AU v Reliantco Investments LTD and Reliantco Investments LTD Limassol Sucursala Bucureşti.
Date: 2020-04-02
39


In that regard, it must be borne in mind that it is solely for the national court before which the dispute has been brought, and which must assume responsibility for the subsequent judicial decision, to determine in the light of the particular circumstances of the case both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court (judgment of 10 December 2018, Wightman and Others, C‑621/18, EU:C:2018:999, paragraph 26).
40


In addition, the questions on the interpretation of EU law referred by a national court in the factual and legislative context which that court is responsible for defining, and the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (judgment of 24 October 2019, État belge, C‑35/19, EU:C:2019:894, paragraph 29).
41


However, where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it, it may reject the request for a preliminary ruling as inadmissible (judgment of 17 October 2019, Comida paralela 12, C‑579/18, EU:C:2019:875, paragraph 20).
42


Furthermore, in view of the spirit of judicial cooperation which governs relations between national courts and the Court of Justice in the context of preliminary-ruling proceedings, the fact that the referring court did not make certain initial findings does not necessarily mean that the request for a preliminary ruling is inadmissible if, in spite of those deficiencies, the Court, in the light of the information contained in the case file, considers that it is in a position to provide a useful answer to the referring court (judgment of 17 October 2019, Comida paralela 12, C‑579/18, EU:C:2019:875, paragraph 21).
45


In accordance with the case-law of the Court, Article 17(1) of Regulation No 1215/2012 applies if three conditions are met: first, a party to a contract is a consumer who is acting in a context which can be regarded as being outside his or her trade or profession; second, the contract between such a consumer and a professional has actually been concluded; and, third, such a contract falls within one of the categories referred to in Article 17(1)(a) to (c). All of those conditions must be fulfilled, with the result that, if one of those three conditions is not met, jurisdiction cannot be determined under the rules relating to consumer contracts (judgment of 3 October 2019, Petruchová, C‑208/18, EU:C:2019:825, paragraph 39 and the case-law cited).
47


In that regard, it should be noted that the concept of ‘consumer’, within the meaning of Articles 17 and 18 of Regulation No 1215/2012, must be interpreted restrictively, by referring to the position of that person in a given contract, in relation to the nature and purpose of the contract, and not to the subjective situation of that person, a single person who can be regarded as a consumer in the context of some transactions and as an economic operator in the context of other transactions (judgment of 3 October 2019, Petruchová, C‑208/18, EU:C:2019:825, paragraph 41 and the case-law cited).
48


The Court deduced from that that only contracts concluded outside and independently of any trade or professional activity or purpose, solely for the purpose of satisfying an individual’s own needs in terms of private consumption, are covered by the special rules laid down by the regulation to protect the consumer as the party deemed to be the weaker party (judgment of 3 October 2019, Petruchová, C‑208/18, EU:C:2019:825, paragraph 42 and the case-law cited).
49


That specific protection is unwarranted in the case of contracts for the purpose of a trade or professional activity, even if that activity is planned only for the future, since the fact that an activity is in the nature of a future activity does not divest it in any way of its trade or professional character (judgment of 3 October 2019, Petruchová, C‑208/18, EU:C:2019:825, paragraph 43 and the case-law cited).
50


It follows that the special rules of jurisdiction in Articles 17 to 19 of Regulation No 1215/2012 apply, in principle, only where the contract is concluded between the parties for the purpose of a use other than a trade or professional use of the relevant goods or services (judgment of 3 October 2019, Petruchová, C‑208/18, EU:C:2019:825, paragraph 44 and the case-law cited).
51


With regard to contracts such as CFDs concluded between a natural person and a financial company, the Court has held that such financial instruments fall within the scope of Articles 17 to 19 of Regulation No 1215/2012.(judgment of 3 October 2019, Petruchová, C‑208/18, EU:C:2019:825, paragraph 49).
52


Moreover, it should be observed that Article 17(1) of that regulation does not require the consumer to behave in a particular way in the context of a contract concluded for use outside his or her professional activity (see, to that effect, judgment of 3 October 2019, Petruchová, C‑208/18, EU:C:2019:825, paragraph 58).
53


