CJEU, 9th chamber, March 9, 2023, No C-177/22

THE COURT (Ninth Chamber),

1 This request for a preliminary ruling concerns the interpretation of Articles 17 and 18 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 (OJ 2012 L 351, p. 1).

2 The request has been made in proceedings between JA, an Austrian national, and Wurth Automotive GmbH, a German company, concerning the jurisdiction of the Austrian courts to rule on a claim for compensation for hidden defects present in a motor vehicle that is the subject of a contract of sale.

Legal context

3 Article 17(1) of Regulation No 1215/2012, which is in Section 4, entitled ‘Jurisdiction over consumer contracts’, of Chapter II, entitled ‘Jurisdiction’, of that regulation, provides:

‘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.’

4 Under Article 18(1) of that regulation:

‘A consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or, regardless of the domicile of the other party, in the courts for the place where the consumer is domiciled.’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

5 The applicant in the main proceedings, whose partner is a car dealer and managing director of an online platform for the sale of motor vehicles (‘the partner’), was mentioned on the homepage of that platform as the graphic and web designer, without actually having carried out that activity at the time of the facts in the main proceedings.

6 At the request of the applicant in the main proceedings, who had expressed an interest in purchasing a motor vehicle, the partner did some research and contacted the defendant in the main proceedings by email on 11 March 2019 from his professional email address, in which he indicated a price offer for the purchase, taxed under the margin scheme, of a vehicle with first registration in Germany and payment in cash. It was stated in that email that the contract of sale was to be concluded on behalf of the applicant in the main proceedings. A telephone call also took place between the partner and an employee of the defendant in the main proceedings, but it was not possible to determine the content of that call to the requisite legal standard.

7 The defendant in the main proceedings sent the partner, by email, the contract of sale, which referred to ‘Company JA’ as the buyer and included a section entitled ‘Special agreements business-to-business/no return, no warranty/delivery only after receipt of money …’.

8 The applicant in the main proceedings signed that contract without disputing its contents. The contract was subsequently returned to the defendant in the main proceedings via email by the partner, who, on 13 March 2019, collected the vehicle from the defendant in the main proceedings.

9 The invoice issued at that time stated ‘not possible for turnover tax to be stated – Paragraph 25a [of the Umsatzsteuergesetz (Law on turnover tax)]’. As is apparent from the order for reference, in the IT system of the defendant in the main proceedings, special agreements are not automatically predefined but must be included by the seller in the contract of sale. For contracts concluded with individuals, the forms of address used are ‘Mr/Ms’. Those contracts also contained a warranty clause for a period of one year.

10 The vehicle concerned was registered in the name of the applicant in the main proceedings. Several weeks later, the partner asked the defendant in the main proceedings whether it was possible for the value added tax (VAT) to be stated on the invoice issued – a request that was refused.

11 Having found that hidden defects were present in the vehicle, the applicant in the main proceedings brought an action before the Bezirksgericht Salzburg (District Court, Salzburg, Austria), relying on that court’s jurisdiction under Article 17 of Regulation No 1215/2012, seeking an order requiring the defendant in the main proceedings to pay EUR 3 257.52 by way of warranty rights. In support of her claim, the applicant in the main proceedings submitted that, in the present case, she concluded the contract of sale as a consumer and that the defendant in the main proceedings directed its commercial or professional activity to Austria, within the meaning of Article 17(1)(c) of Regulation No 1215/2012.

12 The defendant in the main proceedings raised a plea alleging that that court did not have jurisdiction and also disputed the merits of the claim. According to its submissions, the contract of sale in the main proceedings constitutes a business-to-business transaction, which is apparent from the information appearing under the heading ‘Special agreement’, the sale price, the amount of which was established taking into account the application of the margin scheme, and the fact that the applicant in the main proceedings intended to make use of the right to deduct input VAT. Consequently, in the defendant’s view, the German courts have jurisdiction to hear the dispute in the main proceedings.

13 By an order of 19 October 2021, the Bezirksgericht Salzburg (District Court, Salzburg) held that it lacked international jurisdiction to hear the dispute in the main proceedings. According to that court, although, on the facts, the applicant in the main proceedings is not a trader, by signing the contract of sale and bringing the partner into the relationship with the defendant in the main proceedings, she created the impression on the part of the latter that she was acting as such. The defendant in the main proceedings, therefore, quite reasonably assumed that it was a business-to-business contract, which is why the conditions for the application of Article 17 of Regulation No 1215/2012 were not satisfied.

14 The applicant in the main proceedings brought an appeal against that order before the Landesgericht Salzburg (Regional Court, Salzburg, Austria), the referring court.

