#5016 - Engler - Conflict of Laws BCL

Engler (2005)

Facts

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.

The Relevant Austrian Consumer protection law provided that:

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.

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'.

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.

Proceedings by Mrs. Engler: 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. At first Janus Versand did not react, it then refused to pay that sum to Ms Engler. 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.

Different from Gabriel: 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.

Question

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.

Holding

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...