Opinion of the Advocate General — ECLI:EU:C:2025:380
Date: 2025-05-22
Language of the case: German
Procedure: Reference for a preliminary ruling
Origin: Austria

summary, the defendant argued that Austrian law was applicable due to the 
valid choice of law. The applicant had not availed himself of any investment 
advice, but had chosen for the transaction to be implemented as an ‘execution 
only’ transaction. It had only carried out the individual transactions as instructed. 
The investment had been ‘appropriate’ for the applicant. As a consequence, the 
defendant was not liable under Austrian law. 
III. Previous proceedings: 
10 The lower courts dismissed the forms of order sought. They assumed that 
Austrian law was applicable based on the agreement on the choice of law. The 
applicant’s securities account and clearing account with the defendant were held 
in Austria. As an ‘execution only’ client in Italy he did not receive any investment 
advice or other services from the defendant. The choice of law made was ‘also 
admissible against the background of Article 6(4)(a) of the Rome I Regulation’. 
With regard to an ‘execution only’ client, under Austrian law the defendant was 
only obliged to carry out an ‘appropriateness test’ pursuant to Paragraph 45 of the 
Wertpapieraufsichtsgesetz 2007 (Austrian Securities Supervision Act 2007, ‘the 
WAG 2007’; now Paragraph 57 of the Wertpapieraufsichtsgesetz 2018 [WAG 
2018]) – and not a suitability test pursuant to Paragraph 44 of the WAG 2007 
(now Paragraph 56 of the WAG 2018) – with regard to the applicant’s knowledge 
and experience of the products and to gather the necessary information. The 
defendant had not breached any obligations in that regard and was therefore not 
liable for the applicant’s losses. 
11 The Oberster Gerichtshof (Supreme Court, Austria) is called upon to decide the 
appeal on a point of law brought by the applicant. In it, he argues in summary that, 
based on the defendant’s introduction at the event in Padua in October 2016, the 
defendant actively marketed itself in Italy and thus directed its activities to the 
Italian market in accordance with Article 6(1)(b) of the Rome I Regulation. After 
that event, he had ordered further shares in the ETN and in the fund; the applicant 
only asserted claims for compensation from the acquisitions made after the event. 
The choice-of-law clause contained in the General Terms and Conditions was 
unfair in the case of consumer transactions due to a lack of transparency and 
therefore not applicable if – as in the present case – the consumer has not been 
informed that he could invoke the protection of the mandatory provisions of the 
law applicable in the State of his habitual residence in accordance with 
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Article 6(2) of the Rome I Regulation. The Austrian legal provisions were 
significantly less favourable to him than those under Italian law. The exception 
under Article 6(4)(a) of the Rome I Regulation was not applicable because the 
defendant operated an English-language website which allowed him, as an Italian 
consumer, to view all account transactions, print out account statements and 
obtain information, opinions and analyses. That investment service was provided 
online in Italy – his State of residence – without requiring him to be physically 
present in Austria. Thus, according to Article 6(1) of the Rome I Regulation, 
Italian law was applicable to the financial services contracts concluded with him 
as a consumer. 
IV. Legal bases: 
12 Recitals 7 and 25 of the Rome I Regulation read as follows: 
‘(7) The substantive scope and the provisions of this Regulation should be 
consistent with Council Regulation (EC) No 44/2001 of 22 December 2000 
on jurisdiction and the recognition and enforcement of judgments in civil 
and commercial matters (“Brussels I”) and Regulation (EC) No 864/2007 of 
the European Parliament and of the Council of 11 July 2007 on the law 
applicable to non-contractual obligations (“Rome II”). 
[...] 
(25) Consumers should be protected by such rules of the country of their 
habitual residence that cannot be derogated from by agreement, provided 
that the consumer contract has been concluded as a result of the 
professional pursuing his commercial or professional activities in that 
particular country. […]’ 
13 The relevant provisions of the Rome I Regulation read as follows: 
‘Article 3 
Freedom of choice 
(1) A contract shall be governed by the law chosen by the parties. The 
choice shall be made expressly or clearly demonstrated by the terms of the 
contract or the circumstances of the case. By their choice the parties can 
select the law applicable to the whole or to part only of the contract. [...] 
