OPINION OF ADVOCATE GENERAL
TANCHEV
delivered on 11 April 2019(1)
Case C‑208/18
Jana Petruchová
v
FIBO Group Holdings Limited
(Request for a preliminary ruling from the Nejvyšší soud (Supreme Court, Czech Republic))
(Judicial cooperation in civil matters — Regulation (EU) No 1215/2012 — Jurisdiction over consumer contracts — ‘Consumer’ — Natural person engaged in the trade of foreign currencies on the international exchange market through a brokerage company — Consistency with the notion of consumer under Regulation (EC) No 593/2008 — Retail client within the meaning of Directive 2004/39/EC)
1. In the present case, the Court is called upon to interpret the notion of a ‘consumer’ within the meaning of Article 17(1) of Regulation (EU) No 1215/2012 (‘the Brussels Ia Regulation’) (2) in the context of transactions carried out on the international currency exchange market (‘the FOREX market’).
2. By way of derogation from Article 4(1) and Article 7(1) of the Brussels Ia Regulation, (3) Article 18(1) of that regulation provides that a consumer within the meaning of Article 17(1) thereof may sue the other party to a contract, not only in the courts of the Member State where that party is domiciled, but also in the courts for the place where the consumer is domiciled. Articles 17, 18 and 19 of the Brussels Ia Regulation, which make up Section 4 of Chapter II thereof, entitled ‘Jurisdiction over consumer contracts’, serve to ensure adequate protection for the consumer, as the party deemed to be economically weaker and less experienced in legal matters than the other, commercial, party to the contract. (4)
3. The question before the Court is whether a natural person which engages in trade on the FOREX market must be regarded as a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation or whether, by reason of the knowledge and expertise required to engage in that trade, of the complex and atypical nature of the contract at issue, and of the risks incurred, that person cannot be considered a consumer, so that he falls outside the scope of the section affording protection referred to above.
I. Legal context
A. The Brussels Ia Regulation
4. Article 17 of the Brussels Ia Regulation provides:
‘1. In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Article 6 and point 5 of Article 7, if:
(a) it is a contract for the sale of goods on instalment credit terms;
(b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or
(c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the Member State of the consumer’s domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract falls within the scope of such activities.
…
3. This Section shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation.’
B. The Rome I Regulation
5. Article 6 of Regulation (EC) No 593/2008 (‘the Rome I Regulation’), (5) entitled ‘Consumer contracts’, provides:
‘1. Without prejudice to Articles 5 and 7, a contract concluded by a natural person for a purpose which can be regarded as being outside his trade or profession (the consumer) with another person acting in the exercise of his trade or profession (the professional) shall be governed by the law of the country where the consumer has his habitual residence, provided that the professional:
(a) pursues his commercial or professional activities in the country where the consumer has his habitual residence, or
(b) by any means, directs such activities to that country or to several countries including that country,
and the contract falls within the scope of such activities.
2. Notwithstanding paragraph 1, the parties may choose the law applicable to a contract which fulfils the requirements of paragraph 1, in accordance with Article 3. Such a choice may not, however, have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law which, in the absence of choice, would have been applicable on the basis of paragraph 1.
…
4. Paragraphs 1 and 2 shall not apply to:
…
(d) rights and obligations which constitute a financial instrument and rights and obligations constituting the terms and conditions governing the issuance or offer to the public and public take-over bids of transferable securities, and the subscription and redemption of units in collective investment undertakings in so far as these activities do not constitute provision of a financial service;
…’
C. Directive 2004/39
6. Article 4(1) of Directive 2004/39/EC (6) provides:
‘For the purposes of this Directive, the following definitions shall apply:
…
(10) “Client” means any natural or legal person to whom an investment firm provides investment and/or ancillary services;
(11) “Professional client” means a client meeting the criteria laid down in Annex II;
(12) “Retail client” means a client who is not a professional client;
…’
II. The facts, the main proceedings and the question referred for a preliminary ruling
7. On 2 October 2014, Ms Petruchová, residing in Ostrava (Czech Republic), and FIBO Group Holdings Ltd (‘FIBO’), a brokerage company established in Limassol (Republic of Cyprus), entered into a contract entitled ‘Terms of Business’ (‘the Framework Agreement’). The purpose of the Framework Agreement was to enable Ms Petruchová to make transactions on the FOREX market by placing orders for the purchase and sale of the base currency, which FIBO would carry out through its online trading platform. To that end, the Framework Agreement provided for the conclusion of what are referred to as individual contracts for difference between Ms Petruchová and FIBO.
