Happy New Year to all our Readers! A couple of posts ago we have commented on the changes that the Compass Banca judgment may bring to the average consumer benchmark (see "Who is the average consumer?..."), although we will need to carefully follow the practical application of this judgment by national courts. Still, it was reassuring for the CJEU to emphasise in para 44 of this judgment that a commercial practice contrary to professional diligence would escape prohibition if it were "only to mislead a very credulous or naïve consumer".
What we failed to find time to comment on last year was a judgment in Zabitoń case (C-347/23) and an opinion of AG Rantos in Arce case (C-365/23); both pertain to the scope of the notion of a consumer.
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| Photo by Madhur Shrimal on Unsplash |
Zabitoń judgment follows the paradigm shifting cases of YYY. (Concept of 'consumer') (see our comment here) and Lyoness Europe (see our comment here). When a married couple, a police offer and a school principal, purchased a residential property with the purpose of leasing it for consideration, the question arose whether they could be considered consumers when entering into a mortgage loan contract to purchase this property. It was clear that they were not planning to use this property for their own accommodation. The Court indicates that they could indeed be considered consumers, provided they purchased a single residential property for such a purpose, as they would then not be acting in the professional capacity in the field of property management (para 32). This judgment clearly discounts consumers' financial gain from a conclusion of a transaction as a factor in the determination of the consumer's (non-)professional capacity (paras 34-35). The Court further confirms then a broad interpretation of the consumer notion in applying substantive consumer protection framework.
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| Photo by Markus Spiske on Unsplash |
This broad interpretation is further confirmed by AG Rantos in his opinion in the case Arce. Here, a teenager, an aspiring basketball player, was represented by their parents, in concluding a contract with a company providing sports development, career support and coaching services. The question was whether this was a B2C contract, considering that the young sportsperson at the moment of its conclusion had not yet begun their professional career and was not employed by any club. There was, however, a clear intention (desire?) of such a professional employment happening soon after the contract's conclusion, which indeed then occurred. AG Rantos draws a distinction between the consumer notion's scope in procedural and substantive matters. While in cases concerning procedural consumer rights, such as Wurth Automotive (C-177/22) the notion of a consumer is interpreted narrowly and, specifically, "current and future purposes of the conclusion of the contract" are considered, this is different when substantive consumer rights are to be applied. AG Rantos recognises this difference and consequently advises the CJEU to consider the teenager a consumer as "at the time when the contract at issue was concluded, the young sportsperson was not a professional" (para 57). After all, Article 4(1) Unfair Contract Terms Directive requires assessment of unfairness at the date the contract was concluded. "Any other more 'dynamic' interpretation of the status of 'consumer', consisting in maintaining that that status may be lost over time, would run counter to the very wording of that provision" (para 58).