Article 6 
Consumer contracts 
(1) Without prejudice to Articles 5 and 7, a contract concluded by a 
natural person for a purpose which can be regarded as being outside his 
trade or profession (“the consumer”) with another person acting in the 
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exercise of his trade or profession (“the professional”) shall be governed by 
the law of the country where the consumer has his habitual residence, 
provided that the professional 
(a) pursues his commercial or professional activities in the country where 
the consumer has his habitual residence, or 
(b) by any means, directs such activities to that country or to several 
countries including that country, and the contract falls within the scope of 
such activities. 
(2) Notwithstanding paragraph 1, the parties may choose the law 
applicable to a contract which fulfils the requirements of paragraph 1, in 
accordance with Article 3. Such a choice may not, however, have the result 
of depriving the consumer of the protection afforded to him by provisions 
that cannot be derogated from by agreement by virtue of the law which, in 
the absence of choice, would have been applicable on the basis of 
paragraph 1. 
[...] 
(4) Paragraphs 1 and 2 shall not apply to: 
(a) a contract for the supply of services where the services are to be 
supplied to the consumer exclusively in a country other than that in which he 
has his habitual residence; 
[...]’ 
14 Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in 
consumer contracts [...] provides: 
‘A contractual term which has not been individually negotiated shall be 
regarded as unfair if, contrary to the requirement of good faith, it causes a 
significant imbalance in the parties’ rights and obligations arising under the 
contract, to the detriment of the consumer.’ 
15 Paragraph 879(3) of the Allgemeines Bürgerliches Gesetzbuch (the Austrian Civil 
Code, ‘the ABGB’) states: 
‘A term in the general terms and conditions of a contract or in standard 
form contracts which does not govern a fundamental obligation of one of the 
parties shall be regarded as void if, in the light of all of the circumstances, it 
is seriously detrimental to one of the parties.’ 
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V. Questions referred for a preliminary ruling: 
16 The applicant acted as a consumer both when establishing the business 
relationship and when placing the disputed orders for the acquisition of financial 
products. However, as will be explained below, the requirements of Article 6 of 
the Rome I Regulation had not yet been met when the business relationship was 
established because the defendant had not yet carried out any activities in Italy or 
directed them there at the time in question. In the opinion of the Supreme Court, 
that gives rise to three questions regarding the interpretation of EU law, the 
answers to which may lead to different results regarding the applicable law. 
1. Question 1: 
17 1.1. First of all, it must be clarified whether the fulfilment of the conditions of 
Article 6(1) of the Rome I Regulation in the course of a previously established 
permanent business relationship means that the legal consequences of that 
provision apply to subsequent transactions. If the answer is no, Austrian law 
would be applicable in the case at hand due to the choice of law made at the 
beginning of the business relationship. 
18 1.2. At the beginning of the business relationship, the parties had validly chosen 
Austrian law. 
19 The effectiveness of the choice of law was to be assessed under Austrian law 
pursuant to Article 3(5) in conjunction with Article 10(1) of the Rome I 
Regulation and thus, inter alia, pursuant to Paragraph 879(3) ABGB. That 
provision implements Article 3(1) of Directive 93/13/EEC and must therefore be 
interpreted in conformity with the Directive. However, Article 3(1) of Directive 
93/13/EEC and thus Paragraph 879(3) of the ABGB did not preclude the validity 
of the choice of law for the following reasons: 
20 While it is true that a term in a professional’s general terms and conditions which 
has not been individually negotiated, under which the contract in question is to be 
governed by the law of the Member State in which the professional is established, 
is unfair, within the meaning of Article 3(1) of Directive 93/13/EEC, in so far as it 
leads the consumer concerned into error by giving him or her the impression that 
only the law of that Member State applies to the contract, without informing him 
that, under Article 6(2) of the Rome I Regulation, he also enjoys the protection of 
the mandatory provisions of the law that would be applicable in the absence of 
that term (CJEU C-191/15, Verein für Konsumenteninformation, 
ECLI:EU:C:2016:612, paragraph 71), namely those of the law of the country in 
which he or she has his or her habitual residence (CJEU C-821/21, Club La Costa 
et. al., ECLI:EU:C:2023:672, paragraph 72). 
