Provisional text

OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 15 December 2022( )

Case C‑570/21

I.S.,

K.S.

v

YYY. S.A.

(Request for a preliminary ruling submitted by the Sąd Rejonowy dla Warszawy-Woli w Warszawie (District Court of Warsaw-Wola, sitting in Warsaw (Poland))

(Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Concept of consumer – Dual-purpose contract entered into by a person pursuing a professional or commercial activity and by another person not pursuing a professional activity – Marginality or non-predominance of the professional or commercial purpose in the overall context of the contract entered into)





1. Can a person be defined as a consumer for the purposes of protection under EU law against unfair terms when, being engaged in a commercial or professional activity, that person has entered into a loan agreement along with another borrower who is not engaged in the same activity, if he or she has acted partly within the scope of his or her own activity and partly outside it, in the case where, in the overall context of the agreement, the commercial or professional character is not predominant?

I. Legal framework

A. European Union law

1. Directive 93/13/EEC

2. Article 1(1) of Directive 93/13/EEC ( ) states:

‘The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer.’

3. Article 2 of that directive provides:

‘For the purposes of this Directive:

…

(b) “consumer” means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession;

(c) “seller or supplier” means any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned.’

2. Directive 2011/83/EU

4. Recital 17 of Directive 2011/83/EU ( )states:

‘The definition of consumer should cover natural persons who are acting outside their trade, business, craft or profession. However, in the case of dual purpose contracts, where the contract is concluded for purposes partly within and partly outside the person’s trade and the trade purpose is so limited as not to be predominant in the overall context of the contract, that person should also be considered as a consumer.’

5. Article 2 of that directive, entitled ‘Definitions’, states:

‘For the purpose of this Directive, the following definitions shall apply:

(1) “consumer” means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession;

(2) “trader” means any natural person or any legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in his name or on his behalf, for purposes relating to his trade, business, craft or profession in relation to contracts covered by this Directive …’

3. Directive 2013/11/EU

6. Recital 18 of Directive 2013/11/EU ( ) states that:

‘The definition of “consumer” should cover natural persons who are acting outside their trade, business, craft or profession. However, if the contract is concluded for purposes partly within and partly outside the person’s trade (dual purpose contracts) and the trade purpose is so limited as not to be predominant in the overall context of the supply, that person should also be considered as a consumer.’

7. Article 4 of that directive, entitled ‘Definitions’, state, in points (a) and (b), as follows:

‘For the purposes of this Directive:

(a) “consumer” means any natural person who is acting for purposes which are outside his trade, business, craft or profession;

(b) “trader” means any natural persons, or any legal person irrespective of whether privately or publicly owned, who is acting, including through any person acting in his name or on his behalf, for purposes relating to his trade, business, craft or profession;

…’

4. Regulation (EU) No 524/2013

8. Recital 13 of Regulation (EU) No 524/2013 ( ) states:

‘The definition of “consumer” should cover natural persons who are acting outside their trade, business, craft or profession. However, if the contract is concluded for purposes partly within and partly outside the person’s trade (dual purpose contracts) and the trade purpose is so limited as not to be predominant in the overall context of the supply, that person should also be considered as a consumer.’

9. Article 4 of that regulation, entitled ‘Definitions’, also states, in paragraph 1, points (a) and (b), the following:

‘1. For the purposes of this Regulation:

(a) “consumer”: means a consumer as defined in point (a) of Article 4(1) of Directive 2013/11/EU;

(b) “trader”: means a trader as defined in point (b) of Article 4(1) of Directive 2013/11/EU;

…’

B. Polish law

10. Article 221 of the Kodeks cywilny (Civil Code), in the version applicable to the facts at issue in the main proceedings, defines a ‘consumer’ as ‘any natural person who concludes, with a seller or supplier, a legal transaction which has no direct link to that person’s business or professional activity’.

