consumer received a catalogue of goods sold
         by Janus Versand and a request for a ‘trial without obligation’, which was clearly to induce the addressee to conclude a contract
         for the purchase of goods offered by that company. The national court concludes that, whereas in  Gabriel  a contract for the sale of goods had been concluded, in this case, apart from the prize notification which could, if necessary,
         be assessed separately, only pre-contractual relations existed between the parties.
         
         
         
         27
            
          As it formed the view that, in those circumstances, the resolution of the dispute before it depended on the interpretation
         of the Brussels Convention, the Oberlandesgericht Innsbruck decided to stay proceedings and to refer the following question
         to the Court for a preliminary ruling:
         ‘For the purposes of the Brussels Convention ..., does the provision in Paragraph 5j of the Austrian Konsumentenschutzgesetz
         ..., in the version of Art I, para. 2, of the Austrian Fernabsatz-Gesetz ..., which entitles certain consumers to claim from
         undertakings in the courts prizes ostensibly won by them where the undertakings send (or have sent) them prize notifications
         or other similar communications worded so as to give the impression that they have won a particular prize, constitute:
         
         (a)
            a contractual claim under Article 13(3); or
         
         
         (b)
            a contractual claim under Article 5(1); or
         
         
         (c)
            a claim in respect of a tort, delict or quasi-delict under Article 5(3)
         
          where on the basis of the documents sent to him a sensible consumer could have thought that all he had to do to claim the
         amount held for him was to return an enclosed payment notice, so that the payment of the prize did not depend on an order
         for and delivery of goods from the undertaking promising the prize, but where a catalogue and a request for a trial offer
         without obligation are sent to the consumer with the prize notification?’
         
          The question referred for a preliminary ruling 
         
         28
            
          Taking account of the factual background of the case in the main proceedings, the question posed must be construed as asking,
         essentially, whether the rules of jurisdiction set out in the Brussels Convention are to be interpreted as meaning that judicial
         proceedings by which a consumer seeks an order, in the Contracting State in which he is domiciled and pursuant to that State’s
         legislation, requiring a mail-order company established in another Contracting State to award a prize ostensibly won by him
         is contractual in nature for the purposes of Article 5(1) or Article 13, first paragraph, point 3, or constitutes a claim
         in respect of a tort, delict or quasi-delict for the purposes of Article 5(3), where that company had addressed to the consumer
         personally a letter of such a kind as to give the impression that a prize would be given to him when he requested payment
         by returning the ‘payment notice’ attached to that letter and where a catalogue advertising products for that company and
         a request for a ‘trial without obligation’ were also contained, but the award of the prize was not dependent on an order for
         goods and even though the consumer did not actually make such an order.
         
         
         
         29
            
          In order to answer the question thus reformulated, the Court observes at the outset that, according to settled case-law, the
         concept of matters relating to tort, delict or quasi-delict covered by Article 5(3) of the Brussels Convention includes all
         actions which seek to establish the liability of a defendant and which are not related to a contract within the meaning of
         Article 5(1) of that Convention (see, inter alia, Case 189/87  Kalfelis  [1988] ECR 5565, paragraph 17; Case C-261/90  Reichert and Kockler  [1992] ECR I-2149, paragraph 16; Case C-51/97  Réunion européenne and Others  [1998] ECR I-6511, paragraph 22;  Gabriel , paragraph 33; and Case C-167/00  Henkel  [2002] ECR I-8111, paragraph 36).
         
         
         
         30
            
          It follows that it is necessary first to examine whether an action such as that at issue in the main proceedings is contractual
         in nature.
         
         
         
         31
            
          In that connection, Article 5(1) of the Brussels Convention relates to contractual matters in general, whereas Article 13
         thereof relates specifically to various types of contracts concluded by consumers.
         
         
         
         32
            
          As Article 13 of the Brussels Convention thus constitutes a  lex specialis  in relation to Article 5(1), it is first of all necessary to determine whether an action having the characteristics set out
         in the question referred for a preliminary ruling, as reformulated in paragraph 28 above, may fall within the scope of Article
         13.
         
         
         
         33
            
          As the Court has repeatedly held, the concepts used in the Brussels Convention – and in particular those featured in Article
         5(1) and (3) and Article 13 – must be interpreted independently, by reference principally to the system and objectives of
         the Convention, in order to ensure that it is uniformly applied in all the Contracting States (see, in particular, Case 150/77
          Bertrand  [1978] ECR 1431, paragraphs 14, 15 and 16; Case C-89/91  Shearson  Lehman Hutton  [1993] ECR I‑139, paragraph 13; Case C-269/95  Benincasa  [1997] ECR I-3767, paragraph 12; Case C-99/96  Mietz  [1999] ECR I-2277, paragraph 26; and  Gabriel , paragraph 37).
         
