C-541/99
ECLI:EU:C:2001:337
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CAPE AND IDEALSERVICE MN RE
OPINION OF ADVOCATE GENERAL MISCHO delivered on 14 June 2001 1
1. In Joined Cases C-541/99 and C-542/99, is acting for purposes which are outside his the Giudice di Pace di Viadana, Italy, raises trade, business or profession. three questions concerning the meaning of the term 'consumer' in Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts 2(the 'Directive'). 4. 'Seller or supplier' is defined in Arti- cle 2(c) of the Directive as any natural or legal person who, in contracts covered by the same Directive, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned.
I — The provisions of Community law before the Court
II — The main proceedings 2. The purpose of the Directive, according to Article 1(1), is to approximate the laws, regulations and administrative provisions 5. The undertakings Cape Snc ('Cape') and of the Member States relating to unfair OMAI Sri ('OMAI') both installed vending terms in contracts concluded between a machines on their premises supplied by seller or supplier and a consumer. Idealservice Sri ('Idealservice') for the exclusive use of their employees. In pro- ceedings brought by Idealservice, estab- lished in Viadana, before the Giudice di Pace di Viadana, Cape and OMAI rely, in the context of an application to set aside a payment order, on the nullity of the term 3. Under Article 2(b) of the Directive, conferring exclusive territorial jurisdiction 'consumer' means any natural person included in Idealservice's contracts under who, in contracts covered by the Directive, the provisions of Italian law purporting to transpose Article 3(3) of the Directive. They claim that the term relating to choice 1 — Original language: French. of jurisdiction is unfair within the meaning 2 — OJ 1993 L 95, p. 29. of Article 1469 bis (19) of the Italian Civil
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Code and, consequently, inoperative I I I— The national court's questions between the parties under Article 1469 quinquies of the same code.
9. Considering that the outcome of the proceedings before it depends on the inter- pretation of provisions of Community law, 6. The order for reference emphasises that the national court stayed proceedings and, the parties pleading the unfair nature of the by orders of 12 November 1999, referred term concluded the contracts for supply at the following questions to the Court of issue solely to make available to their Justice: employees certain products, namely drinks, which fall outside the normal business activity of the two undertakings.
'(1) Is it possible to regard as a consumer an undertaking which, by a contract with another undertaking using a form 7. In both cases, Idealservice challenges produced by the latter in so far as the those objections, contending that the other contract falls within the scope of its parties may not be considered as consumers normal business activity, acquires a for the purposes of the application of the service or merchandise for the sole legislative rules concerning unfair terms. benefit of its employees which is First, companies and not natural persons wholly unconnected with and remote are involved and, second, they signed the from its normal trade and business; can contracts at issue in the course of their it be said in such circumstances that business activities. that party acted for purposes which do not relate to the undertaking?
8. The national court states that the provi- sions of the Italian Civil Code, the inter- (2) If the foregoing question is answered in pretation of which affects its jurisdiction to the affirmative, is it possible to regard entertain the two actions in question, any party or entity as a consumer when constitute transposition of the Directive. it is acting for purposes not relating or In particular, the terms 'seller or supplier' conducive to its normal trade or busi- and 'consumer' referred to in Article 1469 ness, or does the term consumer relate bis of the Italian Civil Code literally only to natural persons, to the exclu- transcribe Article 2 of the Directive. sion of any other?
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(3) Can a company be regarded as a 13. That interpretation appears to be fur- consumer?' ther confirmed by the objective of the Community legislation at issue. As the Court noted in Océano Grupo Editorial and Salvat Editores, 3 'the system of pro- tection introduced by the Directive [93/13] is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge. This IV — Findings leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of the terms.'