8. A contract for difference (‘CfD’) is a financial instrument, the purpose of which is to buy, then sell a base currency (in the present case, United States dollars (USD)), and make a profit on the difference in the exchange rates applicable, respectively, to the purchase and the sale of the base currency, in relation to the quote currency (which is, in the present case, Japanese yens (JPY)). Although it is possible to trade on the FOREX market with one’s own funds, Ms Petruchová took advantage of the possibility of trading in what are referred to as ‘lots’, with one lot being worth USD 100 000, by using the so-called ‘leveraging effect’. This enabled her to trade with a greater amount of funds than she had at her disposal. (7) When buying the base currency (USD) for the quote currency (JPY) at the current buying rate, that is, when ‘opening the position’, Ms Petruchová was granted a loan from FIBO in the amount required to make the purchase. When ‘closing the position’, that is, when making the reverse operation by selling the purchased amount of the base currency (USD) for the quote currency (JPY) at the current selling rate, Ms Petruchová paid the loan back to FIBO.
9. Clause 30 of the Framework Agreement provided that, in any dispute arising between the parties, the Cypriot courts were to have international jurisdiction.
10. On 3 October 2014, Ms Petruchová entered into a CfD with FIBO (‘the CfD at issue’). At 15:30:00 she placed an order to buy 35 lots at an exchange rate of USD/JPY 109.0000. The trading system promptly informed her that the up-to-date exchange rate was USD/JPY 109.0500. She accepted this and confirmed the order to buy.
11. However, long queues of orders built up in FIBO’s trading system as a result of a jump in the rate of the USD against quote currencies, following release of information on a positive trend in employment indicators for the non-agricultural sector of the United States of America. Consequently, the required amount of USD 3 500 000 was purchased at 15:30:16, not 15:30:00, the purchase rate then being USD/JPY 109.4000, so that the purchase price was JPY 382 900 000.
12. At 15:48:11 on the same day, Ms Petruchová closed the position by placing an order with FIBO to sell the purchased amount of USD 3 500 000. The selling rate was USD/JPY 109.5600, so that the selling price was JPY 383 460 000. Ms Petruchova repaid the loan which FIBO had granted her in the amount of JPY 382 900 000. Therefore, she made a gross profit from this transaction amounting to JPY 560 000, valued at USD 4 081.33.
13. Had Ms Petruchová’s order to purchase the base currency been executed in a timely manner, not with a delay of 16 seconds, she would have made a profit of JPY 1 785 000, valued at USD 13 009.23, and thus her profit would have been three times higher.
14. Consequently, on 12 October 2015, Ms Petruchová brought an action before the Krajský soud v Ostravě (Regional Court, Ostrava, Czech Republic), alleging unjust enrichment of FIBO.
15. The Krajský soud v Ostravě (Regional Court, Ostrava) discontinued the proceedings on the ground that it lacked international jurisdiction. According to the Krajský soud v Ostravě (Regional Court, Ostrava), Ms Petruchová could not be regarded as a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation since she did not enter into the CfD at issue in order to meet her private needs, she had the knowledge and the expertise required to conclude CfDs, and she had been warned that CfDs were not an appropriate instrument for ‘retail clients’ within the meaning of Directive 2004/39. In any event, in the view of the Krajský soud v Ostravě (Regional Court, Ostrava), Article 17(1) of the Brussels Ia Regulation had to be interpreted in the same manner as Article 6(1) of the Rome I Regulation, and financial instruments were excluded from the scope of the latter provision. Therefore, the jurisdiction clause in the Framework Agreement was valid, so that the courts of Cyprus, not those of the Czech Republic, had jurisdiction.
16. The decision of the Krajský soud v Ostravě (Regional Court, Ostrava) was upheld on appeal by the Vrchní soud v Olomouci (High Court, Olomouc, Czech Republic).
17. Ms Petruchová lodged an appeal on a point of law against that judgment before the Nejvyšší soud (Supreme Court, Czech Republic).
18. The Nejvyšší soud (Supreme Court) considers that the Czech lower courts erred in their interpretation of the notion of consumer within the meaning of the Brussels Ia Regulation. According to the Nejvyšší soud (Supreme Court), first, a retail client within the meaning of Directive 2004/39 is not necessarily a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation. Second, in the view of the Nejvyšší soud (Supreme Court), the latter provision should not be interpreted in the same manner as Article 6 of the Rome I Regulation as the former provision does not expressly exclude financial instruments. Third, the Nejvyšší soud (Supreme Court) states that, according to case-law, it is irrelevant, in order to determine whether a person must be regarded as a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation, whether that person possesses specific knowledge and expertise, whether the contract at issue is complex or atypical, whether there are risks involved in the conclusion of that contract and whether the person had been warned of such risks.
