Judgment;Summary — ECLI:EU:C:2025:325
Date: 2025-05-08
Language of the case: Polish
Court formation: Fourth Chamber
Subject matter: Energy;Right of establishment;Consumer protection;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: Poland

Summary C-410/23–1 
Case C-410/23 [Pielatak] 1 
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: 
3 July 2023 
Referring court: 
Sąd Okręgowy w Warszawie (Poland) 
Date of the decision to refer: 
26 May 2023 
Applicant: 
I. SA 
Defendant: 
S.J. 
  
Subject matter of the main proceedings 
Appeal against the judgment of the court of first instance concerning the claim for 
payment of a contractual penalty for early termination, by an electricity customer 
who is a farmer, of a fixed-term contract for the provision of electricity. 
Subject matter and legal basis of the request 
The first question referred for a preliminary ruling concerns whether, in the light 
of Article 2(b) and (c) of Directive 93/13/EEC, the status of consumer is enjoyed 
by a farmer who concludes a contract for the purchase of electricity for both an 
agricultural holding and a household. The second question referred for a 
preliminary ruling considers whether, in the light of Directive 2009/72/EC, it is 
permissible to charge that farmer a contractual penalty for withdrawing from such 
a contract. 
 
1 This case has been given a fictitious name which does not correspond to the real name of any of the parties to the proceedings. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-410/23 
 
2  
Questions referred for a preliminary ruling 
1. Do Article 2(b) and (c) of Directive 93/13/EEC of 5 April 1993 on 
unfair terms in consumer contracts and the definition of consumer contained 
therein, and recital 17 of Directive 2011/83/EU of the European Parliament 
and of the Council of 25 October 2011 on consumer rights, amending Council 
Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament 
and of the Council and repealing Council Directive 85/577/EEC and Directive 
97/7/EC of the European Parliament and of the Council, also cover a farmer 
who concludes a contract for the purchase of electricity both for an 
agricultural holding and for private purposes for a household? 
2. Must Article 3(5) and (7) of and recital 51 and Annex I(1)(a) and (e) to 
Directive 2009/72/EC of the European Parliament and of the Council of 
13 July 2009 concerning common rules for the internal market in electricity 
and repealing Directive 2003/54/EC, which requires that no charge be levied 
on consumers in the event of withdrawal from a contract for the provision of 
electricity services, be interpreted as precluding the possibility of imposing a 
contractual penalty on an energy consumer customer for the termination of a 
fixed-term contract for the provision of electricity (Article 4j(3a) of the Polish 
Law on energy of 10 April 1997)? 
Provisions of European Union law relied on 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts – Article 2. 
Directive 2011/83/EU of the European Parliament and of the Council of 
25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and 
Directive 1999/44/EC of the European Parliament and of the Council and 
repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European 
Parliament and of the Council – recital 17. 
Directive 2009/72/EC of the European Parliament and of the Council of 13 July 
2009 concerning common rules for the internal market in electricity and repealing 
Directive 2003/54/EC – recital 51, Article 3(5) and (7), and also point 1(a) and (e) 
in Annex I. 
Provisions of national law relied on 
Ustawa z dnia 10 kwietnia 1997 r. – Prawo energetyczne (Law of 10 April 1997 
on energy – Article 4j(3a): 
‘3a. A final customer may terminate a fixed-term contract, pursuant to which an 
energy company provides that customer with gaseous fuel or energy, without 
PIELATAK 
 
3 
paying costs and compensation other than those resulting from the content of the 
contract, by submitting a written declaration to the energy company.’ 
Ustawa z dnia 23 kwietnia 1964 r. – Kodeks cywilny (Law of 23 April 1964 
establishing the Civil Code) – Articles 221 (definition of consumer), 431 
(definition of company), 3851 (unlawful clauses in contracts with consumers), 
483(1) (contractual penalty), and 484 (amount of contractual penalty). 
Succinct presentation of the facts and procedure in the main proceedings 
1 On 18 March 2017, the company I. S.A., which is an electricity provider, 
concluded a comprehensive contract for the sale of electricity with S.J., who runs 
a farm. The agricultural holding belonging to S.J. was stated as the point of 
electricity consumption. Under the contract, the sale was to start on 1 January 
2018. The contract was concluded for a fixed term until 31 December 2021. In the 
event that it was terminated before that date or that the contract could not be 
performed for reasons attributable to the customer, the customer was obliged to 
pay a contractual penalty under the general terms and conditions of the contract. 
2 By letter of 5 May 2017., S.J. stated that he was withdrawing from the contract by 
exercising the statutory right of withdrawal laid down in respect of consumer 
contracts. In addition, S.J. submitted a declaration of rescission of the contract 
concluded in error and pleaded that the contract was invalid. He claims that when 
the contract was concluded he was misled by representatives of I. S.A., who 
caught him off guard at work and failed to explain all the circumstances of the 
contract. 
3 By letter of 22 May 2020, I. S.A. stated that the declarations submitted were not 
effective. It issued a debit note according to which, S.J. was to pay, by 7 July 
2020, the contractual penalty imposed for early termination of a contract, and 
issued an invoice for the consumption of electricity provided between 1 January 
2018 and 10 January 2018. 
4 S. J. refused to pay the amounts stated. I. S.A. did not provide S.J. with any 
amount of electricity. The provision of electricity to S.J. during the period stated 
in the invoice was effected by another company. 
5 By an application of 14 April 2021, I. S.A. requested the court of first instance to 
order S.J. to pay the price for the electricity provided, plus interest, and the 
contractual penalty imposed for early termination of the contract. 
6 In his defence, S.J. contended that the action should be dismissed in its entirety, 
arguing that the contract was invalid, that the applicant had failed to perform the 
contract, and that he had withdrawn from the contract. 
7 The court of first instance dismissed the action. I. S.A. lodged an appeal against 
the judgment of the court of first instance with the referring court. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-410/23 
 