15 That court states that it is not disputed in the present case that the defendant in the main proceedings, whose registered office is in Germany, also directed its commercial activities to Austria, within the meaning of Article 17(1)(c) of Regulation No 1215/2012, the only issue being whether the applicant in the main proceedings acted as a consumer when concluding the contract of sale with the defendant in the main proceedings.

16 In that regard, that court maintains that, although the applicant in the main proceedings claims to have concluded that contract as a private individual pursuing an activity as an employed person, it is apparent from the findings of the court of first instance that it cannot be ruled out that she pursued the profession of graphic and web designer as a self-employed person. In those circumstances, the referring court asks whether such a situation, in which a fact cannot be proved to the requisite legal standard, could adversely affect the applicant in the main proceedings.

17 In that court’s view, even if it were held that the applicant in the main proceedings purchased the vehicle concerned for private purposes, the question remains whether that fact could also be identified by the defendant in the main proceedings.

18 Lastly, that court asks whether, in the context of the overall assessment that it should carry out in order to establish whether the applicant in the main proceedings concluded the contract at issue in the main proceedings as a consumer, other specific circumstances of the case could be of some importance, namely the fact that the applicant in the main proceedings went through a car dealer to take the steps necessary to conclude the contract, the fact that, in August 2019, the applicant in the main proceedings resold the vehicle for profit, or the fact that the VAT was not stated on the invoice. As regards the last of these, the referring court states that, under German VAT law, there may be no separate indication of VAT on the invoice either at the time of sale to a trader or at the time of sale to a private individual.

19 In those circumstances, the Landesgericht Salzburg (Regional Court, Salzburg) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Does the assessment of whether the applicant is a consumer within the meaning of Articles 17 and 18 of Regulation … No 1215/2012 depend on

(a) whether the applicant pursued the activity of a graphic and web designer declared by her in the proceedings only as an employed person or, at least in part, also in the context of a freelance activity at the time of concluding the contract of sale and immediately thereafter and

(b) the purpose for which the applicant acquired the vehicle, that is to say solely for the purpose of satisfying her own needs in terms of private consumption or also in connection with a current or future trade or professional activity or purpose?

(2) Would the applicant no longer be able to rely on her status as a consumer if she had resold the passenger car in August 2019, and would any profit made in the process be relevant?

(3) Must the applicant be considered not to be a consumer merely because she signed a standard contract of sale prepared by the defendant, the printed form of which designated the buyer as a “company” and contained the text “business-to-business/no return, no warranty/delivery only after receipt of money” under the heading “Special agreements” in a smaller font, without objecting to this and referring to the fact that she was a consumer?

(4) Must the applicant accept responsibility for the conduct of her partner, who acted as a car dealer in arranging the purchase, from which the defendant could have concluded that the applicant was a trader?

(5) Is it to the detriment of the applicant in the assessment of whether she is a consumer if the court of first instance was unable to determine why the written contract of sale differed from the preceding offer by the applicant’s partner in terms of the designation of the buyer or what was discussed in that regard during the telephone calls between the applicant’s partner and one of the defendant’s salespeople?

(6) Is it relevant to the applicant’s status as a consumer if the applicant’s partner telephoned the defendant several weeks after taking delivery of the vehicle to enquire whether it was possible to state the VAT on the invoice?’

Consideration of the questions referred for a preliminary ruling

The first question

20 By its first question, the referring court asks, in essence, whether Article 17(1) of Regulation No 1215/2012 must be interpreted as meaning that, in order to determine whether a person who concluded a contract falling under point (c) of that provision may be classified as a ‘consumer’, within the meaning of that provision, account must be taken of the current and future purposes of the conclusion of that contract and of the nature of the activity pursued by that person as an employed or self-employed person.

21 In that respect, it should be recalled that the rules on jurisdiction laid down in Section 4 of Chapter II of Regulation No 1215/2012 constitute a derogation both from the general rule of jurisdiction laid down in Article 4(1) of that regulation, which confers jurisdiction upon the courts of the Member State in which the defendant is domiciled, and from the rule of special jurisdiction for contracts, set out in Article 7(1) of that regulation, under which jurisdiction lies with the courts for the place of performance of the obligation in question (see, by analogy, judgment of 25 January 2018, Schrems, C‑498/16, EU:C:2018:37, paragraph 43 and the case-law cited).

22 Consequently, the concept of a ‘consumer’ for the purposes of Articles 17 and 18 of Regulation No 1215/2012 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 (judgment of 14 February 2019, Milivojević, C‑630/17, EU:C:2019:123, paragraph 87 and the case-law cited).

