Kapferer v. Schlank & Schick GmbH (Case C-234/04) Before the ...

Kapferer v. Schlank & Schick GmbH
(Case C-234/04)
Before the Court of Justice of the European Communities (First
Chamber)
ECJ (1st Chamber)
(Jann P.C., Presiding; Colneric ( Rapporteur), Lenaerts, Juhász and
Ilesic
JJ.; Antonio Tizzano, Advocate General)
March 16, 2006
Consumer contracts; EC law; Judicial review; Jurisdiction; National law; Res judicata;
Rules of procedure
H1 Res judicata--prize notification-misleading advertising--action by consumer to claim
prize-decision on jurisdiction over consumer contract in favour of consumer--decision on
merits adverse to consumer--appeal by consumer on merits--whether review of
jurisdiction possible on appeal--legal certainty-- Community law not requiring national
court to disapply domestic rules of procedure conferring finality on decision-primacy of
Community law-- Art.10 EC--compliance with limits on powers of Member States in
procedural matters-- Kühne & Heitze dealing with situation where national court
empowered under national law to reopen decision-not calling in question rules relating to
final judgments--Advocate General's Opinion--Engler--inapplicability of Art.15(1)(c) of
Brussels I Regulation--absence of contract-- Art.5(1) of Regulation--scope--matters
relating to a contract--unnecessary for contract to have been entered into--legal obligation
freely consented to--such obligation created by sending of prize notification and
consumer's response--unnecessary for consumer to place order
H2 Reference from Austria by the Landesgericht (Regional Court) Innsbruck under Art.
234 EC.
H3 In her capacity as a consumer, K received advertising material from S&S containing a
prize notification. According to the participation/award conditions on the reverse side of
that notice, participation in the distribution of the prizes was subject to a test order
without obligation. K signed and returned the order form to S&S, but without having read
the participation/award conditions and without having made an order. Not having
received the prize, she believed she had won, K claimed that prize on the basis of the
Austrian Consumer Protection Law, according to which undertakings which sent prize
notifications to specific consumers, which gave the impression that a consumer had won
a particular prize, should give that prize to the consumer. S&S objected that the court
seised lacked *363 jurisdiction. The District Court dismissed the plea of lack of
competence and declared itself to have jurisdiction. It then dismissed K's claim on the

merits. K brought an appeal before the referring court, but S&S did not challenge the
decision on jurisdiction since it had won on the merits. The referring court doubted
whether the decision as to jurisdiction was correct, and wondered whether it had an
obligation under Art.10 EC to review and set aside a final and conclusive judgment on
international jurisdiction if that judgment was proved to be contrary to Community law.
In particular it wondered whether it was possible to transpose the principles laid down in
the judgment in Kühne & Heitz concerning the obligation imposed on an administrative
body to review a final administrative decision which was contrary to Community law. It
therefore stayed the proceedings to seek a preliminary ruling from the Court of Justice
essentially as to whether the principle of cooperation arising from Art.10 EC imposed on
a national court an obligation to review and set aside a final judicial decision if that
decision should infringe Community law.
Held:
Principle of res judicata
H4 The principle of res judicata was important both for the Community legal order and
national legal systems. In order to ensure both stability of the law and legal relations and
the sound administration of justice, it was important that judicial decisions which had
become definitive after all rights of appeal had been exhausted or after expiry of the timelimits
provided for in that connection could no longer be called into question. Therefore,
Community law did 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 remedy an
infringement of Community law by the decision at issue. [20]-[21]
Köbler v Austria (C-224/01): [2003] E.C.R. I-10239; [2003] 3 C.M.L.R. 28; Eco Swiss
China Time Ltd v Benetton International NV (C-126/97): [1999] E.C.R. I-3055; [2000] 5
C.M.L.R. 816, followed.
Member State respecting limits on its power in procedural matters
H5 (a) By laying down the procedural rules for proceedings designed to ensure protection
of the rights which individuals acquired through the direct effect of Community law,
Member States should ensure that such rules were not less favourable than those
governing similar domestic actions (principle of equivalence) and were not framed in
such a way as to render impossible in practice the exercise of rights conferred by
Community law (principle of effectiveness). However, compliance with the limits of the
power of the Member States in procedural matters had not been called into question in
the dispute in the main proceedings as to appeal proceedings. [22]
Preston v Wolverhampton Healthcare NHS Trust and Fletcher v Midland Bank Plc (C-
78/98): [2000] E.C.R. I-3201; [2000] 2 C.M.L.R. 837, followed.
