OPINION OF ADVOCATE GENERAL

TIZZANO

delivered on 10 November 2005 ¹(1)

Case C-234/04

Rosmarie Kapferer

v

Schlank & Schick GmbH

(Reference for a preliminary ruling from the Landesgericht Innsbruck (Austria))

(Final and conclusive judgment – Obligation to reopen – Principle of cooperation – Article 10 EC – Legal certainty – Primacy of Community law – Jurisdiction in civil and commercial matters – Regulation (EC) No 44/2001 – Article 5(1)(a), Article 15(1)(c) and Article 16 – Proceedings to recover a prize ostensibly won – Contractual nature)

1.        This case concerns a reference to the Court for a preliminary ruling under Article 234 EC from the Landesgericht Innsbruck (Regional Court, Innsbruck, Austria) asking, firstly, whether a referring court is bound under Article 10 EC to reopen a court decision which has become final if it considers that decision contrary to Community law, and, secondly, for an interpretation of Article 15 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (hereinafter referred to as ‘Regulation No 44/2001’ or simply as ‘the Regulation’). (2)

I –  Legal background

Community law

2.        After the Treaty of Amsterdam brought judicial cooperation in civil matters into the Community sphere, the Council adopted Regulation No 44/2001 on the basis of Article 61(c) EC and Article 67(1) EC. That regulation, in force as of 1 March 2002 and designed to replace the Brussels Convention, (3) repeats the bulk of the Convention’s provisions whilst at the same time making certain changes and adjustments.

3.        The first provision material to this case is Article 5, which appears in Section 2 (‘Special jurisdiction’), Chapter II (‘Jurisdiction’), of the Regulation, and, in relevant part, provides as follows:

‘A person domiciled in a Member State may, in another Member State, be sued:

1.      (a)   in matters relating to a contract, in the courts for the place of performance of the obligation in question;

(b)      for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:

–      in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,

–      in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided,

(c)      if subparagraph (b) does not apply then subparagraph (a) applies;

…’

4.        Mention must next be made of Articles 15 and 16 in Section 4 (‘Jurisdiction over consumer contracts’) of the Regulation.

5.        Article 15 provides that:

‘1.      In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5, if:

(a)      it is a contract for the sale of goods on instalment credit terms; or

(b)      it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or

(c)      in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities …’.

6.        According to Article 16(1):

‘A consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or in the courts for the place where the consumer is domiciled.’

7.        Article 24, finally, provides that:

‘Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 22.’

National law

8.        The first provision in point is Paragraph 5j of the Konsumentenschutzgesetz (Austrian Consumer Protection Law; hereinafter ‘the KSchG’), (4) which is worded as follows:

‘Undertakings which send prize notifications or other similar communications to specific consumers, and by the wording of those communications give the impression that a consumer has won a particular prize, must give that prize to the consumer; that prize may also be claimed in legal proceedings.’

9.        Mention needs also be made of Paragraph 530 of the Zivilprozessordnung (Austrian Code of Civil Procedure; ‘the ZPO’), which provides as follows in relation to petitions for the reopening of cases:

‘(1)      Proceedings that have been concluded by a decision resolving the casecan be resumed on an application being made by one of the parties,

…

7.      if that party becomes aware of new facts or discovers or becomes able to use evidence the adducing and use of which in earlier proceedings would have resulted in a decision more favourable to it.

(2)      Resumption is only permitted in the circumstances stated in point 7 of Paragraph 1 if, due to no fault of its own, the party was unable to plead the new facts or evidence before the close of the oral procedure on the basis of which the decision was pronounced at first instance.’

10.      Finally, Paragraph 534 of the code provides that:

‘(1) Proceedings must be brought within a deadline of four weeks.

(2) That deadline is calculated:

…

4.      in the case of point 7 of Paragraph 530(1), from the date on which the party was capable of bringing before the court the facts and evidence brought to its knowledge.

(3)      Proceedings … cannot be issued more than 10 years after the decision has become final’.

