Judgment;Summary — ECLI:EU:C:2022:839
Date: 2022-10-27
Language of the case: Bulgarian
Court formation: Eighth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Bulgaria

Summary C-485/21 – 1 
Case C-485/21 
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:  
5 August 2021 
Referring court:  
Rayonen sad Nesebar (Bulgaria) 
Date of the decision to refer:  
23 July 2021 
Applicant:  
S.V. OOD 
Defendant:  
E. Ts. D.  
  
Subject matter of the main proceedings 
Action brought by a company in its capacity as manager of a co-owned building 
against one of the property owners for payment of sums due under the contract 
concluded between the parties for maintenance of the communal areas of the 
building; the referring court must determine whether, for the purposes of that 
contract, the property owner is a ‘consumer’ within the meaning of consumer 
protection law 
Subject matter and legal basis of the request 
Interpretation of EU law; Article 267 TFEU 
Questions referred for a preliminary ruling 
1. Are natural persons who own individual units in a co-owned building 
‘consumers’ (within the meaning of Article 2(b) of Council Directive 
93/13/EEC of 5 April 1993 on unfair terms in consumer contracts and 
EN 
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Article 2(1) of Directive 2011/83/EU of the European Parliament and of the 
Council of 25 October 2011) in terms of the legal relationships they enter 
into regarding the management and maintenance of the communal areas of 
the building? 
2. Does the status of natural persons who own individual units in a co-owned 
building as ‘consumers’ depend on the nature of the legal relationships they 
enter into (individual contract for the management and maintenance of the 
communal areas, contract under Article 2 of the Zakon za upravlenie na 
etazhnata sobstvenost (Law on the management of co-owned property; ‘the 
ZUES’), management by the general meeting of the property owners)? 
3. Is legislation which permits the same owners of individual units in a 
building to be treated differently (in relation to the status of ‘consumer’), 
depending on whether they have entered into an individual contract for the 
management and maintenance of the communal areas of the building or not 
(the management body being the general meeting of the property owners in 
the latter case), compatible with Directive 2011/83/EU of the European 
Parliament and of the Council of 25 October 2011? 
Provisions of European Union law and case-law relied on 
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer 
contracts (OJ 1993 L 95, p. 29): Article 2(b) 
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 (OJ 2011 L 304, p. 64): Article 1, Article 2(1) and 
(6), and Articles 3 and 4 
Judgment of the Court of 8 May 2019, Kerr, С-25/18, EU:C:2019:376. 
Provisions of national law and case-law relied on 
Grazhdanski protsesualen kodeks (Code of Civil Procedure; ‘the GPK’): 
Articles 7(3), Article 229(1)(4), and Articles 230 and 298 
Zakon za zashtita na potrebitelite (Law on consumer protection; ‘the ZZP’): 
Articles 143, 145, 146, 147 and Paragraph 13(1) of the additional provisions of 
that law 
Zakon za upravlenie na etazhnata sobstvenost (Law on the management of co-
owned property; ‘the ZUES’): Articles 1 to 3, 5, 6, 8, 9, 11, 38, 40 to 42, 51 and 
Paragraph 1(3) of the additional provisions of that law 
S.V. 
 
3 
Zakon za sobstvenostta (Law on property; ‘the ZS’): Articles 30 to 32, 37, 38, 40 
and 41 
Zakon za ustroystvoto na teritoriata (Law on town and country planning; ‘the 
ZUT’): Article 195(1), (5) and (7) 
Zakon za zadalzheniata i dogovorite (Law on obligations and contracts; ‘the 
ZZD’): Article 9 
Case-law of the Varhoven kasatsionen sad (Supreme Court of Cassation, Bulgaria; 
‘the VKS’): Judgment No 336 of 18 February 2019 in Case 603/2018; judgment 
No 128 of 18 July 2018 in Case 601/2018; judgment No 358 of 14 January 2019 
in Case 884/2018; order No 60132 of 29 June 2021 in Case 1835/2020 
Succinct presentation of the facts and procedure in the main proceedings 
1 The applicant is the manager of a residential complex, including a co-owned 
building in which the defendant owns an apartment. 
2 The parties entered into a contract on 9 January 2012 concerning the maintenance 
of the communal areas in the residential complex. The defendant signed the 
contract in her capacity as owner of an apartment in that residential complex. 
