The CJEU reiterates its concept of "consumer"

concepto consumidor TJUE

If the client does not act within a professional activity, must be qualified as a "consumer"

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The fact that a person has carried out a high volume of financial operations or has invested large sums, does not prevent you from being considered as a "consumer", and therefore, your regulatory regulations apply, as long as do not act within a professional activity.

This has been reiterated by Fourth Chamber of the Court of Justice of the European Union in its judgment of 2 April 2020 in Case C-500/18.

The CJEU had already ruled on this issue in its Judgment 3 October 2019 in case C-208/2018 that we discuss here.

In this new sentence of 2 April 2020 (Case C-500/18) reiterates its criteria.

Antecedentes del caso

The 15 November 2016, client (which we will call AU) opened an account on the UFX platform, which belongs to Reliantco Investments, to trade CFDs. CFD’s are financial contracts for differences, about highly complex and speculative derivatives.

The 11 January 2017 AU entered into a contract with Reliantco Investments (RI), by which he submitted the possible controversies of his contract to the Cypriot courts.

The 13 January 2017, AU placed several orders on the UFX platform speculating on the drop in oil prices. According to AU, following such transactions, had asked approximately 1.804.345 euros.

A client sued Reliantco Investments. He alleged that he had been the victim of a manipulation that caused the indicated losses and requested that the Liability from RI. He also requested the declaration of nullity of certain clauses that it considered abusive.  The question was also raised as to which were the competent courts and the applicable law..

Legal framework

The concept of consumer is determined by the article 2 Directive 93/13 / EEC:

“b) "consumer": every natural person who, in contracts covered by this Directive, act for a purpose other than your professional activity;

c) "professional": any natural or legal person who, in transactions regulated by this Directive, act within the framework of your professional activity, whether public or private. "

Moreover, Article 3 paragraph 1 of define the abusive clauses:

"Contractual clauses that have not been individually negotiated will be considered abusive when, contrariamente a las exigencias de la buena fe, causen en detrimento del consumidor un desequilibrio importante entre los derechos y obligaciones de las partes que se derivan del contrato.»

The directive 2004/39 defines the information that investment firms must provide to clients. Plus, in annex II, indicates that professional clients are considered :

"Entities that must be authorized or regulated to operate in the financial markets"

Regarding non-contractual obligations, you must go to the Regulation (EC) nº 864/2007, whose article 2 paragraph 1 sets:

"For the purposes of this Regulation, “damage” means all the consequences resulting from a harmful act, unjust enrichment, business management or guilt in contrahendo. »

As regards territorial jurisdiction, Article 8, paragraph 1 del Reglamento 1215/2012 says:

"The action brought by a consumer against the other contracting party may be brought before the courts of the Member State where that party is domiciled or, regardless of the other party's domicile, before the court of the place where the consumer is domiciled. "

Legal argumentation

The defendants raised the objection of incompetence of the Romanian courts. On the other hand, they denied the a consumer from AU, Well, between November 2016 and January 2017, had performed approximately 197 transactions, in which he had obtained approximately 605.680 euros profit. Only six of these operations were subject to litigation.

The Cluj Specialized Court in Romania decided to stay the proceedings and to refer four questions to the Court of Justice:

  1.  Can or should the national judge, when interpreting the concept of “retail customer” contained in the article 4, paragraph 1, punto 12, Directive 2004/39, use the same interpretative criteria by which the concept of "consumer" is defined, within the meaning of Article 2, letra b), Directive 93/13?
  2.  In case of negative answer to the first question, Under what circumstances can a “retail customer”, within the meaning of the Directive 2004/39, invoke your consumer status in litigation as the main proceedings?
  3. In particular, realization by a “retail customer”, within the meaning of the Directive 2004/39,  of a high volume of operations in a relatively short period of time and the investment of large sums in financial instruments such as those defined in the article 4, paragraph 1, punto 17, Directive 2004/39, Are they relevant criteria for assessing whether a "retail customer" within the meaning of that Directive has consumer status?
  4. In examining your own competence, in which the national judge is obliged to determine the application, as appropriate, Articles 17, paragraph 1, letter C), the 7, punto 2, of Regulation No. 1215/2012, Can or should you consider, as a remedy against the stipulation of allegedly abusive clauses within the meaning of the Directive 93/13, the substantive law grounds alleged by the plaintiff - this is, exclusively tort liability—, to which the material law determined by Regulation No. 864/2007, or the condition of consumer that the plaintiff eventually presents implies that the grounds of material law of his claim are irrelevant?»

