Judgment;Summary — ECLI:EU:C:2023:455
Date: 2023-06-08
Language of the case: Romanian
Court formation: Fifth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary C-455/21 – 1 
Case C-455/21 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
23 July 2021 
Referring court: 
Tribunalul Olt (Romania) 
Date of the decision to refer: 
27 May 2021 
Appellant and applicant at first instance: 
OZ 
Respondent and defendant at first instance: 
Lyoness Europe AG 
  
Subject matter of the main proceedings 
Appeal lodged by the applicant, OZ, a natural person, with the Tribunalul Olt (Olt 
Regional Court, Romania) against the civil judgment of the Judecătoria Slatina 
(Court of First Instance, Slatina, Romania) dismissing his action for a declaration 
that certain terms of the contract concluded with the respondent/defendant, 
Lyoness Europe AG, are unfair. 
Subject matter and legal basis of the request 
An interpretation of Article 2(b) of Directive 93/13/EC is sought pursuant to 
Article 267 TFEU. 
Questions referred for a preliminary ruling 
1. Must Article 2(b) of Council Directive 93/13/EEC of 5 April 1993 on unfair 
terms in consumer contracts be interpreted as meaning that a natural person, 
who is a mechanical engineer specialising in hydraulic and pneumatic 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-455/21 
 
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machinery (who does not engage in trade as an occupation and in particular 
in the purchase of goods and services for resale and/or in intermediation 
activities) and who concludes with a commercial company (a seller or 
supplier) a pre-formulated standard contract under which that natural person 
is entitled to participate in a shopping community set up by that company in 
the form of the Lyoness system (a system which promises economic returns 
in the form of refunds on purchases, commission and other promotional 
benefits), to purchase goods and services from traders who have a 
contractual relationship with that company (called ‘Lyoness business 
partners’), and to act as an intermediary with other persons within the 
Lyoness system (known as ‘potential loyalty customers’), be regarded as a 
‘consumer’ within the meaning of that provision, notwithstanding the 
contractual term which provides that Swiss law alone is to apply to the 
contractual relationship between Lyoness and the customer, irrespective of 
the customer’s place of domicile, in order to ensure effective consumer 
protection? 
2. Must Article 2(b) of Council Directive 93/13/EEC of 5 April 1993 on unfair 
terms in consumer contracts be interpreted as meaning that a person who has 
concluded with a seller or supplier a contract having a dual purpose, namely 
[where] the contract is concluded for purposes which partly fall within the 
scope of the trade, business or profession of that person and partly outside, 
and the trade, business or professional purpose of that natural person is not 
predominant in the overall context of the contract, can be regarded as a 
‘consumer’ within the meaning of that provision? 
3. If the answer to the previous question is in the affirmative, what are the main 
criteria to be applied in determining whether or not the trade, business or 
professional purpose of that natural person is predominant in the overall 
context of the contract? 
Provisions of EU law relied on 
Treaty concerning the Accession of the Republic of Bulgaria and Romania to the 
European Union. 
Article 2 and Article 19(1) TEU. 
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 
17 June 2008 on the law applicable to contractual obligations (Rome I), Articles 3 
and 6. 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts, Articles 1 to 3, (the ‘directive’). 
LYONESS EUROPE 
 