3 Under the contract, the applicant undertook to ensure that the residential complex 
was properly managed and maintained, with the right to assign any or all of its 
rights and obligations under the contract (Section I, points 1 to 4 of the contract). 
The defendant has an unlimited right to use her apartment and the communal areas 
and is obliged to pay an annual sum for the management and maintenance 
(Section II of the contract). Section II, point 8 stipulates an annual sum of EUR 6 
per square metre excluding VAT. Section IV, point 13 of the contract provides 
that, in the event of late payment, the manager is entitled to calculate interest at a 
rate of 0.1% on the amount due per day of delay. 
4 On 26 August 2020, the applicant served the defendant with a notarised demand 
for payment, requesting that the latter pay the sums for maintenance owing for the 
period since 2012 (the defendant paid the maintenance contribution in that year 
according to the information in the demand letter) by a deadline of 31 August 
2020. 
5 Subsequently, the applicant brought an action for payment of a total sum of 
EUR 1 112.40, consisting of the annual sums for 2017, 2018 and 2019 which were 
owing under the contract of 9 January 2012 and an amount of EUR 717.87 as 
compensation for delay under Section IV, point 13 of that contract. 
6 The main subject matter of the dispute is the question of whether or not payments 
are due on the basis of the aforementioned contract (including penalty), as the 
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defendant claims that the contract was null and void, specifically because some of 
its terms were unfair. 
7 The proceedings in the action before the referring court are currently stayed, as 
another action between the parties is pending before it (No 669/2021), which 
represents a precedent for those proceedings. In fact, the defendant, who is the 
applicant in the other proceedings, puts forward the same arguments concerning 
the unfairness of the contractual terms. Despite being stayed, the present 
proceedings are still pending within the meaning of Article 629(1) of the GPK, 
and are to be resumed and continued from the point of suspension, including by a 
decision on the merits (Article 230(1) and (3) of the GPK). After the proceedings 
are resumed, the court will be bound by the final decision in the other proceedings 
(Article 298 of the GPK), but will also have to examine of its own motion whether 
the contract contains unfair terms pursuant to Article 7(3) of the GPK. 
Consequently, even in the event of a final decision in proceedings No 669/2021, 
the referring court will have to assess for itself whether the contract includes 
unfair terms which the defendant did not name in her submissions. 
The essential arguments of the parties in the main proceedings 
8 The applicant states that the contract concluded in relation to maintenance of the 
communal areas was of indefinite duration and entered into force on 9 January 
2012. It claims that it fulfilled its own obligations, but that the defendant did not 
pay the annual sums for 2017, 2018 and 2019. In its view, it is accordingly also 
entitled to the compensation for delay provided for in Section IV, point 13 of the 
contract. 
9 The defendant argues that the contract for maintenance was null and void on 
grounds of illegality. She submits various grounds for the invalidity of the 
contract, including that the contract in question contains unfair terms. She argues 
that she has the status of ‘consumer’, and that there were no individual 
negotiations when the contract was concluded. She considers the terms under 
points 1 to 4, 8 and 13 of the contract to be unfair. In her view, these terms are 
unfair because they oblige the consumer to pay an unjustifiably high amount in 
compensation or as a penalty for non-compliance with the contract 
(Article 143(2)(5) of the ZZP) and because they are not clear and comprehensible 
(Article 145(2) of the ZZP). 
Succinct presentation of the reasoning in the request for a preliminary ruling 
10 The main question in the present case concerns the terms of the contract of 
9 January 2012. That contract has a specific subject matter: management and 
maintenance of the communal areas in a residential complex in relation to the 
defendant’s ownership of an apartment in the building constructed as part of the 
complex. 
S.V. 
 
5 
11 The contractual freedom provided for in Article 9 of the ZZD allows owners of 
apartments in co-owned buildings to assign responsibility for management of the 
communal areas to a manager that they have chosen. 
12 Besides contractual freedom, the different procedures for managing and 
maintaining the communal areas of co-owned buildings are set out in Bulgarian 
law: (1) by decision of the owners, who own more than half of the property as a 
whole – for co-owned buildings with up to three individual units belonging to 
several owners (Article 3 of the ZUES read in conjunction with Article 32(1) of 
the ZS); (2) by written contract with notarisation of the signatures between the 
investor and the owners – for buildings in ‘gated’ residential complexes (Article 2 
of the ZUES) and (3) by the general meeting and/or the owners’ association 
(Article 9 of the ZUES). 
