A. B. and B. B. v Personal Exchange International Limited (C-774/19)

Contents

Judgment of the Court (Sixth Chamber)10 December 2020^note(Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — Article 15(1) — Jurisdiction over consumer contracts — Concept of consumer — Poker-playing contract concluded online between a natural person and an organiser of games of chance — Natural person earning a living from online poker games — Knowledge of that person — Regularity of the activity)In Case C‑774/19,REQUEST for a preliminary ruling under Article 267 TFEU from the Vrhovno sodišče (Supreme Court, Slovenia), made by decision of 5 September 2019, received at the Court on 22 October 2019, in the proceedingsA.B.,B.B.vPersonal Exchange International Limited,THE COURT (Sixth Chamber),composed of L. Bay Larsen, President of the Chamber, M. Safjan (Rapporteur) and N. Jääskinen, Judges,Advocate General: M. Campos Sánchez-Bordona,Registrar: A. Calot Escobar,having regard to the written procedure,after considering the observations submitted on behalf of:– A.B. and B.B., by R. Kokalj, odvetnik,– the Slovenian Government, by J. Morela, acting as Agent,– the European Commission, by M. Heller and B. Rous Demiri, acting as Agents,having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,gives the following

Judgment

1This request for a preliminary ruling concerns the interpretation of Article 15(1) of 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).

2The request was made in the course of proceedings between A.B. and B.B., two natural persons domiciled in Slovenia, and Personal Exchange International Limited (‘PEI’), a commercial company established in Malta, concerning a sum which PEI is said to have retained in the context of a poker-playing contract concluded online.

Legal framework

3Regulation No 44/2001 was repealed by Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1). However, with the exception of some of its provisions, the latter regulation is applicable only from 10 January 2015, pursuant to Article 81 thereof. Consequently, in view of the date of the facts of the dispute in the main proceedings, those proceedings remain governed by Regulation No 44/2001.

4Recitals 11 to 13 of Regulation No 44/2001 stated:(11) The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject matter of the litigation or the autonomy of the parties warrants a different linking factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.(12) In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close link between the court and the action or in order to facilitate the sound administration of justice.(13) In relation to insurance, consumer contracts and employment, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules provide for.’

5In accordance with Article 2(1) of that regulation, contained in Section 1, entitled ‘General provisions’, of Chapter II of the regulation:‘Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.’

6Article 3(1) of that regulation, also contained in Section 1, provided:‘Persons domiciled in a Member State may be sued in the courts of another Member State only by virtue of the rules set out in Sections 2 to 7 of this Chapter.’

7In accordance with Article 5(1)(a) of that regulation, contained in Section 2, entitled ‘Special jurisdiction’, of Chapter II of the regulation:‘A person domiciled in a Member State may, in another Member State, be sued:1.(a) in matters relating to a contract, in the courts for the place of performance of the obligation in question’.

8Article 15 of Regulation No 44/2001, which formed part of Section 4, entitled ‘Jurisdiction over consumer contracts’, of Chapter II of that regulation, provided:1.In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 4 and point 5 of Article 5, if:(a) it is a contract for the sale of goods on instalment credit terms; or(b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or(c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.…’

9Article 16(1) of that regulation, contained in Section 4, was worded as follows:‘A consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or in the courts for the place where the consumer is domiciled.’

10In accordance with Article 17 of that regulation, also contained in Section 4:‘The provisions of this Section may be departed from only by an agreement:1. which is entered into after the dispute has arisen; or2. which allows the consumer to bring proceedings in courts other than those indicated in this Section; or3. which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same Member State, and which confers jurisdiction on the courts of that Member State, provided that such an agreement is not contrary to the law of that Member State.’

The dispute in the main proceedings and the question referred for a preliminary ruling

11PEI, which offers online gambling services via the website www.mybet.com, directs its commercial activity towards Slovenia, inter alia.

12B.B. opened a user account on that website and, at that point, had to accept the general terms and conditions drawn up unilaterally by PEI without being able to influence their drafting or possibly amend them at a later date. Those terms and conditions prescribed inter alia that the courts of the Republic of Malta had jurisdiction to settle any disputes relating to contractual relationships.