19. Consequently, the Nejvyšší soud (Supreme Court) referred the following question to the Court for a preliminary ruling:
‘Is Article 17(1) of [the Brussels Ia Regulation] to be interpreted as meaning that a person, such as the applicant in the main proceedings, who engages in trade on [the FOREX market], on the basis of actively placing his own orders, although through a third party who is professionally engaged in that trade, must be regarded as a consumer under that provision?’
20. Written observations were submitted by Ms Petruchová, the Czech Republic, the Republic of Poland and the European Commission.
21. Ms Petruchová, FIBO, the Czech Republic and the Commission presented oral argument at the hearing on 31 January 2019.
III. Analysis
22. The referring court essentially asks the Court if a person who concludes an agreement with a brokerage company, whereby the latter carries out individual transactions on the FOREX market pursuant to the former’s orders for purchase and sale, must be regarded as a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation.
23. I will make a preliminary remark concerning the legal force of the jurisdiction clause contained in the Framework Agreement. Then, first, I will consider the sole criterion provided for by Article 17(1) of the Brussels Ia Regulation for classification as a consumer, namely, the purpose of the contract. Second, I will examine whether other criteria may apply in order to determine whether a person should be considered a consumer within the meaning of that provision. Third, I will address the question whether Article 17(1) of the Brussels Ia Regulation should be interpreted in a manner consistent with Article 6 of the Rome I Regulation, which does not apply to financial instruments. Fourth, I will examine whether account should be taken, in order to determine whether a person should be regarded as a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation, of the fact that he is a ‘retail client’ within the meaning of Article 4(1)(12) of Directive 2004/39.
A. Preliminary remark
24. At the outset, I should point out that, as the referring court notes, if Ms Petruchová were to be regarded as a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation, it would follow that Clause 30 of the Framework Agreement has no legal force.
25. Indeed, by conferring exclusive jurisdiction on the courts of Cyprus, that clause deprives Ms Petruchová of the right under Article 18(1) of the Brussels Ia Regulation to bring proceedings before the courts of the Member State where she is domiciled, namely, the Czech Republic.
26. According to Article 19 of the Brussels Ia Regulation, ‘the provisions of [Section 4 of Chapter II of that regulation] may be departed from only by an agreement’: (1) ‘which is entered into after the dispute has arisen’; (2) ‘which allows the consumer to bring proceedings in courts other than those indicated in this Section’; or (3) ‘which is entered into by the consumer and the other party to the contract, both of whom are … domiciled or habitually resident in the same Member State, and which confers jurisdiction on the courts of that Member State’.
27. In the present case, as noted by the referring court, Clause 30 of the Framework Agreement falls outside the scope of Article 19(1), (2) and (3) of the Brussels Ia Regulation.
28. First, that clause falls outside the scope of Article 19(1) of that regulation as the Framework Agreement was concluded on 2 October 2014, that is, before Ms Petruchová brought an action before the Krajský soud v Ostravě (Regional Court, Ostrava) on 12 October 2015.
29. Second, Clause 30 of the Framework Agreement falls outside the scope of Article 19(2) of the Brussels Ia Regulation. Indeed, in my opinion, that provision must be understood as meaning that the agreement must confer jurisdiction over the action brought by the consumer which is in addition to that provided for under Article 18(1) of that regulation. Any other interpretation of Article 19(2) of the Brussels Ia Regulation would be inconsistent with its wording, which ‘allows’, but does not ‘require’, the consumer to bring proceedings in courts other than those indicated in Article 18(1) of that regulation. (8) In the present case, as mentioned in point 25 above, Clause 30 of the Framework Agreement deprives Ms Petruchová of the right to bring proceedings before the courts of a Member State indicated in that provision.
30. Third, that clause falls outside the scope of Article 19(3) of the Brussels Ia Regulation as Ms Petruchová and FIBO are not domiciled or established in the same Member State.
31. Consequently, Clause 30 of the Framework Agreement is contrary to Article 19 of the Brussels Ia Regulation. It follows that, pursuant to Article 25(4) of that regulation, that clause has no legal force.
32. However, as mentioned in point 24 above, this is only if Article 19 of the Brussels Ia Regulation is applicable, that is, if Ms Petruchová is regarded as a consumer within the meaning of Article 17(1) of that regulation. Consequently, the referring court seeks guidance regarding classification of the applicant in the main proceedings as a consumer.
