Case Law 1968 Brussels Convention


Article 13 - 15 of the 1968 Brussels Convention

ECJ 20 January 2005 ‘Johann Gruber v Bay Wa AG’ (Case C-464/01, ECR 2005 p. I-00439)

A person who concludes a contract for goods intended for purposes which are in part within and in part outside his trade or profession may not rely on the special rules of jurisdiction laid down in Articles 13 to 15 of the 1968 Brussels Convention, unless the trade or professional purpose is so limited as to be negligible in the overall context of the supply, the fact that the private element is predominant being irrelevant in that respect.

It is for the court seised to decide whether the contract at issue was concluded in order to satisfy, to a non-negligible extent, needs of the business of the person concerned or whether, on the contrary, the trade or professional purpose was negligible. To that end, that court must take account of all the relevant factual evidence objectively contained in the file. On the other hand, it must not take account of facts or circumstances of which the other party to the contract may have been aware when the contract was concluded, unless the person who claims the capacity of consumer behaved in such a way as to give the other party to the contract the legitimate impression that he was acting for the purposes of his business.

 

ECJ 3 July 1997 ‘Benincasa v Dentalkit’ (Case C-269/95, ECR 1997 p. I-03767)

In the context of the specific regime established by Article 13 et seq. of the 1968 Brussels Convention, only contracts concluded for the purpose of satisfying an individual's own needs in terms of private consumption come under the provisions designed to protect the consumer as the party deemed to be the weaker party economically. On the other hand, the specific protection sought to be afforded by those provisions is unwarranted in the case of contracts for the purpose of trade or professional activity, even if that activity is only planned for the future, since the fact that an activity is in the nature of a future activity does not divest it in any way of its trade or professional character. It follows that the regime in question applies solely to contracts concluded outside and independently of any trade or professional activity or purpose, whether present or future, so that a plaintiff who has concluded a contract with a view to pursuing a trade or profession, not at the present time, but in the future may not be regarded as a consumer within the meaning of paragraph 1, point 1 of Article 13 and the first paragraph of Article 14 of the Convention.

 

ECJ 19 January 1993 ‘Shearson Lehmann Hutton Inc.’ (Case C-89/91, ECR 1993 p. I-00139)

The special system established by Article 13 et seq of the 1968 Brussels Convention is inspired by the concern to protect the consumer, as the party deemed to be economically weaker and less experienced in legal matters than the other party to the contract, so that the consumer must not 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. Those provisions affect only a private final consumer, not engaged in trade or professional activities, who is bound by one of the contracts listed in Article 13 and who is a party to the action, in accordance with Article 14. It follows that Article 13 of the Convention is to be interpreted as meaning that a plaintiff who is acting in pursuance of his trade or professional activity, and who is not, therefore, himself a consumer party to one of the contracts listed in the first paragraph of that provision, may not enjoy the benefit of the rules of special jurisdiction laid down by the Convention concerning consumer contracts.

 


Article 13 of the 1968 Brussels Convention


Consumer and consumer contracts [Article 13 (1)]

ECJ 27 April 1999 ‘Hans-Hermann Mietz v Intership Yachting Sneek BV’ (Case C-99/96, ECR 1999 p. I-02277)

In the area of consumer contracts, Article 13, paragaph 1, point 1, of the 1968 Brussels Convention must be construed as not applying to a contract between two parties having the following characteristics, that is to say, a contract:
- relating to the manufacture by the first contracting party of goods corresponding to a standard model, to which certain alterations have been made;
- by which the first contracting party has undertaken to transfer the property in those goods to the second contracting party, who has undertaken, by way of consideration, to pay the price in several instalments; and
- in which provision is made for the final instalment to be paid before possession of the goods is transferred definitively to the second contracting party.
That provision is intended to protect the purchaser only where the vendor has granted him credit, that is to say, where the vendor has transferred to the purchaser possession of the goods in question before the purchaser has paid the full price. A contract having the characteristics mentioned above is, however, to be classified as a contract for the supply of services or of goods within the meaning of Article 13, first paragraph, point 3, of the Convention.

