Renate Ilsinger v Martin Dreschers.
Date: 2009-05-14
41. In order to answer those questions, it must be observed from the outset that, in so far as Regulation No 44/2001 now replaces the Brussels Convention in relations between the Member States, with the exception of the Kingdom of Denmark, the interpretation given by the Court as regards that convention also applies to the regulation, where its provisions and those of the Brussels Convention may be treated as equivalent. It must be added that, in the system established by Regulation No 44/2001, Article 15(1)(c) thereof occupies, as it is clear from recital 13 in the preamble to that regulation, the same place and fulfils the same function of protecting the weaker party as does point 3 of the first paragraph of Article 13 of the Brussels Convention.
43. First, in paragraphs 48 to 52 of the judgment in Gabriel , the Court found that the condition for application of point 3 of the first paragraph of Article 13 of the Brussels Convention, relating to the existence of a ‘contract concluded by’ a consumer with a professional vendor, within the meaning of that provision, was satisfied in that case on the basis of the fact that the concordance of intention between the two parties, manifesting itself in the offer of goods made by the mail-order company and the acceptance of that offer by the consumer when he placed an order for such goods as a result, had given rise to a contract concluded between those parties, characterised by reciprocal and interdependent obligations between them and concerning one of the purposes set out in that provision, namely, in that case, the supply of goods.
45. On the other hand, it must also be recalled that, in paragraphs 37, 38 and 44 of the judgment in Case C-27/02 Engler  [2005] ECR I-481, the Court excluded the application of point 3 of the first paragraph of Article 13 of the Brussels Convention in a case where the consumer had claimed the payment of the financial benefit promised, even though the payment of the prize apparently won was not subject to the condition that the consumer order goods from the mail-order company and that, in fact, no order had been placed by that consumer.
46. The Court based that solution on the fact that, in such a case, the sending of a letter containing a misleading promise to award a prize had not been followed by the conclusion of a contract by the consumer with the mail-order company, because no order of goods offered for sale had been made, whereas it was clear from its very wording that the application of point 3 of the first paragraph of Article 13 of the Brussels Convention was subject to a number of conditions, among which the condition relating to the conclusion of such a contract by the consumer is specifically mentioned ( Engler , paragraphs 36 to 38 and 40).
47. The Court takes the view that such an approach is supported by the position of the rules on jurisdiction set out in Articles 13 to 15 of the Brussels Convention over consumer contracts in the scheme of that convention, which give rise to a strict interpretation of those articles which cannot go beyond the cases envisaged by that convention. Thus, the objective underlying those provisions, namely to ensure adequate protection for the consumer as the party deemed to be economically weaker, does not permit a different outcome ( Engler , paragraphs 39 and 41 to 43).
48. However, it must be held that the wording of Article 15(1) of Regulation No 44/2001, the interpretation of which is sought by the national court in the present reference for a preliminary ruling, is not identical in every respect to that of the first paragraph of Article 13 of the Brussels Convention.
50. Thus, apart from certain transport contracts excluded from the scope of the rules on jurisdiction over consumer contracts by Article 15(3) of Regulation No 44/2001, Article 15(1)(c) covers all contracts, whatever their purpose, if they have been concluded by a consumer with a professional and fall within the latter’s commercial or professional activities. Furthermore, the specific conditions for application that those contracts must fulfil, which were set out in detail in headings (a) and (b) of point 3 of the first paragraph of Article 13 of the Brussels Convention, are now worded more generally in Article 15(1)(c) of Regulation No 44/2001 in order to ensure better protection for consumers with regard to new means of communication and the development of electronic commerce.
51. It follows that, although the Court has held that the application of the first paragraph of Article 13 of the Brussels Convention is limited to contracts which give rise to reciprocal and interdependent obligations between the parties, basing itself, moreover, expressly on the wording of that provision referring to a ‘contract for the supply of goods or a contract for the supply of services’ (see Gabriel , paragraphs 48 to 50, and Engler , paragraphs 34 and 36), the scope of Article 15(1)(c) of Regulation No 44/2001 appears, by contrast, to be no longer being limited to those situations in which the parties have assumed reciprocal obligations.
52. It must be stated, however, that Article 15 of Regulation No 44/2001 is applicable only if the legal proceedings concerned relate to a contract which has been concluded between a consumer and a professional.
53. By virtue of the actual wording of both the introductory paragraph of Article 15(1) of Regulation No 44/2001 and Article 15(1)(c), that article requires a ‘contract’ to have been ‘concluded’ by a consumer with a person who pursues commercial or professional activities. That finding is also supported by the heading of Section 4 of Chapter II of that regulation, in which Article 15 appears, which refers to ‘[j]urisdiction over consumer contracts’. It must also be pointed out that, with respect to the condition relating to the conclusion of a contract, the wording of Article 15 is essentially identical to that of Article 13 of the Brussels Convention.
57. In that latter case, such a situation would at most be liable to be classified as pre-contractual or quasi contractual and might therefore, where appropriate, be covered solely by Article 5(1) of that regulation, a provision which must be acknowledged as having, on account of its wording and its position in the scheme of that regulation, a broader scope than that of Article 15 thereof (see, by analogy, with regard to the Brussels Convention, Engler , paragraphs 44 and 49).
58. In the light of those factors, and in the absence of a substantial difference in drafting between Article 15 of Regulation No 44/2001 and Article 13 of the Brussels Convention as regards the requirement of the conclusion of a contract between the parties, it must therefore be held that the case-law resulting from the judgments in Gabriel  and Engler , relating to the second of those provisions, must be transposed to Article 15 of Regulation No 44/2001 for the purposes of resolving a case such as that at issue in the main proceedings. If there is such similarity between the drafting of a provision of the Brussels Convention and a provision of Regulation No 44/2001 it is necessary to ensure, in accordance with Recital 19 in the preamble to the latter, continuity in the interpretation of those two instruments, as such continuity is also the means to ensure observance of the principle of legal certainty, which constitutes one of the corner stones of those instruments.