II –  Facts and procedure

11.      Ms Kapferer, the plaintiff in the main proceedings, is a consumer residing in Hall in Tirol (Austria). In 2000, she received a letter personally addressed to her from Schlank & Schick GmbH – a German company carrying on mail order sales in Austria and elsewhere (hereinafter ‘Schlank & Schick’ or ‘the defendant’) – stating that she had won a prize of a cash credit of ATS 53 750 (equivalent to EUR 3 906.16). Approximately two weeks later, she was sent a second letter containing an order form, a final notice to claim her prize, a ‘credit stamp’ and an ‘account statement’ showing a balance in the amount of the prize, along with advertising literature and a catalogue of the company’s products. On the reverse of the final notice was a certificate, under the letter-heading of ‘Credit International’, to the effect that the prize was being held at that institution and setting out, in substantially smaller print of light-grey colour, the conditions of entry in the draw and of the award of prizes, one of which being the placing of a no-obligation trial order.

12.      In order to claim the promised prize, Ms Kapferer returned the order form to Schlank & Schick having signed, as requested, under ‘I have noted the participation conditions’ and having affixed the ‘credit stamp’ made out in her name. It is not possible, however, to establish whether the plaintiff also placed an order for products at that time.

13.      Not having received the prize she believed she had won, on 27 November 2002 Ms Kapferer instituted proceedings in the Hall Bezirksgericht (a court of first instance) under Paragraph 5j of the KSchG for an order directing Schlank & Schick to pay her the sum of EUR 3 906.16 plus interest.

14.      The defendant’s primary defence was that the court lacked jurisdiction, on the basis that the claim asserted in the Austrian court was not contractual in nature, as required by Articles 15 and 16 of Regulation No 44/2001. By failing to place an order for goods, Ms Kapferer had not fulfilled one of the conditions of entry to the draw and there was therefore no contract.

15.      By decision of 23 October 2003, the court of first instance dismissed that defence taking the view that a contractual relationship had come into being between the parties as a result of the prize having been offered and the consumer having accepted. On the merits, however, it dismissed the plaintiff’s claims in their entirety.

16.      Ms Kapferer appealed to the Landesgericht Innsbruck.

17.      According to the order for reference, the referring court is doubtful whether the court of first instance had jurisdiction to try the case. But given that Schlank & Schick failed to challenge the decision to dismiss the defence of lack of jurisdiction, the referring court wonders whether it none the less has an obligation under Article 10 EC review and and set aside a final and conclusive judgment that turns out to be contrary to Community law. In canvassing the possibility of such an obligation, the national court refers in particular to the judgment in Kühne & Heitz, (5) where the Court held that, if certain conditions are met, Article 10 EC imposes on an administrative body an obligation to review a final administrative decision in order to take account of a ruling given in the mean time by the Court, and it wonders whether the principles stated in that judgment can be transposed to decisions of a judicial body.

18.      By order of 26 May 2004, the Landesgericht Innsbruck therefore decided to refer the following questions to the Court for a preliminary ruling:

 ‘A – The court of first isntance’s decision as to jurisdiction

(1)      Is the principle of cooperation enshrined in Article 10 EC to be interpreted as meaning that, in the circumstances stated in the judgment of the Court of Justice in Case C-453/00 Kühne & Heitz, a national court is also obliged to review and set aside a final judicial decision if the latter should infringe Community law? Are there any other conditions applicable to the review and setting aside of judicial decisions in contrast to administrative decisions?

(2)      If the answer to the first question should be in the affirmative:

Is the period given under Paragraph 534 of the ZPO for the setting aside of judicial decisions that are contrary to Community law compatible with the principle of full effectiveness of Community law?

(3)      Furthermore, if the answer to first question should be in the affirmative:

Does a lack of international (or local) jurisdiction that is not remedied by Article 24 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters constitute a breach of Community law that, under the principles concerned, can set aside the legal force of a judicial decision?

(4)      If the answer to third question should be in the affirmative:

Is a court of appeal obliged to review the issue of international (or local) jurisdiction under Regulation No 44/2001 if the jurisdiction decision of the court of first instance has become final but the decision on the merits of the case has not? If so, is that review to be conducted by the court of its own motion or only at the instigation of one of the parties to the proceedings?

 B – Jurisdiction over consumer contracts under Article 15(1)(c) of Regulation No 44/2001

(1)      Does a misleading promise of financial benefit that induces the conclusion of a contract – and, therefore, prepares the ground for a contract – demonstrate a connection with the intended conclusion of a consumer contract sufficiently close for jurisdiction over consumer contracts under Article 15(1)(c) of Regulation No 44/2001 to be afforded to consequent claims?