13It is apparent from the order for reference that, during the period from 31 March 2010 to 10 May 2011, B.B. won approximately EUR 227000 from playing poker on that website. On 10 May 2011, B.B.’s account was blocked by PEI and that amount was withheld by it on the ground that B.B. was said to have infringed the rule of play established by PEI by creating an additional user account for which he used A.B.’s name and data.

14In May 2013, B.B. brought an action at first instance before the Slovenian courts against PEI seeking the repayment of that amount by PEI.

15B.B. justified the jurisdiction of the Slovenian courts by relying on his status as a consumer, which allowed him to bring proceedings before the court for the place where he is domiciled, in accordance with Article 16(1) of Regulation No 44/2001.

16PEI contended that that action was inadmissible, submitting that the Slovenian courts do not have jurisdiction to hear the dispute in the main proceedings. On the ground that B.B. is said to be a professional poker player, which, therefore, deprives him of the protection afforded to consumers, only the courts of the Republic of Malta, in whose territory PEI has its registered office, have jurisdiction to hear the dispute in the main proceedings.

17The Slovenian court of first instance, first, recognised the jurisdiction of the Slovenian courts, having regard to the place where B.B. is domiciled, taking the view that he had acted as a consumer when he opened his user account on the PEI website and, secondly, upheld the action brought by B.B.

18PEI appealed against the judgment of the Slovenian court of first instance before the Slovenian court of appeal, which upheld that judgment. PEI has, therefore, lodged an appeal on a point of law before the referring court, the Vrhovno sodišče (Supreme Court, Slovenia). The proceedings before that court concern B.B. only, as those concerning A.B. have been definitively closed.

19Questioning whether jurisdiction to resolve the dispute in the main proceedings may be conferred on the Slovenian courts, in view of B.B.’s domicile, or must be conferred on the Maltese courts, in the light of PEI’s registered office, the referring court considers that the answer to this question depends on whether B.B. may be regarded as having concluded a contract with PEI as a ‘consumer, for a purpose which can be regarded as being outside his trade or profession’, within the meaning of Article 15(1) of Regulation No 44/2001.

20In that regard, the referring court states, first, that B.B. had to accept the general terms and conditions drawn up unilaterally by PEI, and therefore he was economically weaker and less experienced in legal matters than the other party to the contract, that he has not declared his activity as a poker player as being professional in nature, that he has not offered that activity to third parties for remuneration and that he has not had any sponsors. Secondly, it states that B.B. had been able to live on the winnings from poker games since 2008 and played poker for nine hours per working day on average.

21Moreover, the literal interpretation of Article 15(1) of Regulation No 44/2001 is not unequivocal since some of the language versions of that provision contain additional elements with regard to the concept of ‘profession’ which may give rise to different interpretations, such as ‘trade’ in the English-language version, which refers to the exchange of goods or services or ‘pridobitna dejavnost’ in the Slovenian-language version, which involves a technical and economic aspect of the collection of money, in the sense of the acquisition of material goods.

22In those circumstances, the Vrhovno sodišče (Supreme Court) decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:‘Must Article 15(1) of Regulation No 44/2001 be interpreted as meaning that an online poker playing contract, concluded remotely over the Internet by an individual with a foreign operator of online games and subject to that operator’s general terms and conditions, can also be classified as a contract concluded by a consumer for a purpose which can be regarded as being outside his or her trade or profession, where that individual has, for several years, lived on the income thus obtained or the winnings from playing poker, even though he or she has no formal registration for that type of activity and in any event does not offer that activity to third parties on the market as a paid service?’

The question referred for a preliminary ruling

23By its question, the referring court asks, in essence, whether Article 15(1) of Regulation No 44/2001 must be interpreted as meaning that a natural person domiciled in a Member State who, first, has concluded with a company established in another Member State a contract to play poker on the Internet, containing general terms and conditions determined by that company, and, secondly, has neither officially declared such activity nor offered it to third parties as a paid service loses the status of a ‘consumer’, within the meaning of that provision, where that person plays the game for a large number of hours per day and receives substantial winnings from that game.

24First of all, it must be observed that Article 15(1) of Regulation No 44/2001 constitutes a derogation both from the general rule of jurisdiction laid down in Article 2(1) of the regulation, which confers jurisdiction on 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 the regulation, under which jurisdiction lies with the courts of the place of performance of the obligation on which the claim is based. Thus, Article 15(1) must necessarily be interpreted strictly, in the sense that it cannot give rise to an interpretation going beyond the cases expressly envisaged by that regulation (judgments of 14 March 2013, Česká spořitelna, C‑419/11, EU:C:2013:165, paragraph 26, and of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 27).