H6 (b) The judgment in Kühne & Heitz was not such as to call into question that
analysis. Even assuming that the principles laid down in that judgment could be
transposed into a context which, like that of the main proceedings, related to a final *364
judicial decision, that judgment made the obligation of the body concerned to review a
final decision, which would appear to have been adopted in breach of Community law
subject, in accordance with Art.10 EC, to the condition that that body should be
empowered under national law to reopen that decision. In the case at issue that condition
had not been satisfied. [23]
Conclusion
H7 The principle of co-operation under Art.10 EC did not require a national court to

disapply its internal rules of procedure in order to review and set aside a final judicial
decision if that decision should be contrary to Community law. [24]
Interpretation of Brussels I Regulation, Articles 15(1)(c) and 5(1)
H8 (a) The Court did not find it necessary to address further questions concerning the
interpretation of Art.15(1)(c) of the Brussels I Regulation posed by the referring court.
However, the Advocate General, citing Engler, took the view that the facts at issue were
not within the scope of Art.15(1)(c) of the Regulation, since that provision required the
formation of a contract.
H9 (b) Nevertheless, according to the Advocate General the facts might fall within
Art.5(1) of the Regulation, since the concept of "matters relating to a contract"
contemplated by Art.5(1), unlike the special rules for consumer contracts ( Art.15 of the
Regulation), was not confined to cases where a contract had been formed but also
extended to relationships and links similar to those existing between the parties to a
contract provided that there could be found "a legal obligation freely consented to by one
person towards another". In Engler, it was found that the sending of the contentious
"prize notification" had created such an obligation on the part of the mail-order company.
Such notifications were calculated to bind a sender where:
i) with the intention of inducing the consumer to enter a contract, the sender addressed to
him in person a letter of such a kind as to give the impression that a prize would be
awarded to him if he returned the "payment notice" attached to the letter; and
ii) the consumer accepted the conditions laid down by the vendor and did in fact claim
payment of the prize announced.
The Advocate General considered that even were it to be conceded that prize monies
were payable only if goods were ordered, K expressly accepted the conditions of entry to
the draw and requested payment of her prize. That sufficed, according to the Engler test,
to conclude that the prize notification constituted a contractual obligation for the purposes
of Art.5(1)(a) of the Regulation. Moreover, even disputes concerning the very existence
of the contractual obligation on which a claim was based came within Art.5(1). [41]-[60]
H10 Cases referred to in the judgment:
Before the European Court of Justice
Eco Swiss China Time Ltd v Benetton International NV (C-126/97), June 1, 1999: [1999]
E.C.R. I-3055; [2000] 5 C.M.L.R. 816 *365
Gabriel v Schlank & Schick GmbH (C-96/00), July 11, 2002: [2002] E.C.R. I-6367;
[2002] I.L.Pr. 36
Köbler v Austria (C-224/01), September 30, 2003: [2003] E.C.R. I-10239; [2003] 3
C.M.L.R. 28
Kühne & Heitz NV v Produktschap voor Pluimvee en Eieren (C-453/00), January 13,
2004: [2004] E.C.R. I-837; [2006] 2 C.M.L.R. 17
Preston v Wolverhampton Healthcare NHS Trust and Fletcher v Midland Bank Plc (C-
78/98), May 16, 2000: [2000] E.C.R. I-3201; [2000] 2 C.M.L.R. 837
Further cases referred to by the Advocate General:
Before the European Court of Justice
Benincasa v Dentalkit Srl (C-269/95), July 3, 1997: [1997] E.C.R. I-3767; [1997] I.L.Pr.

559
Custom Made Commercial Ltd v Stawa Metallbau GmbH (C-288/92), June 29, 1994:
[1994] E.C.R. I-2913; [1994] I.L.Pr. 516
Effer SpA v Kantner (38/81), March 4, 1982: [1982] E.C.R. 825; [1984] 2 C.M.L.R. 667
Engler v Janus Versand GmbH (C-27/02), January 20, 2005: [2005] E.C.R. I-481; [2005]
I.L.Pr. 8
Finanzamt Kassel-Goethestrasse v Viessmann KG (C-280/91), March 18, 1993: [1993]
E.C.R. I-971; [1993] 3 C.M.L.R. 153
GIE Groupe Concorde v Master of the Vessel Suhadiwarno Panjan (C-440/97),
September 28, 1999: [1999] E.C.R. I-6307; [2000] I.L.Pr. 626
Industrie Tessili Italiana Como v Dunlop AG (12/76), October 6, 1976: [1976] E.C.R.
