Anica Milivojević v Raiffeisenbank St. Stefan-Jagerberg-Wolfsberg eGen.
Date: 2019-02-14
42


As follows from Article 2 of the Act concerning the conditions of access of the Republic of Croatia and the adjustments to the Treaty on European Union, the Treaty on the Functioning of the European Union and the Treaty establishing the European Atomic Energy Community (OJ 2012 L 112, p. 21), the provisions of the original Treaties, in particular Articles 56 TFEU and 63 TFEU, are binding on the Republic of Croatia from the date of its accession, with the result that they apply to the future effects of situations arising prior to its accession (see, by analogy, judgment of 29 January 2002, Pokrzeptowicz-Meyer, C‑162/00, EU:C:2002:57, paragraph 50).
46


As regards the first question, it is appropriate to note that although, at the current stage of the proceedings before it, the referring court has not yet settled the factual question of the determination of the place in which the agreement at issue was concluded, a question essential to the application of the Law on the invalidity of credit agreements featuring international elements, in accordance with Article 3 of that law, that fact does not restrict its power to assess at what stage of those proceedings it is necessary, for the requirements of those proceedings, for it to request a preliminary ruling from the Court (see, to that effect, judgments of 22 June 2010, Melki and Abdeli, C‑188/10 and C‑189/10, EU:C:2010:363, paragraph 41, and of 4 June 2015, Kernkraftwerke Lippe-Ems, C‑5/14, EU:C:2015:354, paragraph 31), the choice of the most opportune moment to do so being in its exclusive competence (see, to that effect, judgment of 15 March 2012, Sibilio, C‑157/11, not published, EU:C:2012:148, paragraph 31).
47


As regards the second and third questions, it should be recalled that, according to the settled case-law of the Court, in the context of the cooperation between the Court and national courts provided for in Article 267 TFEU, 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. Consequently, where the questions submitted concern the interpretation of EU law, the Court is in principle bound to give a ruling (judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 42 and the case-law cited).
48


It is also settled case-law that 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, the accuracy of which is not a matter for the Court to determine, enjoy a presumption of relevance (judgment of 14 June 2017, Online Games and Others, C‑685/15, EU:C:2017:452, paragraph 42 and the case-law cited). The Court may refuse to rule on a question referred by a national court only 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, where the problem is hypothetical, 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 and to understand the reasons for the referring court’s view that it needs answers to those questions in order to rule in the dispute before it (see, to that effect, judgment of 8 September 2016, Politanò, C‑225/15, EU:C:2016:645, paragraph 22 and the case-law cited). However, contrary to the Croatian Government’s submissions, it does not appear that the issue raised in the second and third questions is hypothetical.
53


In that regard, the Court has already held that such operations of a grant of credit on a commercial basis relate, in principle, both to the freedom to provide services within the meaning of Articles 56 TFEU et seq. and to the free movement of capital within the meaning of Articles 63 TFEU et seq. (judgment of 22 November 2018, Vorarlberger Landes- und Hypothekenbank, C‑625/17, EU:C:2018:939, paragraph 23 and the case-law cited).
54


Where a national measure relates to both the freedom to provide services and the free movement of capital, it is necessary to consider to what extent the exercise of those fundamental freedoms is affected and whether, in the circumstances of the main proceedings, one of them prevails over the other. The Court will, in principle, examine the measure in dispute in relation to only one of those two freedoms if it appears, in the circumstances of the case, that one of them is entirely secondary in relation to the other and may be considered together with it (judgment of 12 July 2012, SC Volksbank România, C‑602/10, EU:C:2012:443, paragraph 70 and the case-law cited).
55


In so far as, in the main proceedings, the Law on the invalidity of credit agreements featuring international elements provides for the invalidity of any agreement concluded in Croatia by an non-authorised lender whose registered office is outside that Member State, such a legal regime affects the access to financial services on the Croatian market of economic operators established in other Member States which do not satisfy the conditions required by that legislation and particularly affects the freedom to provide services. Since the restrictive effects of those rules on the free movement of capital are merely an inevitable consequence of the restriction imposed on the provision of services (judgment of 3 October 2006, Fidium Finanz, C‑452/04, EU:C:2006:631, paragraph 48 and the case-law cited), it is not necessary to examine the compatibility of that decision in the light of Articles 63 TFEU et seq.
57


