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Ilsinger Notes

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ILSINGER (2009) FACTS Proceedings between Ms Ilsinger, an Austrian national domiciled in St. Pölten
(Austria), and Mr Dreschers, acting as administrator in the insolvency of Schlank &
Schick GmbH ('Schlank & Schick'), a mail­order company incorporated under
German law and established in Aachen (Germany). Ms Ilsinger received, at her home address and in a sealed envelope, a letter addressed
to her personally from Schlank & Schick. The envelope, on which the words
'Important documents!', 'Please open immediately' and 'Private' were written,
contained, inter alia, a message addressed to Ms Ilsinger personally which gave the
impression that she had won a prize of EUR 20 000. The next day, in order to obtain payment of the financial benefit promised, Ms Ilsinger
tore off a coupon containing an identification number attached to an envelope
included in the letter, attached the coupon, as requested to do in the letter, to the 'prize
claim certificate' and returned it to Schlank & Schick. Ms Ilsinger states that at the same time she placed a trial order. That assertion is
challenged by Schlank & Schick, which submits to the contrary that no goods were
ordered by the applicant. However, it is common ground that the award of the
prize supposedly won by Ms Ilsinger did not depend on such an order. Ms Ilsinger brought an action for that purpose before the Landesgericht (Regional
Court) St. Pölten as she was domiciled within the territorial jurisdiction of that court. QUESTION Whether the rules on jurisdiction laid down by Regulation No 44/2001 must be
interpreted as meaning that the legal proceedings by which a consumer seeks an order
requiring a mail­order company to award a prize apparently won by him, without the
award of that prize depending on an order of goods offered for sale by that company,
are contractual in nature within the meaning of Article 15(1)(c) of that regulation, if
necessary, on condition that the consumer has none the less placed such an order. HOLDING Review of Precedent Gabriel: The condition for application of point 3 of the first paragraph of Article 13 of
the Brussels Convention, relating to the existence of a 'contract concluded by' a
consumer with a professional vendor, within the meaning of that provision, was
satisfied in that case on the basis of the fact that the concordance of intention between
the two parties, manifesting itself in the offer of goods made by the mail­order
company and the acceptance of that offer by the consumer when he placed an order
for such goods as a result, had given rise to a contract concluded between those
parties.

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