21 That does, however, require that Article 6 of the Rome I Regulation is applicable. 
Yet that was not the case at the time the choice-of-law clause was agreed. The 
applicant attended a branch of the defendant in Austria to initiate the business 
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relationship after the contact was arranged by a person from his professional 
environment. While, subsequently, at his Italian place of residence, he signed a 
customer profile sent by the defendant and the ‘account application’ for the 
current account and securities deposit account, there is no indication that, apart 
from the transmission of those documents, the defendant had carried out a 
professional or commercial activity in Italy or in any way directed it to Italy. Such 
an activity leading to the application of Article 6 of the Rome I Regulation would 
only exist if it is clear from the circumstances that the defendant intended to 
conclude contracts with consumers from the applicant’s State beyond that 
individual case (that is to say, in general) (CJEU C-585/08 and C-144/09, Pammer 
and Hotel Alpenhof, ECLI:EU:C:2010:740, paragraph 92 [on Article 15 of the 
Brussels I Regulation]; see also OGH 1 Ob 158/09f, point 5, on the irrelevance of 
merely sending catalogues once). The facts of the case contain no backing for that 
at the time the business relationship was established. 
22 Accordingly, in the opinion of the Oberster Gerichtshof (Supreme Court, Austria), 
the requirements for the application of Article 6(1) of the Rome I Regulation had 
not been met when the business relationship was established. There was therefore 
neither a reason nor an obligation for the defendant to refer to that provision in the 
choice-of-law clause. There are also no other reasons discernible that the clause is 
unfair, especially as Austrian law would have been applicable to the business 
relationship (provision of banking services) even without the choice of law 
pursuant to Article 4(1)(b) of the Rome I Regulation. 
23 1.3. According to its clear wording, the choice-of-law clause also covers future 
transactions within the scope of the business relationship. Having said that, after 
entering into the business relationship, the bank engaged in conduct that did meet 
the constituent elements of Article 6(1) of the Rome I Regulation. By participating 
in the event in Italy, it has directed its activity to the consumer’s country (below 
[a]), and the applicant’s further orders fall within the scope of that activity (below 
[b]). 
24 (a) The applicant has (at least) directed its activities to Italy. 
25 The term ‘directing’ is used in Article 6(1)(b) of the Rome I Regulation in a 
similar way to Article 15(1)(c) of Brussels I and now Article 17(1)(c) of Brussels I 
recast. According to recital 7 of the Rome I Regulation, the interpretation of the 
provisions of that Regulation should be consistent with that of the aforementioned 
regulations, which means that the case-law of the CJEU on that jurisdiction 
provision can also be applied in the present case. 
26 According to that case-law (CJEU C-585/08 and C-144/09, Pammer and Hotel 
Alpenhof, ECLI:EU:C:2010:740, paragraph 75 et seq.), ‘directing’ requires the 
trader to have manifested its intention to establish commercial relations with 
consumers from one or more other Member States, including that of the 
consumer’s domicile. Therefore, before a possible contract is concluded with that 
consumer, there must be evidence that the trader intended to do business with 
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consumers domiciled in other Member States, including the Member State in 
whose territory the consumer in question is domiciled, in the sense that the trader 
was prepared to conclude a contract with those consumers. 
27 Against that background, there is no doubt in the present case that the defendant 
bank ‘directed’ its activity to the consumer’s country by having an employee 
introduce it at an event in Italy. That is because, when viewed realistically, such 
introduction could only serve the purpose of concluding new or additional 
transactions with the customers present at the event. Since the event was also 
attended by private investors and there is no indication that the defendant was not 
aware of that fact, the ‘directing’ also related to the conclusion of contracts with 
consumers. 
28 (b) The applicant’s further orders also fell within the scope of that activity. 
