C-99/96

3. It is clear that, by way of derogation from the first paragraph of Article 2, which grants Legal framework: the relevant provisions of general jurisdiction to the courts of the State the Brussels Convention where the defendant is domiciled, in the situ- ations restrictively set out by Sections 2 to 6 of Title II, the defendant may, in the case of special jurisdiction, by reason of the close ties linking a given court to a dispute (Section 2: 2. It will be recalled that the Brussels Con- Articles 5 to 6a), or shall, in the case of exclu- vention establishes a unified system for the sive jurisdiction (Section 5: Article 16) or of voluntary prorogation of jurisdiction (Section 6: Articles 17 and 18), be sued, where appro- * Original language: French. priate, in the courts of another Contracting 1 — Protocol on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the State. enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 50). 2 — OJ 1978 L 304, p. 36. 3 — Convention of 9 October 1978 on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice (OJ 1978 L 304, p. 1, and the amended text of the Convention of 27 September 1968, cited above, p. 77). 4 — Convention of 25 October 1982 on the accession of the Hel- lenic Republic to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Jus- tice, with the adjustments made to them by the Convention 4. The rules contained in Sections 3 and 4 of on the accession of the Kingdom of Denmark, Ireland and the Title II operate as systems of jurisdiction United Kingdom of Great Britain and Northern Ireland (OJ 1982 L 388, p. 1). separate from that established by Article 2

7. In setting out the relevant provisions of 5 — This results from Article 7 and the first paragraph of Article 13 of the Convention according to which jurisdiction in mat­ the Convention concerning jurisdiction ters relating to insurance or consumer contracts is determined Article 18 should also be mentioned, which by Sections 3 and 4 alone 'without prejudice to the provi­ sions of Articles 4 and 5.5.' permits the prorogation of jurisdiction as a

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consequence of the mere appearance of the substance. 6 In the latter case, the defence on defendant. This article provides as follows: the substance must, however, be presented in the alternative to avoid the application of Article 18. 7

8. The final provision of Tide II of interest to 'Apart from jurisdiction derived from other the present proceedings is Article 24, which provisions of this Convention, a court of a allows a court not having jurisdiction over Contracting State before whom a defendant the substance of the matter to take 'provi- enters an appearance shall have jurisdiction. sional, including protective, measures', within This rule shall not apply where appearance the scope of the matters covered by the Con- was entered solely to contest the jurisdiction, vention, where the plaintiff chooses to. apply or whether another court has exclusive juris- to it rather than to the courts of another diction by virtue of Article 16.' Contracting State, having jurisdiction as to the substance of the matter. That article reads as follows:

The principle is thus that the appearance of 'Application may be made to the courts of a the defendant has an attributive effect on Contracting State for such provisional, jurisdiction: a court which in principle lacks including protective, measures as may be avail- jurisdiction becomes competent when the able under the law of that State, even if, under defendant appears. this Convention, the courts of another Con- tracting State have jurisdiction as to the substance of the matter.'

10. Thus, the first part of the procedure is not adversarial (Article 34, first paragraph).

Within this examination of the grounds of jurisdiction set out in the first paragraph of Article 28, 'the court or authority applied to shall be bound by the findings of fact on 11. Moreover, the principle is that enforce­ which the court of the State of origin based ment is granted without the need for the court its jurisdiction' (Article 28, second paragraph). applied to to review the jurisdiction of the Court of the State of origin (Article 28, third paragraph). 9

13. Finally, according to the third paragraph of Article 34, 'Under no circumstances may 12. It is only on an exceptional basis that the foreign judgment be reviewed as to its such review is carried out, in particular where substance'. certain rules of jurisdiction are at issue. That is why, under the second paragraph of Article 34, 'The application may be refused only for one of the reasons specified in Articles 27 and 28.' Factual and procedural background

15. The parties agreed that the debtor would 18. In support of this appeal, the debtor con- purchase an Intership boat of type 1.150 G. tested, for the first time, 13the jurisdiction of It was agreed that the boat would be subject the Dutch court of origin, which he claimed to substantial modifications 10 before its final had disregarded the consumer protection pro- delivery. The total purchase price of DEM visions of Articles 13 and 14 of the Conven- 250 000 was payable in five successive instal- tion granting jurisdiction to the courts of his ments, all due before final delivery. 1 1This place of domicile, Germany. Consequently, agreement was set down in writing in a docu- the court applied to, in examining the juris- ment called a 'contract of sale' signed at Sneek, diction of the court of origin, could not, Netherlands. where it found an infringement of these pro- visions, grant the enforcement sought in Ger- many, in conformity with the second para- graph of Article 34, which refers back to the first paragraph of Article 28.