4  
The essential arguments of the parties in the main proceedings and reasoning 
of the court of first instance 
8 S.J takes the position that he has the status of consumer because the distribution of 
electricity and the sale of electricity do not relate only to the agricultural holding 
but also, and primarily, his household. 
9 The court of first instance dismissed the action for payment, despite the fact that it 
found that S.J. does not enjoy the status of consumer, because, under Article 221 
of the Civil Code, a consumer is any natural person who concludes, with a seller 
or supplier, a legal transaction which has no direct link to that person’s business or 
professional activity. On the other hand, the contract states ‘agricultural holding’ 
as the customer and stipulates that the contract is intended for persons who are not 
consumers. Although S.J. stated that the electricity purchased was also to be used 
in his household, in the view of the court of first instance, that is not sufficient to 
regard S.J. as a consumer. He was therefore unable to exercise the right to 
withdraw from the contract under the provisions of the law on consumer rights 
and his declaration was ineffective. 
10 Instead, the court of first instance applied Article 4j(3a) of the Law on energy, 
under which a final customer may terminate a fixed-term contract pursuant to 
which an energy company provides gaseous fuel or energy to that customer, 
without paying costs and compensation other than those arising from the content 
of the contract. 
11 In the view of the court of first instance, the demand for payment of the 
contractual penalty has no merit since, under Article 483(1) of the Civil Code, a 
contractual penalty consists of compensation for damage resulting from non-
performance or improper performance of a non-pecuniary obligation. In the case 
of the sale of energy, the subject matter of the buyer’s consideration is payment of 
the price, that is to say a consideration of a pecuniary nature. In the view of the 
court of first instance, the contractual provision could not impose an obligation on 
S.J. to pay a contractual penalty in the event of termination of the contract on his 
initiative since his obligation was pecuniary in nature. 
12 Furthermore, the court of first instance considered that the claim for payment of 
the price of the energy consumed was unfounded as it had been established that 
I. S.A. had not provided S.J. with any amount of energy. 
13 In its appeal, I. S.A. pleads an incorrect assessment of the evidence, and also 
infringement of Article 4j(3a) of the Law on energy, consisting in an incorrect 
interpretation and an assumption that I. S.A. does not have the right to impose a 
contractual penalty for early termination of a contract, whereas it follows 
unequivocally from that provision that a consumer may incur additional costs if 
the obligation to pay them arises from the contract, as is the case here. 
14 I. S.A. also pleads infringement of Article 483(1) of the Civil Code (concerning 
the possibility of requiring payment of a specific amount – contractual penalty – 
PIELATAK 
 
5 
as compensation for damage arising from non-performance or improper 
performance of a non-pecuniary obligation) by the non-application thereof and the 
erroneous assumption that the penalty was imposed for non-performance of a 
pecuniary obligation, whereas the penalty was reserved for a situation where a 
contract was terminated early, and thus for specific conduct of a customer, and not 
for non-performance of a pecuniary obligation. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
15 The first question referred for a preliminary ruling seeks to ascertain whether 
a farmer who purchases energy for the purposes of both an agricultural holding 
and a household has the status of consumer. 
16 It is 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, that 
Council Directive 93/13 defines the contracts to which it applies (judgment of 
21 March 2019, Pouvin and Dijoux, C-590/17, paragraph 23). According to the 
settled case-law of the Court of Justice, the concept of ‘consumer’, within the 
meaning of Article 2(b) of Directive 93/13, must be assessed by reference to a 
functional criterion, consisting in an assessment of whether the contractual 
relation at issue has arisen in the course of activities outside a trade, business or 
profession (order of 14 September 2016, Dumitras, C-534/15, paragraph 32). In 
the present case, a functional distinction is not entirely possible as the contract 
was concluded for both farming and domestic purposes. 
17 Council Directive 93/13 EEC contains no rules on dual purpose contracts. Only in 
recital 17 of Directive 2011/83/EU of 25 October 2011 on consumer rights did the 
EU legislature stated clearly that ‘in the case of dual purpose contracts, where the 
contract is concluded for purposes partly within and partly outside the person’s 
trade and the trade purpose is so limited as not to be predominant in the overall 
context of the contract, that person should also be considered as a consumer’. 
18 However, in its judgment of 20 January 2005, Gruber, C-464/01, the Court of 
Justice held that a person who concludes a contract for goods intended for 
purposes which are in part within and in part outside his trade or profession may 
not rely on the rules on consumer protection, ‘unless the trade or professional 
purpose is so limited as to be negligible in the overall context of the supply, the 
fact that the private element is predominant being irrelevant in that respect’. 
19 By contrast, in its judgment of 27 October 2022, S.V., C-485/21 the Court of 
Justice held, in paragraph 27, that consumer protection is enjoyed by a natural 
person who is party to a contract concerning the management of a property ‘in so 
far as she does not use that apartment for purposes which fall exclusively within 
her trade, business or profession’. The Court of Justice thus points in that case to 
the criterion of exclusive trade, business or professional purpose. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-410/23 
 
