C-318/93

JUDGMENT OF 15. 9. 1994 — CASE C-31S/93

JUDGMENT OF THE COURT (Fifth Chamber) 15 September 1994 *

In Case C-318/93,

REFERENCE to the Court pursuant to the Protocol of 3 June 1971 on the inter­ pretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1972 L 299, p. 32) by the Bundesgerichtshof for a preliminary ruling in the proceedings pending before that court between

Wolfgang Brenner and

Peter Noller

THE COURT (Fifth Chamber),

composed of: J. C. Moitinho de Almeida, President of the Chamber, R. Joliét, G. C. Rodríguez Iglesias (Rapporteur), F. Grévisse and M. Zuleeg, Judges,

Advocate General: M. Darmon, Registrar: L. Hewlett, administrator,

after considering the written observations submitted on behalf of:

— Mr Brenner and Mr Noller, by C. Klaas, Rechtsanwalt, Karlsruhe,

— the German Government, by C. Böhmer, Ministerialrat in the Federal Ministry of Justice, acting as Agent,

gives the following

Judgment

1 By order of 25 May 1993, received at the Court on 16 June 1993, the Bundesger­ ichtshof (Federal Court of Justice) referred to the Court for a preliminary ruling under the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1972 L 299, p . 32), as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Den­ mark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p . 1) (hereinafter 'the Brussels Convention'), on a number of questions on the interpretation of Articles 13 and 14 of that Convention.

2 Those questions were raised in separate proceedings between Mr Brenner, a self- employed master joiner, and Mr Noller, employed as a textile technician, both domiciled in the Federal Republic of Germany ('the plaintiffs'), and Dean Witter Reynolds Inc., a firm of brokers based in New York ('the defendant').

3 According to the order for reference, the plaintiffs, not acting within the scope of their profession or occupation, commissioned the defendant with the implementa­ tion of commodity futures transactions, on a commission basis.

4 The plaintiffs provided large sums of money, which apart from a small residual amount were entirely consumed by losses as a result of speculations.

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9 Under Article 13 of the Brussels Convention:

'In proceedings concerning a contract concluded by a person for a purpose which can be regarded as being outside his trade or profession, hereinafter called "the consumer", jurisdiction shall be determined by this Section without prejudice to the provisions of Articles 4 and 5(5), if it is:

1. a contract for the sale of goods on instalment credit terms; or

2. a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or

Where a consumer enters into a contract with a party who is not domiciled in a Contracting State but has a branch, agency or other establishment in one of the Contracting States, that party shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State.

This Section shall not apply to contracts of transport.'

10 The first paragraph of Article 14 then states that:

'A consumer may bring proceedings against the other party to a contract either in the courts of the Contracting State in which that party is domiciled or in the courts of the Contracting State in which he is himself domiciled.'

(3) Is subparagraph 3(a) of the first paragraph of Article 13 of the Brussels Con­ vention applicable whenever the party with whom the consumer enters into a contract has advertised in the State in which the consumer is domiciled prior to conclusion of the contract, or does that provision require there to be a con­ nection between the advertisement and the conclusion of the contract?

(4) (a) Does the term "proceedings concerning a contract" in the first paragraph of Article 13 of the Brussels Convention cover, in addition to the pursuit of claims for damages for breach of contractual obligations, also the pur­ suit of claims based on breach of precontractual obligations {culpa in

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BRENNER AND NOLLER v DEAN WITTER REYNOLDS

contrahendo) and unjust enrichment in connection with reversal of con­ tractual performance?

(b) In the case of proceedings in which damages are claimed for the breach of contractual and precontractual obligations, claims are put forward on the basis of unjust enrichment and damages are sought for tortious acts, does the first paragraph of Article 13 of the Brussels Convention create, by vir­ tue of the factual connection, ancillary jurisdiction which extends also to the non-contractual claim?'

other legal persons, the validity of entries in public registers, the registration or validity of patents, trademarks, designs or other similar rights, and in proceedings concerned with the enforcement of judgments.

17 It follows that, subject to those cases of exclusive jurisdiction, the jurisdiction of courts in proceedings where the defendant is not domiciled in a Contracting State is governed not by the Brussels Convention but by the law of the Contracting State of the court in which proceedings are brought.

18 With respect to consumer contracts, the only exception to the rule in Article 4 is introduced by the second paragraph of Article 13, which applies where a consumer enters into a contract with a party who is not domiciled in a Contracting State but has a branch, agency or other establishment there and the dispute arises out of its operations.

19 It is sufficient to note that, according to the order for reference, no branch, agency or other establishment within the meaning of the second paragraph of Article 13 acted as an intermediary in the conclusion or performance of the contracts between Mr Brenner and Mr Noller and the defendant, and that that exception thus does not apply to the present case.

20 Accordingly, the answer to Question 1 must be that the courts of the State in which the consumer is domiciled have jurisdiction in proceedings under the second alternative in the first paragraph of Article 14 of the Brussels Convention if the other party to the contract is domiciled in a Contracting State or is deemed under the second paragraph of Article 13 of that Convention to be so domiciled.

THE COURT (Fifth Chamber),

in answer to the questions referred to it by the Bundesgerichtshof, by order of 25 May 1993, hereby rules:

The courts of the State in which the consumer is domiciled have jurisdiction in proceedings under the second alternative in the first paragraph of Article 14 of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended by the Convention

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of 9 October 1978 on the Accession of the Kingdom of Denmark , Ireland and the United Kingdom of Great Britain and Northern Ireland, if the other party to the contract is domiciled in a Contracting State or is deemed under the sec­ ond paragraph of Article 13 of that Convention to be so domiciled.