C-96/00

I - 6369

OPINION OF MR JACOBS — CASE C-96/00

event occurred'. In both those cases, the 3. any other contract for the supply of jurisdiction supplements rather than goods or a contract for the supply of replaces that conferred by Article 2. services, and

(a) in the State of the consumer's 6. Section 4 of Title II of the Convention, domicile the conclusion of the which comprises Articles 13 to 15, is contract was preceded by a specific entitled 'Jurisdiction over consumer invitation addressed to him or by contracts'. advertising,

and 7. Article 13 provides in so far as relevant:

(b) the consumer took in that State the 'In proceedings concerning a contract con- steps necessary for the conclusion cluded by a person for a purpose which can of the contract. be regarded as being outside his trade or profession, hereinafter called the con- sumer', jurisdiction shall be determined by this Section... if it is:

'Undertakings which send prize notifi- cations or other similar communications to specific consumers, and by the wording of those communications give the impres- sion that the consumer has won a particular prize, must give that prize to the consumer; it may also be claimed in legal proceedings.' 10. Article 15 provides that the provisions of Section 4 may be departed from only by an agreement which satisfies certain pre- scribed requirements. There is no sugges- tion that there is any such agreement in the present case. 13. It appears from the order for reference that the purpose of that provision was to remove the civil law barriers against enfor- cing such promises. It was considered that the grounds on which the legislature had made certain claims unactionable should not enable undertakings to behave uncon- scionably in commercial dealings with consumers and not keep promises made. In particular, while it was recognised that gaming debts should be unenforceable on The relevant national legislation the ground that the legal system has no interest in protecting contracts where 'care- lessness and impulse' are often factors, it was considered that that approach should not apply where undertakings promise prizes to consumers whom they have con- tacted personally.

11. Paragraph 5j of the Austrian Consumer Protection Law 3 was inserted into that Law by the Austrian Law on Distance Contracts, which transposes Directive 97/7/EC of the European Parliament and of the Council on the protection of con- sumers in respect of distance contracts. 4 The facts and the main proceedings

that in 1999 he received a communication cher' in his favour for ATS 49 700. Further addressed to him personally from Schlank personalised letters from 'European Credit' & Schick, a mail order company domiciled headed Official confirmation of payment' in Germany, which gave the impression confirmed that ATS 49 700 was awaiting that, as a result of a draw, a cash prize of Mr Gabriel and included copies of the same ATS 49 700 was awaiting him, and that he voucher. The communications also only needed to claim it and order goods to included what appeared to be numbered a minimum value. Only in the 'rules', savings books issued by European Credit, which were written in relatively small print showing Mr Gabriel as the holder and the on the back of the 'Registered certificate of balance standing to his credit as guaranteed payment of the prize', was there ATS 49 700. a reference to the non-binding nature of the prize notification. Those rules stated that the amount of the prize to be awarded lay in the discretion of the company making the promotion and that legal proceedings were excluded. Mr Gabriel maintains that there can be no doubt as to the misleading nature of that prize notification. A 'sensible 16. At the hearing, Mr Gabriel's lawyer consumer' would conclude that he had denied that — as stated in the order for already won the prize. reference — the documentation included a statement to the effect that the amount of the prize to be awarded lay in the discretion of the company making the promotion. Rather there was on the reverse of the payment vouchers a notice to the effect that cash prizes may be divided into several unequal fractions depending on the number of responses. That does indeed appear to be borne out by the documents annexed to Mr Gabriel's written observations, although the matter is not beyond doubt. It is in any event clear from the order for reference 15. Further details about the transaction that the national court is asking the Court giving rise to Mr Gabriel's claim appear to assume that Schlank & Schick gave the from the documents before the Court. In impression that Mr Gabriel had won a October and November 1999, Schlank & particular prize for the purposes of para- Schick sent him two personalised com- graph 5] of the Consumer Protection Law. munications containing a mail order cata- logue and an order form. The communi- cations indicated that he had won by draw a prize of ATS 49 700 payable if he claimed it and ordered goods to the minimum value of ATS 200; a cheque would then be sent by return. Personalised letters asked Mr Gabriel why he had not claimed his prize, 17. Mr Gabriel filled in and returned the referred to his 'right' to 100% of it, and two order forms by registered post, the first enclosed a photocopy of a 'payment vou- for goods to the value of ATS 79 and the

21. If an action under paragraph 5j is correctly regarded as falling within the scope of 'matters relating to a contract' within the meaning of Article 5(1) of the Convention or 'matters relating to tort, The question referred delict or quasi-delict' within the meaning of Article 5(3), the Convention will confer jurisdiction on 'the courts for the place of performance of the obligation in question' or 'the courts for the place where the harmful event occurred'. Whereas Article 2 19. Under paragraph 28.1.1 of the Aus- of the Convention, in laying down the trian Law on the exercise of jurisdiction general rule that the courts of the Con- and the competence of the ordinary courts tracting State in which the defendant is in civil matters, 5the Oberster Gerichtshof domiciled have jurisdiction, leaves it to the must assign a local court with jurisdiction rules of each Contracting State to deter- for a civil matter if neither that Law nor mine which of its national courts has any other legal provision provides a basis jurisdiction to hear a given dispute, it is for the local jurisdiction of a domestic accepted that the effect of Article 5(1) and court but Austria is nevertheless required to 5(3) is to confer jurisdiction on a specific exercise jurisdiction under an international local court within a Contracting State. If treaty. therefore Article 5(1) or 5(3) applies in the present case, the Oberster Gerichtshof will not be called upon to assign a local court 5 — Law of 1 August 1895, RGBl. 111. with jurisdiction.