1473; [1977] 1 C.M.L.R. 26
Pennacchiotti, Re (351/88), March 27, 1990: [1990] E.C.R. I-1323; [1992] 3 C.M.L.R.
561
Procureur de la République v Tissier (35/85), March 20, 1986: [1986] E.C.R. 1207;
[1987] 1 C.M.L.R. 551
Reynier and Others v Commission of the European Economic Community (79/63), June
9, 1964: [1964] E.C.R. 511
Shenavai v Kreischer (266/85), January 15, 1987: [1987] E.C.R. 239; [1987] 3 C.M.L.R.
782
Società Immobiliare SIF SpA v Amministrazione delle finanze dello Stato (C-42/96),
December 11, 1997: [1997] E.C.R. I-7089
Teckal Srl v Comune di Viano and Azienda Gas-Acqua Consorziale (AGAC) di Reggio
Emilia (C-107/98), November 18, 1999: [1999] E.C.R. I-8121
H11 Representation
M. Alexander and M. Dreschers, Rechtsanwälte, for Schlank & Schick GmbH.
H. Dossi and S. Pfanner, acting as Agents, for Austria.
T. Bocek, acting as Agent, for the Czech Republic.
A. Tiemann and A. Günther, acting as Agents, for Germany.
A. Bodard-Hermant, R. Abraham, G. de Bergues and J.-C. Niollet, acting as Agents, for
France.
M. Chatzigeorgiou, acting as Agent, for Cyprus.
C. ten Dam, acting as Agent, for the Netherlands.
T. Pynnä, acting as Agent, for Finland. *366
A. Falk, acting as Agent, for Sweden.
E. O'Neill, acting as Agent, and D. Lloyd-Jones Q.C. for the United Kingdom.
A.-M. Rouchaud and W. Bogensberger, acting as Agents, for the Commission of the
European Communities.
OPINION [FN1]
AG1 This case concerns a reference to the court for a preliminary ruling under Art.234
EC by the Landesgericht Innsbruck (Austria) asking, first, whether a referring court is
bound under Art.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 Art.15 of
Council Regulation 44/2001 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters(hereinafter referred to as "Regulation
44/2001" or simply as "the Regulation"). [FN2]
FN1 Opinion of A.G. Antonio Tizzano, delivered on November 10, 2005.
FN2 [2001] O.J.L12/1.
I-- Legal background
Community law
AG2 After the Treaty of Amsterdam brought judicial co-operation in civil matters into
the Community sphere, the Council adopted Regulation 44/2001 on the basis of Arts
61(c) and 67(1) EC. That regulation, in force as of March 1, 2002 and designed to replace
the Brussels Convention, [FN3] repeats the bulk of the Convention's provisions whilst at
the same time making certain changes and adjustments.
FN3 Brussels Convention of September 27, 1968 on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters: [1978] O.J. L304/36, as amended by the
Convention of October 9, 1978 on the Accession of Denmark, Ireland and the United
Kingdom: [1978] O.J. L304/1, and--amended text--p.77, by the Convention on October
25, 1982 on the Accession of Greece: [1982] O.J. L388/1, by the Convention of May 26,
1989 on the Accession of Spain and Portugal: [1989] O.J. L285/1 and by the Convention
of November 29, 1996 on the Accession of Austria, Finland and Sweden: [1997] O.J.
C15/1. A consolidated version of the Convention can be found in [1998] O.J. C27/1.
AG3 The first provision material to this case is Art.5, which appears in s.2 ("Special
jurisdiction"), Ch.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,
*367 (c) if sub-paragraph (b) does not apply then sub-paragraph (a) applies;
[...]".
AG4 Mention must next be made of Arts 15 and 16 in s.4 ("Jurisdiction over consumer
contracts") of the Regulation.
AG5 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 [...]".
AG6 According to Art.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."
AG7 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
AG8 The first provision in point is para.5j of the Konsumentenschutzgesetz (Austrian
Consumer Protection Law, hereinafter "the KSchG"), [FN4] 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; it may also be
claimed in legal proceedings."
FN4 BGBl. I, 1979, p.140. This provision was inserted in the Consumer Protection Law
by para.4 of the Fernabsatz-Gesetz (Austrian Law on Distance Contracts) (BGBl. I, 1999,
p.185) when Directive 97/7: [1997] O.J. L144/19 was transposed into Austrian law.
AG9 Mention needs also be made of para.530 of the Zivilprozessordnung (Austrian
Rules of Civil Procedure, hereinafter "the ZPO"), which provides as follows in relation to
petitions for the reopening of cases: *368
"(1) Proceedings that have been concluded by a decision disposing of the case may be
reopened on the petition of a party,
[...]
