Vrhovno sodišče Republike Slovenije; 2021-01-27; II Ips 98/2018
Decision by national courts in the field of European Union law — ECLI:SI:VSRS:2021:II.IPS.98.2018
Date: 2021-01-27
Subject matter: Judicial cooperation in civil matters
Origin: Slovenia

82021SI0127(51)_ENG_SUMJURE
JURE summary
JURE summary
This case regards the determination of the concept of ‘consumer’ resolved by the Vrhovno sodišče Republike Slovenije (hereinafter ‘the Supreme Court’).
A poker player domiciled in Slovenia (hereinafter ‘the plaintiff’) filed an action seeking the payment of the money he won by playing poker on the website managed by a company domiciled in Malta (hereinafter ‘the defendant’). The defendant blocked the plaintiff’s account and refused to pay the money, alleging that the plaintiff played the game through two different user accounts, which violated play rules.
The Okrožno sodišče v Kranju (hereinafter ‘the Court of First Instance’) derived its jurisdiction from Articles 15 and 17 of the Brussels I Regulation (1). The plaintiff was recognised as a consumer since he did not play poker as part of his professional activities. By playing through two user accounts, the plaintiff infringed the general terms and conditions of the defendant and Article 32(5) of Maltese legislation (2), according to which a player may have only one registered account. However, the defendant knew from the time of registration of the second account that the plaintiff was in breach of obligations but allowed him to play (assuming it could bring profit to it). The fact that the defendant tolerated the infringement of rules means that it cannot rely on plaintiff’s unauthorised conduct. The defendant’s bad faith outweighed the plaintiff’s bad faith. Therefore, the Court of First Instance upheld the plaintiff’s request and ordered the defendant to pay the sum claimed.
The Višje sodišče v Ljubljani (hereinafter ‘the Court of Appeal’) upheld the first instance conclusion.
The defendant appealed to the Supreme Court, alleging an erroneous recognition of the plaintiff as a consumer. The lower courts have not explained why the fact that someone who makes a living by playing poker does not mean that it is a ‘commercial or professional activity’ within the meaning of Article 15(1)(c) of the Brussels I Regulation.
The Supreme Court referred a question concerning the status of a poker player to the Court of Justice of the European Union (CJEU) for a preliminary ruling. The CJEU in Case C-774/19 (3) explained that ‘a natural person domiciled in a Member State who, first, has concluded with a company established in another Member State a contract to play poker on the Internet, containing general terms and conditions determined by that company, and, secondly, has neither officially declared such activity nor offered it to third parties as a paid service does not lose the status of a ‘consumer’ within the meaning of [Article 15 of the Brussels I Regulation], even if that person plays the game for a large number of hours per day and receives substantial winnings from that game’ (3). Under such circumstances, the Supreme Court upheld the lower courts' conclusions that the plaintiff must be recognised as a consumer and, therefore, the jurisdiction of the Slovenian courts is given. The fact that an individual is successful in the game and - apparently contrary to the defendant’s expectations and wishes - obtains large winnings cannot alter the object and purpose of the contract concluded with the defendant.
The Supreme Court also upheld the conclusions concerning the money seized by the defendant and the obligation to repay them to the plaintiff. The plaintiff successfully proved that the defendant was aware of the breach of the two-accounts rule since registration time and allowed him to play under such conditions for more than one year. Conversely, the defendant could not explain why it allowed playing poker under such conditions. If the defendant had allowed the plaintiff to play the game for as long as it had benefited from it, then tacitly approved the play and could no longer plead that the game was unauthorised.
The appeal was held unfounded and, as such, was dismissed.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Regolamenti dwar Logħob minn Distanza (Distance Gambling Regulation).
(3) Judgment of the Court of Justice of 10 December 2020, A. B. and B. B. v Personal Exchange International Limited, C-774/19, ECLI:EU:C:2020:1015.