23 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, even if that activity is only planned for the future (see, to that effect, judgment of 14 February 2019, Milivojević, C‑630/17, EU:C:2019:123, paragraphs 88 and 89 and the case-law cited).

24 It follows that the special rules of jurisdiction in Articles 17 to 19 of Regulation No 1215/2012 apply, in principle, only where the contract is concluded between the parties for the purpose of a use other than a trade or professional use of the relevant goods or services (judgment of 3 October 2019, Petruchová, C‑208/18, EU:C:2019:825, paragraph 44 and the case-law cited).

25 As regards, more particularly, a person who concludes a contract for a dual purpose, partly for use in his or her professional activity and partly for private matters, the Court has held that that person could rely on those rules of jurisdiction only if the link between the contract and the trade or profession of the person concerned was so slight as to be marginal and, therefore, had only a negligible role in the context of the transaction in respect of which the contract was concluded, considered in its entirety (judgment of 14 February 2019, Milivojević, C‑630/17, EU:C:2019:123, paragraph 91 and the case-law cited).

26 As regards the nature of the activity pursued by the person claiming the status of consumer, the Court has held that no distinction depending on whether the trade or profession is a self-employed activity or paid employment can be inferred from its case-law, according to which it is only necessary to determine whether the contract has been concluded outside and independently of any trade or professional activity or purpose, such that paid employment falls within the concept of ‘trade or profession’ within the meaning of Article 17(1) of Regulation No 1215/2012 (see, to that effect, judgment of 20 October 2022, ROI Land Investments, C‑604/20, EU:C:2022:807, paragraphs 54 and 55).

27 It is apparent from that case-law that the status of consumer, within the meaning of that provision, depends on the professional or private purpose pursued in concluding the contract at issue. A person who has concluded a contract must be classified as a consumer if the conclusion of that contract is not part of his or her professional activity or, in the case of a contract with a dual purpose, partly professional and partly private, if the business use is negligible in the context of the transaction as a whole. By contrast, the nature of the professional activity pursued by the person claiming the status of consumer is not relevant for the purposes of such a classification.

28 In the light of the foregoing considerations, the answer to the first question is that Article 17(1) of Regulation No 1215/2012 must be interpreted as meaning that, in order to determine whether a person who concluded a contract falling under point (c) of that provision may be classified as a ‘consumer’, within the meaning of that provision, account must be taken of the current and future purposes of the conclusion of that contract, irrespective of the nature of the activity pursued by that person as an employed or self-employed person.

The second to fourth and sixth questions

29 By its second to fourth and sixth questions, which it is appropriate to examine together, the referring court asks, in essence, whether Article 17(1) of Regulation No 1215/2012 must be interpreted as meaning that, in order to determine whether a person who has concluded a contract falling under point (c) of that provision can be classified as a ‘consumer’, within the meaning of that provision, account may be taken of the impression created by that person’s conduct on the part of the other contracting party, consisting, in particular, in the lack of a reaction by the person claiming the status of consumer to the terms of the contract designating him or her as a trader, where that person has concluded that contract through an intermediary, pursuing professional activities in the field covered by that contract, who, after signing that same contract, questioned the other party about the possibility of stating the VAT on the relevant invoice or even where that person sold the goods covered by the contract shortly after its conclusion and potentially made a profit.

30 In that regard, it must be observed that it is apparent from the answer to the first question that, in the context of the analysis of the concept of ‘consumer’, within the meaning of Article 17(1) of Regulation No 1215/2012, the national court must establish the purposes pursued by the person claiming that status in concluding the contract and, where that contract has a dual purpose, decide whether that contract is intended to cover, to a non-negligible extent, needs relating to the professional activity of the person concerned or private needs.

31 To that effect, that court must base its decision mainly on the evidence which appears, de facto, in the file, such that, if that evidence is sufficient to enable the court to infer the purpose of the contract, there will be no need to determine whether the other party to the contract could have been aware of the business purpose (see, by analogy, judgment of 20 January 2005, Gruber, C‑464/01, EU:C:2005:32, paragraphs 48 and 49).

32 However, in so far as that evidence is not sufficient, that court may also determine whether the supposed customer had in fact, by his or her own conduct with respect to the other party, given the latter the impression that he or she was acting for business purposes, such that the other party could legitimately have been unaware of the non-professional purpose of the transaction at issue (see, by analogy, judgment of 20 January 2005, Gruber, C‑464/01, EU:C:2005:32, paragraph 51).

