Judgment;Summary — ECLI:EU:C:2020:1015
Date: 2020-12-10
Language of the case: Slovenian
Court formation: Sixth Chamber
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters
Procedure: Reference for a preliminary ruling
Origin: Slovenia

Summary C-774/19 — 1 
Case C-774/19 
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:  
22 October 2019 
Referring court:  
Vrhovno sodišče Republike Slovenije (Slovenia) 
Date of the decision to refer  
5 September 2019 
Applicant:  
A.B. 
B.B. 
Defendant:  
Personal Exchange International Limited 
  
Subject matter of the main proceedings 
At issue is whether the courts of the Republic of Slovenia or those of the Republic 
of Malta have jurisdiction. The decisive question of substantive law is whether the 
described circumstances to be taken into consideration fall within the scope of 
Article 15(1) of Regulation No 44/2001. It is necessary to establish whether the 
applicant in the main proceedings entered into a contract with the defendant as a 
consumer, outside his trade or profession. The assessment concerning jurisdiction 
turns on whether the applicant may be regarded as a consumer within the meaning 
of EU law. 
Subject matter and legal basis of the reference 
Interpretation of European Union law, Article 15 of Regulation No 44/2001; the 
legal basis of the reference is Article 267 TFEU. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-774/19 
 
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Question referred 
Must Article 15(1) of Regulation No 44/2001 be interpreted as meaning that an 
online poker playing contract, concluded remotely over the internet by an 
individual with a foreign operator of online games and subject to that operator’s 
general terms and conditions, can also be classified as a contract concluded by a 
consumer for a purpose which can be regarded as being outside his trade or 
profession, where that individual has, for several years, lived on the income thus 
obtained or the winnings from playing poker, even though he has no formal 
registration for that type of activity and in any event does not offer that activity to 
third parties on the market as a paid service? 
Provisions of EU law relied on 
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and 
the recognition and enforcement of judgments in civil and commercial matters, in 
particular Article 15 
Provisions of national law relied on 
Zakon o pravdnem postopku (Code of Civil Procedure), in particular Articles 17 
and 18 
Zakon o varstvu potrošnikov (Law on consumer protection) 
Succinct presentation of the facts and the main proceedings 
1 The applicant is a poker player who is asking the defendant to pay an amount of 
EUR 226 850 which he won playing poker on its website www.mybet.com 
between 31 March 2010 to 10 May 2011. The defendant, the organiser of the 
online casino, seized the amounts won in the game and appropriated them as the 
applicant had infringed its gaming terms and conditions by having several user 
accounts.  
2 The defendant is a legal person registered as a company providing online gaming 
services and has, to that end, a licence from the Republic of Malta, where it has its 
principal place of business. The defendant offered online gambling remotely to 
users via the website (www.mybet.com), by which it carried on its commercial 
activity also in relation to the Republic of Slovenia. 
3 The applicant is a natural person resident in Slovenia who used the services 
provided by the defendant remotely via the website. The applicant himself stated 
that he intended to secure his financial future by playing poker and fell within the 
category of professional poker players. The applicant is not formally registered to 
perform or pursue such activity. He won EUR 227 226.44 from playing poker, 
PERSONAL EXCHANGE INTERNATIONAL 
 
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whilst his total turnover from the activity was higher. He won a net amount of 
EUR 110 per hour from the defendant. 
4 By registering a user account on the defendant’s website, every user, including the 
applicant, had to accept the specific and general terms and conditions drawn up 
unilaterally by the defendant. The user had no influence over the content of those 
terms and conditions. The general terms and conditions of the contract provided 
inter alia that the courts of the Republic of Malta would have jurisdiction over any 
disputes arising from the contractual relationship. 
5 The law of the Republic of Malta and the general terms and conditions of the 
contract provide that each user can have only one account with one gambling 
operator. A user account permits only the person, in whose name the account is, to 
play. No new registration is authorised, nor is the use of another player’s account. 
If the data are incorrect, the registration of the player concerned is not authorised 
and the registration made is cancelled immediately. The general terms and 
conditions of the contract provide that in such a case the defendant is entitled to 
seize the funds held in a casino account. 
6 By opening an additional user account, the applicant infringed the condition 
relating to a single user account, which he thus sought deliberately to circumvent. 
On account of the infringement of the abovementioned conditions, on 10 May 
2011 the defendant blocked the applicant's user account and seized the applicant's 
entire deposit in the amount of EUR 227 226.44. 
7 However, despite the infringement of terms and conditions by the applicant, that 
seizure was not justified as the defendant did not act correctly in that regard. The 
defendant was aware of that action and allowed the applicant to play poker, agreed 
to it and approved it fully. Even though it had been aware of applicant’s 
infringements for a long time, it did not block his account or prevent him from 
continuing to play. It earned a commission from his games and ultimately 
appropriated all the sums that the applicant had won up until then. In the light of 
the foregoing, the applicant is entitled to the sums won gambling and the 
defendant is required to pay them. 
8 The court of first instance granted the application brought by the applicant in its 
entirety and ruled that the defendant had to pay him the sum of EUR 226 850.21, 
plus default interest. 
9 The court of first instance considered that the applicant had acted as a consumer 
outside his trade or profession. In doing so, it accepted the jurisdiction of the 
Slovenian courts on the basis of his place of domicile, that is to say the Republic 
of Slovenia. 
10 The defendant lodged an appeal against that decision, by which the court of first 
instance granted the application brought by the applicant, before the court of 
second instance, which dismissed its appeal as unfounded and accepted, in their 
entirely, all the findings and grounds set out by the court of first instance. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-774/19 
 