11. Article 3851 of the Civil Code provides:

‘(1) Terms in a contract entered into with a consumer that have not been individually negotiated shall not bind the consumer if they define the consumer’s rights and obligations in a manner that is contrary to good morals and grossly prejudices the consumer’s interests (unlawful terms). This provision shall not apply to terms setting forth the principal matters to be performed by the parties, including price or remuneration, provided they are worded clearly.

(2) If a contractual term is not binding on the consumer pursuant to paragraph 1, the contract shall otherwise continue to be binding on the parties.

(3) The terms of a contract that have not been individually negotiated are those on the content of which the consumer has had no real influence. This includes in particular provisions included in a standard contract offered to a consumer by a contracting party.

(4) The burden of proving that a provision has been agreed individually rests with the person relying thereon.’

II. The facts, the main proceedings and the questions referred for a preliminary ruling

12. On 28 February 2006, I.S. and K.S. applied for a mortgage loan (denominated in Swiss francs) from the legal representative of the defendant in the main proceedings, in part to meet the repayment of certain business debts of one of the two spouses, and in part to purchase a property.

13. The total amount of the sums requested came to 206 120 Polish złoty (PLN), of which the amount of PLN 96 120 is said to have been used to finance certain debts of one of the applicants in the main proceedings, and PLN 110 000 to satisfy private consumption needs.

14. With regard to the bargaining position of the applicants in the main proceedings, I.S. was a partner in a civil law partnership; K.S., on the other hand, was employed by a company as a locksmith.

15. On 21 March 2006, I.S. and K.S., on the one hand, and the financial institution – the defendant in the main proceedings – on the other hand, finally entered into the loan agreement for the total sum of PLN 198 996.73, indexed to the exchange rate in Swiss francs, under the terms set out in the main agreement and the loan agreement general terms.

16. The abovementioned amount was to be paid back in 300 equal instalments. Notably, the first instalment of the loan is said to have been intended for the repayment of the sum of PLN 70 000, disbursed by the financial institution in favour of the applicants to an account in the name of I.S.’s company, an account which was closed immediately after the repayment.

17. According to the statement made by I.S. at the hearing held on 11 January 2021, the defendant in the main proceedings had made the full grant of the aforementioned sum conditional on the allocation of part of the loan sum to the settlement of another business-related obligation towards a separate financial institution.

18. A part of the first instalment was then allocated to the payment of certain insurance premiums.

19. Lastly, the second instalment covered: with regard to PLN 9 720, the repayment of a loan taken out by the company on 18 April 2005; with regard to PLN 7 400, the repayment of the company’s revolving loan in favour of the borrower; with regard to PLN 9 000, the repayment of other financial debts of the borrower; lastly, with regard to the amount of PLN 93 880, consumer spending.

20. Subsequently, the borrowers sued the present defendant in the main proceedings before the national court in order to have certain clauses of the contract declared unfair and obtain the repayment of the sums unduly charged.

21. In the context of the main proceedings, the financial institution refuted that the applicants could be classified as ‘consumers’ within the meaning of Article 2(b) of Directive 93/13, by reason of the fact that a portion of the sums had been used to satisfy needs connected to the business of one of the two applicants in the main proceedings.

22. In that context, the Sąd Rejonowy dla Warszawy-Woli w Warszawie (District Court of Warsaw-Wola, sitting in Warsaw, Poland) stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:

‘(1) Must Article 2(b) of [Directive 93/13] and its recitals be interpreted as not precluding the inclusion in the definition of “consumer” of a person engaged in business activity who entered into an agreement concerning a loan indexed to a foreign currency together with a joint-borrower who is not engaged in business activity, which loan is intended to be used partly for the business purposes of one of the borrowers and partly for purposes unconnected with his or her business activity, and not only where business use is so marginal as to be negligible in the overall context of the agreement in question, and where it is irrelevant that the non-business element is predominant?