6  
20 Against that background, the question therefore arises as to how, in the light of 
Article 2(b) of Council Directive 93/13 EEC, the concept of consumer is to be 
interpreted in a situation where the contract is of a mixed, partly consumer, partly 
trade, business or professional nature. Is it necessary to establish the predominant 
purpose of the contract in such a situation, or is it sufficient to merely establish 
that the trade, business or professional nature of the contract is not exclusive? The 
Court of Justice’s answer will therefore make it possible to assess contracts that 
are dual in nature and serve both farming and household purposes equally. Given 
the tendency to extend the scope of instruments of consumer protection, it is 
appropriate to establish which criteria should be adopted to protect consumers. 
21 The second question referred for a preliminary ruling seeks to ascertain 
whether a provision of national law, which provides for the possibility of 
imposing a contractual penalty on an electricity customer for early termination of 
a fixed-term contract for the provision of electricity, is compatible with EU law. 
22 The referring court’s uncertainties relate to Article 4j(3a) of the Law on energy, 
which confers on a final consumer the right to terminate a contract for the 
provision of energy, without paying costs and compensation other than those 
arising from the content of the contract. That provision therefore refers to the 
contract, in which the parties may specify the duration of the contract and the 
conditions governing termination. 
23 Those uncertainties arose in the context of Directive 2009/72/EC. In the view of 
the referring court, the overriding principle expressed in that directive is the 
possibility of freely changing electricity providers and specific consumer 
protection. Member States are to take appropriate measures to protect final 
customers, and are, in particular, to ensure that there are adequate safeguards to 
protect vulnerable customers. As regards at least household customers, those 
measures are to include those set out in Annex I. The possibility of withdrawing 
from the contract is also closely linked to the change of supplier. 
24 The aim of the legislation is, on the one hand, to protect energy customers, in 
particular consumers, and to guarantee their rights and, on the other hand, to grant 
electricity companies equal access to customers. In that context, the referring 
court cites the case-law of the Court of Justice contained in particular in the 
judgments of 7 September 2016, ANODE, C-l21/15, paragraph 36; 30 April 2020, 
Оvergas Mrezhi and Balgarska gazova asotsiatsia, C-5/19, paragraph 56; and 
14 October 2021, Viesgo Infraestructuras Energéticas, C-683/19, paragraph 44). 
That case-law sets out the conditions for State intervention in electricity pricing 
under Directive 2009/72, despite the fact that such intervention constitutes an 
obstacle to the formation of a competitive electricity market. 
25 The main problem with the guaranteed freedom to change energy provider relates 
to the possibility of charging an energy consumer customer a fee in the event that 
he or she terminates a fixed-term contract. It follows from Article 3(7) of 
Directive 2009/72/EC, in conjunction with Annex I(1)(a) and (e) thereof, that, in 
PIELATAK 
 
7 
the case of a consumer customer, no charge should be levied when changing 
provider and withdrawing from the contract. 
26 However, the Law on energy does not provide for such an exemption. At national 
level, under Article 4j(3a) of the Law on energy the final customer may terminate 
a fixed-term contract for the provision of energy without paying costs and 
compensation other than those arising from the content of the contract. That 
provision therefore allows such a contract to stipulate that the customer may be 
charged the ‘costs and compensation’ provided for in the contract. The Law on 
energy does not specify any other criteria for those costs and compensation and 
does not refer to any exemption for consumers. 
27 In the case of consumers, national academic writings only permit an excessively 
high termination penalty to be declared invalid when dealing with consumers. It is 
therefore possible to verify the amount of the contractual penalty as part of a 
review of unfairness. This is particularly true where such contractual penalties 
would in practice result in termination of fixed-term contracts being blocked, 
which would be contrary to Article 4j(3a) of the Law on energy, which provides 
that a fixed-term contract may be terminated. 
28 The referring court considers that the permissibility of such contractual penalties 
imposed on consumers might nullify the protective functions of Article 3(5) and 
(7) of Directive 2009/72/EC.