B. Was the contract concluded for a purpose outside the person’s trade or profession?
33. Article 17(1) of the Brussels Ia Regulation applies if three conditions are met: first, a party to a contract is a consumer who is acting in a context which can be regarded as being outside his trade or profession; second, the contract between such a consumer and a professional has actually been concluded; and, third, such a contract falls within one of the categories referred to in Article 17(1)(a) to (c) of that regulation. All those conditions must all be fulfilled for a consumer to bring suit in their own jurisdiction. (9)
34. As mentioned in point 22 above, the question referred to the Court in the present case relates to the first condition.
35. I note that Article 17(1) of the Brussels Ia Regulation does not define the notion of a consumer. That provision only requires that a person, the ‘consumer’, concludes a contract ‘for a purpose which can be regarded as being outside his trade or profession’. No other provision of that regulation provides further details in that respect.
36. According to settled case-law, the concepts used in the Brussels Ia Regulation, in particular those which appear in Article 17(1) thereof, must be interpreted independently, by reference principally to the general scheme and objectives of that regulation, in order to ensure that it is applied uniformly in all the Member States. (10)
37. The notion of a consumer for the purposes of Articles 17 and 18 of the Brussels Ia Regulation must be strictly construed, reference being made to the position of the person concerned in a particular contract, having regard to the nature and objective of that contract and not to the subjective situation of the person concerned, since the same person may be regarded as a consumer in relation to certain transactions and as an economic operator in relation to others. In consequence, only contracts concluded outside and independently of any trade or professional activity or purpose, solely for the purpose of satisfying an individual’s own needs in terms of private consumption, are covered by the special rules laid down by the regulation to protect the consumer as the party deemed to be the weaker party. Such protection is, however, unwarranted in the case of contracts for the purpose of a trade or professional activity. (11)
38. In the present case, at the oral hearing, the representative of the applicant in the main proceedings indicated that, at the time of conclusion of the Framework Agreement and of the CfD at issue, Ms Petruchová was a university student and that she was also working part time. She contends that she did not conclude the CfD for a purpose within her (part-time) profession. None of the parties alleges that she did. Nor is there any indication to that effect in the request for a preliminary ruling. Consequently, although this is a question of fact, which lies within the jurisdiction of the referring court, it seems to me that Ms Petruchová should be regarded as a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation.
39. However, according to the request for a preliminary ruling, the Krajský soud v Ostravě (Regional Court, Ostrava) was of the opinion that the specific knowledge and expertise required to trade on the FOREX market, the amount of the sums invested, and the risks incurred preclude classification as a consumer. The referring court does not share that opinion. (12) I will now turn to address that issue.
C. Should account be taken of other criteria in order to determine whether a person must be regarded as a consumer?
40. The question before the Court of Justice is whether a person who carries out transactions on the FOREX market may be denied the status of a consumer by reason of the knowledge and the expertise required to engage in such trades, the value of the transaction, the fact that the person is actively placing his own orders, the risks incurred on the FOREX market, and the number and frequency of the transactions carried out.
41. Ms Petruchová contends that no specific knowledge is required for the conclusion of CfDs, and that no account should be taken of the amount of the funds invested, or the volume and frequency of the transactions carried out. FIBO submits that Ms Petruchová should not be regarded as a consumer since the conclusion of CfDs is a commercial activity. The Czech Republic argues that it is irrelevant, in order to determine whether a person must be considered a consumer, whether he has knowledge in the field concerned or whether he actively places orders. The Republic of Poland notes that the conclusion of CfDs involves significant risks and that no account should be taken, in order to classify a person as a consumer, of his knowledge of financial matters or of the fact that he seeks to make profit and to satisfy needs other than his daily needs. In the Commission’s view, it is irrelevant whether the person has knowledge in the field concerned or actively places orders, but consideration should be given to the number and frequency of the transactions carried out.
42. In my opinion, the question in point 40 above should be answered in the negative. I will set out below the reasons why I have come to that conclusion.
43. First, for the sake of clarity, I take the view that a person who concludes a CfD cannot be denied the status of a consumer on the sole ground that the conclusion of CfDs requires specific knowledge and expertise. This would be tantamount to excluding CfDs from the scope of Articles 17, 18 and 19 of the Brussels Ia Regulation. However, it is beyond question that financial instruments such as CfDs fall within the scope of those provisions. Indeed, pursuant to Article 17(3) of that regulation, the only contracts excluded from the scope of Articles 17, 18 and 19 of the Brussels Ia Regulation are certain types of transport contracts. It follows that, failing any express provision to the contrary, financial instruments fall within the scope of those provisions. (13) Besides, in Kolassa, the Court found that the acquirer of a bearer bond could be regarded as a consumer within the meaning of Article 15(1) of the Brussels I Regulation. (14)
44. Second, in so far as it is queried whether Ms Petruchová should be denied the status of a consumer by reason of the fact that, as her representative stated at the oral hearing, she informed FIBO that she had three years of experience in the relevant field, I should point out that knowledge and experience are irrelevant in order to determine whether a person is a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation.