25Next, it should be noted that Article 15(1) of Regulation No 44/2001 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; secondly, the contract between such a consumer and a professional has actually been concluded; and, thirdly, such a contract falls within one of the categories referred to in Article 15(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 23 December 2015, Hobohm, C‑297/14, EU:C:2015:844, paragraph 24 and the case-law cited).

26In the present case, as is clear from the order for reference, the question referred concerns the first of those three conditions in that it seeks to ascertain whether B.B. has the status of a ‘consumer’ who is acting in a context which can be regarded as being outside his trade or profession.

27With regard to the differences which, according to the referring court, exist in some of the language versions of Article 15(1) of Regulation No 44/2001 on account of additional elements which have been added, in particular in the Slovenian-language version, to the concept of ‘profession’, it must be recalled that, in accordance with settled case-law, the wording used in one language version of a provision of EU law cannot serve as the sole basis for the interpretation of that provision or be given priority over the other language versions in that regard. The need for uniform application and, therefore, for uniform interpretation of an EU measure precludes one version of the text being considered in isolation, but requires that the measure be interpreted by reference to the general scheme and purpose of the rules of which it forms part (judgment of 8 June 2017, Sharda Europe, C‑293/16, EU:C:2017:430, paragraph 21 and the case-law cited).

28In that context, the Court has clarified that the concept of ‘consumer’, within the meaning of Articles 15 to 17 of Regulation No 44/2001, must be interpreted independently, by reference principally to the system and objectives of the regulation, in order to ensure that it is uniformly applied in all the Member States (judgment of 6 September 2012, Mühlleitner, C‑190/11, EU:C:2012:542, paragraph 28 and the case-law cited).

29Moreover, in view of the fact that the rules on jurisdiction set out in Articles 15 to 17 of that regulation constitute a derogation, that concept 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, paragraphs 27 and 29 and the case-law cited).

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

31It 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 (judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 31 and the case-law cited).

32It is in the light of those considerations that it must be examined whether a natural person may be denied the status of a ‘consumer’, within the meaning of Article 15(1) of Regulation No 44/2001, on account of factors such as the size of the sums won in the poker games, which enable that person to live on those winnings, as well as that person’s knowledge and the regularity of the activity.

33In the first place, with regard to the fact raised by the referring court that, in the present case, B.B. has been able to live on the winnings from the poker games since 2008, it should be noted that the scope of Articles 15 to 17 of that regulation is not limited to particular amounts (see, to that effect, judgment of 3 October 2019, Petruchová, C‑208/18, EU:C:2019:825, paragraph 50 and the case-law cited).

34It follows that the fact that B.B. won large sums of money from poker games following the conclusion of the contract with PEI is not, in itself, a decisive factor in determining whether or not he has the status of a ‘consumer’ within the meaning of Regulation No 44/2001.

35Indeed, should Articles 15 to 17 of that regulation be interpreted as not applying to service contracts giving rise to significant gains, the individual would not be able, in the absence of an express threshold set in that regulation, above which the amount linked to a service contract is regarded as being significant, to know whether he or she will be afforded the protection of those provisions, which would be contrary to the intention of the EU legislature as expressed in recital 11 of that regulation, according to which the rules of jurisdiction should be highly predictable (see, by analogy, judgment of 3 October 2019, Petruchová, C‑208/18, EU:C:2019:825, paragraph 51).

36The need to ensure that rules on jurisdiction are predictable is particularly important in connection with poker, which is a game of chance that involves both the risk of losing the sums invested and the chance of winning large amounts. Therefore, it would be inconsistent with the objective pursued by Regulation No 44/2001 to determine jurisdiction on the basis of the amount won or lost.

37In the second place, PEI has submitted that it is in part B.B.’s knowledge that enabled him to win large sums of money from the poker games.

38In that regard, the Court has clarified that the concept of ‘consumer’, within the meaning of Article 15(1) of Regulation No 44/2001, which is defined by contrast to that of an ‘economic operator’, is objective in nature and is distinct from the knowledge and information that the person concerned actually possesses (see, to that effect, judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 39 and the case-law cited).