(2) If the answer to the first question is in the affirmative, must Article 2(b) of [Directive 93/13] and its recitals be interpreted as meaning that the concept of “consumer” defined in that provision extends to a person who, at the time the agreement was signed, was engaged in business activity, whereas the other borrower was not engaged in any business activity, and subsequently those two persons entered into an agreement with a bank concerning a loan indexed to a foreign currency where the loan principal was used in part for the business purposes of one of the borrowers and in part for non-business purposes, where business use is not marginal and is not negligible in the overall context of the loan agreement, and where the non-business element is predominant, and given that if the loan principal had not been used for business purposes it would not have been possible to grant the loan for non-business purposes?’

III. Legal analysis

A. Preliminary remarks

23. The two questions submitted for a preliminary ruling are closely related and concern, in essence, first, whether or not the criterion developed in the Gruber judgment ( ) applies to the interpretation of Article 1 of Directive 93/13, and, second, under what conditions a person who enters into a dual purpose contract, partly professional and partly personal, may be considered to be a consumer for the purposes of Directive 93/13.

24. In undertaking the legal analysis, it is useful, in my view, to summarise some essential facts of the matter that will help better to place the present case in context.

25. Two spouses entered into a loan agreement for the purchase of a house. One of the two carried on a business activity, in connection with which this person had contracted a debt with a financial institution. When applying for a mortgage for the purchase of the property, the financial institution made the disbursement of this loan conditional on settlement of that debt by the borrower who had incurred it for professional reasons. Approximately one third of the amount disbursed covered the borrower’s past debt incurred for professional reasons and two thirds covered expenses related to the purchase of a house and other personal needs of the two borrowers. The spouse of the borrower who had previously taken on the debt for professional reasons was not involved in the other spouse’s business activity.

26. In order to reply to the questions submitted by the referring court, it is necessary to categorise, for the purposes of Directive 93/13, the position of two natural persons who have entered into an agreement partly for private use and partly for purposes coming within the scope of the commercial or professional activity of one of them, account being taken of the fact that, though not predominant, the commercial or professional purpose of the consumer credit accounts for a significant proportion of the agreement. The question that must be asked is thus whether or not they can be regarded as ‘consumers’ for the purpose of applying protection against unfair terms.

27. To this end, there are two possible interpretations in light of the legal framework and the case-law of the Court.

28. On the one hand, there is the interpretation supported by the applicants in the main proceedings, as well as by the Polish Government and the Commission, to the effect that the applicants’ position should come within the parameters of the concept of consumers, in view of the limited and non-predominant relevance of the professional purpose in the general context of the loan agreement, applying a position that can be traced back to the concept of consumer contained in Directive 2011/83 and other subsequent acts ( ) on consumer protection.

29. This is countered, on the other hand, by the view, held only by the defendant in the main proceedings, that the conditions for the application of the protection invoked by the applicants are not met in the case at hand, since the commercial or professional purpose is not so marginal as to be negligible in the overall context of the loan agreement, applying, by analogy, the Court’s approach in the Gruber judgment, ( ) in which the provision subject to the Court’s interpretation was the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters. ( )

30. For this reason, I take the view that it will be useful briefly to analyse the concept of consumer in EU law before going on to propose answers to the questions referred.

1. The concept of consumer in EU law

31. On the basis of the assumption that regulatory differences within individual Member States constituted an obstacle to economic integration, the European institutions, in the 1990s, approved a number of directives aimed at the approximation of provisions, thereby providing greater protection for consumers when purchasing goods and services. ( )

32. To date, there is no single definition of consumer in EU law. In the absence of a specific definition in primary EU law, in second-tier sources, depending on the purpose of the measure under consideration, the concept of consumer varies to a certain extent.

33. In EU contract law, the concept of consumer tends to receive a uniform description, centred on consideration of the consumer’s ‘weakness’ in relation to the trader or supplier counterparty. This is due both to information asymmetries and contractual power, circumstances that impose legal protection that differs from that guaranteed to other contracting parties.