45. Indeed, for a person to be considered a consumer within the meaning of that provision, it is sufficient that he concludes a contract for a purpose outside his trade or profession. Article 17(1) of the Brussels Ia Regulation does not lay down additional conditions. It does not require evidence that, in a particular case, the person has no knowledge in the field concerned, so that he needs the protection afforded to consumers by Articles 17, 18 and 19 of that regulation. (15)
46. This is consistent with the case-law cited in point 37 above, pursuant to which, in order to determine whether a person must be regarded as a consumer, reference must be made to the nature and objective of the contract, not to the subjective situation of the person concerned. In taking account of a person’s knowledge in a particular field, one would be referring to the subjective situation of that person under the contract.
47. This is also consistent with the judgment in Schrems, where the Court held that the notion of a consumer is ‘distinct from the knowledge and information that the person concerned actually possesses’. (16) Therefore, the expertise of Mr Schrems in the field of digital social networks could not deprive him of his status as a consumer within the meaning of Article 15(1) of the Brussels I Regulation (now Article 17(1) of the Brussels Ia Regulation). (17)
48. Finally, this is consistent with the case-law pertaining to the notion of a consumer within the meaning of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. (18) That notion is defined in almost identical terms in Article 2(b) of that directive (19) and Article 17(1) of the Brussels Ia Regulation. Therefore, in Schrems, the Court referred to the judgment in Costea, which was delivered for the interpretation of Article 2(b) of Directive 93/13. (20) In Costea, the Court held that the notion of a consumer within the meaning of Article 2(b) of Directive 93/13 is ‘objective in nature and is distinct from the concrete knowledge the person in question may have, or from the information that person actually has’, so that a lawyer, who displays a high level of technical knowledge, may nonetheless be regarded as a consumer. (21)
49. Any other solution would, in my view, undermine the objective of the system established by Articles 17, 18 and 19 of the Brussels Ia Regulation, which is to ensure adequate protection for the consumer. According to case-law, the consumer is protected, not only as the party ‘less experienced in legal matters than the other, commercial, party to the contract’, but also as the party ‘deemed to be economically weaker’ than that other party. (22)
50. Third, it cannot be argued that classification as a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation should be denied on the ground that the transaction carried out under the contract exceeds a certain amount. Had this been the intention of the EU legislature, that provision would lay down a threshold for the value of the contract.
51. In the absence of an express value threshold, a finding to the effect that a person loses the status of a consumer by reason of the large amount of the funds invested on the FOREX market or of the significant profit made would be inconsistent with the principle of legal certainty. In that respect, I am of the opinion that, pursuant to recital 15 of the Brussels Ia Regulation, the rules of jurisdiction should be highly predictable. According to case-law, that regulation pursues an objective of legal certainty which consists in strengthening the legal protection of persons established in the European Union, by enabling the applicant to identify easily the court in which he may sue and the defendant reasonably to foresee before which court he may be sued. (23) Should Articles 17, 18 and 19 of the Brussels Ia Regulation not apply when significant funds are invested, the investor would not be able, in the absence of an express threshold, to foresee whether he will be afforded the protection of those provisions. Should Articles 17, 18 and 19 of the Brussels Ia Regulation not apply when a large profit is made, the situation of the investor would be even more uncertain given that he does not know, when placing an order on the FOREX market, whether he will make a profit and, if so, how much. (24)
52. Furthermore, I consider that a person should not lose the status of a consumer if the profit made on the FOREX market accounts for the greatest part of his income. This seems hardly consistent with the principle of equal treatment as this could lead to the situation where, should a millionaire and a middle-class investor place an order of the same amount on the FOREX market, and should they make the same profit, the former would be regarded as a consumer whereas the latter would be denied that status.
53. Fourth, it is irrelevant that the person actively places his own orders on the FOREX market. It is true that, as the referring court states, in Kolassa, (25) where the contract under examination was for the acquisition of bearer bonds, the applicant did not place orders as Ms Petruchová did. (26) However, Article 17(1) of the Brussels Ia Regulation does not require that the consumer acts in any particular way. It does not require that the consumer remains passive, or that the other party is responsible for the performance of the contract.
54. Fifth, the risks involved in the conclusion of CfDs cannot, in my opinion, preclude classification as a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation.
55. Again, that provision does not require that the consumer acts in any particular way. It does not require him to exercise due care and act prudently.
