Yesterday we reported on a case discussing the consumer notion under the Unfair Contract Terms Directive in the context of dual purpose contracts. Interestingly enough, this was not the only ruling on Article 2(b) UCTD issued by the Court on that day. Another one is C-455/21, Lyoness Europe, in which the Court similarly engaged with the consumer notion, although in somewhat different circumstances.
Facts of the case
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Easy case: membership programme
The Court focused on the easier problem arising in the dispute, namely whether a natural person who becomes a member of a scheme allowing certain financial benefits in connection with the purchase of goods and services is a 'consumer' within the meaning of Article 2(b) UCTD. Not surprisingly, the Court concluded that such a person does qualify as a consumer where he or she is acting for purposes which are outside his or her trade, business or profession. Like in case C‑570/21, YYY, on which we reported yesterday, the Court emphasised the nature of the service covered by the contract, which may show the purpose for which that service is being acquired (para. 49). In this context, the Court concluded that a natural person who seeks to benefit from advantageous conditions in the context of the purchase of goods and services for non-commercial purposes cannot lose the status of 'consumer' by the mere fact that he or she derives financial benefits (refunds on purchases, commissions or other promotional advantages) from the participation in the scheme. Joining a club to get deals for your purchases does not make you a trader.
Unanswered questions: dual purpose contracts
The referring court also explicitly asked about the application of Article 2(b) UCTD to dual purpose contracts. The Court considered those questions inadmissible, stating that there was nothing in the preliminary reference to suggest that the case indeed involved such a contract. The conclusion seems justified. But the question also sheds light on the additional dimension of the differentiated interpretation of the consumer notion in contract law and private international law. As we know from case C-191/15, VKI vs. Amazon, a choice of law clause included in standard terms can be considered unfair if it leads the consumer into error by giving him the impression that only the law of that Member State applies to the contract, without informing the consumer that under Article 6(2) of the Rome I Regulation he or she also enjoys the protection of the mandatory provisions of the law that would be applicable in the absence of that term (para. 71). In case of dual purpose contracts, however, the very same person may qualify as a consumer under the UCTD and not qualify as such under Rome I Regulation. How then should a perfectly transparent term be formulated?