The Court concluded from that that factors such as the value of transactions carried out under contracts such as CFDs, the extent of the risks of financial loss associated with the conclusion of such contracts, any knowledge or expertise that person has in the field of financial instruments or his or her active conduct in the context of such transactions are, as such, in principle irrelevant (see, to that effect, judgment of 3 October 2019, Petruchová, C‑208/18, EU:C:2019:825, paragraph 59).
55


As regards the relevance, for the purposes of classifying a person as a ‘consumer’ under Article 17(1) of Regulation No 1215/2012, of the fact that that person is a ‘retail client’, within the meaning of Article 4(1) point 12 of Directive 2004/39, it should be recalled that the fact that a person is classified as a ‘retail client’, within the meaning of the latter provision, is, as such, in principle irrelevant for the purposes of classifying him or her as a ‘consumer’ within the meaning of the former provision (see, to that effect, judgment of 3 October 2019, Petruchová, C‑208/18, EU:C:2019:825, paragraph 77).
59


As a preliminary point, it should be recalled that it is settled case-law that, since Regulation No 1215/2012 repeals and replaces Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), which itself replaced the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 32), as amended by successive conventions on the accession of new Member States to that convention, the Court’s interpretation of the provisions of the latter legal instruments also applies to Regulation No 1215/2012 whenever those provisions may be regarded as ‘equivalent’ (judgment of 29 July 2019, Tibor-Trans, C‑451/18, EU:C:2019:635, paragraph 23).
60


Thus, it should be pointed out that Article 15 of Regulation No 44/2001, which corresponds to Article 17 of Regulation No 1215/2012, applies only in so far as the action at issue concerns a contract concluded between a consumer and a seller or supplier. By virtue of the actual wording of both the introductory paragraph of Article 15(1) of Regulation No 44/2001 and Article 15(1)(c), that article requires a ‘contract’ to have been ‘concluded’ by a consumer with a person who pursues commercial or professional activities. That finding is also supported by the heading of Section 4 of Chapter II of that regulation, in which Article 15 appears, which refers to ‘jurisdiction over consumer contracts’ (judgment of 14 May 2009, Ilsinger, C‑180/06, EU:C:2009:303, paragraphs 52 and 53).
61


In addition, in the analysis of the first paragraph of Article 13 of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters which also corresponds to Article 17 of Regulation No 1215/2012, the Court held that it is not possible to accept an interpretation of that convention which would have the result that certain claims under a contract concluded by a consumer fall within the jurisdiction rules of Articles 13 to 15 of that Convention, whereas other actions that are linked so closely to that contract as to be indissociable are subject to other rules (judgment of 11 July 2002, Gabriel, C‑96/00, EU:C:2002:436, paragraph 56).
62


The need to avoid, as far as possible, creating a situation in which a number of courts have jurisdiction in respect of one and the same contract applies a fortiori in the case of a contract between a consumer and a seller or supplier (see, to that effect, judgment of 11 July 2002, Gabriel, C‑96/00, EU:C:2002:436, paragraph 57).
63


In view of the fact that a multiplicity of courts having jurisdiction risks placing at a particular disadvantage a party deemed to be weak, such as a consumer, it is in the interest of the proper administration of justice that the latter should be able to bring before one and the same court all of the difficulties that are likely to arise from a contract which the consumer has allegedly been induced to conclude by reason of the professional’s use of forms of wording liable to mislead the other contracting party (see, to that effect, judgment of 11 July 2002, Gabriel, C‑96/00, EU:C:2002:436, paragraph 58).
72


Thus, the conclusion in paragraph 69 above further reinforces the necessary consistency between the interpretation of Regulation No 1215/2012 and that of Regulation No 864/2007 (see, to that effect, judgment of 21 January 2016, ERGO Insurance and Gjensidige Baltic, C‑359/14 and C‑475/14, EU:C:2016:40, paragraph 43) in so far as both the law applicable to a non-contractual obligation arising out of dealings prior to the conclusion of a contract and the court having jurisdiction to hear an action concerning such an obligation are determined by taking into consideration the proposed contract the conclusion of which is envisaged.