33 That would be the case, for example, where an individual orders, without giving further information, items which could in fact be used for his or her business, or uses business stationery to do so, or has goods delivered to his or her business address, or mentions the possibility of recovering VAT (see, by analogy, judgment of 20 January 2005, Gruber, C‑464/01, EU:C:2005:32, paragraph 52).

34 In such a case, the special rules of jurisdiction for matters relating to consumer contracts enshrined in Articles 17 and 18 of Regulation No 1215/2012 are not applicable even if the contract does not as such serve a non-negligible business purpose, and 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 (see, by analogy, judgment of 20 January 2005, Gruber, C‑464/01, EU:C:2005:32, paragraph 53).

35 It follows from that case-law that the impression created by the conduct of the person claiming the status of ‘consumer’, within the meaning of Article 17(1) of Regulation No 1215/2012, on the part of the other contracting party, may be taken into account to establish whether that person should be afforded the procedural protection laid down in Section 4 of that regulation.

36 In the present case, the referring court is uncertain as to the relevance, for the purposes of classifying the applicant in the main proceedings as a consumer, of certain factual circumstances, namely (i) her lack of a reaction to the terms of the contract designating her as a trader, (ii) the action taken during the negotiation of that contract by her partner, himself a car dealer, who after the contract was signed asked the defendant in the main proceedings about the possibility of stating the VAT on the relevant invoice or even (iii) the sale of the vehicle shortly after the conclusion of the contract and the potential making of a profit.

37 In that regard, it should be stated at the outset that it is for that court alone to establish, taking into account all of the information available to it, including the good faith of the defendant in the main proceedings, whether, by her conduct, the applicant in the main proceedings created the impression that she was acting for professional purposes. In its examination, that court must refer to all circumstances surrounding the conclusion of the contract, and subsequent events may also be relevant in so far as they support that examination.

38 As regards, more specifically, the lack of a reaction on the part of the applicant in the main proceedings to the terms of the contract designating her as a trader, it must be observed that such a circumstance, which could moreover be explained by the manner in which the defendant in the main proceedings drafted the contract, is not in itself decisive for the purpose of excluding the applicant in the main proceedings from the benefit conferred by the rule of jurisdiction laid down in Article 17(1) of Regulation No 1215/2012. Nevertheless, supported by further information, such inaction could constitute evidence that the conduct of the applicant in the main proceedings could have created, on the part of the defendant in the main proceedings, the impression that she was acting for professional purposes.

39 Thus, the involvement of an intermediary, himself a car dealer, in the negotiation of a contract, and the fact that, shortly after concluding that contract, that intermediary took an interest in the possibility of stating the VAT on the invoice issued on that occasion may be relevant for the purposes of the referring court’s examination. In that regard, that court should also take into account the particular characteristics of the German VAT system in so far as it is apparent from the order for reference that there may be no separate indication of VAT on the invoice, under German law, either at the time of sale to a trader or at the time of sale to a private individual.

40 On the other hand, as regards the resale of the goods that are the subject of the contract and the potential profit thus obtained by the applicant in the main proceedings, those circumstances do not prima facie appear to be relevant for the purpose of determining the impression that the applicant in the main proceedings might have created on the part of the defendant in the main proceedings. However, it cannot be ruled that they may also be taken into consideration by the referring court in its overall assessment of the information available to it.

41 In the light of all the foregoing considerations, the answer to the second to fourth and sixth questions is that Article 17(1) of Regulation No 1215/2012 must be interpreted as meaning that, in order to determine whether a person who has concluded a contract falling under point (c) of that provision can be classified as a ‘consumer’, within the meaning of that provision, account may be taken of the impression created by that person’s conduct on the part of the other contracting party, consisting, in particular, in 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, where that person has concluded that contract through an intermediary, pursuing professional activities in the field covered by that contract, who, after signing that same contract, questioned the other party about the possibility of stating the VAT on the relevant invoice or even where that person sold the goods covered by the contract shortly after its conclusion and potentially made a profit.

The fifth question

42 By its fifth question, the referring court asks, in essence, whether Article 17(1) of Regulation No 1215/2012 must be interpreted as meaning that, where it proves impossible to determine to the requisite legal standard, in the context of the overall assessment of the information available to a national court, certain circumstances surrounding the conclusion of a contract, as regards, in particular, the information in that contract or the involvement of an intermediary at the time of its conclusion, the person relying on the status of ‘consumer’, within the meaning of that provision, should be given the benefit of the doubt.

43 In that regard, it should be noted at the outset that that question is raised in the context of the verification by the referring court of the international jurisdiction of the Austrian courts to hear the dispute in the main proceedings, pursuant to Article 17(1) of Regulation No 1215/2012. At that stage, that court does not examine either the admissibility or the substance of the action, but identifies only the points of connection with the State in which that court is sitting that support its claim to jurisdiction under that provision. That court may therefore regard as established, solely for the purpose of ascertaining whether it has jurisdiction, the applicant’s assertions (see, by analogy, judgment of 28 January 2015, Kolassa, C‑375/13, EU:C:2015:37, paragraph 62 and the case-law cited).

44 However, if the defendant contests the applicant’s claims, both the objective of the sound administration of justice, which underlies Regulation No 1215/2012, and respect for the independence of the national court in the exercise of its functions require the national court seised to be able to examine its international jurisdiction in the light of all the information available to it, including, where appropriate, the defendant’s arguments (see, by analogy, judgment of 16 June 2016, Universal Music International Holding, C‑12/15, EU:C:2016:449, paragraph 45 and the case-law cited).

45 As regards the probative value to be attached to that information in the context of the overall assessment of the evidence, that aspect is a matter for national law alone. The purpose of Regulation No 1215/2012 is not to unify the procedural rules of the Member States, but to determine which court has jurisdiction concerning civil and commercial matters (judgment of 6 October 2021, TOTO and Vianini Lavori, C‑581/20, EU:C:2021:808, paragraph 68 and the case-law cited).

46 In the present case, it is therefore for the referring court to examine the information that is available to it concerning the circumstances surrounding the conclusion of the contract in the main proceedings, in particular the reason why the applicant in the main proceedings was designated as a trader in that contract and the scope of the discussions that took place between the intermediary and the employees of the defendant in the main proceedings during the negotiation of that contract, and to assess, in the light of all of the information available to it, the probative value of that information in accordance with the rules of national law, including the question of who should be given the benefit of the doubt, if any, in the event that it proves impossible to determine some of those circumstances to the requisite legal standard.

47 Moreover, although the Court has, admittedly, held that the benefit of the doubt must, in principle, be given to the person relying on the status of consumer, if the objective evidence in the file is not sufficient to demonstrate that the supply in respect of which a contract with a dual purpose was concluded had a non-negligible business purpose (see, by analogy, judgment of 20 January 2005, Gruber, C‑464/01, EU:C:2005:32, paragraph 50), it cannot be inferred from that case-law that the effectiveness of the provisions governing jurisdiction over consumer contracts would require that the benefit of the doubt be given to the person relying on the status of consumer in respect of all the circumstances surrounding the conclusion of a contract and, in particular, in respect of those relating to that person’s conduct (see, by analogy, judgment of 20 January 2005, Gruber, C‑464/01, EU:C:2005:32, paragraph 51).

48 In the light of the foregoing considerations, the answer to the fifth question is that Article 17(1) of Regulation No 1215/2012 must be interpreted as meaning that, where it proves impossible to determine to the requisite legal standard, in the context of the overall assessment of the information that is available to a national court, certain circumstances surrounding the conclusion of a contract, as regards, in particular, the information in that contract or the involvement of an intermediary at the time of its conclusion, that court must assess the probative value of the information available to it 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’, within the meaning of that provision.

Costs

49 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Ninth Chamber) hereby rules:

1. 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

must be interpreted as meaning that, in order to determine whether a person who concluded a contract falling under point (c) of that provision may be classified as a ‘consumer’, within the meaning of that provision, account must be taken of the current and future purposes of the conclusion of that contract, irrespective of the nature of the activity pursued by that person as an employed or self-employed person.

2. Article 17(1) of Regulation No 1215/2012

must be interpreted as meaning that, in order to determine whether a person who has concluded a contract falling under point (c) of that provision can be classified as a ‘consumer’, within the meaning of that provision, account may be taken of the impression created by that person’s conduct on the part of the other contracting party, consisting, in particular, in 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, where that person has concluded that contract through an intermediary, pursuing professional activities in the field covered by that contract, who, after signing that same contract, questioned the other party about the possibility of stating the value added tax on the relevant invoice or even where that person sold the goods covered by the contract shortly after its conclusion and potentially made a profit.

3. Article 17(1) of Regulation No 1215/2012

must be interpreted as meaning that, where it proves impossible to determine to the requisite legal standard, in the context of the overall assessment of the information that is available to a national court, certain circumstances surrounding the conclusion of a contract, as regards, in particular, the information in that contract or the involvement of an intermediary at the time of its conclusion, that court must assess the probative value of the information available to it 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’, within the meaning of that provision.