7. if the party becomes aware of new facts or discovers or becomes able to use evidence
which if presented during the original proceedings would have brought about an outcome
more favourable to that party.
(2) In the circumstances of sub-paragraph (1)(7) above, a case may be reopened only if
the party was unable through no fault of its own to present the new facts or evidence
before the end of the oral hearing following which the decision at first instance was
rendered."
AG10 Finally, para.534 of the Code provides that:
"(1) The petition shall be filed within a strict time limit of four weeks.

(2) Time shall run:
[...]
4. in the circumstances of Paragraph 530(1)(7) above, from the day on which the party
was in position to present the new facts and evidence to the court.
(3) A petition shall no longer lie ten years after a decision has become final".
II-- Facts and procedure
AG11 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 euro3,906.16). Approximately two
weeks later, she was sent a second letter containing an order form, a final notice to claim
her prize, a "credit coupon" 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.
AG12 In order to claim the promised prize, Ms Kapferer returned the order form to
Schlank & Schick having signed, as requested, under "I have read the conditions of
entry" and having affixed the "credit coupon" made out in her name. It is not possible,
however, to establish whether the plaintiff also placed an order for products at that time.
AG13 Not having received the prize she believed she had won, on November 27, 2002
Ms Kapferer instituted proceedings in the Hall Bezirkgericht (a court of first *369
instance) under para.5j of the KSchG for an order directing Schlank & Schick to pay her
the sum of euro3,906.16 plus interest.
AG14 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 Arts 15 and 16 of Regulation 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.
AG15 By decision of October 23, 2003, the first-instance court 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.
AG16 Ms Kapferer appealed to the Landesgericht Innsbruck.
AG17 According to the order for reference, the referring court is doubtful whether the
first-instance court 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 nonetheless has an obligation under Art.10 EC to reopen 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, [FN5] where the court held that, if certain conditions are
met, Art.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 meantime by the

court, and it wonders whether the principles stated in that judgment can be transposed to
decisions of a judicial body.
FN5 Kühne & Heitz (C-453/00): [2004] E.C.R. I-837; [2006] 2 C.M.L.R. 17.
AG18 By order of May 26, 2004, the Landesgericht Innsbruck therefore decided to refer
the following questions to the court for a preliminary ruling:
"A-- The lower court's decision as to jurisdiction
1) On a proper interpretation of the principle of co-operation enshrined in Article 10 EC,
is a national court likewise bound, where the conditions laid down by the Court of Justice
in Case C-453/00 Kühne & Heitz are met, to reopen and set aside a final and conclusive
court decision that turns out to be contrary to Community law? Do any additional
conditions apply to the reopening and setting aside of judicial as opposed to
administrative decisions?
2) If the answer to the first question is in the affirmative:
Is the limitation period prescribed in Paragraph 534 of the Zivilprozessordnung (Austrian
Rules of Civil Procedure) for the setting aside of a judicial decision in breach of
Community law compatible with the principle of full effectiveness of Community law?
3) Again, if the answer to the first question is in the affirmative:
Does a lack of national (or local) jurisdiction not cured by Article 24 of Regulation No
44/2001 constitute a breach of Community law *370 that can, in the light of the
aforementioned principles, disturb the finality of a judicial decision?
4) If the answer to the third question is in the affirmative:
Is an appeal court bound to consider the question of national (or local) jurisdiction under
Regulation No 44/2001 if the decision of the lower court as to jurisdiction has become
final but the decision on the merits has not? If so, is it bound do so sua sponte or only at
the behest of one of the parties?
B-- Jurisdiction over consumer contracts under Article 15(1)(c) of Regulation
No 44/2001
1) Does a misleading prize notification calculated to induce a contract have a sufficiently
close connection with the consumer contract intended to result from it to attract the
consumer contract jurisdiction of Article 15(1)(c) of Regulation No 44/2001 in the event
of ensuing litigation?
2) If the answer to the first question is in the negative:
Is consumer contract jurisdiction available in the case of litigation on a pre-contractual
obligation and does a misleading prize notification calculated to induce a contract have a
sufficiently close connection with a resulting pre-contractual obligation to also attract the
consumer contract jurisdiction?
3) Is the consumer contract jurisdiction available only if the conditions of entry to the
prize-draw are satisfied, even though those conditions are of no relevance to the
substantive action under Paragraph 5j of the KSchG (Austrian Consumer Protection
Law)?