         
         
         34
            
          As regards, more specifically, Article 13, first paragraph, point 3, of the Brussels Convention, the Court has already held,
         on the basis of the criteria set out in the previous paragraph, that 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 (see the judgment in  Gabriel , paragraphs 38 to 40 and 47 to 51).
         
         
         
         35
            
          However, it must be concluded that those conditions are not all satisfied in a case such as that in the main proceedings.
         
         
         
         36
            
          Although it is indisputable that in a situation of that kind the claimant in the main proceedings is a consumer covered by
         the first paragraph of Article 13 of the Brussels Convention and that the vendor made contact with the consumer in the manner
         provided for in point 3(a) of that provision, 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, the fact remains that in this case 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 that provision and in the course
         of which the parties assumed reciprocal obligations.
         
         
         
         37
            
          It is common ground that, in the case in the main proceedings, the award of the prize allegedly won by the consumer was not
         subject to the condition that she order goods from Janus Versand and no order was in fact placed by Ms Engler. Furthermore,
         it does not appear anywhere in the file that, by claiming the award of the promised ‘prize’, Ms Engler assumed any obligation
         towards that company, even by incurring an expense in order to obtain the award of the prize.
         
         
         
         38
            
          In those circumstances, an action such as that brought by Ms Engler in the case in the main proceedings cannot be regarded
         as being contractual in nature for the purposes of Article 13, first paragraph, point 3, of the Brussels Convention.
         
         
         
         39
            
          Contrary to the submissions of Ms Engler and the Austrian Government, that finding is not invalidated by the objective underlying
         that provision, namely to ensure adequate protection for the consumer as the party deemed to be economically weaker, or by
         the fact that, in this case, the letter was sent by Janus Versand to the consumer in person accompanied by a claim form entitled
         ‘request for trial without obligation’ and clearly intended to induce her to place an order for goods sold by that company.
         
         
         
         40
            
          As is apparent from its wording, Article 13 clearly covers a ‘contract concluded’ by a consumer ‘for the supply of goods or
         a contract for the supply of services’.
         
         
         
         41
            
          The interpretation in paragraphs 36 to 38 of the present judgment is supported by the position of the rules on jurisdiction
         over consumer contracts, set out in Title II, Section 4, of the Brussels Convention, in the scheme of that convention.
         
         
         
         42
            
          Articles 13 to 15 of the Convention constitute a derogation from the basic rule, provided for in the first paragraph of Article
         2 of that convention, which confers jurisdiction on the courts of the Contracting State in which the defendant is domiciled.
         
         
         
         43
            
          It follows that, in accordance with settled case-law, the specific rules of jurisdiction provided for in Articles 13 to 15
         of the Brussels Convention must give rise to a strict interpretation which cannot go beyond the cases envisaged by the Convention
         (see, in particular, the judgments in  Bertrand , paragraph 17;  Shearson Lehman Hutton , paragraphs 14 to 16;  Benincasa , paragraph 13; and  Mietz , paragraph 27).
         
         
         
         44
            
          Since Article 13, first paragraph, point 3, of the Brussels Convention is not applicable, therefore, in a case with the characteristics
         set out in the question as reformulated in paragraph 28 of the present judgment, it is therefore necessary to consider whether
         an action such as that at issue in the main proceedings may be regarded as being contractual in nature for the purposes of
         Article 5(1) of that convention.
         
         
         
         45
            
          In that connection it must be stated at the outset that, as it appears from its very wording, Article 5(1) of the Brussels
         Convention does not require the conclusion of a contract (see, to the same effect, the judgment in Case C-334/00  Tacconi  [2002] ECR I-7357, paragraph 22).
         
         
         
         46
            
          It must also be recalled that the Court has already held that jurisdiction to hear disputes concerning the existence of a
         contractual obligation must be determined in accordance with Article 5(1) of the Brussels Convention and that that provision
         is therefore applicable even when the existence of the contract on which the claim is based is in dispute between the parties
         (see the judgment in Case 38/81  Effer  v  Kanter  [1982] ECR 825, paragraphs 7 and 8).
         
         
         
         47
            
          Furthermore, it is clear from the case-law that the obligations which are based on the affiliation between an association
         and its members must be regarded as contractual for the purpose of Article 5(1) of the Brussels Convention, on the ground
         that the membership of a private law association creates between the members close links of the same kind as those which are
         created between the parties to a contract (see the judgment in Case 34/82  Peters  [1983] ECR 987, paragraphs 13 and 15). 
         
         
         
         48
            
          It follows from the foregoing that, as the Advocate General pointed out in point 38 of his Opinion, the concept of ‘matters
         relating to contract’ referred to in Article 5(1) of the Brussels Convention is not interpreted narrowly by the Court.
         