56. Moreover, risks are inherent in the conclusion of CfDs. Therefore, should classification as a consumer be denied on account of the risks taken, CfDs would systematically fall outside the scope of Article 17(1) of the Brussels Ia Regulation, even though only certain types of transport contract fall outside the scope of that provision. (27)
57. Finally, I should emphasise that it is precisely the extent of the risks incurred which, in the light of the objective of Articles 17, 18 and 19 of the Brussels Ia Regulation, namely, to ensure adequate protection for the consumer, requires persons who conclude CfDs to be classified as consumers. In that regard, I note that, as Ms Petruchová argues, the European Securities and Markets Authority (‘ESMA’) adopted in May 2018 a decision whereby it temporarily restricted the marketing, distribution or sale of CfDs to retail clients. (28) The reason why ESMA took that decision is that competent national authorities, as well as ESMA itself, were concerned with the rapid increase, in recent years, in the distribution of CfDs to a mass retail market, despite these products being complex and inappropriate for the large majority of retail clients. ESMA Decision 2018/796 states, in particular, that ‘a significant investor protection concern exists’, that many retail clients are unaware of the risks involved, and that studies carried out by competent national authorities show that a majority of retail clients investing in CfDs lose money from trading. (29)
58. Sixth, with regard to whether, should a person carry out financial transactions regularly, over an extended period of time, and for significant amounts of money, that person should be regarded as entering into those transactions by way of (secondary) profession. (30) Those transactions would then fall outside the scope of Article 17(1) of the Brussels Ia Regulation as they would have been concluded for a purpose within that person’s (secondary) profession.
59. In that regard, I note that, as argued by the Commission at the oral hearing, national case-law may lend some support to that line of argument. For instance, in AMT Futures Ltd. v. Marzillier, Dr Meier & Dr Guntner Rechtsanwaltesgesellschaft mbH [2015] 2 WLR 187, the High Court of Justice (England & Wales), Queen’s Bench Division (Commercial Court), held that not all investors may be regarded as consumers within the meaning of Article 15(1) of the Brussels I Regulation, and that, in order to determine whether that is the case, account has to be taken of ‘the circumstances of each individual and the nature and pattern of investment’.
60. However, I cannot subscribe to that line of argument.
61. It is true that, although the purpose for which the contract is entered into should, in principle, be assessed at the time of conclusion of that contract, (31) account may nonetheless be taken, under certain circumstances, of subsequent changes. (32) However, as Advocate General Bobek suggested in Schrems, this should be reserved to exceptional circumstances. (33) There can be no ex post assessment of the purpose of the contract in each individual case, or in each case where a framework agreement (such as the Framework Agreement) provides for the conclusion of individual transactions (such as CfDs). This would be inconsistent with the principle of legal certainty (34) as classification as a consumer would depend on the number of transactions carried out under the framework agreement, and, consequently, the investor would not know, at the time of conclusion of the framework agreement, whether or not he will be considered a consumer. This would also be inconsistent with the case-law cited in point 37 above, pursuant to which no consideration is to be given to the subjective situation of the person. Finally, in so far as it is queried whether account should be taken of the amount of the sums invested and of the profit made, this would be inconsistent with the absence of any value threshold in Article 17(1) of the Brussels Ia Regulation. (35)
62. I should note that there is some support in national case-law for that position. In Standard Bank London Ltd. v. Dimitrios Apostolakis [2000] I.L.Pr. 766, the High Court of Justice (England & Wales), Queen’s Bench Division (Commercial Court), held that a civil engineer and a lawyer who had invested in foreign exchange transactions were to be regarded as consumers. In particular, it was irrelevant that they had engaged in 28 contracts with a total exposure of USD 7 million. Scale was said not to be determinative, as difficult questions would have arisen as to the threshold and retroactive application thereof. (36)
63. I conclude that, in order to determine whether a person who engages in trade on the FOREX market should be regarded as a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation, no account should be taken of that person’s knowledge; of the value of the contract; of the fact that the person actively places his own orders; of the risks incurred; or of the number and frequency of the transactions.
64. I shall now turn to address the other two issues raised by the referring court, namely, whether Article 17(1) of the Brussels Ia Regulation should be interpreted in a manner consistent with Article 6 of the Rome I Regulation, and whether account should be taken of the fact that the person is a retail client within the meaning of Directive 2004/39.
D. Should account be taken of the fact that financial instruments fall outside the scope of Article 6 of the Rome I Regulation?
65. The referring court essentially asks the Court of Justice whether Article 17(1) of the Brussels Ia Regulation should be interpreted in a manner consistent with Article 6 of the Rome I Regulation. If so, a person who concludes a CfD should not be regarded as a consumer within the meaning of the former provision, given that financial instruments such as CfDs are excluded from the scope of the rules applicable to consumer contracts laid down in Article 6(1) and (2) of the Rome I Regulation.
