Order — ECLI:EU:C:2015:772
Date: 2015-11-19
Language of the case: Romanian
Court formation: Sixth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Romania

Summary — Order of the Court (Sixth Chamber), 19 November 2015 1. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Scope — Contracts of guarantee or providing security concluded with a credit institution by natural persons acting on a non-professional basis and not having a functional link with the company which is the beneficiary of the guarantee — Included (Council Directive 93/13, Recital 10 and Arts 1(1) and 2(b) and (c)) 2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Concept of consumer — Natural person concluding a contract of guarantee or a contract providing security with a credit institution in order to secure contractual obligations owed by a commercial company to that institution — Included (Council Directive 93/13, Recital 10 and Art. 2(b)) 1. Articles 1(1) and 2(b) of Directive 93/13 on unfair terms in consumer contracts must be interpreted as meaning that that directive can apply to a contract of guarantee or a contract providing security concluded between a natural person and a credit institution in order to secure contractual obligations owed by a commercial company to that institution under a credit agreement, where that natural person acted for purposes outside his trade, business or profession and has no link of a functional nature with that company. Indeed, as recital 10 of Directive 93/13 states, the uniform rules of law in the matter of unfair terms should apply to all contracts concluded between sellers or suppliers and consumers, as defined in Article 2(b) and (c) of that directive. In that regard, the purpose of the contract is, subject to the exceptions listed in that recital, irrelevant in determining the scope of the directive. It is therefore 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 Directive 93/13 defines the contracts to which it applies. (see paras 21-23, 30, operative part) 2. The concept of consumer, within the meaning of Article 2(b) of Directive 93/13 on unfair terms in consumer contracts, is objective in nature and 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. The national court before which an action relating to a contract which may be covered by that directive has been brought is required to determine, taking into account all the circumstances of the case and all of the evidence, whether the contracting party in question may be categorised as a consumer within the meaning of that directive. As to whether a natural person who agrees to secure the contractual obligations owed by a commercial company to a banking institution under a credit agreement can be regarded as a consumer, while a contract providing security or a contract of guarantee can be described, with regard to its purpose, as a contract which is ancillary to the principal contract which gives rise to the debt it secures, from the point of view of the contracting parties it presents itself as a distinct contract, as it is concluded between persons other than the parties to the principal contract. It is therefore as parties to the contract providing security or contract of guarantee that the capacity in which those parties acted must be assessed. It is therefore for the national court to establish whether that natural person acted for purposes relating to his trade, business or profession or because of functional links he has with the commercial company in respect of which he acts as guarantor or surety, such as a directorship or a non-negligible shareholding, or whether he acted for purposes of a private nature. (see paras 26-29)