In that regard, it is clear from the settled case-law of the Court that the freedom to provide services under Article 56 TFEU requires not only the elimination of all discrimination on grounds of nationality against providers of services established in other Member States, but also the abolition of any restriction — even if it applies without distinction to national providers of services and to those from other Member States — which is liable to prohibit, impede or render less attractive the activities of a provider of services established in another Member State where he lawfully provides similar services (judgment of 18 July 2013, Citroën Belux, C‑265/12, EU:C:2013:498, paragraph 35 and case-law cited).
58


It also follows from the case-law of the Court that the business of a credit institution, consisting of granting credit, constitutes a service within the meaning of Article 56 TFEU (judgment of 12 July 2012, SC Volksbank România, C‑602/10, EU:C:2012:443, paragraph 72 and the case-law cited).
65


It is therefore necessary to examine, in the first place, whether the objectives which formed the basis of the adoption of that law can justify a derogation from Article 52 TFEU and, in the second place, whether that law is justified by overriding reasons of public interest provided, if that is the case, that it is suitable for securing the attainment of the objectives which it pursues and does not go beyond what is necessary in order to attain it see, to that effect, judgment of 18 July 2013, Citroën Belux, C‑265/12, EU:C:2013:498, paragraph 37 and the case-law cited).
66


With regard, first of all, to the period between the date of accession of the Republic of Croatia to the European Union and 30 September 2015, it follows from the case-law of the Court that, to the extent that the restrictive legislation at issue in the main proceedings is directly discriminatory, it is justified only by reasons of public order, public security or public health, provided for in Article 52 TFEU, to which Article 62 TFEU refers (see, to that effect, inter alia, judgments of 9 September 2010, Engelmann, C‑64/08, EU:C:2010:506, paragraph 34; of 22 October 2014, Blanco and Fabretti, C‑344/13 and C‑367/13, EU:C:2014:2311, paragraph 38; and of 28 January 2016, Laezza, C‑375/14, EU:C:2016:60, paragraph 26),
67


Recourse to such justification presupposes the existence of a genuine, sufficiently serious threat affecting one of the fundamental interests of society (judgment of 21 January 2010, Commission v Germany, C‑546/07, EU:C:2010:25, paragraph 49 and the case-law cited).
69


In the light of the objectives pursued by the national legislation at issue in the main proceedings, it must be noted that, although the Croatian Government relies upon the concept of public order, it does not put forward any convincing argument which could be based on that concept which, as has already been pointed out in paragraph 67 of this judgment, presupposes the existence of a genuine, sufficiently serious threat affecting one of the fundamental interests of society, since economic considerations are not, furthermore, capable of justifying a derogation from Article 52 TFEU (see, by analogy, judgment of 21 January 2010, Commission v Germany, C‑546/07, EU:C:2010:25, paragraph 51).
71


In that regard, it should be noted that the overriding reasons of general interest relied on by the Republic of Croatia, include ones already accepted in the case-law of the Court, namely professional rules intended to protect recipients of services (judgment of 25 July 1991, Collectieve Antennevoorziening Gouda, C‑288/89, EU:C:1991:323, paragraph 14), the good reputation of the financial sector (judgment of 10 May 1995, Alpine Investments, C‑384/93, EU:C:1995:126, paragraph 44) and consumer protection (judgment of 18 July 2013, Citroën Belux, C‑265/12, EU:C:2013:498, paragraph 38).
72


Nonetheless, it must also be recalled that the reasons which may be relied on by a Member State by way of justification must be accompanied by appropriate evidence or by an analysis of the appropriateness and proportionality of the restrictive measure adopted by that State and precise evidence enabling its arguments to be substantiated. Thus, if a Member State wishes to rely on an objective that is capable of justifying an obstacle to the free movement of capital arising from a national restrictive measure, it is under a duty to supply the court called upon to rule on that question with all the evidence capable of enabling that court to be satisfied that that measure does indeed fulfil the requirements arising from the principle of proportionality (see, by analogy, judgment of 6 March 2018, SEGRO and Horváth, C‑52/16 and C‑113/16, EU:C:2018:157, paragraph 85).
81