34. Early interventions in the relationship between traders and consumers were sectoral in nature. Directive 93/13, however, is a regulatory act generally applicable to all contracts between consumers and traders, and which for the first time implements substantive protection in the contractual relationship between them. ( ) In particular, on a reading of recitals 2, 5 and 6, the role of the regulatory intervention in bringing about the internal market is evident. The regulatory differences between the Member States in the area of unfair terms represented a barrier to the free movement of goods in the various Member States, and thus to economic integration.

35. As for the concept of consumer, Article 2(b) of Directive 93/13 states that a consumer is ‘any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession’.

36. This concept is to be read in contradistinction to that of a seller or supplier – as referred to in Article 2(c) of that directive – who is identified as being ‘any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned.’

37. The concepts of consumer and seller or supplier set out in Directives 2011/83 and 2013/11, ( ) as well as in Regulation No 524/2013, have a similar content.

38. It thus emerges that the distinction between consumer and seller or supplier lies in the purpose of the contract being foreign to the professional activity of the contracting party, rather than in the ‘capacity of the contracting parties’. ( )

39. Since the concept of consumer depends on whether or not the purpose of the transaction comes within the professional sphere, ( ) it should then be noted that this criterion is relative to the specific contract.

40. The parameter adopted by the Court is objective. As Advocate General Mischo pointed out in the Di Pinto case, natural persons who come within the concept of consumers are defined ‘not in abstracto, but according to what they do in concreto’. ( )

41. A subjective perspective attributable to the intentions of the contracting parties can therefore be ruled out, while an objective perspective is affirmed within the prism of the effectiveness of the directives and the protection that is required, also in order to strengthen consumer confidence in the market, ( ) which is indispensable if it is to function efficiently.

42. Accordingly, even a seller or supplier, or indeed a lawyer specialising in legal aid contracts, ( ) or a person who is a retailer, may benefit from consumer protection.

43. It may therefore be concluded on this point that the development of sources of EU law and of the case-law of the Court is in the direction of greater consumer protection, but always in balance with other freedoms and, ultimately, with the efficient functioning of the single market, while leaving sufficient margins of flexibility in the concept so as to allow for the inclusion of all situations objectively requiring protection.

44. Indeed, the entire legal structure assumes that the new market models place consumers in a weak position, due to the absence of genuine bargaining power in negotiations and the low level of information available, with the result that consumers are in practice forced to agree uncritically to the terms set by the seller or supplier, and in any event without being able to influence them.

2. The concept of consumer in mixed or dual purpose contracts

45. Mixed or dual purpose contracts are contracts that are entered into for purposes that are partly within the scope of a person’s business activities and partly for personal purposes.

46. The categorisation of the contracting party’s position in dual purpose contracts was first addressed by the Court in the Gruber judgment. ( )

47. In that case, the applicant invoked the protection that the Brussels Convention reserved for consumers under Articles 13, 14 and 15, that is, the right to bring an action before the courts of the Member State in which the obligation was performed, instead of the court of the Member State in which the defendant was domiciled.

48. As the contract at issue was a mixed-purpose contract, the Court was asked to specify whether the decisive criterion was the private or professional purpose of that contract.

49. The Court held that the natural person could qualify as a consumer only in so far as ‘the trade or professional purpose [was] so limited as to be negligible in the overall context of the supply, the fact that the private element is predominant being irrelevant in that respect’. ( )

50. The Gruber judgment, therefore, in the specific context of the procedural issue put to the Court, in order to regard a person who enters into a dual-purpose contract with a seller or supplier as a consumer for the purposes of the regulation, uses a criterion that could be described as a criterion of ‘marginality’.

51. Directive 93/13 does not expressly regulate the concept of consumer in the case of dual purpose contracts.

52. Recital 17 of Directive 2011/83 states that, ‘… in the case of dual purpose contracts, where the contract is concluded for purposes partly within and partly outside the person’s trade and the trade purpose is so limited as not to be predominant in the overall context of the contract, that person should also be considered as a consumer’.

