Judgment;Abstract — ECLI:EU:C:2020:263
Date: 2020-04-02
Language of the case: Italian
Court formation: First Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Italy

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 April 2019 
Referring court:  
Tribunale di Milano (Italy) 
Date of the decision to refer:  
1 April 2019 
Applicant:  
Condominio di Milano 
Defendant:  
Eurothermo SpA 
  
Subject matter of the action in the main proceedings 
Objection lodged by an entity comprising owners of apartments in a building 
(condominio) to a formal notice requiring payment of certain sums to an economic 
operator, also challenging the contractual term relating to the quantification of 
default interest, classified as ‘unfair’ by the condominio. 
Subject matter and legal basis of the request 
Interpretation of the concept of ‘consumer’ set out in Article 2(b) of Directive 
93/13/EEC with regard to the possibility of including therein ‘the condominio’, as 
governed by Italian law, in cases where it concludes a contract for purposes which 
fall outwith its trade, business or profession and where it is in a position of 
weakness vis-à-vis the seller or supplier. 
Article 267 TFEU 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-329/19 
 
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Question referred for a preliminary ruling 
Does the concept of consumer, as adopted by Directive 93/13/EEC, preclude 
classification as a consumer of an entity (such as the entity comprising owners of 
apartments in a building (condominio) in Italian law), which does not come within 
the concept of ‘natural person’ or ‘legal person’, in cases where that entity 
concludes a contract for purposes which are outside its trade, business or 
profession and where it is in a position of weakness vis-à-vis the seller or supplier, 
as regards both its bargaining power and its level of knowledge? 
Provisions of EU law invoked 
- Articles 2(b) and 6 of Directive 93/13/EEC, and Article 1(e) of the annex 
thereto. 
- Recital 13 and Article 2(1) of Directive 2011/83/EU. 
Provisions of national law invoked 
(A) Procedural rules 
Decreto legislativo n. 28/2010, Attuazione dell’articolo 60 della legge 18 giugno 
2009, n. 69, in materia di mediazione finalizzata alla conciliazione delle 
controversie civili e commerciali (Legislative Decree No 28/2010 implementing 
Article 60 of Law No 69 of 18 June 2009 on mediation for the purpose of 
conciliation in civil and commercial litigation):  
Article 11: ‘1. Where an amicable settlement has been reached, the mediator shall 
draw up a record to which the text of the agreement shall be annexed …’. 
Article 12 ‘1. Where all the parties to the mediation are assisted by a lawyer, the 
agreement which has been signed by the parties and those lawyers shall be 
enforceable. The lawyers shall attest and certify that the agreement conforms to 
mandatory provisions and public policy’. 
Article 480(1) of the Code of Civil Procedure: ‘The writ of execution shall consist 
in a formal notice to fulfil the obligation arising from the enforcement order 
within a period of not less than ten days ...,with a warning that, in the event of 
failure to do so, compulsory enforcement will be effected’. 
(B) Substantive rules 
Consumer protection 
Legislative Decree No 206/2005, known as the ‘Consumer Code’ (which 
transposes, in particular, Directive 93/13/EEC): 
CONDOMINIO DI MILANO 
 
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- Article 3(1)(a): ‘consumer’ is defined as a natural person who is acting for 
purposes which are outside any business, commerce, trade, or profession in which 
he may be engaged. 
- Article 33(2)(f): terms which require from the consumer, in the event of non-
fulfilment or late fulfilment, payment, by way of compensation, penalty or 
equivalent, of a manifestly excessive amount, shall be presumed to be ‘unfair’, 
until proven otherwise. 
- Articles 1341 and 1342 of the Civil Code, relating to general contractual 
conditions and the detailed rules on the signing of contracts. 
Provisions governing the ‘condominio’ contained in the Civil Code  
Article 1117 bis: there is a condominio where ‘several housing units or several 
buildings ... have shared parts within the meaning of Article 1117’. 
Article 1117: all the parts of the building necessary for common use — such as, 
for example, the land on which it stands, the foundations, the supporting beams, 
the roofs, the stairs, the entrance doors, the shared services facilities and the 
lifts — are to be the common property of the owners of the building’s individual 
housing units (‘the co-owners’). 
Those common parts are to be managed by the meeting of co-owners and the 
administrator of the condominio. 
Article 1135: the meeting of co-owners is designed to ensure, inter alia, the 
appointment of the administrator, approval of the estimate of expenses necessary 
during the year and the allocation thereof among the co-owners, and the decisions 
on extraordinary maintenance works and innovations, through the mandatory 
establishment of a special fund in an amount equal to those costs. 
Article 1130: the administrator is required to: implement the resolutions of the 
meeting, convene it annually to approve the report on the condominio ... and 
ensure compliance with rules governing the condominio; regulate the use of the 
common parts ... so as to ensure the maximum enjoyment of each of the co-
owners; and to collect the contributions and pay the expenses necessary for the 
ordinary maintenance of the common parts of the building and for providing the 
common services. 
Article 1129: the administrator is also required ‘to transfer amounts received for 
whatever reason from the co-owners or third parties, and those paid for any 
reason on behalf of the body of the co-owned apartment building, to a specific 
current account in the name of the body of the co-owned apartment building’. 
Article 1131: the administrator is to represent the condominio and may take legal 
action to protect its interests either against the co-owners or third parties, or may 
be sued for any action concerning the common parts of the building. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-329/19 
 
