EUPillar C-180/06 Renate Ilsinger v Martin Dreschers (First Chamber) [2009] ECR I-03961

Summary

The reference has been made in the course of proceedings between Ms Ilsinger, domiciled in Austria, and Mr Dreschers, acting as administrator in the insolvency of Schlank & Schick GmbH (‘Schlank & Schick’), a German company which has been declared insolvent, concerning an action brought by Ilsinger seeking to obtain a prize from that company. Ilsinger received, at her home address a letter addressed to her personally from Schlank & Schick. The envelope contained a message addressed to Ilsinger which gave the impression that she had won a prize of EUR 20,000. Ilsinger posted her claim for the ‘prize claim certificate’ to Schlank & Schick. 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 Ilsinger did not depend on such an order. Ilsinger did not receive her prize and brought an action to recover it before the Landesgericht St. Pölten, Austria as she was domiciled there relying on Art 16(1) of Brussels I. Schlank & Schick objected to the jurisdiction of the Landesgericht St. Pölten, arguing that the provisions of Arts 15 and 16 of Brussels I were not applicable to the dispute before that court since they presupposed the existence of a contract for valuable consideration, which was, however, lacking in this case. The Landesgericht St. Pölten dismissed the objection of lack of jurisdiction and both parties appealed to the referring court which asked the CJEU whether the rules on jurisdiction laid down by Brussels I must be interpreted as meaning that the legal proceedings by which a consumer seeks an order requiring a 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 Art 15(1)(c), if necessary, on condition that the consumer has none the less placed such an order. The CJEU held that although the application of Art 13(1) of the Brussels Convention is limited to contracts which give rise to reciprocal and interdependent obligations between the parties (see Gabriel, paras 48 to 50, and Engler, paras 34 and 36), the scope of Art 15(1)(c) of Brussels I is not limited to such situations. However, Art 15 of Brussels I is applicable only if the legal proceedings concerned relate to a contract which has been “concluded” between a consumer and a professional. Such conclusion requires the professional to declare itself to be unconditionally willing to pay a prize to that consumer and for the consumer to accept it. It is for the national court to determine whether that requirement is fulfilled in the dispute before it. In the light of those factors, and in the absence of a substantial difference in drafting between Art 15 of Brussels I and Art 13 of the Brussels Convention as regards the requirement of the conclusion of a contract between the parties, it must therefore be held that the case-law resulting from the judgments in Gabriel and Engler, relating to the second of those provisions, must be transposed to Art 15. If there is such similarity between a provision of the Brussels Convention and a provision of Brussels I it is necessary to ensure, in accordance with Recital 19 to the latter, continuity in the interpretation of those two instruments thereby ensuring observance of the principle of legal certainty. Art 15(1)(c) cannot apply to legal proceedings such as those at issue in the main proceedings if the professional did not undertake contractually to pay the prize promised to the consumer who requests its payment. In that case, Article 15(1)(c) is applicable to such legal proceedings only on condition that the misleading prize notification was followed by the conclusion of a contract by the consumer with the company evidenced by an order placed with the latter.