The CJEU's response

The Court of Justice resolved the first three questions together. Reinterprets them as follows:

"The referring court asks, essentially, if the item 17, paragraph 1, of Regulation No. 1215/2012 must be interpreted as meaning that a natural person who, under a contract such as a CFD entered into with a financial company, carries out financial operations through the aforementioned company, can be described as "consumer", within the meaning of that provision, and if it is relevant, for the purposes of that rating, take into account factors such as the fact that this person has carried out a high volume of operations in a relatively short period of time or that he has invested large sums in them, or that person is a "retail customer", within the meaning of Article 4, paragraph 1, punto 12, of Directive 2004/39″.

The jurisprudence of the Court of Justice, establishes that the consumer concept Art. 17 paragraph 1 n º of Reglamento 1215/2012 when three requirements are met:

1.-A part has the status of consumer and acts outside its professional activity.

2.- The consumer contracts with a professional.

3.- The contract belongs to one of the categories included in the section 1 letters to) a c), Item 17.

As already indicated in the judgment of 3 October 2019 in Case C-208/18, the consumer protection regime must apply to contracts concluded outside of any professional activity or purpose.

CFD contracts between a natural person and a financial company fall within the scope of the articles 17 a 19 n º of Reglamento 1215/2012.

Also, Article 17 paragraph 1 of this Regulation, does not require a particular behavior on the part of the consumer to consider himself alien to his professional activity. As indicated by the Court of Justice in the judgment of 2 October 2019 in Case C-208/18:

“The Court of Justice deduced from this that factors such as the value of operations carried out under CFD contracts, the importance of the risks of financial losses involved underwrite such contracts, the eventual knowledge or experience of a person in the financial instruments sector or even their active behavior in carrying out such operations are lacking, in principle, of relevance (see, in this sense, Case 3 October 2019, Petruchová, C‑208/18, EU:C:2019:825, paragraph 59).

The same can be said of the fact that the consumer has carried out a high volume of operations in a relatively short period of time or that he has invested large sums in them. ”

For the purposes of qualifying a person as a consumer, the fact that such person is a “retail customer” is irrelevant.

Ultimately, the CJEU answers the first to third questions in the following sense:

“El artículo 17, paragraph 1, del Reglamento (EU) n.º 1215/2012 European Parliament and Council, of 12 December 2012, relating to jurisdiction, recognition and enforcement of judicial decisions in civil and commercial matters, debe interpretarse en el sentido de que a natural person who, under a contract such as a financial difference agreement concluded with a financial company, performs financial operations through the aforementioned company can be classified as "consumer", in the sense of said provision, if the conclusion of the aforementioned contract is not part of that person's professional activity, circumstance that corresponds to verify the referring court verify. For the purposes of this rating, on the one hand, factors such as the fact that this person has carried out a high volume of operations in a relatively short period of time or has invested large sums in them are lacking, as such, in principle, of relevance and, on the other hand, the fact that the same person is a "retail customer", within the meaning of Article 4, paragraph 1, punto 12, of Directive 2004/39 / EC of the European Parliament and of the Council, of 21 April 2004, on financial instrument markets, amending Council Directives 85/611 / EEC and 93/6 / EEC and Directive 2000/12 / EC of the European Parliament and of the Council and repealing Council Directive 93/22 / EEC, lacks, as such, in principle, of relevance. ”

With regard to the fourth preliminary question concerning competition, AU's claim against RI was based on national provisions relating to consumer protection, as the provider's obligation to report, to advise and warn consumers, before the conclusion of the contract, on the services provided and the risks thereof. Its purpose was the declaration of responsibility of the professional for breach of pre-contractual obligations to the consumer. Accordingly, Chapter II of Regulation nº 1215/2012 it is the applicable one and the Courts of Romania were competent. The CJEU answers the fourth question by indicating:

“Regulation No. 1215/2012 debe interpretarse en el sentido de que, for the purposes of determining the competent court, a criminal liability action brought by a consumer falls under Chapter II, section 4, of that Regulation if it is inextricably linked to a contract actually concluded between such consumer and the professional, circumstance that corresponds to verify to the national court.”

Conclusion

If investing in financial instruments is not part of a professional activity, for much risk, volume or number of operations carried out, the client acts as a consumer and its protective regulations must be applied.

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