Yesterday,
the CJEU issued a judgment in the case C-208/18
Jana Petruchová v FIBO Group Holdings Limited (the case has not yet been published
in English; the link refers to the French version). The case concerns an individual
contract for difference (CfD) concluded between the claimant and the defendant
and, particularly, the definition of a ‘consumer’ in the context of financial
investments under Article 17(1) of the Brussels Regulation. The preliminary question
referred to the CJEU was whether Article 17(1) of the Brussels Regulation
should be interpreted as meaning that a person who engages in the trade of
foreign currency exchange is a consumer or whether the individual’s financial
knowledge and expertise, the complex nature of the contract, and the risks
involved determine that that person is not a consumer. A summary of the facts
of the case and an analysis of AG Tanchev’s opinion can be found here.
It
is noteworthy that the defendant never argued that the claimant was acting in
the sphere of her professional activities (para 46). In fact, the claimant was,
at the time of the conclusion of the contract, a university student, which
leads the CJEU to immediately ascertain that the contract was not concluded
within the scope of the claimant’s professional activities. Instead, the argument
is that the professional nature of the contract is not the only criterion that
matters when determining whether a party qualifies as a consumer. However, just
like AG Tanchev, the CJEU rejected this
argument. The CJEU declared that factors such as the amounts involved in the
financial transactions, the risks of financial losses associated with such
contracts, the financial knowledge or expertise that the person might have or
its active engagement in such financial operations are irrelevant in the
qualification of a person as a consumer (para 59). In this sense, the CJEU
reaffirmed that the crucial test is whether the contract relates to the person’s
professional activities or whether the contract’s goal is to satisfy the
individual’s personal needs (para 56).
This
conclusion is not surprising, since the CJEU had already established (for
example, in the Schrems case) that the concept of consumer has an objective
character and that it is not connected with subjective aspects such as the
particular knowledge that the individual has about the object of the contract
(para 55).
Furthermore,
the CJEU concluded that even though the definitions of a ‘consumer’ present in
other EU legislative instruments are interpretively relevant (para 61), the
fact that financial instruments are excluded from the scope of the Rome I
Regulation is irrelevant in this case, since the two Regulations pursue
different goals (para 64). The qualification of an individual as a ‘retail
client’ is also irrelevant for the qualification as a consumer (para 77).