13 There are therefore several different procedures set out in law for managing the 
communal areas of co-owned buildings and in the light of contractual freedom, 
there is nothing to prevent each owner from entering into a contract with a trader 
who then assumes responsibility for the management (and maintenance) of the 
communal areas. 
14 In these circumstances, the question arises as to whether the owner of an 
individual unit is a ‘consumer’ or not, and whether that status depends on the 
different ways of managing communal areas. 
15 Under Article 2(b) of Directive 93/13, ‘consumer’ means any natural person who, 
in contracts covered by that directive, is acting for purposes which are outside his 
or her trade, business or profession. Under Article 2(1) of Directive 2011/83, 
‘consumer’ means any natural person who, in contracts covered by that directive, 
is acting for purposes which are outside his or her trade, business, craft or 
profession. All contracts between a trader and a consumer fall within the scope of 
the directive. 
16 Under Paragraph 13(1) of the additional provisions of the ZZP, a ‘consumer’ 
means any natural person who acquires goods or services which are not intended 
for the exercise of a trade, business or profession and any natural person who, as a 
party to a contract under that law, acts outside his or her trade, business or 
profession. 
17 In other words, in order for a natural person formally to qualify as a ‘consumer’, it 
is sufficient that there be a contractual relationship between a trader and that 
natural person, on the basis of which the trader sells ‘goods’ or ‘services’ to the 
latter. 
18 However, contractual relationships relating to the management of communal 
property in a co-owned building have a distinctive feature. As stated, these are 
regulated under Bulgarian law (the ZS and the ZUES), which sets out special 
procedures governing the management of communal property. Article 195(1) of 
the ZUT stipulates that the owners of structures are obliged to keep them in an 
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appropriate technical condition and must not allow any changes that might be 
detrimental to the design in accordance with the requirements for the entire 
structure or for its individual features. The mayor of the municipality concerned 
may require owners to carry out works on their own buildings for reasons of 
safety, road safety, health, hygiene, aesthetics, cleanliness, and public order 
(Article 195(5) of the ZUT). The owners are liable for losses incurred and income 
lost as a result of their culpable act or omission, where this has resulted in a 
accident with the structure which caused personal injury or property damage to 
third parties (Article 195(7) of the ZUT). 
19 It must be established that the contract in this case is not an ordinary contract 
between a trader and a natural person, but a contract governing activities relating 
directly to the proper maintenance and management of the building (these 
activities are society-driven). It is precisely for this reason that the management 
procedures are set down in law and that adverse consequences are stipulated for 
owners who do not ensure that their buildings are managed and maintained 
properly. 
20 The case-law of the Supreme Court of Cassation of the Republic of Bulgaria 
offers various solutions. In cases where the communal areas are managed by the 
general meeting of the property owners, that court held in judgment No 336 of 
18 February 2019 in Case 603/2018 and judgment No 128 of 18 July 2018 in Case 
601/2018 that it could not be assumed that the owner of an apartment – as a 
defendant in an action brought by the co-owners for payment of the sums fixed by 
the general meeting as expenses for management and maintenance of the 
communal areas – was a ‘consumer’, since the legal relationships relating to 
ownership of a separate unit in a building in which floors or parts of floors belong 
to different co-owners is governed by special statutory provisions, which are set 
out in the ZS and in the ZUES. This argument was based on the fact that the rules 
expressly prescribed by law to establish the legal relationships between the 
owners of individual units in the building are the result of the special co-
ownership, enshrined in law, of certain parts of the building and of the land on 
which it is constructed (Article 38 of the ZS). It was also held in those judgments 
that the claims for expenses incurred in managing and maintaining the communal 
areas of a co-owned building are of a contractual nature, but arise by operation of 
law rather than as a result of a consumer contract (Article 6(1)(10) of the ZUES), 
with the instalment amounts being fixed by decision of the general meeting of the 
property owners (Article 11(1)(5) of the ZUES). 
21 At the same time, judgment No 358 of 14 January 2019 in Case 884/2018 and 
order No 60132 of 29 June 2021 in Case 1835/2020 assumed that in cases where 
an individual contract has been agreed for the management and maintenance of 
the communal areas, the applicant, being a natural person and there being no 
reason to believe that he or she had entered into the contract in the exercise of his 
or her trade or profession, was a consumer within the meaning of Paragraph 13(1) 
of the additional provisions of the ZZP. 
S.V. 