4) If the answers to the first and second questions are in the negative:

Is the consumer contract jurisdiction available in the case of a special sui generis
statutory action in contract or a constructive sui generis action in quasi-contract arising as
a result of a prize being offered by a business and claimed by a consumer?"
III-- Proceedings before the court
AG19 In the ensuing proceedings, written observations were submitted by the defendant,
the German, French, Cypriot, Austrian, Finnish, Swedish and UK Governments, and the
Commission.
AG20 At the hearing on September 8, 2005, representations were made on behalf of the
defendant, the Czech, German, French, Cypriot, Netherlands, Austrian, Finnish, Swedish
and UK Governments, and the Commission.
IV-- Legal analysis
The first question
AG21 By the first question, the national court asks in essence whether the principle of
co-operation arising from Art.10 EC requires it to reopen and set aside a judicial *371
decision that has become final if it believes the decision to be contrary to Community
law.
AG22 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. [FN6] 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". [FN7]
FN6 See, in particular, Reynier (79 & 82/63): [1964] E.C.R. 511; Kühne & Heitz at [24];
Eco Swiss (C-126/97): [1999] E.C.R. I-3055; [2000] 5 C.M.L.R. 816 at [46]; and Köbler
(C-224/01): [2003] E.C.R. I-10239; [2003] 3 C.M.L.R. 28 at [38].
FN7 Köbler at [38].
AG23 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.
[FN8] 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". [FN9] These principles were not altered
by the judgment in Kühne & Heitz, to which the national court refers.
FN8 See Eco Swiss, a case that actually concerned an arbitration award, at para.[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."
FN9 Köbler at [39].
AG24 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.
AG25 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.
AG26 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",
[FN10]
FN10 Kühne & Heitz at [24]. Emphasis added.
before going on to allow exceptions to that principle only under certain conditions. The
court held that the principle of co-operation arising from Art.10 EC imposes *372 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". [FN11]
FN11 Kühne & Heitz at [28].
AG27 But the fact is that none of those conditions are met in this case.
AG28 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 Austria's Rules of Civil Procedure 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 AG9 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.
AG29 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.
AG30 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.
AG31 In any event, it does not seem to me that, as at the time of the reference, this court
had adopted an interpretation of Art.15 or of any other relevant provision of Regulation
44/2001 that was at variance with the interpretation of the Austrian first-instance court.
[FN12] Nor does the referring court mention any such judgment.
FN12 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 January 20, 2005, after the present proceedings had been commenced.
AG32 Finally, contrary to what is expressly required under the Kühne & Heitz judgment,
neither party to the main proceedings sought the reopening 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.
AG33 In the light of the foregoing considerations, I believe I can conclude that
Community law does not require a national court to reopen and set aside a final and
conclusive judicial decision that turns out to be contrary to Community law.
AG34 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 *373 the
interpretation of Regulation 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.
AG35 In case the court should have a different opinion, however, and for completeness
of analysis, the question on the interpretation of Art.15(1)(c) of Regulation 44/2001 will
also be examined.
The second question
AG36 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 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 Art.15 of the Regulation.

AG37 Austria and Germany, [FN13] on the one hand, and Schlank & Schlick and the
Commission, on the other, give completely opposing answers to this question, with
arguments that are related as necessary below.
FN13 The other intervening governments chose not to express a view on this question
and to confine their observations to question A.
AG38 The two governments submit that the legal claim asserted in the main proceedings
is contractual in nature for the purposes of Art.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.
AG39 The other two interveners submit, albeit without suggesting an alternative, that
Art.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.
AG40 For my part, I must immediately observe that in the very recent decision in Engler,
[FN14] 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.
FN14 Engler (C-27/02): [2005] E.C.R. I-481; [2005] I.L.Pr. 8.
AG41 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 (para.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.
AG42 *374 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.
AG43 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" [FN15] (now Art.15(1)(c) of the Regulation).
FN15 ibid., at [38].
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.
AG44 Having determined that the special rules governing consumer contracts (then set
out, as noted above, in Art.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 Art.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". [FN16]
FN16 ibid., at [49].
AG45 That was so, the court explained on the basis of settled case law, because the
concept of "matters relating to a contract" contemplated by Art.5(1), unlike the special
rules for consumer contracts ( Art.13 of the Convention and Art.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".
[FN17]
FN17 ibid., at [45], [50] & [51] and the case law cited there. See also the Opinion of A.G.
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).
AG46 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 mailorder
company.