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11 The defendant brought an appeal on a point of law (revizija) against the judgment 
delivered by the court of second instance before Vrhovno sodišče Republike 
Slovenije (Supreme Court of the Republic of Slovenia). In its appeal it alleges 
substantial infringements of the rules of procedure and incorrect application of 
substantive law. It essentially contests the lower courts’ finding that the applicant 
was a consumer acting outside his trade or profession. In his response the 
applicant disputed the defendant’s claims and agreed with the view of the lower 
courts. 
The essential arguments of the parties to the main proceedings 
12 The applicant bases the defendant’s liability to pay on the fact that he won that 
amount as a poker player in connection with online casino services which the 
defendant offered as the organiser of the website. Poker players register on its 
website and open a user account into which they pay a cash deposit that they can 
then use to play on the website or pay at any time. Since the defendant 
misappropriated the applicant’s money, it is required to repay it to him. 
13 The applicant bases the jurisdiction of the courts of the Republic of Slovenia on 
the fact that he used the defendant’s online casino services as a consumer, as he 
acted outside his trade or profession. Therefore, he has the status of consumer and, 
under Articles 15 and 16 of Regulation No 44/2001, has the right to bring an 
action in the State in which he is domiciled. 
14 The defendant requests that the application be dismissed as inadmissible on the 
ground that the Slovenian courts do not have jurisdiction over the matter and the 
courts of the Republic of Malta, where it has its principal place of business, 
instead have jurisdiction. The applicant did not have the status of a consumer 
since he is a professional player who is not entitled to consumer protection. 
15 Therefore, the defendant lawfully seized the applicant's money as he had infringed 
its terms and conditions. Furthermore, in addition to his regular user account, the 
applicant also had an additional user account, which is prohibited. 
Brief summary of the basis for the reference 
16 The question referred is essential as the final decision turns on it. An examination 
of the case-law of the Court of Justice shows that it has not yet ruled on such a 
case. The application of EU law is not so obvious as to leave no scope for any 
doubt (acte clair doctrine). It follows from other cases before the Court of Justice 
[C-498/16 (Schrems, ECLI:EU:C:2018:37), C-297/14 (Hobohom, 
ECLI:EU:C:2015:844), C-441/13 (Hejduk, ECLI:EU:C:2015:28), C-375/13 
(Kolassa, ECLI:EU:C:2015:37), C-508/12 (Vapenik, ECLI:EU:C:2013:790), 
C-218/12 (Emrek, ECLI:EU:C:2013:666), C-419/11 (Česká spořitelna, 
ECLI:EU:C:2013:165) C-190/11 (Muhlleitner, ECLI:EU:C:2012:542) and 
C-585/08 and C-144/09 (Pammer and Hotel Alpenhof, ECLI:EU:C:2010:740)], 
PERSONAL EXCHANGE INTERNATIONAL 
 