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Provisions of national law relied on 
Law No 193/2000 on unfair terms in contracts between traders and consumers, 
which implements the directive: Articles 1, 2, and 4 to 7, in particular Article 2(1), 
which defines ‘the consumer’ as any natural person or group of natural persons 
forming an association who, on the basis of a contract falling within the scope of 
that law, acts for purposes his outside trade, industrial or manufacturing, artisanal 
or professional activity’. 
Law No 296/2004 establishing the Consumer Code: Articles 1, 3 and 75 to 81, in 
particular point 13 of the annex thereto, which defines ‘the consumer’ in identical 
terms to Law No 193/2000. 
Law No 134/2010 establishing the Civil Procedure Code: Article 205, which 
provides, in particular, that the defendant may raise procedural objections in the 
response; Article 237, which provides that, in order to prepare for consideration of 
the merits, the court must address the objections raised by the parties or of its own 
motion; Articles 251 and 255, which provide that there is no obligation to prove 
what the court must take into account of its own motion and that the court can 
decide that it is not necessary to prove known and undisputed facts, respectively; 
and Articles 466, 476, 479 and 480, which govern the appeal proceedings which 
involve a new ruling on the merits, in law and in fact. 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 9 December 2020, the Judecătoria Slatina (Court of First Instance, Slatina) 
dismissed the action brought by the applicant, OZ, against the defendant, Lyoness 
Europe AG, by which it sought, pursuant to Law No 193/2000, a declaration that 
certain terms contained in the general terms and conditions of the contract and the 
annexes thereto are unfair, requesting that the defendant be brought before a court 
at the place of establishment of myWorld Retail Services SRL (formerly SC 
Lyoness Romania SRL). 
2 That court held that, under the general terms and conditions of the contract, the 
defendant and its partners form an international shopping community in which 
participants are given the opportunity, through joint purchasing and the 
advantageous terms and conditions obtained, to acquire income in the form of 
refunds on purchases, commission and other benefits. The goods and services are 
purchased directly from traders who have a contractual relationship with the 
defendant.  
3 Thus, a loyalty customer is entitled to participate in the shopping community set 
up by the defendant, with the possibility of benefiting from favourable purchasing 
terms and conditions in the form of refunds on purchases, commission and other 
price reductions granted by business partners through the defendant, whilst the 
defendant’s services amount in practice to intermediation and, in part, to 
calculating of the services of each business partner and ordering Lyoness 
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vouchers, which make it possible to purchase goods and services from the 
business partners. 
4 Taking the view that a finding that a term is unfair requires, inter alia, that the 
complainant be a consumer, and analysing the 2009 General Terms and 
Conditions (GTC), that court found that the contract was not concluded between a 
consumer and a seller or supplier since the parties offer each other commission, 
price reductions and other benefit owing to the shopping community. The contract 
cannot therefore be examined in the light of Law No 193/2000 since the applicant 
does not satisfy the conditions for being a consumer. 
5 The Judecătoria Slatina (Court of First Instance, Slatina) also held that there is no 
evidence that myWorld Retail Services SRL is related to the defendant company, 
that it is a division of the defendant company, or that the place of establishment 
stated is that of a division of the defendant company, and ordered that the 
defendant be brought before a court at its place of establishment in Switzerland. 
6 OZ lodged an appeal against the judgment of the Judecătoria Slatina with the 
referring court, the Tribunalul Olt. 
The essential arguments of the parties in the main proceedings 
7 Firstly, OZ sets out at length his arguments that the defendant, a company 
established in Switzerland, was correctly brought before a court at place of 
establishment of myWorld Retail Services SRL in Romania since the latter 
company, formally Lyoness Romania, is the defendant’s representative in 
Romania. 
8 As regards the applicability of Law No 193/2000, OZ claims that the contract 
which he concluded with the defendant is a contract concluded between a 
consumer and a seller or supplier, which contains several terms which create, to 
his detriment and in breach of good faith, a significant imbalance between the 
rights and obligations of the parties. 
9 As regards his status as a consumer in the context of the contract at issue, OZ 
claims that, by the civil judgment under appeal, the court of first instance 
dismissed his action without in any way examining or assessing his arguments in 
the application on that point, in breach of his right to a fair hearing. 
10 Thus, the court of first instance wrongly held that ‘by the contract referred to 
above, the parties offer each other commission, price reductions and other 
financial benefits through a shopping community’ and that, for that reason, OZ is 
not a consumer. 
11 In the view of OZ, as is also apparent from paragraph 2 of the preamble to the 
contract at issue, there is only one shopping community under that contract and 
that community only has commercial companies as members, that is to say, 
LYONESS EUROPE 
 
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Lyoness Europe AG and the partner companies, which were referred to expressly 
in the contract as traders and called ‘business partners’. 
12 In addition, the contract at issue excludes association with the shopping 
community defined in the contract since, as is also apparent from Article 2 of the 
contract, the contracting parties are, on the one hand, Lyoness Europe AG and, on 
the other, the loyalty customer, who, as is also clear from Article 1.1, is the person 
entitled to participate in the shopping community set up by LYONESS solely for 
the purpose of purchasing goods and services from the business partners. 
13 OZ claims that the customer’s signature is required both on page 10 of the 
contract and on the application form and that, as is also apparent from Articles 2.2 
and 2.3 of the contract at issue, a loyalty customer within the meaning of the 
contract can be either a natural person over 14 years of age or a legal person. OZ 
submits that, under those terms of the contract, it concluded the contract as a 
customer, a mere natural person, identified by his first name, surname, personal 
identity number and domicile, which are the identification details of a mere 
natural person and not of a legal person. 
14 In the view of OZ, no term of the contract indicates that he offered Lyoness 
Europe AG reciprocal commission, price reductions and other financial benefits 
and the referring court was unable to give a specific indication of the alleged 
commission, price reductions and other financial benefits granted by him to the 
defendant.  
15 As a natural person, he was also unable to offer the defendant any commission, 
price reduction or other financial benefit since he was not acting for purposes 
connected with any trade, industrial or manufacturing, artisanal or professional 
activity within the meaning of Law No 193/2002, which, in any event, cannot be 
carried on without prior authorisation and obtention of the notices and licences 
provided for by law, and without being registered or entered in the commercial 
register. 
16 OZ adds that neither before the conclusion of the contract at issue nor during the 
performance thereof did he carry on any economic activity as a seller or supplier 
within the meaning of the directive or Law No 193/2000, let alone any 
intermediation activity of the kind covered by the contract at issue, carried on as 
an occupation. 
17 He claims that the referring court should make a reference for a preliminary ruling 
to the Court of Justice. 
18 The appellant/defendant, Lyoness Europe AG, represented in Romania by 
myWorld Retail Services SRL (formerly SC Lyoness România SRL), contends 
that the appeal should be dismissed. 
19 myWorld Retail Services SRL contends, first of all, that although it carries on 
marketing and advertising activities for the respondent/defendant it does not 
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constitute a division thereof since it is in fact a limited liability company, 
established in Romania, which is independent and has its own assets, and which 
has as its shareholders myWorld International Limited and myWorld Holdings 
Limited, both of which are organised in accordance with the laws of the United 
Kingdom and have their registered offices in London. 
20 It is in no way controlled by the respondent/defendant, nor does it hold any special 
power of attorney to represent the latter in court proceedings. 
21 On the substance, myWorld Retail Services SRL contends that OZ cannot be 
regarded as a consumer. 
22 In fact, the relationship between Lyoness Europe AG and the members of the 
Lyoness loyalty scheme, which includes the appellant, is a commercial business 
relationship. 
23 In accordance with the operating principle of the Lyoness scheme, the appellant 
carries on his economic activity independently and systematically, combining his 
corporate and financial resources and engaging in commercial activities in order 
to obtain gains in the form of passive income. 
24 According to myWorld Retail Services SRL, membership of the Lyoness loyalty 
scheme is free of charge and the member’s subsequent activity within that scheme 
is not subject to payment of any sum. Therefore, the contractual relationship 
between the members of Lyoness and the respondent entails no cost and possible 
damage to a member cannot be quantified. The sums of money deposited by 
members represent advances on their future purchases and their only obligation is 
to use those sums through the loyalty programme, that is to say make their 
purchases from Lyoness’ business partners. The advances on purchases do not 
represent the equivalent value (price) of goods or services delivered/supplied by 
Lyoness.  
25 The goods and services are purchased by the members directly from the business 
partners of Lyoness Europe AG, so that the legal relationship arises directly 
between those business partners and the members of the Lyoness scheme. 
26 myWorld Retail Services SRL contends that the activity of the Lyoness loyalty 
scheme does not involve the manufacture, importation or marketing by the 
respondent of goods for members of the Lyoness scheme. The Lyoness loyalty 
scheme, together with its members, creates a shopping community for the purpose 
of obtaining mutual benefits. The appellant enjoyed the benefits of membership of 
the Lyoness loyalty scheme, consisting of refunds on his own purchases, benefits 
drawn from purchases from all referred members – the friendship bonus – and 
benefits linked to partner status.  
27 At the time the contracts were concluded, the appellant acted with a view to 
carrying on activities generating additional and passive income and not with a 
view to obtaining mere discounts. 
LYONESS EUROPE 
 
