Maximilian Schrems v Facebook Ireland Limited.
Date: 2018-01-25
26


At the outset, it should be recalled that, in so far as Regulation No 44/2001 replaces the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (OJ 1978 L 304, p. 36), as amended by the successive conventions relating to the accession of new Member States to that convention, the interpretation provided by the Court in respect of the provisions of that convention is valid also for those of the regulation whenever the provisions of those instruments may be regarded as ‘equivalent’ (judgment of 28 January 2015, Kolassa, C‑375/13, EU:C:2015:37, paragraph 21 and the case-law cited), which is the case here.
27


Within the scheme of Regulation No 44/2001, the jurisdiction of the courts of the Member State in which the defendant is domiciled constitutes the general principle enshrined in Article 2(1) of that regulation. It is only by way of derogation from that principle that that provision provides for an exhaustive list of cases in which the defendant may or must be sued before the courts of another Member State. As a consequence, the rules of jurisdiction which derogate from that general principle are to be strictly interpreted, in the sense that they cannot give rise to an interpretation going beyond the cases expressly envisaged by that regulation (see, to that effect, judgment of 20 January 2005, Gruber, C‑464/01, EU:C:2005:32, paragraph 32).
28


Although the concepts used by Regulation No 44/2001, in particular those which appear in Article 15(1) of that regulation, must be interpreted independently, by reference principally to the general scheme and objectives of that regulation, in order to ensure that it is applied uniformly in all Member States (judgment of 28 January 2015, Kolassa, C‑375/13, EU:C:2015:37, paragraph 22 and the case-law cited), account must, in order to ensure compliance with the objectives pursued by the legislature of the European Union in the sphere of consumer contracts, and the consistency of EU law, also be taken of the definition of ‘consumer’ in other rules of EU law (judgment of 5 December 2013, Vapenik, C‑508/12, EU:C:2013:790, paragraph 25).
29


In that respect, the Court has stated that the notion of a ‘consumer’ for the purposes of Articles 15 and 16 of Regulation No 44/2001 must be strictly construed, reference being made to the position of the person concerned in a particular contract, having regard to the nature and objective of that contract and not to the subjective situation of the person concerned, since the same person may be regarded as a consumer in relation to certain transactions and as an economic operator in relation to others (see, to that effect, judgments of 3 July 1997, Benincasa, C‑269/95, EU:C:1997:337, paragraph 16, and of 20 January 2005, Gruber, C‑464/01, EU:C:2005:32, paragraph 36).
30


From this the Court has inferred 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. Such protection is, however, unwarranted in the case of contracts for the purpose of a trade or professional activity (see, to that effect, judgment of 20 January 2005, Gruber, C‑464/01, EU:C:2005:32, paragraph 36).
31


It follows that the special rules of jurisdiction in Articles 15 to 17 of Regulation No 44/2001 apply, in principle, only where the contract has been concluded between the parties for the purpose of a use of the relevant goods or services that is other than a trade or professional use (see, to that effect, judgment of 20 January 2005, Gruber, C‑464/01, EU:C:2005:32, paragraph 37).
32


As regards, more particularly, a person who concludes a contract for a purpose which is partly concerned with his trade or profession and is therefore only partly outside it, the Court has held that he could rely on those provisions only if the link between the contract and the trade or profession of the person concerned was so slight as to be marginal and, therefore, had only a negligible role in the context of the supply in respect of which the contract was concluded, considered in its entirety (see, to that effect, judgment of 20 January 2005, Gruber, C‑464/01, EU:C:2005:32, paragraph 39).
37


Within the framework of that assessment, in accordance with the requirement, referred to in paragraph 29 above, to construe strictly the notion of ‘consumer’ within the meaning of Article 15 of Regulation No 44/2001, it is necessary, in particular, to take into account, as far as concerns services of a digital social network which are intended to be used over a long period of time, subsequent changes in the use which is made of those services.
38


This interpretation implies, in particular, that a user of such services may, in bringing an action, rely on his status as a consumer only if the predominately non-professional use of those services, for which the applicant initially concluded a contract, has not subsequently become predominately professional.
39


On the other hand, given that the notion of a ‘consumer’ is defined by contrast to that of an ‘economic operator’ (see, to that effect, judgments of 3 July 1997, Benincasa, C‑269/95, EU:C:1997:337, paragraph 16, and of 20 January 2005, Gruber, C‑464/01, EU:C:2005:32, paragraph 36) and that it is distinct from the knowledge and information that the person concerned actually possesses (judgment of 3 September 2015, Costea, C‑110/14, EU:C:2015:538, paragraph 21), neither the expertise which that person may acquire in the field covered by those services nor his assurances given for the purposes of representing the rights and interests of the users of those services can deprive him of the status of a ‘consumer’ within the meaning of Article 15 of Regulation No 44/2001.
43


In that respect, it should be recalled, first of all, that the rules on jurisdiction laid down in Section 4 of Chapter II of Regulation No 44/2001 constitute a derogation both from the general rule of jurisdiction laid down in Article 2(1) of that regulation, which confers jurisdiction upon the courts of the Member State in which the defendant is domiciled, and from the rule of special jurisdiction for contracts, set out in Article 5(1) of that regulation, under which jurisdiction lies with the courts for the place of performance of the obligation in question. Thus, those rules must necessarily be interpreted strictly (see judgment of 28 January 2015, Kolassa, C‑375/13, EU:C:2015:37, paragraph 28 and the case-law cited).
44


Next, the Court has already held that, since the special system established in Article 15 et seq. of Regulation No 44/2001 is inspired by the concern to protect the consumer as the party deemed to be economically weaker and less experienced in legal matters than the other party to the contract, the consumer is protected only in so far as he is, in his personal capacity, the plaintiff or defendant in proceedings. Consequently, an applicant who is not himself a party to the consumer contract in question cannot enjoy the benefit of the jurisdiction relating to consumer contracts (see, to that effect, judgment of 19 January 1993, Shearson Lehman Hutton, C‑89/91, EU:C:1993:15, paragraphs 18, 23 and 24). The same considerations must also apply to a consumer to whom the claims of other consumers have been assigned.
45


The rules on jurisdiction laid down, as regards consumer contracts, in Article 16(1) of the regulation apply, in accordance with the wording of that provision, only to an action brought by a consumer against the other party to the contract, which necessarily implies that a contract has been concluded by the consumer with the trader or professional concerned (judgment of 28 January 2015, Kolassa, C‑375/13, EU:C:2015:37, paragraph 32).
48


As the Court has held in a different context, the assignment of claims cannot, in itself, have an impact on the determination of the court having jurisdiction (judgments of 18 July 2013, ÖFAB, C‑147/12, EU:C:2013:490, paragraph 58, and of 21 May 2015, CDC Hydrogen Peroxide, C‑352/13, EU:C:2015:335, paragraph 35). It follows that the jurisdiction of courts other than those expressly referred to by Regulation No 44/2001 cannot be established through the concentration of several claims in the person of a single applicant. Therefore, as the Advocate General noted, in essence, in point 98 of his Opinion, an assignment of claims such as that at issue in the main proceedings cannot provide the basis for a new specific forum for a consumer to whom those claims have been assigned.