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Article 1133: the measures taken by the administrator within the scope of his 
powers are to be ‘binding on the co-owners’. 
Article 2659: the condominio is to have own tax code, which must be indicated in 
any acts which may be recorded in the land register. 
Article 71 bis of the provisions implementing the Civil Code (annexed to that 
code): in order to perform the function of administrator of the condominio, certain 
personal requirements must be met, such as enjoyment of civil rights and a lack of 
criminal convictions for certain offices, as must certain professional requirements 
relating to educational qualifications, attendance on a training course for 
administrators of the condominio and the relevant refresher courses. The function 
of administrator of the condominio may also be performed by a company. 
Succinct presentation of the facts and the main proceedings 
1 The Condominio di Milano (the entity comprising owners of apartments in a 
building in Milan; hereinafter: ‘the Condominio’) was served with a writ of 
execution by which Eurothermo SpA (hereinafter: ‘Eurothermo’) gave it formal 
notice to pay EUR 21 025.43 by way of default interest. 
2 A similar quantification of interest had been provided for in the general conditions 
of the contract initially concluded between the parties, drawn up by Eurothermo 
and accepted by the Condominio, and had been expressly referred to in the 
subsequent mediation agreement signed by them on 14 November 2014 with the 
assistance of the relevant lawyers. Under that agreement, the amount owned by 
the Condominio to Eurothermo — the capital sum of EUR 71 392.31, plus 
interest, calculated up to the date of the agreement, amounting to 
EUR 15 648.62 — was to be paid in monthly instalments of EUR 5 000 each. The 
mediation agreement provided for the calculation of default interest as per the 
initial contract, which set the rate at 9.25% (higher than the statutory rate) and the 
related adjustment at the time of the final settlement. 
3 Subsequently, the Condominio had paid the instalments covering the entire 
principal sum and part of the interest, as stated in the mediation agreement. 
However, following failure to pay the instalment due in February 2016, 
Eurothermo had notified the writ of execution in question to the Condominio, 
issuing a formal demand for payment of EUR 21 025.43 by way of default 
interest, calculated at the rate of 9.25%, for the period from 1 January 2011 (the 
date on which the initial contract was concluded) to 17 February 2016 (the date of 
the failure to pay an instalment). 
4 The Condominio lodged an objection to that writ of execution with the referring 
court. 
CONDOMINIO DI MILANO 
 
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The essential arguments of the parties to the main proceedings 
5 It is common ground between the parties that the Condominio paid the entire 
amount owed by way of capital, but they disagree as to whether further sums are 
owed by way of default interest for a period following the mediation agreement of 
14 November 2014. 
6 The Condominio considers that that agreement has given rise to a new obligation, 
replacing that covered by the initial contract, with the result that Eurothermo 
cannot demand interest higher than that calculated definitively on the date of the 
mediation agreement and stipulated therein, in the amount of EUR 15 648.62, less 
the amount of that interest already paid by it in the monthly instalments made 
pursuant to that agreement. 
7 The Condominio further takes the view that it has the status of consumer vis-à-vis 
that company and consequently claims that the referring court should declare 
‘unfair’ the term of the initial contract, referred to in the mediation agreement, 
relating to the default interest in dispute. 
8 Eurothermo replies that it is irrelevant, for the purposes of the decision, to 
establish whether or not the Condominio has the status of consumer, given that, in 
any event, the parties’ right to set default interest above the statutory rate remains 
unaffected. 
9 That company goes on to assert that the contractual term relating to interest was 
signed twice by the Condominio, as provided for by Articles 1341 and 1342 of the 
Civil Code. Finally, the default interest rate set in that term (9.25%) cannot be 
regarded as unfair since the applicable statutory rate of interest is 8%. 
Succinct presentation of the reasons for the request for a preliminary ruling 
10 The referring court considers that the term in dispute is ‘unfair’ for the purposes of 
the legislation on consumer protection (in particular Article 33(2) of Legislative 
Decree No 206/2005). 
11 However, the prerequisite for reaching such a conclusion is the possibility of 
classifying the condominio as a ‘consumer’. 
12 In this regard, the referring court observes firstly that in national law, in the 
absence of a specific definition in the Civil Code, the legal nature of the 
condominio is the subject of conflicting approaches in the case-law of the Corte 
Suprema di cassazione (Supreme Court of Cassation). 
13 According to a traditional approach, the condominio is a management entity with 
no legal personality distinct from that of the co-owners. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-329/19 
 