AG47 Answering that question in the affirmative, the court stated that communications
of the kind referred to are calculated to bind a sender who:
"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 the consumer "accepts the conditions laid down by the vendor and does in fact claim
payment of the prize announced". *375 [FN18]
FN18 Engler at [61].
AG48 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 Art.5(1) of the Convention.
[FN19]
FN19 ibid., at [60] & [61].
AG49 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, Art.5(1) does not require a contract. [FN20]
FN20 ibid., at [59] & [61].
AG50 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.
AG51 First of all, it seems to me that for the same reasons as described in that judgment,
Art.15(1)(c) of the Regulation can have no application here. Like Art.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. However, 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.
AG52 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 Art.15 of Regulation 44/2001 vis-à-vis
Art.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
Art.13 of the Convention.
AG53 I must point out, however, that those changes related only to the substantive scope
of the provisions on consumer contracts. [FN21] 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.
FN21 While under Art.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, Art.15
of the Regulation brought all types of consumer contract within the scope of those rules
(with the exception of certain contracts of transport).
AG54 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 Art.5(1)(a) of the Regulation, which is identical, in so far as concerns us here,
to Art.5(1) of the Convention.
AG55 The issue to be considered therefore is whether Art.5(1)(a) of the Regulation is
applicable to the case at hand.
AG56 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". *376 [FN22]
FN22 Viessmann (C-280/91): [1993] E.C.R. I-971; [1993] 3 C.M.L.R. 153 at [17]; and

Immobiliare SIF (C-42/96): [1997] E.C.R. I-7089. See also, of the many cases in point,
Tissier ( 35/85): [1986] E.C.R. 1207; [1987] 1 C.M.L.R. 551 at [9]; Bagli Pennacchiotti
(315/88): [1990] E.C.R. I-1323; [1992] 3 C.M.L.R. 561 at [10]; and Teckal (C-107/98):
[1999] E.C.R. I-8121 at [39].
AG57 Now it seems to me that the requirements for the application of Art.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 AG48 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.
AG58 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.
AG59 I would first point out that whether or not such a condition applied is a matter of
considerable contention in the national proceedings. [FN23] 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 Art.5(1)(a) of the Regulation (points AG48 and AG50 above).
FN23 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.
AG60 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
Art.5(1). [FN24] 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 ingredients of the obligation
on which the plaintiff's claim is based.
FN24 Effer v Kantner (38/81): [1982] E.C.R. 825; [1984] 2 C.M.L.R. 667 at [8];
Benincasa (C-269/95): [1997] E.C.R. I-3767; [1997] I.L.Pr. 559 at [30]; and Engler at
[46].
AG61 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
Art.15(1)(c) of Council Regulation 44/2001. Such proceedings do, however, come within
the scope of Art.5(1)(a) of that regulation.

AG62 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.
AG63 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 (
Art.5(1)(b)).
AG64 *377 With regard to other types of contractual relations--including the type that
concerns us here-- Art.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". [FN25]
FN25 GIE Groupe Concorde (C-440/97): [1999] E.C.R. I-6307; [2000] I.L.Pr. 626 at
[13]. See also Industrie Tessili Italiana Como (12/76): [1976] E.C.R. 1473; [1977] 1
C.M.L.R. 26 at [15]; Shenavai (266/85): [1987] E.C.R. 239; [1987] 3 C.M.L.R. 782 at
[7]; and Custom Made Commercial (C-288/92): [1994] E.C.R. I-2913; [1994] I.L.Pr. 516
at [26].
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". [FN26]
FN26 Industrie Tessili Italiana Como at [13].
AG65 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".
[FN27]
FN27 ibid.
AG66 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.
AG67 I must add, however, that even a different outcome to the inquiry would not
necessarily mean the Austrian courts lacked jurisdiction.
AG68 This is because of the potential application of Art.24 of the Regulation, of the
Regulation. [FN28]
FN28 That article assigns exclusive jurisdiction i) in proceedings which have as their
object rights in rem in immovable property or 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
Art.22tenancies 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.
AG69 In the instant case the latter condition is certainly satisfied because none of the
exclusive jurisdiction criteria set out in Art.22 fall 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 Art.24.
AG70 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-- Conclusions
AG71 I therefore conclude by proposing that the court should reply to the first question
of the Landesgericht Innsbruck as follows: *378
"Community law does not require a national court to reopen 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 No 44/2001/EC but do come within the scope of Article 5(1)(a) of that
regulation".
JUDGMENT
1 This reference for a preliminary ruling concerns the interpretation of Art.10 EC and
Art.15 of Council Regulation 44/2001 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters ([2001] O.J. L12/1).