         
         
         49
            
          It follows that the finding made in paragraphs 38 and 44 of the present judgment that the legal action brought in the main
         proceedings is not contractual in nature for the purposes of the first paragraph of Article 13 of the Brussels Convention
         does not in itself prevent that action from relating to a contract for the purposes of Article 5(1).
         
         
         
         50
            
          In order to determine whether such is the case in the main proceedings, it must be observed that it is clear from the case-law,
         first, that although Article 5(1) of the Brussels Convention does not require the conclusion of a contract, the identification
         of an obligation is none the less essential for the application of that provision, since the jurisdiction of the national
         court is determined in matters relating to a contract by the place of performance of the obligation in question (see judgment
         in  Tacconi , paragraph 22). Second, the Court has held on several occasions that the definition of matters relating to contract within
         the meaning of Article 5(1) of the Brussels Convention is not to be understood as covering a situation in which there is no
         obligation freely assumed by one party towards another (Case C-26/91  Handte  [1992] ECR I-3967, paragraph 15;  Réunion européenne  and Others , paragraph 17;  Tacconi , paragraph 23; and Case C-265/02  Frahuil  [2004] ECR I-0000, paragraph 24).
         
         
         
         51
            
          Accordingly, the application of the rule of special jurisdiction provided for matters relating to a contract in Article 5(1)
         presupposes the establishment of a legal obligation freely consented to by one person towards another and on which the claimant’s
         action is based.
         
         
         
         52
            
          In that regard, the national court held that in this case, first of all, a professional vendor sent on its own initiative
         to the consumer’s domicile, without any request by her, a letter designating her by name as the winner of a prize.
         
         
         
         53
            
          Such a letter, sent to addressees and by the means chosen by the sender solely on its own initiative, may therefore constitute
         an obligation ‘freely assumed’ for the purpose of the case-law cited in paragraph 50 of the present judgment.
         
         
         
         54
            
          Furthermore, according to the national court, a prize notification made in such circumstances by a professional vendor who
         has not drawn attention to the existence of a loophole and has even used a formulation of such a kind as to mislead the consumer
         in order to induce him to enter a contract by acquiring the goods offered by that vendor, could reasonably lead the addressee
         of the letter to believe that a prize would be awarded to him if he returned the ‘payment notice’ attached.
         
         
         
         55
            
          Second, it is clear from the file submitted by the national court that the addressee of the letter at issue expressly accepted
         the prize notification made out in her favour by requesting payment of the prize she had ostensibly won.
         
         
         
         56
            
          From that moment at least, the intentional act of a professional vendor in circumstances such as those in the main proceedings
         must be regarded as an act capable of constituting an obligation which binds its author as in a matter relating to a contract.
         Therefore, and subject to the final classification of that obligation, which is a matter for the national court, the condition
         concerning the existence of a binding obligation by one party to the other, referred to in the case-law cited in paragraph
         50 of the present judgment, may also be regarded as satisfied.
         
         
         
         57
            
          Legal proceedings such as those brought in the main proceedings by the consumer are intended to claim, as against a professional
         vendor, the award of a prize ostensibly won and whose payment has been refused by the latter. Therefore it is founded specifically
         on the prize notification, since the ostensible beneficiary invokes the failure to award the prize as the reason for bringing
         the proceedings.
         
         
         
         58
            
          It follows that all the conditions necessary for the application of Article 5(1) of the Brussels Convention are satisfied
         in a case such as that in the main proceedings.
         
         
         
         59
            
          For the reasons stated by the Advocate General in point 48 of his Opinion, the mere fact that the professional vendor did
         not genuinely intend to award the prize announced to the addressee of his letter is irrelevant in that respect. Having regard
         to what was stated in paragraph 45 of the present judgment, the same is true for the fact that the award of the prize did
         not depend on an order for goods and that the consumer did not in fact make such an order.
         
         
         
         60
            
          In those circumstances an action such as that brought by Ms Engler before the national court falls within the scope of Article
         5(1) of the Brussels Convention so that, as is clear from paragraph 29 of the present judgment, there is no longer any need
         to consider whether Article 5(3) is applicable.
         
         
         
         61
            
          In the light of all the foregoing considerations, the answer to the question submitted must be that the rules of jurisdiction
         set out in the Brussels Convention must be construed 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.
            
         
         
         
         
         Costs
         62
            
          Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court,
         the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs
         of those parties, are not recoverable.
         
         
         
         
         
         
            
            
         
         
          On those grounds, the Court (Second Chamber) rules as follows:
          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. 
                  
               
            
            [Signatures]
      
      
          1 –
            
            Language of the case: German.