Johann Gruber v Bay Wa AG.
Date: 2005-01-20
31. According to settled case-law, the concepts used in the Brussels Convention – which include, in particular, that of ‘consumer’ for the purposes of Articles 13 to 15 of that Convention – must be interpreted independently, by reference principally to the scheme and purpose 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 Case C-96/00 Gabriel  [2002] ECR I-6367, paragraph 37).
32. First of all, within the scheme of the Brussels Convention, the jurisdiction of the courts of the Contracting State in which the defendant is domiciled constitutes the general principle enshrined in the first paragraph of Article 2, and it is only by way of derogation from that principle that the Convention provides for an exhaustive list of cases in which the defendant may or must be sued before the courts of another Contracting State. As a consequence, the rules of jurisdiction which derogate from that general principle are to be strictly interpreted, so that they cannot give rise to an interpretation going beyond the cases envisaged by the Convention (see, in particular, Bertrand , paragraph 17; Shearson Lehman Hutton , paragraphs 14, 15 and 16; Benincasa , paragraph 13, and Mietz , paragraph 27).
33. That interpretation must apply a fortiori with respect to a rule of jurisdiction, such as that contained in Article 14 of the Convention, which allows a consumer, within the meaning of the first paragraph of Article 13 of the Convention, to sue the defendant in the courts of the Contracting State in which the claimant is domiciled. Apart from the cases expressly provided for, the Convention does not appear to favour the attribution of jurisdiction to the courts of the claimant’s domicile (see Case C-220/88 Dumez France and Tracoba  [1990] ECR I-49, paragraphs 16 and 19; Shearson Lehman Hutton , paragraph 17; Benincasa , paragraph 14; and Case C-168/02 Kronhofer [2004] ECR I-0000, paragraph 20).
34. Second, the Court has repeatedly held that the special rules introduced by the provisions of Title II, Section 4, of the Brussels Convention, which derogate from the general rule laid down in the first paragraph of Article 2, and from the rules of special jurisdiction for contracts in general enshrined in Article 5(1) of the Convention, serve to ensure adequate protection for the consumer as the party deemed to be economically weaker and less experienced in legal matters than the other, commercial, party to the contract, who must not therefore be discouraged from suing by being compelled to bring his action before the courts in the Contracting State in which the other party to the contract is domiciled (see in particular Shearson Lehman Hutton , paragraph 18, and Gabriel , paragraph 39).
35. From the scheme of the rules of jurisdiction put in place by the Brussels Convention, as well as the rationale of the special rules introduced by the provisions of Title II, Section 4, the Court has concluded that those provisions only cover private final consumers, not engaged in trade or professional activities, as the benefit of those provisions must not be extended to persons for whom special protection is not justified (see to that effect inter alia Bertrand , paragraph 21; Shearson Lehman Hutton , paragraphs 19 and 22; Benincasa , paragraph 15; and Gabriel , paragraph 39).
36. In paragraphs 16 to 18 of the judgment in Benincasa  the Court stated in that respect that the concept of ‘consumer’ for the purposes of the first paragraph of Article 13 and the first paragraph of Article 14 of the Brussels Convention must be strictly construed, reference being made to the position of the person concerned in a particular contract, having regard to the nature and aim of that contract and not to the subjective situation of the person concerned, since the same person may be regarded as a consumer in relation to certain supplies and as an economic operator in relation to others. The Court held that only contracts concluded outside and independently of any trade or professional activity or purpose, solely for the purpose of satisfying an individual’s own needs in terms of private consumption, are covered by the special rules laid down by the Convention to protect the consumer as the party deemed to be the weaker party. Such protection is unwarranted in the case of contracts for the purpose of a trade or professional activity.
37. It follows that the special rules of jurisdiction in Articles 13 to 15 of the Brussels Convention apply, in principle, only where the contract is concluded between the parties for the purpose of a use other than a trade or professional one of the relevant goods or services.
39. In that regard, it is already clearly apparent from the purpose of Articles 13 to 15 of the Brussels Convention, namely to properly protect the person who is presumed to be in a weaker position than the other party to the contract, that the benefit of those provisions cannot, as a matter of principle, be relied on by a person who concludes a contract for a purpose which is partly concerned with his trade or profession and is therefore only partly outside it. It would be otherwise only if the link between the contract and the trade or profession of the person concerned was so slight as to be marginal and, therefore, had only a negligible role in the context of the supply in respect of which the contract was concluded, considered in its entirety.
44. That interpretation is also dictated by the fact that classification of the contract can only be based on an overall assessment of it, since the Court has held on many occasions that avoidance of multiplication of bases of jurisdiction as regards the same legal relationship is one of the main objectives of the Brussels Convention (see to that effect, in particular, Case C-256/00 Besix  [2002] ECR I-1699, paragraph 27; Gabriel , paragraph 57; and Case C-18/02 DFDS Torline  [2004] ECR I-0000, paragraph 26).
47. In the light of the evidence which has thus been submitted to it, it is therefore for the court seised to decide whether the contract was intended, to a non-negligible extent, to meet the needs of the trade or profession of the person concerned or whether, on the contrary, the business use was merely negligible. For that purpose, the national court should take into consideration not only the content, nature and purpose of the contract, but also the objective circumstances in which it was concluded.