16. Following partial failure by the debtor to make certain payments, the creditor, through the procedure of 'kort geding', 1 2in which both sides were heard, obtained on 12 May 1993 a provisionally enforceable judgment 19. In order to claim the benefit of the provi- from the President of the Arrondissements- sions of Title II, Section 4, he put forward the rechtbank (District Court) of Leeuwarden, a following two arguments. Dutch court with interim jurisdiction, ordering the recovery of part of the debt (almost two thirds of the total amount payable).

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concluded in Germany prior to signature in The questions referred for a preliminary the Netherlands. It was at a visit to the ruling creditor's exhibition stand at the Bootsmesse (Pleasure Boat Show) in Düsseldorf, Ger- many, that the debtor indicated his intention to buy the boat there on display; this not being possible, it was agreed between the par- ties that a boat of the same model would be 22. The court has set out in its order of built for him, incorporating the alterations referral the object and content of its inquiries specified by the debtor. which form the basis of the questions sub- mitted to this court. It asks whether there is any reason that would justify it in refusing to grant enforcement of the judgment obtained in the Dutch court of origin.

This second argument appears to seek to demonstrate that the disputed contract falls within the scope of point 3 of the first para- 23. Its first two questions examine the argu- graph of Article 13 of the Convention. ments put forward by the debtor and seek to determine whether the case before it is of a kind which deserves special protection, either because the disputed agreement constitutes a 'sale of goods on instalment credit terms' (Article 13, first paragraph, point 1) or a 'contract for the supply of goods or a con- tract for the supply of services' concluded by a consumer (Article 13, first paragraph, 20. The Oberlandesgericht dismissed the point 3). appeal and, as a result, refused not to grant enforcement of the Netherlands judgment for failure to observe the consumer protection rules in Section 4 of Title II.

the second paragraph of Article 28, in car- 26. Hence its fourth question, for which an rying out a review of the jurisdiction of the answer is only sought if the first paragraph of court of the State of origin under the rules of Article 28 applies. In this case, if enforcement Section 4 of Title II, the court of the State to in principle could not be granted by reason of which request is made is 'bound by the find- the misapplication by the court of origin of ings of fact on which the court of the State of the rules contained in Section 4 of Title II, origin based its jurisdiction'. In so far as the the referring court proposes to examine the Dutch court did not base its jurisdiction on question of enforcement from a different per- findings of fact, the referring court asks spective, that of Article 24 of the Convention. whether the wording of the second paragraph Thus it asks whether a measure granted by of Article 28 prevents it from taking account way of a procedure of 'kort geding' is a 'pro- of these new matters. visional, including protective, measure' within the meaning of Article 24. In such a case, the Bundesgerichtshof thinks that 'Articles 13 and 14 of the Brussels Convention would, from the outset, not preclude recognition'. 17

Those considerations form the basis of the third question. 15

27. The wording of the four questions which have been submitted is as follows:

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to pay DEM 250 000 for it in five instal­ (Code of Civil Procedure) for obtaining ments? a judgment ordering payment of con­ tractual consideration through applica­ tion for an immediate interim order by way of an abbreviated procedure ("kort geding") constitute a provisional meas­ ure within the meaning of Article 24 of If the first question is answered in the nega­ the Brussels Convention?' tive:

Answers to the questions 2. Is the contract described in the first ques­ tion a contract for the supply of goods within the meaning of point 3 of the first paragraph of Article 13 of the Brussels Convention? Position on the suggestion to deal first with Article 18 of the Convention