(2)      If the answer to the first question should be in the negative:

Is jurisdiction over consumer contracts afforded to claims arising out of a pre-contractual obligation and does a misleading promise of financial benefit that helps to prepare the ground for a contract demonstrate a sufficiently close connection with the pre-contractual obligation thereby established for jurisdiction over consumer contracts also to be afforded thereto?

(3)      Is jurisdiction over consumer contracts afforded only if the conditions stipulated by the undertaking for participation in the prize game are satisfied, even if those conditions are not to be given any consideration in the substantive claim under Paragraph 5j of the KSchG?

(4)      If the answers to the first and second questions should be in the negative:

Is jurisdiction over consumer contracts afforded sui generis to a specific statutory form of contractual performance claim or sui generis to a constructive quasi-contractual performance claim which arises as a result of a promise of financial benefit made by an undertaking and the claiming of the financial benefit by the consumer?’

III –  Proceedings before the Court

19.      In the ensuing proceedings, written observations were submitted by the defendant, the German, French, Cypriot, Austrian, Finnish, Swedish and United Kingdom Governments, and the Commission.

20.      At the hearing on 8 September 2005, representations were made on behalf of the defendant, the Czech, German, French, Cypriot, Netherlands, Austrian, Finnish, Swedish and United Kingdom Governments, and the Commission.

IV –  Legal analysis

The first question

21.      By the first question, the national court asks in essence whether the principle of cooperation arising from Article 10 EC requires it to review and set aside a judicial decision that has become final if it believes the decision to be contrary to Community law.

22.      The Court in its case-law has recognised the fundamental importance of the principle of res judicata in the legal systems of both the Community and the Member States. (6) Specifically, the Court has held that ‘[i]n order to ensure both stability of the law and legal relations and the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time-limits provided for in that connection can no longer be called in question’. (7)

23.      It follows, the Court has further held, that Community law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would enable it to ascertain that the decision infringed Community law. (8) Likewise, in considering the effects of the principle of State liability for infringement of Community law by a national court, the Court held in Köbler that the application of that principle does not require ‘[i]n any event … revision of the judicial decision which was responsible for the damage’. (9)

24.      These principles were not altered by the judgment in Kühne & Heitz, to which the national court refers.

25.      In the first place, that case was concerned only with the reviewability of final administrative decisions adopted in breach of Community law. That is an issue of a different nature and import than one involving the principle of res judicata, a fundamental principle that is unique to the decisions of courts. It does not seem to me, therefore, that the conclusions reached by the Court in that case can be transposed without more to the sort of issues that this case raises.

26.      But even were such an approach to be adopted, it would not, I believe, lead to the outcome suggested by the referring court as the facts of the case do not meet the conditions laid down in Kühne & Heitz.

27.      It may be recalled that in that case the Court first of all stated that ‘Community law does not require that administrative bodies be placed under an obligation, in principle, to reopen an administrative decision which has become final’ (10) before going on to allow exceptions to that principle only under certain conditions. The Court held that the principle of cooperation arising from Article 10 EC imposes on an administrative body an obligation to review a final administrative decision in order to take account of a subsequent interpretation by the Court of a relevant provision of Community law only if:

‘–      under national law, [the administrative body] has the power to reopen that decision;

–      the administrative decision in question has become final as a result of a judgment of a national court ruling at final instance;

–      that judgment is, in the light of a decision given by the Court subsequent to it, based on a misinterpretation of Community law which was adopted without a question being referred to the Court for a preliminary ruling under Article 234(3) EC; and

–      the person concerned complained to the administrative body immediately after becoming aware of that decision of the Court’. (11)

28.      But the fact is that none of those conditions are met in this case.

29.      In the first place, the relevant national legislation does not contemplate the kind of reopening procedure the referring court has in mind. The order for reference makes clear that under the ZPO a judicial decision that has become final may be reopened only if one of the parties (i) so requests and (ii) presents fresh facts or evidence (point 9 above). There is no provision, therefore, as the Austrian Government confirmed both in its written observations and at the hearing, for a court to reopen a case of its own motion if it believes that a superior rule of law, such as a rule of Community law, may have been infringed.

30.      In the second place, the decision at first instance did not become final as a result of a judgment of a national court ruling at final instance, but as a result of not having been appealed within the time‑limit prescribed by Austrian law.