53. Similar wording is used in recital 18 of Directive 2013/11, as well as in recital 13 of Regulation No 524/2013.

54. The wording under examination thus enshrines what we could call the criterion of ‘non-predominance’. Consequently, even a person acting partly in the course of his or her professional activity could be classified as a consumer to the extent that the commercial or professional purpose, although not negligible, might be regarded as not being predominant within the overall context of the contract.

B. The questions referred for a preliminary ruling

1. The first question referred

55. By its first question, the referring court seeks to determine under what conditions a borrower who has entered into a loan agreement partly for commercial or professional purposes, and partly for private consumption purposes, along with another borrower acting exclusively for purposes of private consumption, may be covered by the concept of consumer under Article 2(b) of Directive 93/13 and, in essence, in the case of dual purpose contracts, whether it is preferable to opt for the guidance expressed by the Court in Gruber or for that resulting from the recitals of Directive 2011/83 and the subsequent legislative acts. ( )

56. As stated above, an analysis of the sources and case-law reveals two different possible interpretations, which can be summarised as the criterion of ‘marginality’ and the criterion of the ‘non-predominance’ of the commercial or professional purpose over that of private consumption.

57. The aspects to be examined in order to guide the choice towards one or the other interpretation concern: as regards the first question referred for a preliminary ruling, the different rationale of the (procedural) sources referred to in the Gruber judgment and Directive 93/13, as well as the subsequent legislative acts ( ) in the field of substantive consumer protection and the scope of their interpretation; the substantive position of the persons entering into a consumer contract and the actual purposes of signing the contract, so as to ensure the effectiveness of the directive, which, in particular with regard to unfair terms, would be seriously undermined by an excessively restrictive interpretation; the close connection between the purposes of Directive 93/13 and those of the subsequent regulatory acts.

58. As to the different rationale of the sources interpreted in the Gruber judgment and of Directive 93/13, that directive aims essentially at restoring the balance within the contractual relationship between consumer and seller or supplier, by redrawing their relations symmetrically. ( )

59. As already mentioned, the idea underlying the system of protection implemented by the directive is that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his or her bargaining power and his or her level of knowledge, which leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms. ( )

60. In view of this weaker position, Article 6(1) of Directive 93/13 provides that unfair terms are not to be binding on consumers. This is a mandatory provision ( ) that seeks to replace the formal balance that a contract establishes between the rights and obligations of the contracting parties with a genuine balance that restores equality between them. ( ) The Court has repeatedly held that Article 6(1) of Directive 93/13 must be regarded as a provision of equal standing to national rules which rank, within the domestic legal system, as rules of public policy. ( ) Moreover, it should be considered that this classification, as the Commission has pointed out in its observations, ( ) extends to all the provisions of the directive which are essential for the purpose of attaining the objective pursued by Article 6. ( )

61. The mandatory nature of the provisions contained in Directive 93/13 and the specific consumer-protection requirements attached to them lead, therefore, to a preference for a broad interpretation of the concept of consumer, so as to ensure the effectiveness of the directive.

62. By contrast, the provisions of Article 14 of the Brussels Convention, and now those of Regulation (EC) No 44/2001 ( ) and Regulation (EU) No 1215/12, ( ) seek to protect consumers from a procedural point of view, by derogating from the general rule on the jurisdiction of the defendant, whereby persons domiciled in a Member State are to be sued before the courts of that Member State. These provisions have not introduced general consumer protection, but have only defined the cases of consumer contracts that are subject to special protection for the purposes of the provisions on jurisdiction. Indeed, the Court emphasised in the Gruber judgment that ‘avoidance of multiplication of bases of jurisdiction as regards the same legal relationship is one of the main objectives of the Brussels Convention’. ( )

