Jana Petruchová v FIBO Group Holdings Limited.
Date: 2019-10-03
38


As a preliminary point, it must be borne in mind that, in so far as Regulation No 1215/2012 repeals and replaces Council Regulation (EC) No 44/2001, the Court’s interpretation of the provisions of the latter regulation also applies to Regulation No 1215/2012, whenever the provisions of the two instruments of EU law may be regarded as equivalent (judgment of 15 November 2018, Kuhn, C‑308/17, EU:C:2018:911, paragraph 31 and the case-law cited). That is the case, in particular, of Articles 15 to 17 of Regulation No 44/2001 and Articles 17 to 19 of Regulation No 1215/2012.
39


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 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). Those conditions must all be fulfilled, so that if one of the three conditions is not met, jurisdiction cannot be determined under the rules relating to consumer contracts (see, to that effect, judgment of 23 December 2015, Hobohm, C‑297/14, EU:C:2015:844, paragraph 24 and the case-law cited).
41


In that regard, the Court has specified 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 (see, to this end, judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 29 and the case-law cited).
42


The Court deduced therefrom 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 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 30 and case-law cited).
43


That specific protection is unwarranted in the case of contracts for the purpose of 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 14 February 2019, Milivojević, C‑630/17, EU:C:2019:123, paragraph 89 and the case-law cited).
44


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 (see, to that effect, judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 31 and case-law cited).
48


In that regard, first, it should be noted that the Court has previously held that the scope of the provisions of Section 4 of Chapter II of Regulation No 1215/2012 governing jurisdiction in respect of consumer contracts extends to all types of contracts, except that specified in Article 17(3) of that regulation, namely contracts of transport other than those which, for a fixed price, combine travel and accommodation (see, to that effect, judgment of 2 May 2019, Pillar Securitisation, C‑694/17, EU:C:2019:345, paragraph 42).
49


It follows that financial instruments such as CfDs fall within the scope of Articles 17 to 19 of Regulation No 1215/2012.
50


Second, the Court has also held that the scope of the provisions of Section 4 of Chapter II of Regulation No 1215/2012 is not limited to particular amounts (see, to that effect, judgment of 2 May 2019, Pillar Securitisation, C‑694/17, EU:C:2019:345, paragraph 42).
51


Indeed, as the Advocate General noted in point 51 of his Opinion, should Articles 17, 18 and 19 of Regulation No 1215/2012 be interpreted as not applying when significant funds are invested, the investor would not be able, in the absence of an express threshold set in that regulation, above which the amount of a transaction is regarded as being significant, to know whether he will be afforded the protection of those provisions, which would be contrary to the intention of the EU legislature as expressed in recital 15 of that regulation, according to which the rules of jurisdiction should be highly predictable.
52


Regulation No 1215/2012 pursues an objective of legal certainty which consists in strengthening the legal protection of persons established in the European Union, by enabling the applicant to identify easily the court in which he may sue and the defendant reasonably to foresee before which court he may be sued (see, to that effect, judgment of 4 October 2018, Feniks, C‑337/17, EU:C:2018:805, paragraph 34 and the case-law cited).
55


In so far as the concept of ‘consumer’, within the meaning of Article 17(1) of Regulation No 1215/2012, is defined by contrast to that of an ‘economic operator’, it is objective in nature and it is distinct from the knowledge and information that the person concerned actually possesses (see, to that effect, judgments of 3 September 2015, Costea, C‑110/14, EU:C:2015:538, paragraph 21, and of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 39).
56


In that regard, the fact of considering that the status as a consumer of a contracting partner may depend on the knowledge and information he possesses in a given field, and not on whether or not the contract he has concluded is intended to satisfy his personal needs, would amount to referring to the subjective situation of that contracting partner. However, in accordance with the case-law cited in paragraph 41 of this judgment, the status of a person as a ‘consumer’ must be examined solely in the light of his position in a given contract, taking into account its nature and purpose.
58


Indeed, as noted by the Advocate General in paragraph 53 of his Opinion, Article 17(1) of Regulation No 1215/2012 does not require the consumer to behave in a particular way in the context of a contract concluded for use outside his professional activity.
59


Consequently, although it is for the national court to determine whether, in the context of her contractual relations with FIBO, Ms Petruchová did actually act outside and independently of any professional activity, and to draw the consequences as regards her status as a consumer, it must be noted that, for the purposes of that classification, factors such as the value of the transactions carried out under contracts such as CfDs, the extent of the risks of financial loss associated with the conclusion of such contracts, Ms Petruchová’s possible knowledge or expertise in the field of financial instruments or her active conduct in connection with such transactions are, as such, in principle irrelevant.
61


Indeed, to ensure compliance with the objectives pursued by the EU legislator in the field of consumer contracts and the consistency of EU law, the concept of ‘consumer’ in other rules of EU law may prove relevant (see, to that effect, judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 28).
63


While it is apparent from recital 7 of the Rome I Regulation that the material scope and provisions of that regulation should be consistent with Regulation No 44/2001, which was succeeded by Regulation No 1215/2012, it does not, however, follow therefrom that the provisions of Regulation No 1215/2012 should be interpreted in the light of those of the Rome I Regulation. Under no circumstances can the coherence sought by the EU legislature lead to an interpretation of the provisions of Regulation No 1215/2012 that is alien to its system and objectives (see, to that effect, judgment of 16 January 2014, Kainz, C‑45/13, EU:C:2014:7, paragraph 20).
64


However, it must be noted that the Rome I Regulation and Regulation No 1215/2012 pursue different objectives. While the Rome I Regulation applies, in accordance with the first subparagraph of Article 1(1) thereof, in situations involving a conflict of laws, to contractual obligations in civil and commercial matters in order to determine the applicable substantive law, Regulation No 1215/2012 is intended to lay down the rules for determining the court competent to rule on a dispute in civil and commercial matters relating, in particular, to a contract concluded between a professional and a person acting for a purpose unrelated to his professional activity, so as to protect the latter in such a situation (see, to that effect, judgment of 2 May 2019, Pillar Securitisation, C‑694/17, EU:C:2019:345, paragraph 42).
77


It follows that a person’s status as a ‘retail client’ within the meaning of Article 4(1)(12) of Directive 2004/39 is, as such, in principle irrelevant for the purpose of classifying him as a ‘consumer’ within the meaning of Article 17(1) of Regulation No 1215/2012.