Case law Developments in PIL

The CJEU Does not Keep a Poker Face and Goes All In on Consumer Protection

On 10 December 2020, the CJEU decided in the case of A. B. and B. B. v Personal Exchange International Limited whether and under what circumstances a player in an online poker game can be considered a “professional” and accordingly fall outside the scope of the consumer provisions of the Brussels I and Brussels I bis Regulation.

Facts

B. B., a natural person living in Slovenia, and Personal Exchange International Limited (PEI), a company operating a platform offering online poker on a cross-border basis inter alia in Slovenia, entered into a contract that allowed B. B. to play poker on the platform. The contract contained a jurisdiction clause which conferred jurisdiction on the courts of Malta.

Between March 2010 and May 2011, B. B. spent a daily average of 9 hours on the game and earned no less than EUR 227.000 in just over one year. In 2011 PEI froze B. B.’s account and retained the money in his account.

After being sued by B. B. in Slovenia, PEI refused to consider him a consumer and insisted on the validity of the choice-of-court clause contained in the contract.  PEI thus denied the jurisdiction of the Courts in Slovenia. The Vrhovno sodišče, the highest court of Slovenia, referred the question of the international jurisdiction of the Slovenian courts over the case to the CJEU.

Issue

The legal issue was therefore whether a person can be regarded as a consumer in the sense of Art 15 et seq. Brussel I Regulation if the person has specialised knowledge and skills in the area, spends a considerable amount of time with the subject matter of the contract and derives a significant profit from it.

Holding and Rationale

In its judgment, the CJEU first clarifies that the Brussels I Regulation applies on the basis of temporal scope under  Art 81 Brussels Ibis (para 3).

Regarding characterisation as a consumer or professional, the CJEU stresses that neither the profits made, nor the regularity with which the game was played, nor the knowledge or expertise of the player would be decisive as such (para 49). Instead, the Court of Justice highlights that B.B. did not offer any goods or services to third parties and had not officially registered its activity (para 48). With these guidelines in mind, the CJEU left the final characterisation of the B.B.’s status to the national court (para 49).

Assessment

The judgment is in line with the CJEU’s previous case law, such as the decision in Petruchova and Schrems. The Court of Justice rightly stresses the need for legal certainty, which could be undermined if the characterisation as a consumer were to depend on variables such as the profits made, the time spent on an online game or the knowledge or expertise of the player.

It is equally easy to understand why the Court of Justice introduced the criterion of offering goods and services to third parties for qualification as a professional. More contestable is the criterion of registration of activities by the player: whether somebody is to be considered a professional or a consumer should not be made subject to his or her own decision to register. As a result of the decision, it will be extremely hard, if not impossible, to ever consider an online poker player a professional. Hold’em all!

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