31.      As for the third condition laid down in Kühne & Heitz, it pertains to circumstances quite different from those at hand. In this case there is no judgment upholding the decision at first instance to take as the basis for determining whether or not the condition is satisfied.

32.      In any event, it does not seem to me that, as at the time of the reference, this Court had adopted an interpretation of Article 15 or of any other relevant provision of Regulation No 44/2001 that was at variance with the interpretation of the Austrian court of first instance. (12) Nor does the referring court mention any such judgment.

33.      Finally, contrary to what is expressly required under the Kühne & Heitz judgment, neither party to the main proceedings sought the review and/or setting aside of the decision at first instance. It was instead the referring court that raised the question as to whether it should reopen the decision of its own motion.

34.      In the light of the foregoing considerations, I believe I can conclude that Community law does not require a national court to review and set aside a final and conclusive judicial decision that turns out to be contrary to Community law.

35.      Having concluded that the referring court is not bound to reopen the decision at first instance, it seems to me that a reply to the second question – which concerns the interpretation of Regulation No 44/2001 adopted in that decision – would not be useful to the resolution of the dispute in the main proceedings and that accordingly the Court is not required to express a view on it.

36.      In case the Court should have a different opinion, however, and for completeness of analysis, the question on the interpretation of Article 15(1)(c) of Regulation No 44/2001 will also be examined.

The second question

37.      By the second question, as we have seen, the referring court essentially asks whether a prize notification, of the kind that gave rise to the dispute in the main proceedings, calculated to induce a consumer to enter into a contract, is of a ‘contractual’ nature or is otherwise tantamount or sufficiently connected to a ‘contractual’ relationship to come within Article 15(1)(c) of the Regulation, and whether the consumer is consequently entitled to bring proceedings in the forum having jurisdiction over consumer contracts in order to recover payment of the prize allegedly won. In other words, the question is whether or not court actions such as that brought by Ms Kapferer come within the scope of Article 15 of the Regulation.

38.      Austria and Germany, (13) on the one hand, and Schlank & Schick and the Commission, on the other, give completely opposing answers to this question, with arguments that are related as necessary below.

39.      The two governments submit that the legal claim asserted in the main proceedings is contractual in nature for the purposes of Article 15(1)(c) of the Regulation. In particular, they argue that that provision needs to be interpreted broadly in order to protect the consumer as the weaker party in the relationship, and that the ‘prize notification’ sent to the consumer was clearly intended to induce her to order goods and so enter into a contract.

40.      The other two interveners submit, albeit without suggesting an alternative, that Article 15 is not applicable on the facts of the case, essentially arguing that the sending of the prize notification was not followed by the formation of a contract for consideration, which was the condition sine qua non for the application of the provision in question.

41.      For my part, I must immediately observe that in the very recent decision in Engler, (14) which was delivered after the commencement of these proceedings and was therefore not known to either the referring court or the parties, this Court gave judgment in a case very similar to this one, both as regards the facts giving rise to the main proceedings and the legal issues raised.

42.      The Engler case also originated with an action taken by an Austrian consumer in an Austrian court on the basis of the same provision of national law (Paragraph 5j of the KSchG), for an order requiring a German mail order company to pay out prize money it had told her she had won in an advertising communication of the same kind. When the jurisdiction of the Austrian court to hear and determine the claim was challenged, a reference was made to the Court for a preliminary ruling on the interpretation of various provisions of the Brussels Convention, which was the law in force at the material time.

43.      Because of the similarities between the two cases, it may be useful to outline briefly the reasoning followed by the Court in the above judgment.

44.      There, the Court first ruled that ‘an action such as that brought by Ms Engler in the case in the main proceedings cannot be regarded as being contractual in nature for the purposes of Article 13, first paragraph, point 3, of the Brussels Convention’ (15) (now Article 15(1)(c) of the Regulation). According to the very letter of that provision, it applied only where a series of conditions were satisfied, one of which being the existence of a contract between a consumer and a supplier acting in the course of business. In the case in question, the sending of the advertising material containing the prize notification had not been followed by the formation of such a contract as the consumer had not placed an order with the mail order company.