 

ECJ 3 July 1997 ‘Benincasa v Dentalkit’ (Case C-269/95, ECR 1997 p. I-03767)

In the context of the specific regime established by Article 13 et seq. of the 1968 Brussels Convention, only contracts concluded for the purpose of satisfying an individual's own needs in terms of private consumption come under the provisions designed to protect the consumer as the party deemed to be the weaker party economically. On the other hand, the specific protection sought to be afforded by those provisions is unwarranted in the case of contracts for the purpose of trade or professional activity, even if that activity is only planned for the future, since the fact that an activity is in the nature of a future activity does not divest it in any way of its trade or professional character. It follows that the regime in question applies solely to contracts concluded outside and independently of any trade or professional activity or purpose, whether present or future, so that a plaintiff who has concluded a contract with a view to pursuing a trade or profession, not at the present time, but in the future may not be regarded as a consumer within the meaning of paragraph 1, point 1 of Article 13 and the first paragraph of Article 14 of the Convention.

 

ECJ 21 June 1978 'Bertrand v Paul Ott KG' (Case 150/77, ECR 1978 Page 01431)

Since the concept of a contract of sale on installment credit terms varies from one member state to another, in accordance with the objectives pursued by their respective laws , it is necessary, in the context of the 1968 Brussels Convention, to consider that concept as being independent and therefore to give it a uniform substantive content allied to the community order.

According to the principles common to the laws of the Member States, the sale of goods on installment credit terms is to be understood as a transaction in which the price is discharged by way of several payments or which is linked to a financing contract. However, a restrictive interpretation of the second paragraph of article 14 of the Convention, in conformity with the objectives pursued by Section 4, entails the restriction of the jurisdictional advantage for which provision is made by that article to buyers who are in need of protection, their economic position being one of weakness in comparison with sellers by reason of the fact that they are private final consumers and are not engaged, when buying the product acquired on installment credit terms, in trade or professional activities.

 


Other consumer contracts for the supply of goods or services [Article 13 (1) point 3]


ECJ 20 January 2005 ‘Petra Engler v Janus Versand GmbH’ (Case C-27/02, ECR 2005 p. I-00481)

1. As regards Article 13, first paragraph, of the 1968 Brussels Convention, relating to jurisdiction over consumer contracts, point 3 of that provision is applicable only in so far as, first, the claimant is a private final consumer not engaged in trade or professional activities, second, the legal proceedings relate to a contract between that consumer and the professional vendor for the sale of goods or services which has given rise to reciprocal and interdependent obligations between the two parties and, third, that the two conditions specifically set out in Article 13, first paragraph, point 3(a) and (b), are fulfilled.

Consequently, in a situation where a professional vendor made contact with a consumer by sending her a personalised letter containing a prize notification together with a catalogue and an order form for the sale of its goods in the Contracting State where she resides in order to induce her to take up the vendor’s offer, but where the vendor’s initiative was not followed by the conclusion of a contract between the consumer and the vendor for one of the purposes referred to in Article 13, first paragraph, point 3, of the Convention and in the course of which the parties assumed reciprocal obligations, the action brought by the consumer for the payment of the prize cannot be regarded as being contractual in nature for the purposes of that provision (see paras 34, 36, 38).

2. Legal proceedings by which a consumer seeks an order, under the law of the Contracting State in which he is domiciled, that a mail order company established in another Contracting State award a prize ostensibly won by him is contractual in nature for the purpose of Article 5, point 1, of the 1968 Brussels Convention, provided that, first, that company, with the intention of inducing the consumer to enter a contract, addresses to him in person a letter of such a kind as to give the impression that a prize will be awarded to him if he returns the ‘payment notice’ attached to the letter and, second, he accepts the conditions laid down by the vendor and does in fact claim payment of the prize announced. On the other hand, even though the letter also contains a catalogue advertising goods for that company and a request for a ‘trial without obligation’, the fact that the award of the prize does not depend on an order for goods and that the consumer has not, in fact, placed such an order has no bearing on that interpretation. (see para. 61, operative part.