3. Under the second paragraph of Article 34 of the Brussels Convention, in con­ 28. As stated above, within the system of the junction with the second paragraph of Convention, Article 18 provides for volun­ Article 28 thereof, must account also be tary or implied submission to jurisdiction. taken of new facts which, according to The Commission relies on this provision and the debtor, establish that the court of the argues, first of all, 1 8 that the questions referred State of origin has infringed the provi­ would be without purpose if the debtor had sions of Section 4 of Title II of that entered an appearance before the court of Convention? origin without any reservation. The United Kingdom Government has, in essence, put forward the same argument. 1 9

If either the first or the second and third questions are answered in the affirmative:

That provision allows submission to jurisdic- tion only in so far as the defendant's appear- An argument based on the wording of Article ance is entered solely to make submissions as 18 favours its applicability in such a case: the to the substance of his defence. 20 However, only limitation resulting from the wording of as the parties have not taken part in the pro- this provision is the existence of exclusive ceedings before this Court, we cannot be cer- jurisdiction by virtue of Article 16. Con- tain in this regard. The order for reference versely, Article 18 seems to allow the parties only permits vague assumptions. The Bundes- to submit to jurisdiction of the court of a gerichtshof has stated that the debtor con- State regardless of any other rules of jurisdic- tested the jurisdiction of the court of origin tion. In particular, the wording of Article 18 only at the stage of the appeal against the appears to show that nothing prevents, by decision of enforcement, 21 from which one virtue of that implied consent, jurisdiction can deduce that the debtor did not contest being conferred in consumer contract matters the jurisdiction of the Dutch court during the on a court other than that indicated by the proceedings before that court, and limited second paragraph of Article 14. 22 himself to submissions as to the substance of his defence. However, it is conceivable that the debtor's submissions as to the substance of the case before the president of the Arrondissementsrechtbank te Leeuwarden were merely ancillary to a challenge to juris- The case-law of this Court may also be inter- diction. In that case, in accordance with the preted as being in favour of this argument. This Court has not been reluctant to bring abovementioned case of Elefanten Schuh, his into operation the effect of submission to appearance could not be deemed to amount jurisdiction when the jurisdiction which was to submission to jurisdiction. departed from resulted from a clause confer- ring jurisdiction pursuant to Article 17: '... Article 18 of the Convention applies even where the parties have by agreement desig- nated a court which is to have jurisdiction within the meaning of Article 17'. 23 If it is 31. A further difficulty would arise if it were decided to apply Article 18 to the present matter: does this provision allow submission 22 — See, in this regard, Gaudemet-Tallon, H.: Les conventions de to jurisdiction irrespective of the rules of Bruxelles et de Lugano, L. G. D. J., 1996, paragraph 145; jurisdiction for the protection of consumers Gothot, P. and Holleaux, D.: La convention de Bruxelles du 27.9.1968, Jupiter, 1985, paragraph 193, and the Jenard Report: 'the only cases...where jurisdiction by submission will not be allowed are those in which the courts of another State have exclusive jurisdiction by virtue of Article 16' (p. 38, emphasis added). 20 — See point 7 of the present Opinion. 23 — Elefanten Schuh, paragraph 11; Case 48/84 Spitzley vSommer 21 — Order for reference, II, third paragraph. Exploitation [1985] ECR 787, paragraph 26.

considered that the defendant's wishes at the only clauses conferring jurisdiction under time of the proceedings can derogate from Article 17 but also implied submission to the previous wishes of the parties, his appear- jurisdiction under Article 18. ance should also permit derogations from the Convention rules which are favourable to him. The defendant is free, as it were, not to take advantage of the protection which is afforded to him. 32. The purpose of the above exposition on this latter point is not to resolve the difficulty raised, but simply to highlight it. If the course suggested by the Commission and the United Kingdom Government were to be followed, However, another argument based on the it would first of all have to be decided whether wording of the Convention can be made the defendant's appearance in itself can over- against this proposition. By virtue of the ride the Convention's protective rules pro- fourth paragraph of Article 17, the rules of vided for in his favour. I now turn to the last jurisdiction in matters of insurance and con- aspect of this examination of the applicability sumer contracts are expressly withdrawn from of Article 18 to the present case. the intention of the parties. 24 In such mat- ters, the choice of forum cannot come into operation; 25 the parties are, in a way, obliged to benefit from the protective rules provided for in their favour, without being able to depart from them by a demonstration of 33. We have already seen two of the difficul- intent. It is true that such a limitation does ties which this question raises: on the one not appear in the wording of Article 18. hand, the examination to be undertaken might However, their observation alone could be become, for want of factual elements in our considered insufficient to establish that, possession, hypothetical or academic, on the although the parties cannot depart from the other hand, it needs to be demonstrated, first protective rules by choosing a forum at the of all, that voluntary appearance allows dero- time of conclusion of the contract, their mere gation from the rules of jurisdiction provided appearance results in de facto loss of the ben- for in the second paragraph of Article 14. efit of the protection provided for. Yet, it seems to me that, in admitting contractual prorogation of jurisdiction 'after the dispute has arisen', point 1 of Article 15 covers not