66. According to the request for a preliminary ruling, the Krajský soud v Ostravě (Regional Court, Ostrava) considered that Article 17(1) of the Brussels Ia Regulation must be interpreted in a manner consistent with Article 6 of the Rome I Regulation. The referring court takes the opposite view.
67. Ms Petruchová contends that Articles 17, 18 and 19 of the Brussels Ia Regulation apply to financial instruments. She argues that, if that were not the case, Article 17 of that regulation would provide for an express exclusion, as Article 6(4)(d) of the Rome I Regulation does. The Commission is of the same opinion.
68. The definition of the notion of ‘consumer’ in Article 6(1) of the Rome I Regulation is almost identical to the definition of that notion in Article 17(1) of the Brussels Ia Regulation. Indeed, the former provision states that it applies to contracts ‘concluded by a natural person which can be regarded as being outside his trade or profession (the consumer) with another person acting in the exercise of his trade or profession (the professional)’.
69. This almost identical wording suggests that, in order to interpret Article 17 of the Brussels Ia Regulation, account should be taken of Article 6 of the Rome I Regulation. (37) Indeed, recital 7 of the Rome I Regulation clearly states that the substantive scope of that regulation must be consistent with the Brussels I Regulation (now the Brussels Ia Regulation). Therefore, even though the provisions of the Brussels Ia Regulation must be interpreted in the light of the objectives of that regulation and the system which it establishes, it is necessary to take into account the objective of consistency when applying the Brussels Ia Regulation and the Rome I Regulation.
70. As regards the rules applicable to consumer contracts laid down in Article 6(1) and (2) of the Rome I Regulation, I note that they do not apply, pursuant to paragraph 4(d) of that provision, to ‘rights and obligations which constitute a financial instrument’. (38) According to recital 30 of the Rome I Regulation, financial instruments for the purpose of that regulation are those referred to in Article 4 of Directive 2004/39/EC. According to Article 4(1)(17) of Directive 2004/39, now Article 4(1)(15) of Directive 2014/65/EU, (39) financial instruments are those listed in Section C of Annex I of Directive 2004/39. Section C(9) of Annex I to Directive 2004/39 refers to CfDs. (40)
71. Therefore, the rules applicable to consumer contracts laid down in Article 6(1) and (2) of the Rome I Regulation do not apply to CfDs. (41)
72. However, it does not follow that the rules applicable to consumer contracts laid down in Articles 18 and 19 of the Brussels Ia Regulation do not apply to financial instruments such as CfDs.
73. As the Court held in Kainz, the objective of consistency between the instruments of private international law in the EU legal order cannot lead to the provisions of the Brussels Ia Regulation being interpreted in a manner which is unconnected to the scheme and objectives pursued by that regulation. (42)
74. In that regard, account must be taken of the differences in the wording of Article 17 of the Brussels Ia Regulation and Article 6 of the Rome I Regulation. It is true that, as mentioned in point 68 above, the definition of the notion of a consumer by those two provisions is almost identical. However, under Article 17(3) of the Brussels Ia Regulation, only one type of contract is excluded from the scope of consumer protection rules, (43) whereas, under Article 6(4) of the Rome I Regulation, other contracts are excluded from the scope of the protective rules laid down in Article 6(1) and (2) of that regulation. In particular, whereas Article 6(4)(d) of the Rome I Regulation makes express reference to financial instruments within the meaning of Section C of Annex I to Directive 2004/39, Article 17 of the Brussels Ia Regulation does not. (44) Therefore, there can be no question of interpreting the latter provision in a manner consistent with Article 6 of the Rome I Regulation in respect of financial instruments. (45)
75. I conclude that, in order to determine whether a person who engages in trade on the FOREX market should be considered a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation, it is irrelevant that financial instruments fall outside the scope of Article 6 of the Rome I Regulation.
E. Should account be taken of the fact that the person is a retail client within the meaning of Directive 2004/39?
76. The referring court essentially asks the Court of Justice whether a person who is considered a ‘retail client’ within the meaning of Article 4(1)(12) of Directive 2004/39 must be regarded as a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation. The referring court is of the opinion that, in order to determine whether a person is a consumer, it is irrelevant that he is a retail client.
77. Ms Petruchová submits that, although the notion of a retail client within the meaning of Directive 2004/39 and that of a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation are distinct, a retail client should be presumed to be a consumer. FIBO acknowledges that Ms Petruchová is a retail client, but submits that it does not follow that she must be regarded as a consumer.