63. The Gruber judgment therefore concerned the interpretation of the rules on jurisdiction in consumer contracts, which introduce an exception to the general rule whereby jurisdiction lies with the courts of the defendant’s State of domicile. We are, therefore, on different ground from the substantive protection of the consumer, as the field in which the Gruber judgment operates is that of procedural law. Moreover, as correctly observed by the Commission, ( ) its restrictive interpretation of the concept of consumer was dictated by the fact that that provision derogates in principle from the rule on jurisdiction. ( ) As it is a derogation, it can only be interpreted restrictively. ( )

64. The rationale behind the provisions laid down by those regulations includes, in fact, considerations that go beyond those of protecting the weaker party, in order to reconcile consumer protection with other needs equally worthy of protection: predictability of solutions and legal certainty, ( ) in order to avoid the parties’ discretionary choice of jurisdiction, which would be detrimental to certainty in international trade. ( ) In fact, in the context of Regulation No 1215/12, the imbalance in contractual strength in the relationship between the seller or supplier and the consumer is not sufficient to justify the derogation from the general rules on jurisdiction, as it is also necessary that the consumer has entered into specific types of contracts.

65. From the mandatory nature of the provisions contained in Directive 93/13 and the consequent need for special consumer protection in the event of unfair terms, it follows that it is necessary to carefully examine the substantive position of the parties entering into a consumer contract and the actual purpose for which they entered into it.

66. In order not to nullify the effectiveness of the directive, it is necessary to adopt as extensive an interpretation of the concept of consumers in dual purpose contracts as possible in order to prevent the seller or supplier from easily circumventing the application of the mandatory provisions on unfair terms by imposing them on the basis of the mere simultaneous existence of broadly commercial or professional purposes in the loan application. ( )

67. The present case is indeed an example of such a risk: according to the case file, the applicants for the loan had the decidedly predominant (though not exclusive) purpose of purchasing a family property, only one of the two applicants carried out a professional activity, the financial institution made the granting of the loan for the aforementioned personal reasons conditional on the settlement of a previous professional debt of one of the applicants, and the amount earmarked for the settlement of the professional debt was approximately one third of the total amount of the loan.

68. As the Polish Government has rightly argued, ‘the purpose of [Directive 93/13] was precisely to protect consumers from this type of conduct, namely the imposition of terms over which they have no influence, and which consequently infringe their rights and interests. A consumer cannot therefore be deprived of the protection of [Directive 93/13] merely because a seller or supplier has imposed on him or her, in a contract concluded for non-commercial purposes, a clause referring to his or her commercial activity.’ ( )

69. Lastly, on this point, as emphasised by the applicants in the main proceedings, ( ) adhering to the Court’s interpretation in Gruber would imply that a self-professed consumer would have the burden of proving in court the facts constituting his or her claim, ( ) in contrast to the system of Directive 93/13, in which the assessment of the capacity as consumer of the person invoking protection against unfair terms is carried out by the national court of its own motion. ( )

70. Turning to the analysis of the purposes of the provisions contained in Directive 93/13, one cannot fail to note their close connection with those of the subsequent directives, ( ) a circumstance that makes one incline towards a uniform and extensive interpretation of the concept of consumer.

71. Indeed, with regard to protection relating to contracts entered into with sellers or suppliers, Directive 2011/83 pursues the same aim as Directive 93/13, ( ) with the concept of consumer in Article 2 of Directive 2011/83 being almost identical in these two sources of law. The same considerations regarding the concept of consumer also apply to Directive 2013/11 and to Regulation No 524/2013.

72. The connection of the aforementioned legislation with Directive 93/13 is made even more evident by the fact that Directive 2011/83 amended Directive 93/13 by inserting Article 8a into it. Indeed, both can normally be applied simultaneously to the same contract. ( ) The link between the two directives has recently been accentuated by the EU legislature with the approval of Directive (EU) 2019/2161, ( ) which amends Directive 93/13, as well as Directive 2011/83, as regards the better enforcement and modernisation of consumer-protection rules.