36. Given that the Convention does not entitle a review of the jurisdiction of the court of origin by the court applied to in the light of the Convention rules except in certain very specific instances, and that the jurisdiction 35. Therefore, the referring court can only provided for under Article 18 is not one of examine the jurisdiction of the Dutch court these instances, I think that the Court cannot of origin from the point of view of the rules ask the referring court to refrain from ver- provided for under those sections, to the ifying that Articles 13 to 15 were complied exclusion of any other. Thus it can satisfy with by suggesting that Article 18 should itself, as suggested by the debtor, that the prevail. rules of jurisdiction in the field of consumer protection have not been misapplied. O n the other hand, the system of enforcement put in place does not entitle it to verify whether the court of origin has properly applied the rules of jurisdiction provided for in Article 18. Even if the Dutch court had, in applying this 37. As a result, I propose that the Court provision, assumed jurisdiction by virtue of answer the national court's questions without the defendant's appearance, the court applied examining beforehand the application of to would not be entitled to review the proper Article 18 in this instance. application of this provision. Yet, this would be the case if the court applied to was allowed to examine the question of the application of Article 18 by the court of origin. In so doing, the court applied to would carry out an analysis which could only be considered as a The questions concerning the consumer review, in a certain sense, of the jurisdiction protection rules of the court of origin in the light of Article 18. It would in fact have to resolve the two types of difficulties I mentioned above. Was the purpose of the defendant's appearance solely to challenge the substance of the case without contesting jurisdiction? If so, does Article 18 allow the wishes of the parties to 38. The first three questions seek to deter- prevail over the protective rules of the Con- mine whether the consumer protection rules vention? Even if the court applied to consid- (Section 4 of Title II) were misapplied by the ered it had to answer these two questions in Dutch court of origin, in which case the the affirmative, it would have to have carried referring court cannot grant the enforcement out, beforehand, an analysis on the proper sought.

27 — This is also the definition contained in Article 5 of the Con­ vention on the law applicable to contractual obligations 29 — At III, fourth paragraph, of the order for reference: 'It could opened for signature in Rome on 19 June 1980 (OJ 1980 nevertheless be questioned whether someone who buys L 266, p. 1, hereinafter the 'Rome Convention'), and in something at a price of DEM 250 000 for recreational use Article 2 of Council Directive 93/13/EEC of 5 April 1993, needs the special protection of the rules on jurisdiction over concerning unfair terms in consumer contracts (OJ 1993 consumer contracts.' L 95, p. 29). 30 — Benincasa, paragraph 16. 28 — See, most recently, Case C-269/95 Benincasa v Dentalkit 31 — Case C-89/91 Shearson Lehman Hutton v TVB [1993] ECR [1997] ECR I-3767, paragraph 17. I-139, paragraph 22.

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first paragraph of Article 13? All the inter- 48. As a result, neither the parties' own des- veners in the present case have given a nega- ignation in the particular case nor the solu- tive response to this first question. I propose tions adopted under differing national laws that their analysis should be followed. can prevail.