 

ECJ 11 July 2002 ‘Rudolf Gabriel’ (Case C-96/00, ECR 2002 p. I-06367)

The jurisdiction rules set out in the 1968 Brussels Convention are to be construed as meaning that judicial proceedings by which a consumer seeks an order, in the Contracting State in which he is domiciled and pursuant to that State's legislation, requiring a mail-order company established in another Contracting State to pay him a financial benefit in circumstances where that company had sent to that consumer in person a letter likely to create the impression that a prize would be awarded to him on condition that he ordered goods to a specified amount, and where that consumer actually placed such an order in the State of his domicile without, however, obtaining payment of that financial benefit, are contractual in nature in the sense contemplated in Article 13, paragraph 1, point 3, of that Convention (see para. 60, operative part).

 


Professional party with a branch, agency or other establishment in one of the Contracting States [Article 13 (2)]


ECJ 15 September 1994 ‘ Brenner and Noller v Reynolds Inc.’ (Case C-318/93, ECR 1994 p. I-04275)

Articles 13 and 14 form part of the Section on `jurisdiction over consumer contracts'. In addition, the first subparagraph of Article 13 expressly states that that Section, as a whole, applies `without prejudice to the provisions of Article 4 [and 5, point 5]. According to the first paragraph of Article 4, `if the defendant is not domiciled in a Contracting State, the jurisdiction of the courts of each Contracting State shall, subject to the provisions of Article 16, be determined by the law of that State'. Article 16 lays down rules for exclusive jurisdiction in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the validity of the constitution, the nullity or the dissolution of companies or 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.

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. 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. Where in a specific case 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 contract, the exception does noes not apply. Accordingly, 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.

 


Article 14 of the 1968 Brussels Convention


ECJ 15 September 1994 ‘Brenner and Noller v Reynolds Inc.’ (Case C-318/93, ECR 1994 p. I-04275)

Articles 13 and 14 form part of the Section on `jurisdiction over consumer contracts'. In addition, the first subparagraph of Article 13 expressly states that that Section, as a whole, applies `without prejudice to the provisions of Article 4 [and 5, point 5]. According to the first paragraph of Article 4, `if the defendant is not domiciled in a Contracting State, the jurisdiction of the courts of each Contracting State shall, subject to the provisions of Article 16, be determined by the law of that State'. Article 16 lays down rules for exclusive jurisdiction in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the validity of the constitution, the nullity or the dissolution of companies or 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.

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. 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. Where in a specific case 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 contract, the exception does noes not apply. Accordingly, 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.

 

ECJ 3 July 1997 ‘Benincasa v Dentalkit’ (Case C-269/95, ECR 1997 p. I-03767)

In the context of the specific regime established by Article 13 et seq. of the 1968 Brussels Convention, only contracts concluded for the purpose of satisfying an individual's own needs in terms of private consumption come under the provisions designed to protect the consumer as the party deemed to be the weaker party economically. On the other hand, the specific protection sought to be afforded by those provisions is unwarranted in the case of contracts for the purpose of trade or professional activity, even if that activity is only planned for the future, since the fact that an activity is in the nature of a future activity does not divest it in any way of its trade or professional character. It follows that the regime in question applies solely to contracts concluded outside and independently of any trade or professional activity or purpose, whether present or future, so that a plaintiff who has concluded a contract with a view to pursuing a trade or profession, not at the present time, but in the future may not be regarded as a consumer within the meaning of paragraph 1, point 1 of Article 13 and the first paragraph of Article 14 of the Convention.

 

ECJ 21 June 1978 'Bertrand v Paul Ott KG' (Case 150/77, ECR 1978 Page 01431)

Since the concept of a contract of sale on installment credit terms varies from one member state to another, in accordance with the objectives pursued by their respective laws , it is necessary, in the context of the 1968 Brussels Convention, to consider that concept as being independent and therefore to give it a uniform substantive content allied to the community order.

According to the principles common to the laws of the Member States, the sale of goods on installment credit terms is to be understood as a transaction in which the price is discharged by way of several payments or which is linked to a financing contract. However, a restrictive interpretation of the second paragraph of article 14 of the Convention, in conformity with the objectives pursued by Section 4, entails the restriction of the jurisdictional advantage for which provision is made by that article to buyers who are in need of protection, their economic position being one of weakness in comparison with sellers by reason of the fact that they are private final consumers and are not engaged, when buying the product acquired on installment credit terms, in trade or professional activities.