National case details
Registration ID: 6Ob264/02w
Instance: Cassation (review)
Case status: Final
Area of law
Unfair practices (BtoC)
Safeguards for access to justice
Relevant principles applied
Preliminary rulingJudgement of the CJEU (Sixth Chamber), 1 October 2002, Case C-167/00 Verein für Konsumenteninformation and K H H
Commercial Court of Vienna
Higher Court, Vienna
13 April 2000
Referral to the CJEU by the Austrian Supreme Court
1 October 2002
7 November 2002
Implementation of the preliminary ruling by the referring court
Identification of the case
- Right to an effective remedy and to a fair trial (art. 47 CFREU)
- “Konsumentenschutzgesetz” (Consumer Protection Law) of 8 March 1979 (BGBl. 1979/140)
- Article 5(3) of the Brussels Convention
- Article 7(1) and (2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts
- Art. 47 CFR
Summary of the case
Mr H. was a trader, domiciled in Munich (Germany), who organised sales-promotion trips, inter alia in Austria.
In the context of his contractual dealings with consumers domiciled in Vienna (Austria), Mr H. used general terms and conditions that the Verein für Konsumenteninformation (a consumer protection association) considered to be contrary to certain provisions of Austrian legislation. This association brought an action pursuant to § 28 of the Consumer Protection Law before the Commercial Court, Vienna, seeking an injunction against Mr H. to prevent him from using the contested terms in contracts concluded with Austrian clients.
Mr H. objected that the Austrian courts had no jurisdiction. The action brought by the association could not be regarded as relating to tort, delict or quasi-delict within the meaning of Article 5(3) of the Brussels Convention on the ground that there has been neither harmful behaviour nor damage suffered within the territorial jurisdiction of the court seized.
The Commercial Court Vienna found that the VKI was not pleading any damage arising out of a tort or delict and hence declared that it had no jurisdiction.
That decision was overturned on appeal by the Higher Court, Vienna, which considered that Article 5(3) of the Brussels Convention also covers preventive actions brought by an association such as a consumer protection association without requiring it to have personally sustained any damage.
In an appeal on a point of law before the Supreme Court the question arose whether the action at issue in the main proceedings falls within the scope of Article 5(3) of the Brussels Convention or whether it is a matter relating to a contract within the meaning of Article 5(1) of that convention.
The Supreme Court required an interpretation of the Brussels Convention and therefore referred to the ECJ for a preliminary ruling.
- Collective enforcement - Consumer association's action
Does the right to obtain an injunction to prohibit the use of unlawful or unconscionable general terms and conditions provided for in Paragraph 28 of the Consumer Protection Law, which is asserted by a consumer protection organisation pursuant to Paragraph 29 of the Consumer Protection Law and in accordance with Article 7(2) of the Directive 93/13/EEC constitute a claim arising out of matters relating to tort, delict or quasi-delict which may be asserted in courts with the special jurisdiction provided for in Article 5(3) of the Brussels Convention?
The Supreme Court was uncertain whether the action at issue in the main proceedings fell within the scope of Article 5(3) of the Brussels Convention or whether it was a matter relating to a contract within the meaning of Article 5(1) of that convention:
It was not obvious that this action was a matter relating to tort or delict. The claimant did not plead any damage to its property. Its right to bring an action stemmed not from a contract, but from statute, and served to avert future damage to consumers; such damage was contractual in origin and therefore Article 5(1) of the Brussels Convention applicable. It was also possible to consider that the unlawful act consists of the undermining of legal stability by a trader's use of unfair terms.
Role of the Charter and role of the general principles on enforcement
Facts and rulings stem from 2000 to 2002, long before the CFR entered into force.
- Right to access a court
- Right to an effective remedy before a tribunal
- Right to a fair trial
Uniform interpretation of the Brussels Convention and of Community/Union Law.
ECJ of Oct. 1st 2002, C 167/00: “35. In that regard, the Court has repeatedly held that the concepts of matters relating to a contract and matters relating to tort, delict or quasi-delict in paragraphs 1 and 3 respectively of Article 5 of the Brussels Convention are to be interpreted independently, having regard primarily to the objectives and general scheme of that convention, in order to ensure that it is both given full effect and applied uniformly in all the Contracting States ...”
Elements of judicial dialogue
- Direct dialogue between CJEU and National court (preliminary reference)
Conform interpretation with EU law as interpreted by the CJEU.
To clarify national jurisdiction in transborder-cases.