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14 According to a more recent approach, it is an autonomous legal person, distinct 
from the co-owners, even though it does not have full financial autonomy. 
15 Secondly, as regards the specific question of whether or not the status of 
‘consumer’ can be conferred on the condominio, the referring court notes that 
there is settled case-law of the Corte Suprema di cassazione according to which 
the rules on consumer protection must be applied to a contract concluded by the 
administrator of the condominio with a seller or supplier. This is because the 
administrator acts as a duly authorised representative of the individual co-owners, 
who in turn must be regarded as consumers as they are natural persons acting for 
purposes which are outside their trade, business or profession. 
16 That notwithstanding, the referring court has doubts as to the possibility of 
classifying the condominio as a ‘consumer’ since the concept of consumer 
adopted in EU law (which the national law on consumer protection implements) 
concerns, according to its wording, a ‘natural person’ who acts for purposes which 
are outside any business, commerce, trade, or profession in which he may be 
engaged (Article 2(b) of Directive 93/13/EEC and Article 33(2) of Legislative 
Decree No 206/2005). 
17 In particular, according to the referring court, the Court of Justice of the European 
Union (hereinafter: ‘the Court’) interprets the concept narrowly. In this regard, in 
a case relating to two contracts concluded between undertakings it found that ‘the 
term consumer, as defined in Article 2(b) of [Directive 93/13/EEC], must be 
interpreted as referring solely to natural persons’ (judgment of 22 November 
2001, C-541/99 and C-542/99, Cape Snc). 
18 The referring court further observes that on many occasions the Court has 
examined the concept in question, not on the basis of the natural person/legal 
person dichotomy, but rather by considering the capacity of the contracting parties 
in a specific case and, more precisely, whether or not, in concluding a particular 
contract, they are acting for purposes which are outside their trade, business or 
profession (judgments of 19 November 2015, C-74/15, Tarcӑu; of 15 January 
2015, C-537/13, Šiba; and of 30 May 2013, C-488/11, Asbeek Brusse and de Man 
Garabitó).  
19 A similar approach was taken by the Court in view of the logic underlying the 
protection afforded to the consumer, that is to say, the weaker position that the 
consumer is in vis-à-vis the seller or supplier, as regards both his bargaining 
power and level of knowledge. This weaker position, which leads to the weak 
consumer agreeing to terms drawn up in advance by the seller or supplier without 
being able to influence the content of those terms (judgment of 26 October 2006, 
C-168/05, Mostaza Claro), forms the basis for the action pursuant to Article 6 of 
Directive 93/13/EEC aimed at restoring substantive equality between the parties 
(judgments of 17 July 2014, C-169/14, Sánchez Morcillo, and of 14 June 2012, 
C-618/10, Banco Espanol de Crédito). 
CONDOMINIO DI MILANO 
 
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20 By the same reasoning, the Court has declared that the concept of consumer is 
‘objective in nature’ and is distinct from the concrete knowledge that the person in 
question may have, or from the information that person actually has, with the 
result that the national court must, in order to establish whether a contracting party 
can be classified as a consumer, take into account all the circumstances of the 
case, ‘particularly the nature of the goods or service covered by the contract in 
question, capable of showing the purpose for which those goods or that service is 
being acquired’ (judgment of 3 September 2015, C-110/14, Costea, [paragraphs 
21 and 23] in which the Court held that it is not possible to exclude a lawyer from 
being categorised as a consumer in the case where he is acting for purposes which 
are outside his trade, business or profession). 
21 In the light of the legislation and case-law of the Court cited by the referring court, 
it is not, in its view, possible, despite the cited case-law of the Italian Corte 
Suprema di cassazione stating that it is possible, to declare that the condominio 
has the capacity of ‘consumer’ as it is not a ‘natural person’. 
22 The referring court nevertheless retains a fundamental doubt arising from the fact 
that the distinction between a natural person and a legal person (on the basis of the 
concepts of consumer and seller or suppler in EU law and national implementing 
law) is reductive since it disregards the existence of particular persons (which are 
to be found only in certain national legal systems) who cannot be covered by it 
and who nevertheless may be in a weaker position vis-à-vis the seller or supplier, 
as regards both their bargaining power and level of knowledge. Also, in such 
situations, they too may require legal protection capable of restoring genuine 
balance and substantive equality between the parties. 
23 The referring court therefore considers it appropriate to ask the Court whether it is 
possible to overcome the reasoning set out above and to afford the status, and the 
consequent protection, of consumer also to an entity such as the condominio, 
which, although it cannot be regarded as a natural person or a legal person, is in a 
position of weakness vis-à-vis the seller or supplier.  
24 This question is relevant to the resolution of the present dispute since, if the 
answer of the Court is in the affirmative, the referring court will have to allow the 
objection raised by the Condominio di Milano to the order for payment issued by 
Eurothermo.