In their relationship with professionals, i.e. individuals and entities which enter into a contract for a purpose which concerns their trade or profession, consumers enjoy particular safeguards in EU private international law, based on the assumption that being unexperienced in the subject of the contract, they are, by default, weak parties. As known, indeed, the Bruxelles I-bis Regulation (art. 17 and 18) grants consumers the advantage of starting claims before the courts of the place where they are domiciled (so-called forum actoris) and significantly limits the possibility of a choice of court agreement in favour of other courts. Similarly, the Rome I Regulation (art. 6) provides for the default applicability of the law of the place where the consumer has its habitual residence and, anyway, provides for the application of the provisions of this legal system “that cannot be derogated from by agreement” also in the case where another applicable law is chosen by the parties of a contract.
The Regulations are based on the abstract assumptions that whoever enters into an agreement (with a professional counterparty) outside its professional capacity (so-called B2C – “business-to-consumer” – agreements) is a weak party and, relatedly, whoever concludes an agreement within its trade or profession (so-called B2B – “business-to-business” – agreements) is not a weak party. This is because the drafters of the Regulations assumed that there is, by definition, an asymmetry in the information of people who enter into a contract while carrying out their business and people who do not do so. However, it seems that, while on the one hand there may be individuals who are perfectly informed on the subject of an agreement even if they do not enter into the agreement in the exercise of their trade or profession, on the other hand there may be cases of small entrepreneurs which are objectively weak parties if compared to big multinational companies.
In JA v. Wurth Automotive GmbH the CJEU showed to be aware of the above circumstances and the decision offers some interesting insights concerning the fact that very expert and qualified individuals shall not necessarily enjoy the advantages of consumers’ protection even if they enter into a contract outside their trade or profession.
The CJEU’s decision concerned the case of an Austrian lady (claimant), whose partner was a car dealer, who bought a car – which was re-sold shortly thereafter – from a German dealer (respondent) pursuant to some communications occurred between the claimant’s partner and the respondent. The contract for the sale of the car was concluded by the claimant, even if, within the contract, it was expressly said that it was an agreement between two professionals. The claimant never contested this clause but, after having discovered that the car was defected, started its claim in Salzburg (the place where she was domiciled) in application of art. 17 and 18 of the EU Regulation n. 1215/2012 . The Austrian court then made a request for preliminary ruling to the CJEU asking whether, considering the circumstances of the case, the claimant could be considered as a consumer.
The preliminary questions addressed to the CJEU, as well as the solutions that the CJEU offered to the referring court, have quite a broad scope of application and can be relevant also for the sake of the general definition of the concept of consumer in EU private international law:
- Firstly, the Austrian court asked to the CJEU whether in order to qualify somebody as a consumer for the purpose of the application of art. 17 of the EU Regulation n. 1215/2012, it is possible to take into account the (current or future) goals that this person had when entering into the contract.
In this regard, the CJEU pointed out that the notion of “consumer” in EU private international law shall be interpreted strictly, considering that the application of the rules on jurisdiction in consumer cases constitutes a waiver of the general jurisdictional criteria set forth by the Regulation (providing, first of all, for the jurisdiction of the court of the place where the defendant is domiciled). Hence, only contracts concluded outside and independently from any professional activity, with the sole goal of satisfying somebody’s individual/private necessities, shall fall into the special category of consumer contracts. The characterization of somebody as a consumer, thus, depends on the professional/private goals behind the conclusion of a contract. Rules on consumers protection are applicable only if the contract is concluded for a non-professional use of the goods or services which constitute the object of the contract. Protection is not deserved in cases where a contract is concluded with the goal of exercising a professional activity, even in the future.
Hence, it seems that whenever a contract is concluded with the aim of gaining a profit, this is a clear index of the fact that a professional goal is behind the conclusion of such a contract and this circumstance excludes the applicability of the rules on consumers’ protection.
- Secondly, the court added that, when evaluating, in concreto, whether an individual shall be qualified as a consumer reference may be also made to the impression that the individual affirming to be a consumer generated in its counterparty. In particular, it is necessary to look at the behaviours that this individual had when dealing with the counterparty: it will be worth understanding whether the individual acted in such a way to generate in its counterparty the impression of having dealt with a professional.
Next steps
The CJEU has shown to be aware of the fact that experience in a particular field does not necessarily run in parallel with the exercise of a professional activity. The concept of weakness in EU law requires to be ascertained on a case-by-case basis and looking at the concrete circumstances. Only in the case where natural persons affirming to be consumers enter into an agreement with the sole goal of satisfying their individual/private necessities, they may take advantage of the rules on consumers’ protection (both from the perspective of the jurisdiction on the case and from the perspective of the law applicable to the dispute).
Respondents in cross-border litigation cases should be aware of this circumstance and adequately contest the assumption of the jurisdiction by the forum actoris and the application of the law of the place where the claimant has its habitual residence in the cases where it seems that the Claimant is not entitled, due to the professional goals behind the signing of the contract, to the safeguards granted to consumers.
Authored by Andrea Atteritano and Giovanni Zarra.