It is appropriate to recall that, in the scheme of Regulation No 1215/2012, the jurisdiction of the courts of the Member State within the territory of which the defendant is domiciled is the general principle. It is only by way of derogation from that principle that that regulation provides for an exhaustive list of cases in which the defendant may or must be sued before the courts of another Member State (see, to that effect, judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 27). Accordingly, the fact that a Member State provides in its national legislation for rules of jurisdiction which derogate from that general principle, which are not provided for in another provision of that regulation, runs counter to the system instituted by that regulation and, more particularly, by Article 4 thereof.
86


It is appropriate, first of all, to recall that, in accordance with the settled case-law of the Court, the concepts used in Regulation No 1215/2012, in particular those which appear in Article 17(1) of the regulation, must be interpreted independently, by reference principally to the general scheme and objectives of the regulation, in order to ensure that it is applied uniformly in all the Member States (see, to that effect, judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 28).
87


The notion of a ‘consumer’ for the purposes of Articles 17 and 18 of Regulation No 1215/2012 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, judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 29 and the case-law cited).
88


In consequence, 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 (judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 30 and the case-law cited).
89


That specific protection is also unwarranted in the case of contracts for the purpose of trade or professional activity, even if that activity is only planned 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 July 1997, Benincasa, C‑269/95, EU:C:1997:337, paragraph 17).
90


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 one of the relevant goods or services (see, to that effect, judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 31 and the case-law cited).
91


As regards, more particularly, a person who concludes a contract for a dual purpose, partly for use in his professional activity and partly for private matters, 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 transaction in respect of which the contract was concluded, considered in its entirety (see, to that effect, judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 32 and the case-law cited).
92


It is in the light of those principles that it is for the referring court to determine whether, in the case before it, Ms Milivojević can be described as a ‘consumer’, within the meaning of Article 17(1) of Regulation No 1215/2012. For that purpose, the national court should take into consideration not only the content, nature and purpose of the contract, but also the objective circumstances in which it was concluded (judgment of 20 January 2005, Gruber, C‑464/01, EU:C:2005:32, paragraph 47).
97


As follows from the settled case-law of the Court, an independent definition must be given in EU law to the phrase ‘in proceedings which have as their object rights in rem in immovable property’, in order to ensure its uniform application in all the Member States (see, to that effect, judgments of 3 April 2014, Weber, C‑438/12, EU:C:2014:212, paragraph 40, and of 17 December 2015, Komu and Others, C‑605/14, EU:C:2015:833, paragraph 23).
98


The Court has also held that the provisions of the first subparagraph of point 1 of Article 24 of Regulation No 1215/2012 must not be given a wider interpretation than is required by their objective. Those provisions have the effect of depriving the parties of the choice of forum which would otherwise be theirs and, in certain cases, of resulting in their being brought before a court which is not that of the domicile of any of them (see, to that effect, judgment of 16 November 2016, Schmidt, C‑417/15, EU:C:2016:881, paragraph 28).
99


Furthermore, the Court has stated that the exclusive jurisdiction of the courts of the Contracting State in which the property is situated does not encompass all actions concerning rights in rem in immovable property, but only those which both come within the scope of that regulation and are actions which seek to determine the extent, content, ownership or possession of immovable property or the existence of other rights in rem therein and to provide the holders of those rights with protection for the powers which attach to their interest (judgment of 16 November 2016, Schmidt, C‑417/15, EU:C:2016:881, paragraph 30 and the case-law cited).
100


It is important to note that, according to the settled case-law of the Court, the difference between a right in rem and a right in personam lies in the fact that the former, existing in corporeal property, has effect erga omnes, whereas the latter can be claimed only against the debtor (judgment of 16 November 2016, Schmidt, C‑417/15, EU:C:2016:881, paragraph 31 and the case-law cited).
103


Such an application, seeking the enforcement of powers arising from a right in rem, falls under the exclusive jurisdiction of the courts of the Member State in which the property is situated, pursuant to the first subparagraph of point 1 of Article 24 of Regulation No 1215/2012 (judgment of 16 November 2016, Schmidt, C‑417/15, EU:C:2016:881, paragraph 41).