29 A causal link between the activity directed at the consumer’s country and the 
specific conclusion of the contract is not required in that context; it is sufficient 
that the activity was generally aimed at the conclusion of such contracts (see 
CJEU C-218/12, Emrek, ECLI:EU:C:2013:666, paragraph 32 [on Article 15(1)(c) 
of the Brussels I Regulation]). That was the case because the acquisition of 
financial products constitutes a typical banking transaction, the conclusion of 
which was the bank’s intention. Since a causal link between the activity and the 
contract subsequently concluded is not required, it is irrelevant under conflict of 
laws provisions that a business relationship with the applicant already existed and 
that the bank did not promote certain financial products at the event in Italy. 
30 1.4. The defendant has therefore engaged in conduct that should in itself lead to 
the application of Article 6 of the Rome I Regulation. The question remains, 
however, whether that also applies if orders are placed as part of a permanent 
business relationship for which the parties – as in the present case – had made a 
valid choice of law when entering into that business relationship. 
31 The defendant bank’s reliance on the validity of the choice of law leading to the 
application of Austrian law is an argument against such assumption. There could 
be doubts as to whether that trust deserves protection if the bank enters the market 
of the consumer’s country after concluding that agreement – as in the present case 
– and must therefore expect the law of that State to apply, at least in relation to 
new contracts. Yet, in the present case, it might be relevant that the bank was 
under an obligation to fulfil the orders. While it is true that, according to the terms 
and conditions, the bank only had to fulfil the orders (provided the other 
requirements were met) if the customer had agreed that with the bank (General 
Part of the Terms and Conditions I. B. 1. No 2 paragraph 2), the applicant did 
conclude such an agreement with the defendant on 26 September 2013 regarding 
the placement of orders by means of telecommunication. Rather, that obligation 
militates in favour of protecting the bank’s trust in the (unlimited) effectiveness of 
the choice of law. 
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32 A similar conclusion could be drawn from the judgment in C-135/15, Nikiforidis, 
ECLI:EU:C:2016:774, on Article 28 of the Rome I Regulation. In that case, the 
CJEU held that the Rome I Regulation applies to a contract concluded previously 
only if there has been a variation of such magnitude that a new contract must be 
regarded as having been concluded. That assessment could apply to the case that – 
as in the present case – the conditions for the application of Article 6 of the Rome 
I Regulation are met after the conclusion of the contract. However, it should be 
noted that the present case does not concern a contract of indefinite duration in the 
narrower sense (such as an employment contract as in Nikiforidis) but a 
contractually-governed business relationship in the context of which individual 
independent orders are placed and executed. 
33 1.5. The CJEU is therefore asked to answer the question of whether the legal 
consequences of an order to purchase a financial product, which a consumer 
places with a bank on the basis of an ongoing business relationship and which the 
bank executes, must be assessed according to the law set out in Article 6 of the 
Rome I Regulation if the conditions for the application of that provision had not 
yet been met when the business relationship was established and if the parties had 
agreed a (comprehensive) choice of law in accordance with Article 3 of the Rome 
I Regulation at that time. 
2. Question 2: 
34 2.1. If Article 6 of the Rome I Regulation is applicable in principle, the question 
arises as to whether the conditions for the exception pursuant to Article 6(4)(a) of 
the Rome I Regulation have been met. According to that provision, Article 6(1) 
and (2) of that Regulation shall not apply to ‘a contract for the supply of services 
where the services are to be supplied to the consumer exclusively in a country 
other than that in which he has his habitual residence’. A contract for the purchase 
of securities for the account of the customer constitutes a contract for the 
provision of services within the meaning of Article 6(4)(a) of the Rome I 
Regulation. 
35 2.2. The Court of Justice of the European Union commented on that provision in 
its judgment in C-272/18, Verein für Konsumenteninformation, 
ECLI:EU:C:2019:827. 
36 That case involved a dispute about the acquisition of shares in a limited 
partnership domiciled abroad. Consumers paid the amounts to be invested into a 
trust account in the consumer’s country, the company fulfilled information 
obligations under the trust agreement by sending reports to the consumer’s 
country, and dividend payments were transferred to accounts in the consumer’s 
country. Furthermore, the company maintained a website for Austrian consumers, 
which allowed them to access information and exercise their voting rights. 