I - 6373

OPINION OF MR JACOBS — CASE C-96/00

I - 6374

GABRIEL

Admissibility referring court. 7 In Austrian law, the procedure for the designation of territorial competence is possible only if proceedings have commenced or are to be commenced. There is accordingly no doubt that the questions referred in the present case are 25. Mr Gabriel and the Austrian Govern- admissible. ment mention — but do not support — possible objections to the admissibility of the reference.

I - 6375

OPINION OF MR JACOBS — CASE C-96/00

Analysis and third, that 'the consumer took in that State the steps necessary for the conclusion of the contract'. The purpose of the second and third cumulative conditions is to ensure a sufficiently strong connection between the contract and the country of domicile of 29. The referring court asks first whether the consumer. 9 an action under paragraph 5j of the Aus- trian Consumer Protection Law constitutes 'proceedings concerning a contract... for the supply of goods' within the meaning of Article 13(3) of the Convention.

I - 6376

GABRIEL

the action is based on a contract already Article 13(3) of the Convention for the formed ('proceedings concerning a contract simple reason that the right of action is concluded by a person...'). Paragraph 5j on closely connected to the underlying the other hand provides for legal liability contract. Mr Gabriel's action seeks pay- based on appearances, regardless of ment of a promised prize, and since, first, it whether a contract has been concluded; was an express condition of attribution of claims brought under that provision are the prize that he placed an order and, accordingly not within the scope of second, that order was both placed and Article 13. The alternative view would executed, the action unquestionably con- involve giving Article 13 a wider interpre- cerns a contract. tation than envisaged by the Convention: since however Article 13 is an exception to the normal rule under which the courts of the State of the defendant's domicile have jurisdiction, it is to be restrictively inter- preted and cannot apply by analogy. 10 36. That view is supported by the case-law of the Court both on Article 13 and on Article 5(1).

I - 6377

OPINION OF MR JACOBS — CASE C-96/00

in the Convention — is an independent number of courts have jurisdiction in concept to be interpreted by reference respect of one and the same contract. 17 principally to the system and objectives of the Convention in order to ensure that the Convention is fully effective. 15

42. Furthermore, the objective of strengthening legal protection of persons established in the Community also requires that the jurisdictional rules which derogate 39. In interpreting the concept of 'matters from the general principle of the Conven- relating to a contract' the Court has been tion should be interpreted in such a way as guided in particular by the following objec- to enable a normally well-informed defend- tives of the Convention. ant reasonably to predict before which courts, other than those of the State in which he is domiciled, he may be sued. 18

40. First, the Court has stressed that the essential aim of the Convention is to 43. The principle that account must be strengthen in the Community the legal taken of the system and objectives of the protection of persons established there Convention and the need to ensure that the and that for that purpose it provides a Convention is fully effective also require collection of rules which are designed to that, where the concept of a contract is avoid the occurrence of concurrent liti- being interpreted in the context of gation in two or more Member States and Article 13, the particular objectives of that which, in the interests of legal certainty and provision must also be considered. for the benefit of the parties, confer juris- diction upon the national court territorially best qualified to determine a dispute. 16

consumer as the party deemed to be scheme and object of the instrument of economically weaker and less experienced which it forms part. in legal matters than the other party to the contract, and the consumer must not there- fore be discouraged from suing by being compelled to bring his action before the courts in the Contracting State in which the other party to the contract is domiciled'. 19 47. Even if, however, one takes the view that exceptions to general rules should of necessity be restrictively interpreted, I do not consider that that approach leads to the interpretation favoured by the German Government. I entirely concur with the explanation given by Advocate General Reischl in Effer in the context of 45. A technical or literal interpretation of Article 5(1) of the Convention: 'Although the concept of a consumer contract is not it must be conceded that Article 5(1) con- therefore appropriate if it runs counter to stitutes an exception to the general rule the objective of protecting the weaker contained in Article 2 — jurisdiction of party. the courts of the defendant's domicile — and consequently it cannot be presumed that the former provision is to be inter- preted broadly, yet such considerations may certainly not lead to an interpretation which would make it possible to render an exceptional provision practically ineffec- tive'. 20 46. That is so notwithstanding the fact that Article 13 is an exception to the general rule under which the courts of the State of the defendant's domicile have jurisdiction. I do not accept the German Government's argument that, because Article 13 is an 48. In the present case, if Article 13 were exception to that rule, it must therefore be held to be inapplicable because, on analysis restrictively interpreted. Restrictive inter- on the basis of common contractual prin- pretation of a derogation is sometimes ciples, there was a possibility that Schlank justified: for example a derogation from a & Schick's communication to Mr Gabriel fundamental right must as such be restrict- was technically an invitation to treat rather ively interpreted. But that approach should than an offer, and hence incapable of not in my view be generalised to all acceptance culminating in a contract, exceptions. A legislative exception, like undertakings such as Schlank & Schick any other legislative provision, should be could, simply by tinkering with the format given its proper meaning, determined in the of their communications, ensure that the light of its purpose and wording and the consumer could not bring proceedings