 
7 
22 The case-law of the Supreme Court of Cassation thus currently distinguishes 
between whether individual contracts have been concluded by each owner, or 
whether the communal areas are managed by the general meeting of the property 
owners. At the same time, in the judgment of the Court of Justice of 8 May 2019, 
Kerr, C-25/18, EU:C:2019:376, relating to a request for a preliminary ruling from 
the Okrazhen sad Blagoevgrad (Regional Court, Blagoevgrad, Bulgaria), it was 
found that Article 7(1)(a) of Regulation (EU) No 1215/2012 of the European 
Parliament and of the Council of 12 December 2012 on jurisdiction and the 
recognition and enforcement of judgments in civil and commercial matters is to be 
interpreted as meaning that a dispute concerning a payment obligation arising 
from a decision taken by a general meeting of the owners of property in a 
building, which does not have legal personality and has been specifically 
established by law in order to exercise certain rights, – where that decision has 
been taken by a majority of members, but binds all members – must be regarded 
as falling within the concept of ‘matters relating to a contract’ within the meaning 
of that provision. Article 4(1)(b) of Regulation (EC) No 593/2008 of the European 
Parliament and of the Council of 17 June 2008 on the law applicable to 
contractual obligations (Rome I) is to be interpreted as meaning that a dispute, 
such as that at issue in the main proceedings, concerning a payment obligation 
resulting from a decision of a general meeting of the owners of property in an 
apartment building, relating to the costs of maintaining the communal areas of that 
property, must be regarded as relating to a contract for the provision of services, 
within the meaning of that provision. 
23 The case-law of the Court of Justice of the European Union thus places 
contractual relationships on an equal footing with those arising on the basis of a 
decision of the general meeting of the owners of property in a co-owned building 
in relation to expenses for maintaining the communal areas of said building. 
24 The above considerations lead the Chamber to formulate certain questions 
regarding the interpretation of EU law. The first question to be answered is 
whether natural persons who are owners of individual units in a co-owned 
building are to be considered ‘consumers’ in terms of the legal relationships they 
enter into regarding the management and maintenance of the communal areas. As 
stated, the case-law of the Court places these relationships on an equal footing 
with contractual relationships, and thus the provisions of Article 2(b) of Directive 
93/13 and Article 2(1) of Directive 2011/83 regarding the status of ‘consumer’ 
must be interpreted. It should be noted in this regard that Article 2(6) and Article 3 
of Directive 2011/83 also require interpretation, because it needs to be clarified 
whether those legal relationships are to be treated as a ‘contract for the provision 
of services’ and, if so, whether they fall within the scope of Article 3 of the 
directive. It is true that these legal relationships are not expressly mentioned in 
Article 3(3) (among the exceptions to the scope of the directive), but they concern 
immovable property and buildings, meaning that they must be interpreted in the 
light of Article 3(3)(e) and (f) of the directive. 
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25 The next question to be asked is whether a distinction should be drawn between 
the different ways in which the management of communal areas in co-owned 
buildings can be governed (by individual contracts, by contracts under Article 2 of 
the ZUES or by decision of the general meeting of owners of property). This 
question arises because the case-law of the Supreme Court of Cassation under 
Bulgarian law seems to lend itself to such a distinction. In view of the 
abovementioned judgment of the Court of Justice of the European Union and the 
abovementioned provisions of the directives, there is a question to answer as to 
whether it is appropriate to make such a distinction. 
26 Directly related to the first two questions is the question of whether national law 
which allows the same owners of individual units in a building to be treated 
differently (in relation to the status of ‘consumer’), depending on whether they 
have entered into an individual contract for the management and maintenance of 
the communal areas of the building or not (the management body being the 
general meeting of the property owners in the latter case), is compatible with 
Directive 2011/83. This requires interpretation of Articles 1 and 4 of that 
directive, as it is necessary to examine whether the high level of consumer 
protection established has been complied with, as well as whether legal provisions 
derogating from the provisions of the directive have been incorporated into 
Bulgarian law. 
27 There is undoubtedly a direct connection between all the cited provisions from the 
two directives and the provisions under Bulgarian law governing the legal 
relationships in co-owned buildings, in particular the ‘consumer’ status of the 
natural persons who own individual units in the building. The Chamber thus takes 
the view that, in the light of the doubts described above regarding the 
interpretation of the cited provisions, it should refer a question on that 
interpretation to the Court of Justice of the European Union.