Friday, 4 September 2015

Status of a person concluding linked contracts may differ per contract - CJEU in Costea (C-110/14)

3 September 2015: CJEU judgment in Costea (C-110/14)

As we have mentioned in our description of the AG Cruz Villalón's opinion to Costea (see To be or not to be...), an interesting issue arose in this case that could allow the Court to elaborate on the application of the notion of consumer in mixed-purpose contracts, where a natural party concludes a contract partly for purposes outside of his profession and partly for purposes relating to his profession. However, in its judgment issued yesterday the Court manages not to address this topic.

The most interesting paragraph of this judgment is par. 21 where the CJEU clarifies that "the concept of 'consumer' (...) is objective in nature and is distinct from the concrete knowledge the person in question may have, or from the information that person actually has". It is for the national court to determine, of course, based on all circumstances of a given case whether Mr Costea was acting for purposes outside of his legal profession. If a lawyer, like Mr Costea, concludes a contract that "does not relate to the activity of his firm, is not linked to the exercise of the lawyer's profession" then he could be seen as a weaker contractual party, i.e. a consumer. (Par. 26) This assessment may not be disputed by the lawyer-consumer displaying a high level of technical knowledge. (Par. 27) What should not be taken into account in this estimation is the fact that the loan contract concluded by Mr Costea was secured by a mortgage taken out by his law firm on the building, in which the law firm is located. (Par. 28) While determining the status of a person in the main agreement (credit contract), it is irrelevant what party concluded the ancillary agreement (mortgage). "In a case such as that at issue in the main proceedings, the categorisation, as a consumer or as a seller or supplier, of the lawyer in the context of his taking out a mortgage cannot, consequently, determine his status under the main credit agreement." (Par. 29) 

The CJEU takes a different approach to this case than the AG Cruz Villalón. The latter considered that even if the lawyer took out a loan for personal purposes, the fact that this loan was secured with a mortgage on his professional property and was concluded in a professional capacity, could have signified a mixed purpose contract. The CJEU distinguishes between the main and the ancillary contract and demands that the status of a person concluding these contracts was assessed separately. Linked contracts could, therefore, be concluded by the same party acting in two different capacities in each of them: personal and professional. This link between the contracts should, therefore, not influence the assessment of a status of a person in each of the contracts.

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