2 The reference was made in the course of proceedings between Ms Kapferer, an
Austrian national domiciled in Hall in Tirol (Austria), and Schlank & Schick GmbH
("Schlank & Schick"), a mail-order company incorporated under German law established
in Germany, concerning an action for an order requiring Schlank & Schick to award Ms
Kapferer a prize because, in a letter personally addressed to her, it had given Ms Kapferer
the impression that she had won a prize.
Legal background
Community law

3 Article 15(1) of Regulation 44/2001 provides:
"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 Article 5(5), if:
...
(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."
4 In accordance with Art.16(1) of Regulation 44/2001:
"[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".
5 Article 24 of Regulation 44/2001 provides: *379
"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
6 Paragraph 5j of the Austrian Consumer Protection Law (Konsumentenschutzgesetz), in
the version under the law which entered into force on October 1, 1999 (BGBl. I,
185/1999; "the KSchG") provides 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."
7 Paragraph 530 of the Austrian Code of Civil Procedure (Zivilprozessordnung; "the
ZPO") on the conditions governing the revision of judgments provides:
"(1) Proceedings that have been concluded by a decision resolving the case can be
reopened on an application being made by one of the parties,
...
5. if a decision by a criminal court on which the judgment is based has been set aside by a
subsequent final judgment;
6. if the applicant discovers the existence of, or is placed in a position to use, a previous
judgment concerning the same claim or the same legal relationship which is already final
and which determines the rights of and between the parties of the case to be reopened;
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) Revision 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."

8 Article 534 of the ZPO provides:
"(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.
*380 (3) Proceedings ... cannot be issued more than 10 years after the decision has
become final."
The dispute in the main proceedings
9 In her capacity as a consumer, Ms Kapferer received advertising material on a number
of occasions from Schlank & Schick containing prize notifications. Two weeks after a
further letter addressed to her personally, according to which a prize in the form of a cash
credit in the sum of ATS 53,750 (euro3,906.16) was waiting for her, Ms Kapferer
received an envelope containing, inter alia, an order form, a letter concerning the final
notice of that cash credit and a statement of account. According to the participation/award
conditions on the reverse side of that notice, participation in the distribution of the prizes
was subject to a test order without obligation.
10 Ms Kapferer returned the order form to Schlank & Schick after affixing a credit stamp
and signing the reverse side of that order form below the words "I have noted the
participation conditions", but without having read the participation/award conditions. It is
not possible to establish whether she also placed an order on that occasion.
11 Not having received the prize she believed she had won, Ms Kapferer claimed that
prize on the basis of para.5j of the KSchG, seeking an order directing Schlank & Schick
to pay her the sum of euro3,906.16 plus 5 per cent interest from May 27, 2000 onwards.
12 Schlank & Schick objected that the court seised lacked jurisdiction. It argues that the
provisions of Arts 15 and 16 of Regulation 44/2001 are not applicable because they
presuppose that there should be a contract for valuable consideration. Participation in the
prize game was subject to making an order, which Ms Kapferer never did. The right
deriving from para.5j of the KSchG is not, in their view, of a contractual nature.
13 The Bezirksgericht (District Court) dismissed the plea of lack of competence and
declared itself to have jurisdiction on the basis of Arts 15 and 16 of Regulation 44/2001,
on the grounds that there is, in its view, a contractual relationship between the parties to
the dispute. As regards the merits of the case, the Bezirksgericht dismissed all of Ms
Kapferer's heads of claim.
14 Ms Kapferer brought an appeal before the referring court. For its part, Schlank &
Schick took the view that the Bezirksgericht's decision relating to its jurisdiction did not
adversely affect it because it had, in any event, succeeded on the merits. For that reason
Schlank and Schick did not challenge that decision on jurisdiction.
15 The national court observed, however, that Schlank & Schick could have challenged
the dismissal of the plea of lack of jurisdiction because it could have been adversely
affected by that decision alone.
The questions referred for a preliminary ruling

16 The Landesgericht Innsbruck (Regional Court, Innsbruck) expresses doubts about the
international jurisdiction of the Bezirksgericht. Relying on the judgment in Gabriel v
Schlank & Schick GmbH (C-96/00): [2002] E.C.R. I-6367; [2002] I.L.Pr. 36, the
referring court asks whether a misleading promise of financial *381 benefit calculated to
induce a contract, and therefore to prepare the ground for that contract, has a connection
with the consumer contract intended to result from it sufficiently close to give rise to
consumer contract jurisdiction.