51. Furthermore, I concur with Advocate General Darmon who stated in Sbearson Lehman Hutton 22 that the multiplication of bases of jurisdiction could have a very 49. It may be noted that, according to the particular adverse effect in the case of Austrian Government, offers of prizes to be consumers. given when goods are ordered — such as that at issue in the main proceedings — are increasingly common in Austria, and are organised in numerous different ways. The Austrian Government concludes that it is accordingly difficult to apply general principles to all such schemes. 52. The context of the action in Peters was similar to that in the present case in that it did not fit squarely into the 'classical' view of a contract: the action concerned the obligation on a member of an association by virtue of the document of association to pay a sum of money to the association and it was not entirely clear whether that obligation arose simply from the act of becoming a member or resulted from that 50. Excluding the application of Article 13 act in conjunction with a decision of an would moreover also be contrary to organ of the association. another objective of the Convention men- tioned above, namely the avoidance of multiplication of bases of jurisdiction. The Court stated in Peters that 'the Convention should therefore be interpreted in such a way that the court seised is not required to declare that it has jurisdiction to adjudicate 53. Referring to the objectives of the Con- upon certain applications but has no juris- vention mentioned above, the Court ruled diction to hear certain other applications, even though they are closely related. More- over, respect for the purposes and spirit of 21 — Peters, cited in note 15, paragraph 17 of the judgment. the Convention requires an interpretation 22 — Cited in note 10, paragraph 108 of the Opinion.

55. If actions brought under paragraph 5j of the Austrian Consumer Protection Law 54. Admittedly in Handte24 the Court in circumstances such as those at issue ruled that the phrase 'matters relating to a are — as I believe — 'proceedings con- contract' did not cover a situation in which cerning a contract' within the meaning of there was no obligation freely assumed by Article 13 of the Convention, such a com- one party towards another. 25 That state- pany may without difficulty predict before ment, however, was made in the context of which courts, other than those of the State a claim by a sub-buyer of goods against in which it is domiciled, it may be sued. their manufacturer: as the Court noted, That would not be the case if minor there was no contractual relationship differences in the formal structure of the between those parties because the manu- contract led to different courts having facturer had not undertaken any contrac- jurisdiction over such actions. It would be tual obligation towards the sub-buyer. 26 even more at odds with the objectives of the That situation is clearly wholly different Convention if the courts of one Contracting from that at issue in the present case. In State had jurisdiction to hear actions con- particular, the Court in Handte noted that cerning one aspect of the transaction — the application of Article 5(1) to an action the promise to pay the prize — while the brought by a sub-buyer of goods against courts of another Contracting State had jurisdiction to hear actions concerning another — the order for goods given in 23 — Paragraphs 13, 15 and 18 of the judgment. reliance on the assurance that it was a 24 — Cited in note 18. 25 — Paragraph 15 of the judgment. 26 — Paragraph 16 of the judgment. 27 — Handle, paragraph 19 of the ludgment.

56. It is important to bear in mind that the interpretation which I propose does not lay 58. Finally, I do not accept — at least with an unreasonable burden on defendants who regard to claims such as that at issue in the may find themselves obliged to defend main proceedings — the German Govern- themselves before the courts of a State in ment's argument 30 that, because paragraph which they are not domiciled. Thus the 5j of the Austrian Consumer Protection second paragraph of Article 20 of the Law provides for liability where the notify- Convention, which provides that the court ing undertaking gives the impression that a shall stay the proceedings so long as it is prize has been won, rather than liability not shown that the defendant has been able based on the conclusion of a contract, to receive the document instituting the claims brought under that provision are not proceedings in sufficient time to enable within the scope of Article 13. The purpose him to arrange for his defence, ensures that of the provision was, as mentioned above, the defendant has an opportunity to submit to remove the civil law barriers against the his point of view. enforcement of promises in such circum- stances; as appears from the order for reference, the legislature considered that the earlier legislation, which expressly pre- cluded the legal enforcement of what were regarded as gaming contracts, was being abused and consumers deliberately misled by undertakings which relied on the impossibility of suit. Since the national legislation has the clear aim of protecting the consumer, it is manifestly consistent 57. It must also be borne in mind — as I with the scheme and objectives of the noted in my Opinion in Handte 28 — that Convention as a whole that actions brought the jurisdiction rules of the Convention under that legislation in circumstances such deal solely with the issue of jurisdiction: as those of the present case should be they do not affect the classification of the regarded as proceedings concerning con- action for such purposes as determining the sumer contracts within the meaning of applicable principles of liability. The Article 13 of the Convention. defendant will thus in no way be precluded

I - 6383