Case law Developments in PIL Views and comments

CJEU Rules on “Implied Waiver” of Consumer Status under Brussels I bis

On 9 March 2022, the CJEU ruled on the concept of “consumer” under Article 17(1)(c) of Brussels I bis Regulation (Wurth Automotive, Case C-177/22).

According to the CJEU, national court may take into account the “impression” created by a person’s conduct towards the other contracting party in order to deny the former consumer status. Behaving like a trader may therefore lead to the consumer being deprived of his/her procedural protection provided by Brussels I bis Regulation, Section 4. Although this solution is already found in the Gruber judgment (paras 51-52), the facts of this new case are quite different. It is therefore questionable whether the analogical reasoning followed by the Court is fully justified.

Facts and Issue

A person, domiciled in Austria bought a second-hand car over the Internet from a German seller. In practice, however, she had asked her partner, a provider of an online car sales platform, to handle the purchase for her. The contract mentioned that it was concluded between the buyer, described as a “trader” and the German seller. The buyer did not ask for any modification. A few months later, she brought an action for warranty of hidden defects against the German seller before the Austrian court.

Did the Austrian court have jurisdiction based on the consumer’s domicile pursuant to Article 18(1) Brussels I bis Regulation?  And to begin with, was there a “consumer” at all?

The German seller argued that the contract was a B2B contract and raised an objection to international jurisdiction. The Austrian court referred the matter to the Court of Justice to find out how to overcome the factual uncertainties surrounding the characterisation of the “consumer” in this case.

Classical Criterion: Private Consumption’s Purposes of the Contract

As recalled by the CJEU, the concept of consumer within the meaning of Article 17(1) of the Brussels I bis Regulation is based on the purposes (present or future) pursued by the conclusion of the contract. These purposes must be (for the most part) private or, put differently, for non-business use. The rest, in particular the professional status of the person (i.e., whether the person is employed or self-employed) does not matter. In the present case, the buyer was the regular web designer for her partner’s online car sales platform. The only question to be analysed by the referring court here is therefore whether this car was purchased for personal purposes or (mainly) for the pursuit of a professional activity.

Proof of the Private Consumption’s Purposes: From Objective Assessment to Behavioural Analysis

In order to ascertain the private purposes of the contract, the national court must first and foremost rely on the evidence which objectively results from the case in question. But what if this evidence is insufficient? According to the CJEU, the national court may take into account more subjective, “psychological” elements, by checking whether the alleged consumer’s behaviour gave the impression to the other party (i.e. the trader) that she was acting for business purposes.

Consequently, the Court of justice held that

even if the contract does not as such serve a non-negligible business purpose, … the individual must be regarded, in view of the impression he or she has given to the other party acting in good faith, as having renounced the protection afforded by those provisions (para 32, by analogy, Gruber, C‑464/01, para 53).

Hence, a B2C dispute can be removed from Section 4 of Brussels I bis Regulation by a form of “implied waiver” by the consumer.

How to Assess the Behaviour of the Customer?

In order to assess the behaviour of the buyer, the national court must rely on a body of evidence showing “the impression created by that person’s conduct on the other contracting party” (Section 2 of the operative part). In the case at hand, this impression could be revealed (inter alia) by a lack of a reaction on the part of the person relying on the status of consumer to the terms of the contract designating him or her as a trader, by the fact that she had concluded the contract through a professional intermediary in the field of covered by the contract (her partner) or by the fact that, after the contract was signed, the latter had asked the seller about the possibility of mentioning the VAT on the invoice (Section 2 of the operative part).

In addition, where it proves impossible to determine certain circumstances surrounding the conclusion of a contract, the national court must assess the evidentiary value of the available information “in accordance with the rules of national law, including whether the benefit of the doubt must be given to the person relying on the status of consumer” (Section 3 of the operative part). This is a classic expression of procedural autonomy in EU law. Even though the “consumer” within the meaning of Article 17 of the Brussels I bis Regulation is an autonomous concept of EU law, the national court’s assessment shall be based on the lex fori (within the limits of the principles of equivalence and effectiveness).

Critical Assessment

In contrast to the Gruber judgment, the present case did not involve a contract with a twofold private and professional purpose. It was thus not a question of assessing the “non-negligible business purpose” of the contract in order to exclude consumer procedural protection. Therefore, the consideration of the behaviour of the consumer acting as a trader does not have the same scope here as in Gruber. The CJEU is certainly aware of this since it insists on the “good faith” of the professional contractual party as a counterbalance (paras 34 and 37). The good faith of the other party is a necessary condition for denying the consumer his/her procedural protective regime, whereas in theory he/she should be entitled to it in the case of a contract concluded for entirely private purposes.

The implicit reason why the consumer may lose procedural protection is that traders need legal certainty in contractual matters. Either they are dealing with a consumer and they know (and can anticipate) that the consumer enjoys a favourable regime. Or they are doing business with a partner of their own category and party autonomy fully applies. Vis-à-vis a careless or negligent consumer who, inter alia, did not deny entering into the contract as a “trader”, it can be considered that his/her professional co-contracting party was not able to anticipate and integrate the “risk” of concluding a contract with a weaker party.

From a rational point of view, the solution can be approved. But based on the functional logic of consumerism, offering a derogatory regime to protect the weaker party, one may have a doubt. Was the poker player in the judgment Personal Exchange International (analysed here) more of a consumer than this buyer of a second-hand car? The methodology provided by the Court of Justice is not easy to handle and implies a tricky case-by-case analysis. It is therefore not sure that in the end legal certainty will really be strengthened.

Marion is law professor at Artois University (France)