17 Since Schlank & Schick has not challenged the decision to dismiss the defence of lack
of jurisdiction, the referring court wonders whether it nonetheless has an obligation under
Art.10 EC to review and set aside a final and conclusive judgment on international
jurisdiction if that judgment is proved to be contrary to Community law. The national
court envisages the existence of such an obligation, asking specifically whether it is
possible to transpose the principles laid down in the judgment in Kühne & Heitz NV v
Produktschap voor Pluimvee en Eieren (C-453/00): [2004] E.C.R. I-837; [2006] 2
C.M.L.R. 17, concerning the obligation imposed on an administrative body to review a
final administrative decision which is contrary to Community law, as it has been
interpreted in the mean time by the court.
18 In those circumstances, the Landesgericht Innsbruck decided to stay the proceedings
and to refer the following questions to the court for a preliminary ruling:
"(1) The court of first instance's decision as to jurisdiction:
(a) Is the principle of co-operation 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?
(b) If the answer to Question 1(a) 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?
(c) Furthermore, if the answer to Question 1(a) 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?
(d) If the answer to Question 1(c) 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?
(2) Jurisdiction over consumer contracts under Article 15(1)(c) of Regulation No
44/2001:
*382 (a) 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?
(b) If the answer to Question 2(a) 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?
(c) 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?
(d) If the answers to Questions 2(a) and (b) 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?"
Question 1(a)
19 By Question 1(a), the referring court asks essentially whether, and, where relevant, in
what conditions, the principle of co-operation arising from Art.10 EC imposes on a
national court an obligation to review and set aside a final judicial decision if that
decision should infringe Community law.
20 In that regard, attention should be drawn to the importance, both for the Community
legal order and national legal systems, of the principle of res judicata. In 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 into question (Köbler v Austria (C-224/01): [2003] E.C.R. I-10239;
[2003] 3 C.M.L.R. 28 at [38]).
21 Therefore, 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
remedy an infringement of Community law by the decision at issue (see, to that effect,
Eco Swiss China Time Ltd v Benetton International NV (C-126/97): [1999] E.C.R. I-
3055; [2000] 5 C.M.L.R. 816 at [46]-[47]).
22 By laying down the procedural rules for proceedings designed to ensure protection of
the rights which individuals acquire through the direct effect of Community law, Member
States must ensure that such rules are not less favourable than those governing similar
domestic actions (principle of equivalence) and are *383 not framed in such a way as to
render impossible in practice the exercise of rights conferred by Community law
(principle of effectiveness) (see, to that effect, Preston v Wolverhampton Healthcare
NHS Trust and Fletcher v Midland Bank Plc (C-78/98): [2000] E.C.R. I-3201; [2000] 2
C.M.L.R. 837 at [31] and the case law cited). However, compliance with the limits of the
power of the Member States in procedural matters has not been called into question in the

dispute in the main proceedings as regards appeal proceedings.
23 It should be added that the judgment in Kühne & Heitz (cited above), to which the
national court refers in Question 1(a), is not such as to call into question the foregoing
analysis. Even assuming that the principles laid down in that judgment could be
transposed into a context which, like that of the main proceedings, relates to a final
judicial decision, it should be recalled that that judgment makes the obligation of the
body concerned to review a final decision, which would appear to have been adopted in
breach of Community law subject, in accordance with Art.10 EC, to the condition, inter
alia, that that body should be empowered under national law to reopen that decision (see
paras [26] and [28] of that judgment). In this case it is sufficient to note that it is apparent
from the reference for a preliminary ruling that that condition has not been satisfied.
24 Having regard to the foregoing considerations, the answer to Question 1(a) must be
that the principle of co-operation under Art.10 EC does not require a national court to
disapply its internal rules of procedure in order to review and set aside a final judicial
decision if that decision should be contrary to Community law.
Concerning the other questions
25 Having regard to the answer given to Question 1(a), and the national court indicating
that it is unable to review the decision on the Bezirksgericht's jurisdiction, there is no
need to answer Question 1(b) to (d) or Question 2(a) to (d).
Costs
26 Since these proceedings are, for the parties to the main proceedings, a step in the
action pending before the national court, the decision on costs is a matter for that court.
Costs incurred in submitting observations to the court, other than the costs of those
parties, are not recoverable.
R1 Order
On those grounds, the court (FIRST CHAMBER) hereby rules:
The principle of co-operation under Art.10 EC does not require a national court to
disapply its internal rules of procedure in order to review and set aside a final judicial
decision if that decision should be contrary to Community law.
(c) Sweet & Maxwell Limited
[2006] I.L.Pr. 17