37 In the opinion of the CJEU, it was necessary to ascertain whether it follows from 
the very nature of the contracted services that they can be supplied, as a whole, 
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only outside the State in which the consumer has his habitual residence 
(paragraph 51). Where the services were actually supplied in a country other than 
the one in which the consumer ‘receives’ those services, it must be considered that 
the services are supplied ‘exclusively’ outside of the consumer’s Member State 
only where the consumer has no possibility of receiving them in his State of 
residence and must travel abroad in order to do so (paragraph 52). That was not 
the case in the case in question (paragraph 53). 
38 2.3. In the present case, the fact that the applicant was able to place his purchase 
orders by means of distance communication (telephone, email) from Italy is an 
argument against the ‘exclusive’ provision of the service in Austria. Furthermore, 
the applicant also had access to the defendant’s website in English and, according 
to his undisputed submissions in that regard, he was able to view his accounts on 
the website; moreover, it can be assumed that the bank also provided the applicant 
with information on the execution of his orders. 
39 Nevertheless, it is not necessarily the case that the judgment in C-272/18 can be 
applied to the present case. The case at issue in that decision concerned the 
assessment of a trust agreement under which the defendant trustee undoubtedly 
had to provide services that benefited the consumer in the country of his habitual 
residence (receipt of the amounts to be invested in an account in that country, 
enabling participation in the decision-making of the companies via a website 
designed for that country, transfer of investment income to that country). The 
present case, by contrast, essentially (only) involved the opening of a securities 
account in the country of the bank, and the crediting of the financial products 
acquired by the bank on behalf of the customer in that country. It could therefore 
be questionable whether the applicant actually ‘received’ those services in his 
country – namely in Italy (C-272/18, paragraph 52). The possibility of placing 
orders from a distance and the transmission of information could therefore be 
regarded as mere secondary elements that do not preclude the application of 
Article 6(4)(a) of the Rome I Regulation. 
40 2.4. While, in the opinion of the Oberster Gerichtshof (Supreme Court, Austria), it 
does suggest itself to treat the present case in the same way as the case that the 
European Court of Justice had to judge on in Case C-272/18, the opposite view 
could also be taken. For that reason the Court of Justice of the European Union is 
again asked to interpret Article 6(4)(a) of the Rome I Regulation. Should that 
interpretation reveal that the provision is applicable, the case would have to be 
judged exclusively according to Austrian law. 
3. Question 3: 
41 3.1. If, on the other hand, question 1 is answered in the affirmative and question 2 
in the negative, Article 6 of the Rome I Regulation is applicable. According to 
paragraph 1 of that provision, that would result in the application of the law of the 
country where the consumer has his habitual residence, in the present case in the 
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application of Italian law. That said, a choice of law is possible. According to 
Article 6(2) of the Rome I Regulation, such choice may not, however, result in 
depriving the consumer of the protection afforded to him by provisions that cannot 
be derogated from by agreement by virtue of mandatory law of his country of 
residence. 
42 3.2. In that specific case, the question arises as to whether the choice of law made 
by the parties must still be adhered to, even though it did not – in accordance with 
the judgment in C-191/15, Verein für Konsumenteninformation, 
ECLI:EU:C:2016:612 – refer to the legal consequences of Article 6(2) of the 
Rome I Regulation (V.1.2. above). It could be argued that although the choice of 
law originally did not give rise to any concerns, it must now be regarded as unfair 
pursuant to Article 3(1) of Directive 93/13/EEC. In that case, Italian law would be 
comprehensively applicable in accordance with Article 6(1) of the Rome I 
Regulation. If, on the other hand, it was found that the choice of law was not 
unfair, Austrian law would be applicable due to the choice of law pursuant to 
Article 6(2) of the Rome I Regulation, with the proviso that any more favourable 
provisions of Italian law would take precedence. 
43 3.3. For that reason, the European Court of Justice is also requested to answer the 
question of whether a choice of law made before the conditions for the application 
of Article 6 of the Rome I Regulation are met must be regarded as unfair within 
the meaning of Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on 
unfair terms in consumer contracts […] if it does not refer to the legal 
consequences of Article 6(2) of the Rome I Regulation. 
VI. Procedure: 
44 [...] 
45 [...] 
Oberster Gerichtshof (Supreme Court, Austria) 
Vienna, on 8 April 2024 
[...]