ECJ judgment C-27/02, 20 January 2005, Engler v. Janus Versand GmbH - Entitlement of a consumer to whom misleading advertising has been sent to seek payment, in judicial

Abstract

Ms. Engler received a letter personally addressed to her at her domicile from Janus Versand, a mail order company. That letter contained a payment notice whose form and content led her to believe that she had won a prize of ATS 455,000 in a cash prize draw organised by Janus Versand, and a catalogue of goods marketed by the latter with a request for a trial without obligation. Ms. Engler, as Janus Versand had requested, returned the payment notice to it, as she believed that that was sufficient in order to obtain the promised prize. Janus Versand refused to pay that sum to Ms. Engler. Ms. Engler therefore brought an action against Janus Versand before the Austrian courts. The district court dismissed her action for lack of jurisdiction, but the appeals court referred the case to the ECJ for a preliminary ruling.The ECJ held that legal proceedings by which a consumer seeks an order, under the law of the Contracting State in which he is domiciled, that a mail order company established in another Contracting State award a prize ostensibly won by him is contractual in nature for the purpose of Article 5(1) of the Brussels convention, provided that, first, that company, with the intention of inducing the consumer to enter a contract, addresses to him in person a letter of such a kind as to give the impression that a prize will be awarded to him if he returns the payment notice attached to the letter and, second, he accepts the conditions laid down by the vendor and does in fact claim payment of the prize announced. On the other hand, even though the letter also contains a catalogue advertising goods for that company and a request for a trial without obligation, the fact that the award of the prize does not depend on an order for goods and that the consumer has not, in fact, placed such an order has no bearing on that interpretation.