73. I therefore agree with the Commission’s observation that ‘a systematic interpretation of the concept of “consumer” argues in favour of a horizontal understanding of this concept within the meaning of Directive 93/13/EEC and other EU consumer-law instruments, in particular Directive 2011/83/EU, the Directive on consumer ADR and the Regulation on consumer ODR. The explanations contained in the recitals of these instruments should be applied on the basis of Directive 93/13/EEC, as these provisions are functionally linked to the Directive and were adopted with the aim of protecting the consumer as the weaker party to the contract with the seller or supplier’. ( )

74. In my view, what has been observed so far with regard to the relationship between Directive 93/13 and Directive 2011/83 (and subsequent acts) makes it possible to counter the defendant’s arguments against an extensive interpretation of the concept of consumer contained in the recitals of Directive 2011/83 and the subsequent directives. These arguments focus, in particular, on the different scope of application of Directives 93/13 and 2011/83 and on the fact that, as Directive 2011/83 was subsequent to the facts of the case, the concept of consumer in the case of a dual purpose contract contained therein is not applicable to the case at hand.

75. As to the different scope of application of the directives, I would simply note, in addition to the foregoing arguments, that the definition of dual purpose contracts is not contained in the detailed rules, but in the recitals – which, as is well known, suggest interpretative guidelines, rather than having binding force.

76. As regards the arguments relating to the applicable law ratione temporis, it is not a question of applying the rules of subsequent directives to a pre-existing situation, but simply one of adopting a teleologically oriented interpretation, which was already preferable at the time when Directive 93/13 alone applied, and which was made explicit by the EU legislature in subsequent provisions.

77. In this regard, I note, echoing the remarks made by Advocate General Villalón, that the travaux préparatoires ( ) relating to Directive 2011/83 show that recital 17 represented a compromise in the negotiations among the European institutions on whether the concept of consumer in dual purpose contracts should be interpreted in accordance with the predominant-purpose criterion. ( ) The travaux préparatoires relating to Directive 2011/83 also confirm that the scope of recital 17 cannot be said to be specifically related to Directive 2011/83 alone.

78. In the light of the aforementioned considerations, I am of the view that it is necessary to adopt an interpretation which takes into account the effectiveness of the directive, the system within which it is inserted and the function which it performs and, accordingly, to opt for the more extensive interpretation of the concept of consumer in order to classify a person who enters into a dual purpose contract, as is contained in the aforementioned recitals of Directive 2011/83, Directive 2013/11 and Regulation No 524/2013.

2. The second question referred

79. If I understand it correctly, as the wording is not entirely clear, by its second question the referring court ( ) is essentially asking the Court to specify the criteria that would enable it to establish that the professional purpose for which one of the borrowers entered into the loan agreement was not predominant and was only of a limited nature. There is a degree of overlap between the two questions, since certain elements that lead to the proposed interpretation of the concept of consumer prevailing in dual purpose contracts play, at the same time, the role of criteria for establishing the prevalence or otherwise of the personal purpose over the professional purpose in the request for financing.

80. In any event, the assessment as to whether the concrete case comes within the scope of the concept of consumer as reconstructed above is a matter for the national court, which is called upon to ‘determine, taking into account all the evidence and in particular the terms of that contract, whether the purchaser may be categorised as a consumer within the meaning of that directive’. ( )

81. In this respect, the national court is required to carry out a qualitative and quantitative analysis of all the elements relevant to a resolution of the specific case, taking into account all its circumstances, particularly the nature of the goods or service covered by the contract in question, that is capable of showing the purpose for which those goods or that service were acquired. ( )

82. That being said, and as suggested by the national court, some specific circumstances observed in the case at hand may be used as general criteria by reason of which it may be determined whether the requirement of the ‘non-predominance’ of the professional purpose over the personal purpose is fulfilled in the case of a dual purpose contract.

