Petra Engler v Janus Versand GmbH.
Date: 2005-01-20
3. The rules on jurisdiction laid down by the Brussels Convention are set out in Title II, which consists of Articles 2 to 24.
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).
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).
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.
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.
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).
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.