45.      Having determined that the special rules governing consumer contracts (then set out, as noted above, in Article 13 of the Brussels Convention) were not applicable, the Court went on, however, to observe that that finding ‘does not in itself prevent [the legal action brought in the main proceedings] from relating to a contract for the purposes of Article 5(1)’ (now Article 5 of the Regulation), the general rule whereby, in matters relating to a contract, jurisdiction lies with the courts ‘for the place of performance of the obligation in question’. (16)

46.      That was so, the Court explained on the basis of settled case-law, because the concept of ‘matters relating to a contract’ contemplated by Article 5(1), unlike the special rules for consumer contracts (Article 13 of the Convention and Article 15 of the Regulation), is not confined to cases where a contract has been formed but also extends to relationships and links similar to those existing between the parties to a contract provided that there can be found ‘a legal obligation freely consented to by one person towards another’. (17)

47.      What had to be determined in that case, therefore, was whether the sending of the contentious ‘prize notification’ had created such an obligation on the part of the mail order company.

48.      Answering that question in the affirmative, the Court stated that communications of the kind referred to are calculated to bind a sender who: (i) ‘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 (ii) the consumer ‘accepts the conditions laid down by the vendor and does in fact claim payment of the prize announced’. (18)

49.      If those conditions are met, therefore, an action such as that brought by Ms Engler, by which a consumer seeks an order, under the law of the Contracting State in which she is domiciled, requiring a mail order company established in another Contracting State to pay out prize money ostensibly won by her, can be based on Article 5(1) of the Convention. (19)

50.      The Court noted, lastly, that it was irrelevant that the payment of the prize money did not depend on an order for goods and that the consumer did not in fact make an order, since, as has been seen, Article 5(1) does not require a contract. (20)

51.      With all that outlined, it seems to me that the principles stated by the Court in Engler can readily be applied, mutatis mutandis, to the case at hand.

52.      First of all, it seems to me that for the same reasons as described in that judgment, Article 15(1)(c) of the Regulation can have no application here. Like Article 13 of the Brussels Convention and by its very words, that provision applies only where a ‘contract has been concluded’ between a business and a consumer. But according to the order for reference there is no contract in the present case, since it cannot be established whether Ms Kapferer placed an order for goods.

53.      Secondly, it does not seem to me, contrary to what the Austrian and German Governments submit, that this requirement for a contract to have been entered into ceased to apply following the changes brought in by Article 15 of Regulation No 44/2001 vis-à-vis Article 13 of the Convention. According to the two governments concerned, those changes enhanced consumer protection, with the consequence that the new provision had to be construed in favour of the weaker party in the relationship to an even greater extent than Article 13 of the Convention.

54.      I must point out, however, that those changes related only to the substantive scope of the provisions on consumer contracts. (21) As noted just above, they did not in any way affect the requirement – contained in both provisions – for a contract to have been made between a business and a consumer.

55.      That notwithstanding, however, the fact that the special rules governing consumer contracts are not applicable here does not rule out the possibility of the plaintiff’s action yet falling to be treated as contractual in nature, as was the case in Engler, specifically on the basis of Article 5(1)(a) of the Regulation, which is identical, in so far as concerns us here, to Article 5(1) of the Convention.

56.      The issue to be considered therefore is whether Article 5(1)(a) of the Regulation is applicable to the present case.

57.      Let me note straight away that the fact that the national court did not expressly refer in its order to the provision in question does not prevent this issue being canvassed. As the case-law holds, ‘[i]t is the Court’s duty to interpret all provisions of Community law which national courts need in order to decide the actions pending before them, even if those provisions are not expressly indicated in the questions referred to the Court of Justice by those courts’. (22)

58.      Now it seems to me that the requirements for the application of Article 5(1)(a) are fully met in this case. It is clear from the order for reference that the conditions laid down in Engler (point 48 above) are satisfied. First, Schlank & Schick, in the course of business and for the purpose of inducing her to order products, sent an unsolicited letter to a consumer’s home identifying her by name as the winner of a prize; secondly, Ms Kapferer expressly accepted Schlank & Schick’s conditions of entry to the prize‑draw and sought to claim the prize she had ostensibly won.

59.      I do not believe a different conclusion is warranted by the argument of Schlank & Schick and the Commission that this case is distinguishable from Engler on its facts. In the view of the parties in question, there was no binding relationship in the instant case because Ms Kapferer had not fulfilled one of the conditions of entry to the draw, namely, the placing of a no-obligation trial order.

