Henri Pouvin and Marie Dijoux, v Electricité de France (EDF).
Date: 2019-03-21
19


First of all, it should be noted that, as the 10th recital 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 (judgment of 17 May 2018, Karel de Grote — Hogeschool Katholieke Hogeschool Antwerpen, C‑147/16, EU:C:2018:320, paragraph 46).
22


In that regard, in accordance with that provision, a ‘consumer’ is any natural person who, in contracts covered by that directive, is acting for purposes which are outside his trade, business or profession. Likewise, a ‘seller or supplier’ is any natural or legal person who, in contracts covered by Directive 93/13, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned.
23


As is apparent from the Court’s settled case-law, it is 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 the directive defines the contracts to which it applies (judgment of 17 May 2018, Karel de Grote — Hogeschool Katholieke Hogeschool Antwerpen, C‑147/16, EU:C:2018:320, paragraph 53 and the case-law cited).
24


As regards, in the first place, the concept of ‘consumer’, within the meaning of Article 2(b) of Directive 93/13, it is objective in nature and is distinct from the concrete knowledge the person in question may have, or from the information that person actually has (judgment of 3 September 2015, Costea, C‑110/14, EU:C:2015:538, paragraph 21).
25


In that regard, it should be noted that the consumer is in a weaker position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge. This 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 (judgment of 3 September 2015, Costea, C‑110/14, EU:C:2015:538, paragraph 18 and the case-law cited).
26


A 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 evidence and in particular the terms of that contract, whether the person concerned who is a party to the contract may be categorised as a ‘consumer’ within the meaning of Directive 93/13. In order to do that, the national court must 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, Costea, C‑110/14, EU:C:2015:538, paragraphs 22 and 23).
27


That Court has already held that even a lawyer, if he were considered to display a high level of technical knowledge, may be considered to be a ‘consumer’ for the purposes of Article 2(b) of Directive 93/13, where he concludes a contract which does not relate to his professional activity (see, to that effect, judgment of 3 September 2015, Costea, C‑110/14, EU:C:2015:538, paragraphs 26 and 27).
31


The exclusion from the scope of that directive of many contracts concluded by consumers with their employers would deprive all of those consumers of the protection granted by that directive (see, by analogy, judgment of 15 January 2015, Šiba, C‑537/13, EU:C:2015:14, paragraph 29).
33


As regards, in the second place, the concept of ‘sellers or supplier’, for the purposes of Article 2(c) of Directive 93/13, it should be noted that the EU legislature intended a broad definition of that concept (judgment of 17 May 2018, Karel de Grote — Hogeschool Katholieke Hogeschool Antwerpen, C‑147/16, EU:C:2018:320, paragraph 48 and the case-law cited).
34


First, the use of the term ‘any’ in that provision shows that every natural or legal person must be regarded as a ‘seller or supplier’, within the meaning of Directive 93/13, when performing a professional activity (judgment of 17 May 2018, Karel de Grote — Hogeschool Katholieke Hogeschool Antwerpen, C‑147/16, EU:C:2018:320, paragraph 49).
35


Secondly, that concept covers all professional activity, whether it is ‘publicly owned or privately owned’. Therefore, Article 2(c) of Directive 93/13 is capable of applying to bodies whether run for profit or not, without excluding entities that pursue a task in the public interest (see, to that effect, judgment of 17 May 2018, Karel de Grote — Hogeschool Katholieke Hogeschool Antwerpen, C‑147/16, EU:C:2018:320, paragraphs 50 and 51).
36


The concept of ‘seller or supplier’, within the meaning of Article 2(c) of Directive 93/13, is a functional concept, requiring determination of whether the specific contractual relationship is amongst the activities that a person provides in the course of his trade (see, to that effect, judgment of 17 May 2018, Karel de Grote — Hogeschool Katholieke Hogeschool Antwerpen, C‑147/16, EU:C:2018:320, paragraph 55).
37


The Court has already held that an educational establishment, which provides a service to a student which is complementary and ancillary to its main activity consisting, fundamentally, in a loan contract, may be regarded as a ‘seller or supplier’ for the purposes of Article 2(c) of Directive 93/13 (see, to that effect, judgment of 17 May 2018, Karel de Grote — Hogeschool Katholieke Hogeschool Antwerpen, C‑147/16, EU:C:2018:320, paragraphs 57 and 58).
38


In such a case, there is, in principle, an inequality between the educational establishment and the student, owing to the asymmetry of information and expertise between the parties, since such an establishment has at its disposal a permanent organisation and an expertise that the student, acting on a private basis, does not necessarily have available to him when faced incidentally with such a contract (judgment of 17 May 2018, Karel de Grote — Hogeschool Katholieke Hogeschool Antwerpen, C‑147/16, EU:C:2018:320, paragraph 59).
42


Moreover, as the Advocate General stated in essence in points 43 to 46 of his Opinion, first, offering such a loan contract to its employees, thus offering them the possibility of being able to buy property, serves to attract and maintain a qualified and skilled workforce facilitating the exercise of the employer’s professional activity. In that context, the existence or otherwise of a potential direct income for that employer provided for by that contract, has no bearing on the recognition of that employer as a ‘seller or supplier’ for the purposes of Article 2(c) of Directive 93/13. Secondly, the broad interpretation of the concept of ‘seller or supplier’, for the purposes of that provision, serves to achieve the objective of that directive consisting in protecting the consumer as the weaker party to the contract concluded with a seller or supplier and to restore the balance between the parties (see, to that effect, judgment of 31 May 2018, Sziber, C‑483/16, EU:C:2018:367, paragraph 32).