83. The circumstance that, although acting in the context of a mixed contract, the borrower entered into the loan agreement jointly with another party who acted exclusively for private consumption purposes is relevant, and may also serve as a criterion for determining, in the overall context of the contract, the ‘predominance’ or otherwise of the professional purpose.

84. A partial concomitant presence of the professional purpose cannot, in fact, lead to the ‘mere’ consumer-borrower losing his or her status. The record shows that, because of the manner in which the contract was drawn up and entered into, the loan agreement entered into by the borrowers could not be divided. Failure to acknowledge consumer status for one of the two applicants by reason of the concomitant professional purpose of one of them would have the effect of depriving the mere consumer-borrower of protection. The financial institution could easily have offered the borrowers two separate contracts, so that their purposes would not overlap.

85. Also of relevance ( ) is the circumstance that the granting of the loan was made conditional by the defendant bank on the discharge of a separate obligation contracted in the context of the business activity of one of the borrowers by using part of the sum sought as a loan. Such a circumstance may be the decisive criterion when testing the ‘non-predominance’ of the professional purpose since, in the actual negotiation, the professional purpose appears to have been included only because the seller or supplier had imposed it. ( )

86. Also relevant is the quantitative aspect, that is to say, the ratio between the amounts paid for professional and for personal purposes. In the present case, I think that the 1-to-3 ratio – along with the other elements, if established – may lead one to tend towards a ‘non-predominance’ of the professional purpose.

3. The limitation in time of the effects of the Court’s judgment

87. Lastly, the defendant in the main proceedings requests that the effects of the judgment be limited in the event that the restrictive interpretation of the term ‘consumer’ in Article 2(b) is not endorsed.

88. For this purpose, I observe that ‘it is only quite exceptionally that the Court may, in application of the general principle of legal certainty inherent in the EU legal order, be moved to restrict, for any person concerned, the opportunity of relying on a provision which it has interpreted with a view to calling into question legal relationships established in good faith. Two essential criteria must be fulfilled before such a limitation can be imposed, namely that those concerned should have acted in good faith and that there should be a risk of serious difficulties’. ( )

89. The defendant in the main proceedings, however, does not provide precise and specific indications to demonstrate that the two requirements that have just been mentioned are met. Indeed, it merely refers generically to circumstances that are not capable of supporting the aforementioned assumptions.

90. For this reason, I deem that this request should be rejected.

IV. Conclusion

91. On the basis of all the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Sąd Rejonowy dla Warszawy-Woli w Warszawie (District Court of Warsaw-Wola, sitting in Warsaw, Poland) as follows:

Article 2(b) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, as well as its recitals

must be interpreted as not precluding the inclusion in the definition of ‘consumer’ of a person engaged in business activity who entered into an agreement concerning a loan indexed to a foreign currency together with a joint-borrower who is not engaged in business activity, where that loan is intended to be used partly for the business purposes of one of the borrowers and partly for purposes unconnected with his or her business activity, and not only where the business use is so marginal as to be negligible in the overall context of the agreement in question. Regard being had to the interpretative criteria offered by recital 17 of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13 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, in the case of dual purpose contracts it is sufficient that the commercial purpose is so limited as not to be predominant within the overall context of the contract.

Article 2(b) of Directive 93/13, as well its recitals,

must be interpreted as meaning that the question as to whether the commercial or professional purpose is predominant in the overall context of the contract must be determined by the national court, which must carry out an overall assessment of all the circumstances of the case. To that end, the national court may, in the case of a loan application made to a financial institution, consider the following as criteria for its assessment: the ratio between the sum granted for professional purposes and that granted for personal purposes; the fact that the loan has been requested jointly by a person not engaged in any professional or commercial activity and is unconnected with the commercial activity of the other applicant, and; whether the granting of the loan for private purposes is conditional upon the simultaneous settlement of the debt contracted for commercial or professional purposes by one of the two applicants.