60.      I would first point out that whether or not such a condition applied is a matter of considerable contention in the national proceedings. (23) But even were it to be conceded that prize monies were payable only if goods were ordered, it is still the case – and none of the parties disputes it – that Ms Kapferer expressly accepted the conditions of entry to the draw and requested payment of her prize. That suffices, according to the Engler test, to conclude that the prize notification constitutes a contractual obligation for the purposes of Article 5(1)(a) of the Regulation (points 48 and 50 above).

61.      Moreover, according to the case-law of this Court, even disputes concerning the very existence of the contractual obligation on which a claim is based come within Article 5(1). (24) That provision is therefore applicable in cases where, as here, the parties are in dispute as to the presence or otherwise of one of the elements of the obligation on which the plaintiff’s claim is based.

62.      I believe I can therefore conclude that judicial proceedings brought by a consumer in the circumstances of the main proceedings for an order, under the law of the Contracting State in which she is domiciled, requiring a mail order company established in another Contracting State to pay out a prize ostensibly won by her cannot be based on Article 15(1)(c) of Regulation No 44/2001 but do, however, come within the scope of Article 5(1)(a) of that regulation.

63.      If that conclusion is accepted, it follows that, pursuant to the provision in question, jurisdiction in the instant case will lie with the courts for the place of performance of the contractual obligation upon which Ms Kapferer sued.

64.      But what ‘place’ is that? The Regulation specifies the place of performance for two types of contractual obligation only: those arising from a sale of goods and those arising from a provision of services, where jurisdiction lies, as the case may be, with the courts for the place where the goods are to be delivered or the services provided (Article 5(1)(b)).

65.      With regard to other types of contractual relations – including the type that concerns us here – Article 5 is silent. The Court has repeatedly held, however, that the expression ‘place of performance of the obligation in question’ ‘is to be interpreted as referring to the law which governs the obligation in question according to the conflict rules of the court seised’. (25) It is therefore for that court to ‘determine in accordance with its own rules of conflict of laws what is the law applicable to the legal relationship in question and define in accordance with that law the place of performance of the contractual obligation in question’. (26)

66.      In the main proceedings, therefore, the national court must first establish which law is applicable to the prize notification in question under Austrian conflict rules, then, on the basis of that law, determine the place of performance of the obligation arising from it, and, finally, ascertain whether that place ‘is situate within its territorial jurisdiction’. (27)

67.      I do not believe that it is a matter for this Court to go further and to carry out an inquiry which is competent to the national court. I will only observe that according to what was suggested at the hearing, in particular by Austria, its conclusion would likely be that jurisdiction lies with the Austrian courts.

68.      I must add, however, that even a different outcome to the inquiry would not necessarily mean the Austrian courts lacked jurisdiction.

69.      This is because of the potential application of Article 24 of the Regulation, which allocates jurisdiction to the court of a Member State before which a defendant enters an appearance without contesting that court’s jurisdiction, unless another court has exclusive jurisdiction by virtue of Article 22 of the Regulation. (28)

70.      In the instant case, the latter condition is certainly satisfied because none of the exclusive jurisdiction criteria set out in Article 22 falls to apply. But I believe that the other condition may also be met, because while the jurisdiction of the Austrian courts was disputed at first instance, it went unchallenged on appeal. The failure to challenge the decision rendered at first instance in this respect could therefore be deemed acceptance of jurisdiction for the purposes of Article 24.

71.      In the light of all the foregoing considerations, it seems to me that in the instant case there was no breach of Community law by reason of lack of jurisdiction.

V –  Conclusion

72.      I therefore conclude by proposing that the Court should reply to the first question of the Landesgericht Innsbruck as follows:

Community law does not require a national court to review and set aside a final and conclusive judicial decision that turns out to be contrary to Community law.

In the alternative, if the Court should deem it necessary to answer the second question, I propose that it do so in the following terms:

Judicial proceedings brought by a consumer in the circumstances of the main proceedings for an order, under the law of the Contracting State in which she is domiciled, requiring a mail order company established in another Contracting State to pay out a prize ostensibly won by her cannot be based on Article 15(1)(c) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters but do come within the scope of Article 5(1)(a) of that regulation.

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1 – Original language: Italian.

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2 – OJ 2001 L 12, p. 1.

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3 – Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), as amended by the Convention of 9 October 1978 on the Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and – amended text – p. 77), by the Convention of 25 October 1982 on the Accession of the Hellenic Republic (OJ 1982 L 388, p. 1), by the Convention of 26 May 1989 on the Accession of the Kingdom of Spain and the Portuguese Republic (OJ 1989 L 285, p. 1) and by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden (OJ 1997 C 15, p. 1). A consolidated version of the Convention can be found in OJ 1998 C 27, p. 1.