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28 myWorld Retail Services SRL maintains that under the contract ‘every customer 
enjoys the benefit of “cashback on every purchase” and every party to that 
economic activity is given the opportunity, through active referral marketing, to 
create additional income, and to develop that activity into a core business’ and ‘… 
the customer must deal independently with the taxation of the earnings and 
commission earned, the necessary payments of insurance contributions and 
personally present the other supporting documents within the relevant deadlines; 
[for] this purpose, the customer is to submit to the competent tax authorities, 
within the deadline prescribed by law, declaration 201 “declaration on foreign 
income, code 14.13.01.13/7”’.  
29 Furthermore, the status of members of the Lyoness scheme as traders has already 
been declared by final decision of the Curtea de Apel București (Court of Appeal, 
Bucharest, Romania) of 2014, which ruled on an action brought by a member of 
the Lyoness scheme. The Tribunalul București (Bucharest Regional Court, 
Romania) ruled to the same effect in another case in 2016. 
30 As regards the request for a preliminary ruling, myWorld Retail Services SRL 
contends that there is no need to refer the case to the Court of Justice since the 
defendant/respondent is a Swiss company and, in the alternative, the request seeks 
in reality to settle the substance of the case. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
31 The referring court states that, in order to determine whether or not a contractual 
term is unfair, it is necessary to examine, in particular, whether the applicant is a 
consumer. 
32 It adds that the directive does not specify the types of contracts to which it applies, 
but defines them by reference to the capacity of the contracting parties, according 
to whether or not they are acting for purposes relating to their trade, business or 
profession, since the system of protection implemented by the directive is based, 
as is also apparent from the judgment of 30 May 2013, Asbeek Brusse and de Man 
Garabito (C-488/11, EU:C:2013:341), on the idea that the consumer is in a weak 
position vis-à-vis the seller or supplier, as regards both his bargaining power and 
his level of knowledge and this leads to the consumer agreeing to terms drawn up 
in advance by the seller or supplier without being able to influence the content of 
those terms. 
33 In context of the present action, the Tribunalul Olt will have to carry out a two-
stage analysis, namely ascertain the applicant’s status as a consumer, and then 
decide on the applicable law: either Swiss law or Romanian law transposing 
Directive 93/13/EEC. Only subsequently, depending on the Court of Justice’s 
response, will it be able to assess the content of the terms alleged to be unfair. 
34 In the view of the referring court, OZ has the status of a consumer even though he 
benefits from trade reductions from certain traders who have a contractual 
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relationship with the respondent/defendant. What is important is that he is a party 
to an agreement under which he acts for purposes outside his trade, industrial or 
manufacturing, artisanal or professional activity. 
35 In addition, the contractual term declaring that Swiss law is applicable may also 
be analysed from the point of view of its potentially unfair nature.