78. At the outset, I should specify that classification as a professional client or as a retail client has an impact on the protection afforded. Retail clients are granted full protection with regard, in particular, to information provided by investment firms, whereas professional clients are considered to be in need of limited protection only. (46)
79. According to Article 4(1)(12) of Directive 2004/39, a retail client is ‘a client who is not a professional client’. Pursuant to Article 4(1)(11) of that directive, a professional client is ‘a client meeting the criteria laid down in Annex II’ to the same directive.
80. Pursuant to Section I of Annex II to Directive 2004/39, (47) the following clients are ‘considered to be professionals’: first, entities which are required to be authorised or regulated to operate in the financial markets, such as credit institutions, investment firms or insurance companies; second, large undertakings meeting two of three criteria, namely, a balance sheet in excess of EUR 20 million, a net turnover in excess of EUR 40 million, and own funds in excess of EUR 2 million; third, public entities or institutions such as national governments or the World Bank; and, fourth, other institutional investors whose main activity is to invest in financial instruments. Entities belonging to one of those four categories may, however, request non-professional treatment.
81. According to Section II of Annex II to Directive 2004/39, (48) clients other than those mentioned in Section I thereof ‘may be treated as professionals on request’. In order to be treated as a professional, the client must meet at least two of the following three criteria: first, he must have carried out 10 transactions of significant size per quarter over the previous four quarters; second, his financial portfolio must exceed EUR 500 000; and, third, he must have worked in the financial sector for at least one year in a professional position.
82. I consider that a retail client within the meaning of Article 4(1)(12) of Directive 2004/39 is not necessarily a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation. Nor can it be presumed that a retail client is a consumer. I will set out below the reasons why I have come to that conclusion.
83. First, the fact that Directive 2004/39, unlike another directive in the financial sector, namely, Directive 2002/65/EC concerning the distance marketing of consumer financial services, (49) does not use the term ‘consumer’, suggests that the notion of a retail client and that of a consumer are distinct.
84. Second, Article 4(1)(12) of Directive 2004/39 does not require that the retail client is provided with investment or ancillary services for a purpose outside his trade or profession. As the referring court notes, this means that he may be provided with such services for a purpose within his trade or profession, in which case he cannot be considered a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation.
85. Third, a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation is a natural, not a legal, person. (50) By contrast, a retail client may be a legal person. (51) Indeed, according to Article 4(1)(10) of Directive 2004/39, a ‘client’ is ‘any natural or legal person to whom an investment firm provides investment and/or ancillary services’. (52) In particular, retail clients may be legal entities that failed to meet two of the three requirements for treatment as professionals under Section II of Annex II to Directive 2004/39. Retail clients may also be professional clients (hence legal entities) (53) that requested non-professional treatment pursuant to Section I of Annex II to Directive 2004/39.
86. Fourth, classification as a retail client within the meaning of Article 4(1)(12) of Directive 2004/39 and classification as a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation have different objectives. Classification as a retail client ensures that full protection is granted, in particular as regards the information which the investment firm is required to provide the client with. Classification as a consumer entails the application of jurisdiction rules that derogate from Article 4(1) and Article 7(1) of the Brussels Ia Regulation. It is true that both provisions seek to protect the weaker party, be it a retail client or a consumer. However, I should note that Directive 2004/39 seeks to protect all investors, retail and professional. (54) According to recital 86 of Directive 2014/65, which repealed and replaced Directive 2004/39, ‘it is appropriate to make it clear that principles to act honestly, fairly and professionally and the obligation to be fair, clear and not misleading apply to the relationship with any clients’. (55)
87. Therefore, it is irrelevant that, as the representative of FIBO stated at the oral hearing without being challenged in that regard, Ms Petruchová informed FIBO that she had three years of experience in the field and that she was a retail client.
88. I conclude that, in order to determine whether a person who engages in trade on the FOREX market may be regarded as a consumer within the meaning of Article 17(1) of the Brussels Ia Regulation, it is irrelevant whether that person is to be considered a retail client within the meaning of Article 4(1)(12) of Directive 2004/39.
IV. Conclusion
89. In light of the foregoing, I propose that the Court should give the following reply to the question referred by the Nejvyšší soud (Supreme Court, Czech Republic):
Article 17(1) of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is to be interpreted as meaning that a person who concludes a contract for difference must be regarded as a consumer if that contract is concluded for a purpose outside that person’s trade or profession. It is irrelevant, in that regard, that the person actively places his own orders on the international currency exchange market; that contracts for difference fall outside the scope of Article 6 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I); or that the person is a retail client within the meaning of Article 4(1)(12) of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC.