Case C‑110/14

Horațiu Ovidiu Costea

v

SC Volksbank România SA

(Request for a preliminary ruling
from the Judecătoria Oradea)

(Reference for a preliminary ruling — Directive 93/13/EEC — Article 2(b) — Concept of ‘consumer’ — Credit agreement concluded by a natural person who practises as a lawyer — Repayment of a loan secured on a building owned by the borrower’s law firm — Borrower who has the necessary knowledge to assess the unfairness of a term before signing the agreement)

Summary — Judgment of the Court (Fourth Chamber), 3 September 2015

1.        Questions referred for a preliminary ruling — Jurisdiction of the Court — Limits — Jurisdiction of the national court — Establishing and assessing the facts of the dispute

(Art. 267 TFEU)

2.        Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Concept of consumer — Natural person practising as a lawyer and concluding a credit agreement with a bank — Included — Condition — Repayment of a loan secured on a building owned by the borrower’s law firm — No effect

(Council Directive 93/13, Recital 10 and Art. 2(b) and (c))

3.        Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Aim

(Council Directive 93/13, Recital 10 and Art. 6(1))

1.        See the text of the decision.

(see para. 13)

2.        Article 2(b) of Directive 93/13 on unfair terms in consumer contracts must be interpreted as meaning that a natural person who practises as a lawyer and concludes a credit agreement with a bank, in which the purpose of the credit is not specified, may be regarded as a ‘consumer’ within the meaning of that provision, where that agreement is not linked to that lawyer’s profession. The fact that the debt arising out of the same contract is secured by a mortgage taken out by that person in his capacity as representative of his law firm and involving goods intended for the exercise of that person’s profession, such as a building belonging to that firm, is not relevant in that regard.

As the tenth recital in the preamble to Directive 93/13 states, uniform rules of law in the matter of unfair terms should apply to all contracts concluded between ‘consumers’ and ‘sellers or suppliers’, terms defined in Article 2(b) and (c) of that directive. It is therefore by reference to the capacity of the contracting parties, according to whether or not they are acting for purposes relating to their trade, business or profession, that the directive defines the contracts to which it applies.

As for the concept of ‘consumer’, within the meaning of Article 2(b) of Directive 93/13, it 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. A national court before which an action relating to a contract which may be covered by that directive has been brought is required to determine, taking into account all the evidence and in particular the terms of that contract, whether the purchaser may be categorised as a consumer within the meaning of that directive. In order to do that, the national court must take into account all the circumstances of the case, particularly the nature of the goods or service covered by the contract in question, capable of showing the purpose for which those goods or that service is being acquired.

In that regard, a lawyer who concludes, with a natural or legal person acting for purposes relating to his trade, business or profession, a contract which, particularly as it does not relate to the activity of his firm, is not linked to the exercise of the lawyer’s profession, is, vis-à-vis that person, in a weaker position. Furthermore, the fact that a lawyer displays a high level of technical knowledge does not give grounds to assume that he is not a weak party compared with a seller or supplier.

(see paras 15, 17, 21-23, 26, 27, 30, operative part)

3.        See the text of the decision.

(see paras 18, 19)