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4 – BGBl. I, 1979, p. 140. This provision was inserted in the Consumer Protection Law by Paragraph 4 of the Fernabsatz-Gesetz (Austrian Law on Distance Contracts) (BGBl. I, 1999, p. 185) when Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19) was transposed into Austrian law.

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5 – Case C‑453/00 [2004] ECR I‑837.

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6 – See, in particular, Joined Cases 79/63 and 82/63 Reynier [1964] ECR 259, Kühne & Heitz, paragraph 24, Case C-126/97 Eco Swiss [1999] ECR I-3055, paragraph 46, and Case C-224/01 Köbler [2003] ECR I-10239, paragraph 38.

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7 – Köbler, paragraph 38.

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8 – See Eco Swiss, a case that actually concerned an arbitration award, at paragraph 48: ‘Community law does not require a national court to refrain from applying domestic rules of procedure according to which an interim arbitration award which is in the nature of a final award and in respect of which no application for annulment has been made within the prescribed time-limit acquires the force of res judicata and may no longer be called in question by a subsequent arbitration award, even if this is necessary in order to examine, in proceedings for annulment of a subsequent arbitration award, whether an agreement which the interim award held to be valid in law is nevertheless void under Article 85 of the Treaty’.

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9 – Köbler, paragraph 39.

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10 – Kühne & Heitz, paragraph 24. Emphasis added.

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11 –      Kühne & Heitz, paragraph 28.

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12 – I would point out in particular that the Engler judgment, which concerned facts very similar to those at issue here and to which I will have occasion to return (see below), was given on 20 January 2005, after the present proceedings had commenced.

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13 – The other intervening governments chose not to express a view on this question and to confine their observations to Question A.

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14 – Case C-27/02 [2005] ECR I-481.

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15 – Engler, paragraph 38.

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16 – Engler, paragraph 49.

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17 – Engler, paragraphs 45, 50 and 51 and the case-law cited there. See also the Opinion of Advocate General Jacobs in Engler, where he noted that ‘[i]n all of the Contracting States’ legal systems, at least some types of unilateral undertaking to perform a definite act for the benefit of another may be enforceable against the promisor’ (point 41).

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18 – Engler, paragraph 61.

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19 – Engler, paragraphs 60 and 61.

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20 – Engler, paragraphs 59 and 61.

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21 – While under Article 13 of the Convention the special jurisdiction rules for consumer contracts applied only in the case of contracts for the supply of goods or services, Article 15 of the Regulation brought all types of consumer contract within the scope of those rules (with the exception of certain contracts of transport).

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22 – Case C-280/91 Viessmann [1993] ECR I-971, paragraph 17, and Case C-42/96 Immobiliare SIF [1997] ECR I-7089, paragraph 28. See also, of the many cases in point, Case 35/85 Tissier [1986] ECR 1207, paragraph 9, Case C-315/88 Bagli Pennacchiotti [1990] ECR I-1323, paragraph 10, and Case C-107/98 Teckal [1999] ECR I-8121, paragraph 39.

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23 – According to the order for reference, the plaintiff maintains that the payout of prize money was not in fact subject to products being ordered because the conditions of entry were barely legible and hard to understand, a view apparently shared by the referring court.

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24 – Case 38/81 Effer [1982] ECR 825, paragraph 8, Case C-269/95 Benincasa [1997] ECR I-3767, paragraph 30, and Engler, paragraph 46.

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25 – Case C-440/97 GIE Groupe Concorde [1999] ECR I‑6307, paragraph 13. See also Case 12/76 Tessili [1976] ECR 1473, paragraph 15, Case 266/85 Shenavai [1987] ECR 239, paragraph 7, and Case C-288/92 Custom Made Commercial [1994] ECR I-2913, paragraph 26.

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26 – Tessili, paragraph 13.

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27 – Tessili, paragraph 13.

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28 – That latter article assigns exclusive jurisdiction (i) in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, (ii) in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies, (iii) in proceedings which have as their object the validity of entries in public registers, (iv) in proceedings concerned with the registration or validity of patents, trade marks, designs, or other similar rights, and (v) in proceedings concerned with the enforcement of judgments.