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which, moreover, concerned a different factual situation, that the concept of 
consumer must be interpreted independently and uniformly since it is an 
autonomous concept of EU law. Consumer protection applies only to the final, 
private consumer and contracts concluded for the sole purpose of satisfying an 
individual’s own needs in terms of private consumption. 
17 Account must also be taken of the concept of consumer in other relevant, 
complementary rules of EU law, such as Regulation No 805/2004, Directives 
1999/44/CE and 93/13/CEE, and others. The same applies as regards the Court of 
Justice’s interpretation for the purposes of applying the 1968 Brussels Convention 
[C-150/77 (Bertrand, ECLI:EU:C:1978:137), C-89/91 (Shearson Lehman Hutton, 
ECLI:EU:C:1993:15), C-464/01 (Gruber, ECLI:EU:C:2005:32), C-96/00 
(Gabriel, ECLI:EU:C:2002:436), C-269/95 (Benincasa, ECLI:EU:C:1997:337), 
and others]. 
18 It is clear from the factual circumstances of the case that the circumstances which 
characterise private consumers and those which characterise the pursuit of an 
economic activity or a profession overlap. In this respect, there are several 
relevant but competing circumstances which must be ranked hierarchically and 
qualitatively under EU law. In the present case, both the interpretation of the 
concept of consumer proposed by the applicant and the contrary interpretation 
thereof proposed by the defendant are possible. 
19 The two interpretations are also conceptually different. In terms of contents, in 
both alternatives there is a relationship between a traditional concept of consumer 
and a more modern one and the understanding of an individual’s private or 
professional activity. The interpretation advocated by the applicant construes the 
professional activity of an individual in the formal sense, whilst the defendant’s 
approach overlooks the manner in which that activity is carried out and 
emphasises its significance for the individual. 
20 The different language versions of certain EU Member States, 1 which differ in 
terms of nuance, cause further confusion. Also, the scope of the comparable 
 
1 Slovenian: ‘V zadevah v zvezi s pogodbami, ki jih sklene oseba — potrošnik — za namen, za 
katerega se šteje, da je izven njegove poklicne ali pridobitne dejavnosti …’ [‘… In matters 
relating to a contract concluded by a person, the consumer, for a purpose which can be 
regarded as being outside his professional activity …’]. 
  – English: ‘In matters relating to a contract concluded by a person, the consumer, for a 
purpose which can be regarded as being outside his trade or profession …’. 
 – German: ‘Bilden ein Vertrag oder Ansprüche aus einem Vertrag, den eine Person, der 
Verbraucher, zu einem Zweck geschlossen hat, der nicht der beruflichen oder gewerblichen 
Tätigkeit dieser Person zugerechnet werden kann …’. 
 – French: ‘En matière de contrat conclu par une personne, le consommateur, pour un usage 
pouvant être considéré comme étranger à son activité professionnelle …’. 
 – Croatian: ‘Ustvarima koji se odnose na ugovor koji sklopa osoba — potrošač, u svrhe za koje 
se može smatrati da su izvan njezine profesionalne djelatnosti’. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-774/19 
 
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definitions is not identical in all the languages. In all the language versions, the 
status of consumer is excluded in the case of the individual’s profession. 2 Some 
language versions also contain additional word elements. In Slovenian that 
element states: ‘professional activity’, which refers to the technical and economic 
aspect of an inflow of money in the sense of the acquisition of material goods. 
This is understood in a slightly different way from the English word ‘trade’, 3 
which refers to trade as an exchange of goods or services in the sense of an 
economic and organised market. The German term ‘gewerblich’, which refers to 
the importance of the commercial character but more in the sense of individual 
market orientation, also has a broad meaning. In certain languages there are no 
additional word elements as described above, merely a link to ‘profession’ (in the 
Croatian definition, for example, there are no word elements in addition to 
'profession’). The language difference described above shows that the concept set 
out is not unequivocal in terms of linguistic interpretation, which does not help 
provide a clearer understanding of Article 15(1) of Regulation No 44/2001. 
21 This is an interesting issue which concerns a current situation in life which has a 
broader scope. The subsequent definition of comparable activities, which are 
already diverging theoretically from the conventional concept of consumption and 
becoming increasingly widespread, will also turn on the interpretation of the law 
provided by the Court of Justice. Earning through computer games or other virtual 
activities, which modern livelihoods and professions entail, could also be 
classified, by analogy, among such activities. Therefore, the interpretation 
provided will necessarily also call into question certain traditional associations 
that are (were) typical of the conventional concept of consumption. 
 
2 In Slovenian, ‘poklic’ (profession); in English, ‘profession’; in German, ‘beruflich’; in French: 
‘professionnelle’; in Croatian, ‘profesionalne’ 
3 Online Cambridge dictionary: ‘the activity of buying and selling, or exchanging goods and/or 
services between people’ … ‘business activity’.