Rudolf Gabriel.
Date: 2002-07-11
3 The rules on jurisdiction laid down by the Brussels Convention are set out in Title II thereof, which consists of Articles 2 to 24.
33 In order to reply to the question as thus reformulated, it should be noted at the outset that, according to settled case-law, the concept of matters relating to tort, delict or quasi-delict within the meaning of Article 5(3) of the Brussels Convention covers 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; and Case C-51/97 Réunion Européenne and Others [1998] ECR I-6511, paragraph 22).
37 According to settled case-law, the concepts used in Article 13 of the Brussels Convention must be interpreted independently, by reference principally to the system and objectives of the Convention, in order to ensure that it is fully effective (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; and Case C-99/96 Mietz [1999] ECR I-2277, paragraph 26).
38 It follows from the actual wording of Article 13 that it is applicable only in so far as the action relates generally to a contract concluded by a consumer for a purpose outside his trade or profession.
39 It follows from that wording, and from the purpose of the special regime introduced by the provisions of Title II, Section 4, of the Brussels Convention, which is to ensure adequate protection for the consumer as the contracting party deemed to be economically weaker and less experienced in legal matters than his professional co-contractor, that those provisions cover only a private final consumer, not engaged in trade or professional activities, who is bound by one of the three types of contract listed in Article 13 of that Convention and who is also personally a party to the action, in accordance with Article 14 thereof (see Shearson Lehman Hutton, cited above, paragraphs 19, 20, 22 and 24).
40 With regard, more specifically, to a contract for the supply of services - other than a contract of transport, which is excluded from the scope of Section 4 of Title II of the Brussels Convention pursuant to the third paragraph of Article 13 thereof - or a contract for the supply of goods, as referred to in Article 13, first paragraph, point 3, that provision sets out two additional conditions of application, namely that the conclusion of the contract was preceded in the State of the consumer's domicile by a specific invitation addressed to him or by advertising, and that the consumer took in that State the steps necessary for the conclusion of that contract.
44 The concepts of `advertising' and `specific invitation addressed' featuring in the first of those conditions common to the Brussels and Rome Conventions cover all forms of advertising carried out in the Contracting State in which the consumer is domiciled, whether disseminated generally by the press, radio, television, cinema or any other medium, or addressed directly, for example by means of catalogues sent specifically to that State, as well as commercial offers made to the consumer in person, in particular by an agent or door-to-door salesman.
48 Second, in a situation such as that in point in the main proceedings, the consumer and the professional vendor were indubitably linked contractually once Mr Gabriel had ordered goods offered by Schlank & Schick, thereby demonstrating his acceptance of the offer - including all conditions attaching thereto - which that company had sent to him in person.
49 Furthermore, that concordance of intention between the two parties gave rise to reciprocal and interdependent obligations within the framework of a contract which has specifically one of the objects described in Article 13, first paragraph, point 3, of the Brussels Convention.
50 Thus, in regard to a case such as that in the main proceedings, that contract relates more specifically to the supply, through a mail-order sale, of goods ordered by a consumer on the basis of a proposal made and at a price specified by the vendor.
51 Third, the two conditions specifically set out in Article 13, first paragraph, point 3(a) and (b), of the Brussels Convention are also satisfied.
52 The vendor addressed the consumer in the Contracting State in which the latter was domiciled by sending him several personalised letters, to which were attached a sales catalogue and an order form, with a view to persuading him to contract on the basis of those proposals and the conditions relating thereto.  Furthermore, as a result of those letters, the consumer took in that State the steps necessary to conclude the contract by placing an order for the amount stipulated by the vendor and by sending to the vendor the order form together with the copy of the `receipt'.
56 An interpretation of Article 13, first paragraph, of the Brussels Convention which would have the result that certain claims under a contract concluded by a consumer fall within the jurisdiction rules of Articles 13 to 15 of that Convention, whereas other actions that are linked so closely to that contract as to be indissociable are subject to other rules cannot be accepted.
57 The Court has in this regard recently recalled the need to avoid, so far as possible, a situation in which several courts have jurisdiction in respect of one and the same contract (see, by way of analogy, with regard to Article 5(1) of the Brussels Convention, Case C-256/00 Besix [2002] ECR I-0000, paragraph 27).
58 That need is all the more compelling in the case of a contract such as that in issue in the main proceedings.  In view of the fact that a multiplicity of courts having jurisdiction risks placing at a particular disadvantage a party deemed to be weak, such as a consumer, it is in the interest of the proper administration of justice that the latter should be able to bring before one and the same court - in casu that of his place of domicile - all of the difficulties that are likely to arise from a contract which the consumer has been induced to conclude by reason of the professional's use of forms of wording liable to mislead the other contracting party.