39If the status as a consumer were to depend on the knowledge and information a party to the contract possesses in a given field, and not on whether or not the contract he or she has concluded is intended to satisfy his or her personal needs, this would amount to classifying a party to the contract as a consumer on account of the subjective situation of that party. However, in accordance with the case-law cited in paragraph 29 of this judgment, the status of a person as a ‘consumer’ must be examined solely in the light of his or her position in a given contract, taking into account its nature and purpose (see, to that effect, judgment of 3 October 2019, Petruchová, C‑208/18, EU:C:2019:825, paragraph 56).

40Accordingly, the knowledge that an individual may have in the field covered by that contract cannot deprive him or her of the status of a ‘consumer’ within the meaning of Article 15(1) of Regulation No 44/2001 (see, to that effect, judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 39).

41In the third place, with regard to the changes in the contractual relationship between B.B. and PEI, as mentioned in paragraph 29 of this judgment, it follows from the case-law of the Court that, in order to determine whether a person has the status of a ‘consumer’, reference must be made to the position of that person in a particular contract, having regard to the nature and purpose of that contract.

42In that regard, it is for the referring court to take account of any subsequent changes in the use made of the services provided by PEI over a long period of time. The user of such services may rely on his or her status as a ‘consumer’ only if the predominately non-professional use of those services, for which he or she initially concluded a contract, has not subsequently become predominately professional (see, to that effect, judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraphs 37 and 38).

43In the fourth place, as regards the regularity with which B.B. played poker online, it is apparent from the order for reference that he spent on average nine hours per working day playing the game.

44Although 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, as noted in paragraph 28 of this judgment, 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, account must also be taken of the definition of ‘consumer’ in other rules of EU law (judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 28).

45In that regard, in connection with the interpretation of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22) and Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64), the Court has held that the regularity of an activity may be a factor to take into account in the classification of a ‘trader’, as opposed to the concept of ‘consumer’ (see, to that effect, judgment of 4 October 2018, Kamenova, C‑105/17, EU:C:2018:808, paragraphs 37 and 38).

46However, first, the regularity of an activity is one of a number of factors to be taken into account and does not, in itself, establish the classification to be used in relation to a natural person with regard to the concept of ‘trader’ (see, to that effect, judgment of 4 October 2018, Kamenova, C‑105/17, EU:C:2018:808, paragraph 39).

47Secondly, and above all, the activity at issue in the dispute in the main proceedings is different from that at issue in the case which gave rise to the judgment of 4 October 2018, Kamenova (C‑105/17, EU:C:2018:808), in so far as that judgment concerned the sale of goods.

48Although the case in the main proceedings concerns an activity which may be classified as regular, that activity, however, does not give rise to the sale of goods or a supply of services, as the referring court states. It is clear from the information provided by that court that B.B. does not offer to third parties services related to the activity of poker-playing and has not officially declared that activity.

49In that context, it is therefore for the referring court to ascertain whether, in the light of all the facts of the case in the main proceedings, B.B. has actually acted outside and independently of any professional activity and to draw the appropriate conclusions with regard to the classification of B.B. as a ‘consumer’, within the meaning of Article 15(1) of Regulation No 44/2001. For the purposes of that classification, factors such as the amount of the winnings from the poker games, possible knowledge or expertise and the regularity of the person concerned’s activity as a poker player do not, as such, cause that person to lose his or her status as a ‘consumer’, within the meaning of that provision.

50In the light of all the foregoing considerations, the answer to the question referred is that Article 15(1) of Regulation No 44/2001 must be interpreted as meaning that a natural person domiciled in a Member State who, first, has concluded with a company established in another Member State a contract to play poker on the Internet, containing general terms and conditions determined by that company, and, secondly, has neither officially declared such activity nor offered it to third parties as a paid service does not lose the status of a ‘consumer’ within the meaning of that provision, even if that person plays the game for a large number of hours per day and receives substantial winnings from that game.

Costs

51Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

Operative part

On those grounds, the Court (Sixth Chamber) hereby rules: Article 15(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that a natural person domiciled in a Member State who, first, has concluded with a company established in another Member State a contract to play poker on the Internet, containing general terms and conditions determined by that company, and, secondly, has neither officially declared such activity nor offered it to third parties as a paid service does not lose the status of a ‘consumer’ within the meaning of that provision, even if that person plays the game for a large number of hours per day and receives substantial winnings from that game.