46. The disputed contract was treated as a 'works contract' 3 2 by the President of the 49. In the absence of a definition in the text Arrondissementsrechtbank te Leeuwarden on of the Convention, 3 7 the Court has consid- the basis of Dutch law, whereas it might be a ered '...that the sale of goods on instalment 'mixed commercial and sale contract' 3 3 in credit terms is to be understood as a transac- German law. 34 The parties, for their part, tion in which the price is discharged by way have called it a 'contract of sale'. The refer- of several payments or which is linked to a ring court also expresses an opinion that there financing contract.' 38 is a sale of goods on instalment credit terms within the meaning of point 1 of the first paragraph of Article 13 only when a ready- made item or an item manufactured for stock for general use is handed over. 35

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51. This is because the series of instalments, paragraph of Article 13 of the Convention in the case we are dealing with, all take place in the absence of 'payments made after before the delivery of the goods contracted delivery'. for.

54. Thus, enforcement of the Dutch court's judgment cannot be refused on the ground of misapplication of the applicable rules on con­ 52. However, as stated in the abovemen- tracts of this kind. tioned Bertrand judgment, '...a restrictive interpretation of the second paragraph of Article 14, in conformity with the objectives pursued by Section 4, entails the restriction of the jurisdictional advantage...to buyers who The second and third questions: Article 28, are in need of protection, their economic second paragraph and Article 13, first para­ position being one of weakness in comparison graph, point 3 with sellers'. 3 9 In this sense, a buyer who is granted credit by the seller is indeed in a position of weakness. However, this is cer­ tainly not the case where the buyer is billed for the total price before the delivery of the good, even if the obligation to pay is spread 55. If it does not fall within the scope of out over several instalments. Such a buyer point 1 of the first paragraph of Article 13 of cannot be regarded as having been '...induced the Convention, can the transaction at issue to purchase by the system of payment by nevertheless be regarded as falling under point instalments, in so far as payment in a lump 3 of the first paragraph of Article 13? That is sum would have been the cause of economic the purpose of the second question. difficulties for him'. 4 0 In reality, in a situation such as the present, the buyer does not require any special protection.

debtor which were not mentioned by the the jurisdiction of the court first seised, in court of the State of origin in its decision. As order to prevent the enforcement sought, a result, if the answer to the third question is when the debtor could have submitted those in the negative, the second does not call to be arguments in the original proceedings. If the answered. production of new arguments of fact before the court applied to were to be admitted, it would be open to any defendant seeking to disrupt the course of the fast procedure pro- vided for in the Convention deliberately not to put forward certain essential arguments until the enforcement stage, in order to pre- 57. According to the second paragraph of vent enforcement of the judgment. Article 28 of the Convention, 'In its examina- tion of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the State of origin based its jurisdiction'.

60. Although the Court has not yet had the opportunity to rule on such a situation under the second paragraph of Article 28, the case-law concerning the third paragraph of Article 34 gives useful indications which can 58. That provision, according to the Jenard be applied by analogy to the present case. Report, '...avoids recourse to time-wasting duplication in the exceptional cases where re-examination of the jurisdiction of the court of origin is permitted'. 42

62. In my opinion, in the same way as the court applied to can take into consideration, in its decision concerning a request for a stay 64. In view of the answer proposed to be of proceedings under Article 38, 'only such given to the third question, the second does submissions as the appellant was unable to not need to be answered. Since the court put before the court of the State where the applied to cannot take into account the mat- judgment was given', similarly, the court ters of fact put forward in support of the applied to can take into account, in its deci­ application of point 3 of the first paragraph sion concerning enforcement, only the argu­ of Article 13, it cannot review the jurisdiction ments which could not have been relied on of the court of origin under that provision. before the court of origin.

This is clearly not the case here: Mr Mietz 65. Thus it is only in the alternative that I was perfectly able to put forward before the offer the following observations on the second Dutch court of origin the matters of fact question submitted to the Court. which he alleged in the course of the pro­ ceedings in the State applied to.

66. In this regard, were it not for the inability of the German court in the present case to 63. Consequently, I think that the matters take into account the factual elements put put forward by the debtor before the courts forward by the debtor, this question would of that State, seeking to establish that the dis­ have to be given a positive reply in my puted contract was one of those referred to in opinion. point 3 of the first paragraph of Article 13, in that it consisted of a contract for the supply of goods or a contract for the supply of ser­ vices, concluded as a result of advertising taking place in the State of domicile of the 67. Firstly, as noted above, the disputed con- tract at issue was concluded by a consumer 45 — Paragraph 37 and operative part. within the meaning of Article 13.

