#5023 - Ilsinger - Conflict of Laws BCL

Ilsinger (2009)

Facts

Proceedings between Ms Ilsinger, an Austrian national domiciled in St. Pölten (Austria), and Mr Dreschers, acting as administrator in the insolvency of Schlank & Schick GmbH ('Schlank & Schick'), a mail-order company incorporated under German law and established in Aachen (Germany).

Ms Ilsinger received, at her home address and in a sealed envelope, a letter addressed to her personally from Schlank & Schick. The envelope, on which the words 'Important documents!', 'Please open immediately' and 'Private' were written, contained, inter alia, a message addressed to Ms Ilsinger personally which gave the impression that she had won a prize of EUR 20 000.

The next day, in order to obtain payment of the financial benefit promised, Ms Ilsinger tore off a coupon containing an identification number attached to an envelope included in the letter, attached the coupon, as requested to do in the letter, to the 'prize claim certificate' and returned it to Schlank & Schick.

Ms Ilsinger states that at the same time she placed a trial order. That assertion is challenged by Schlank & Schick, which submits to the contrary that no goods were ordered by the applicant. However, it is common ground that the award of the prize supposedly won by Ms Ilsinger did not depend on such an order.

Ms Ilsinger brought an action for that purpose before the Landesgericht (Regional Court) St. Pölten as she was domiciled within the territorial jurisdiction of that court.

Question

Whether the rules on jurisdiction laid down by Regulation No 44/2001 must be interpreted as meaning that the legal proceedings by which a consumer seeks an order requiring a mail-order company to award a prize apparently won by him, without the award of that prize depending on an order of goods offered for sale by that company, are contractual in nature within the meaning of Article 15(1)(c) of that regulation, if necessary, on condition that the consumer has none the less placed such an order.

Holding

Review of Precedent

Gabriel: 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.

Engler: 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. 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.

Requirement that the other party must be a “professional”

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.

No requirement that the contract under Art. 15(1)(c) must involve “reciprocal obligations”

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.

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.

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… 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.

Promise of prize may itself constitute a ‘contract’ – firm legal commitment

As regards that condition, it is, of course, conceivable, in the context of Article 15(1)(c) of Regulation No 44/2001, that one of the parties merely indicates its acceptance, without assuming itself any legal obligation to the other party to the contract (see paragraph 51 of the present judgment). However, it is necessary, for a contract to exist...