71. The second condition requires that the consumer has taken in his State of domicile 'the steps necessary for the conclusion of the contract'. The aforementioned Giuliano- Lagarde Report states that this expression avoids the problem of determining the place where the contract was concluded, and 69. Finally, point 3 of the first paragraph of includes any written document (or any action) Article 13 requires that two cumulative con- indicating the intention of the consumer to ditions are satisfied, 46 to ensure a sufficiendy follow up the special offer or advertising. 52 close connection between the contract and Likewise, if it were established, as Mr Mietz the country of domicile of the consumer. 47 claims, that he indicated his intention to pur- chase the boat contracted for at the Boots- messe in Düsseldorf, this second condition would be satisfied. The court applied to would have to satisfy itself of this in any event.

70. The first of these conditions requires that the conclusion of the contract was preceded The classification of a measure taken following by a 'specific invitation addressed to him or a procedure of 'kort geding' as a 'provisional, by advertising' in that State. The Report by including protective' measure under Article 24 Professors M. Giuliano and P. Lagarde on the of the Convention. Rome Convention, 48 to which the Schlosser Report refers, 49 states that this includes all forms of advertising in the State where the consumer is domiciled, or a special offer addressed to him. 50 In the present case, a dis- play on a stand during a pleasure boat fair in 72. The fourth question, by which the national court asks for the classification, from the point of view of Article 24 of the

73. Furthermore, it is significant that, in asking this question, the referring court seems to be prepared to undertake a review of the juris­ 75. While taking the opportunity to refer diction of the court of origin, which it is pro­ back to my Opinion in the afore-mentioned hibited from doing under the third paragraph Van Uden case on this point, I emphasise, as of Article 28. In fact, the court applied to is I did there, that the wide range of measures permitted to verify that the court of origin which may be adopted under the 'kort geding' has correctly applied the rules of the Conven­ procedure does not, in my opinion, allow an tion only where the rules contained in Sec­ absolute and abstract answer to be given to tions 3, 4 and 5 of Title II are at issue. Apart the question of their classification under from these situations, any review is prohib­ Article 24 of the Convention. 5 5 Whereas, in ited. Thus, if it were concluded, following the the Van Uden case, it appeared to me that examination of the first two questions, that there were sufficient elements relating to the the consumer protection provisions were course of the Dutch proceedings and their indeed wrongly applied by the court of origin, subject-matter, to answer, in the alternative, the court applied to could not in any event the question posed, in the absence of any such grant enforcement of the disputed decision. It elements in the present case, it seems dan­ could not engage in a lengthy search of the gerous for me to express an opinion, even in other grounds of jurisdiction on which the the alternative. court applied to could have based jurisdic­ tion, so as to 'make up for', as it were, its lack of jurisdiction under the consumer protection 53 — See my Opinion of 10 June 1997 in the Van Uden case rules. Even should the fourth question have (C-391/95, pending, point 101 et seq.). to be answered in the affirmative, this would 54 — In the abovementioned W. ν Η. case, the referring court sub­ mitted the exact same question to this Court, but the Court not allow the court applied to to base the did not need to answer the question. The Van Uden case, currently pending, raises a question in similar terms. jurisdiction of the court of origin on Article 55 — It is undoubtedly because of this variety of situations that 24 of the Convention rather than on Article the Commission, in the present case, has adopted a position on the question diametrically opposed to that it put forward 13, in order to avoid refusing enforcement on in the Van Uden case.

In the alternative,

(3) The concept of 'contract for the supply of goods or a contract for the supply of services', within the meaning of point 3 of the first paragraph of Article 13, must be interpreted as including the case of a contract for the supply of a motor boat, in so far as that contract fulfils the two cumulative conditions under (a) and (b) relating to its connection with the place of domicile of the consumer.

(4) The system put in place by the Convention and, in particular, the second para- graph of Article 34, in so far as it refers to the third paragraph of Article 28, does not permit the court of the State applied to to review the jurisdiction of the court of the State of origin under Article 24 of the Convention.

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