10. It appears appropriate to begin by considering the second and third questions in which the national court asks, essen- tially, whether the term 'consumer' refers exclusively to natural persons. 14. The intention to protect a category of persons in a weak position, and only that category of persons, is confirmed in the twelfth recital and Article 3 of the Direc- tive, under which only contractual terms 11. I share the view of the French and which have not been individually negoti- Italian Governments and that of the Com- ated are covered by the Directive. mission and Idealservice that those ques- tions should be answered in the affirmative.
12. As the Commission explains, Arti- 15. One can reasonably maintain, as the cle 2(b) of the Directive 'provides specifi- Commission does, that it is specifically the cally that "any natural person" must be category of persons not acting for purposes regarded as a consumer. By contrast, Arti- of their trade, business or profession that is cle 2(c), defines the term seller or supplier in a weaker and unstable contractual by referring both to natural persons and position as compared with the sellars or legal persons. Therefore, it appears from a suppliers referred to in Article 2(c) of the straightforward reading of the provision at Directive. issue that the term consumer relates exclu- sively to natural persons and does not include companies or more generally, legal 3 — Joined Cases C-240/98 to C-244/98 (2000] ECR I-4941, persons.' paragraph 25.
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16. By contrast, legal persons and compa- and less experienced in legal matters than nies 4do not generally find themselves in the other party to the contract'. 7 that weaker position and there is therefore no reason to grant them protection which, as an exception to contractual freedom, must, moreover, be strictly interpreted.
19. The Spanish and French Governments also refer to their national laws which, in certain circumstances, extend the protec- tion given by the Directive to consumers, to legal persons or to traders. Essentially, they are calling on the Court to declare that the Directive does not preclude such extensions 17. It should be added that in its case-law of protection. In fact that appears to be the relating to Article 13 of the Convention of situation if one considers the wording of 27 September 1968 on jurisdiction and the Article 8 of the Directive. enforcement of judgments in civil and commercial matters, the Court of Justice interpreted the term 'consumer' as meaning a 'private final consumer' 5or as referring to an 'individual', 6 which necessarily implies that a natural person is concerned.
20. Clearly, those requests go beyond the scope of the present action. The question asked by the national court relates to the term 'consumer' used in Article 2(b) of the Directive. By contrast, there is no indica- tion that, in order to be able to dispose of the main proceedings, that court should be informed of the circumstances in which 18. That case-law appears relevant to the Member States may, where necessary, present case, the objective of Article 13 et extend the protection provided by the seq. of the Convention being essentially the Directive to persons other than consumers, same as that of the Directive. In Shearson such as legal persons or traders. Lehman Button, the Court held that 'the special system established by Article 13 et seq. of the Convention is inspired by the concern to protect the consumer as the party deemed to be economically weaker
21.1 propose that the Court's answer to the 4 — It was explained at the hearing that general partnerships under Italian law do not have legal personality. national court should be that Article 2(b) 5 — Case C-89/91 Shearson Lehman Hutton [19931 ECR I-139, paragraph 22, emphasis added. 6 — Case C-269/95 Benincasa [1997] ECR I-3767, paragraph 17. 7 — Paragraph 18.
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of the Directive must be interpreted as 25. As the judgment in Di Pinto 8 shows, it meaning that the term 'consumer' refers would seem difficult to provide an inter- only to natural persons. pretation of that concept disregarding the fact that the person who 'acts' is a natural person.
22. That answer is sufficient to enable the national court to dispose of the main proceedings. It follows clearly from the order for reference that the two parties claiming the status of 'consumer' are com- 26. In Di Pinto, the Court interpreted the panies. term 'consumer' in Council Directive 85/577/EEC of 20 December 1985 to pro- tect the consumer in respect of contracts negotiated away from business premises. 9 In that directive, the 'consumer' is defined as being 'a natural person who, in transac- tions covered by this directive, is acting for purposes which can be regarded as outside his trade or profession'. 23. In view of the answer to the second and third questions, it appears to me to be difficult to give a useful answer to the first question, in which the national court asks whether an undertaking that acquires a service or merchandise for the sole benefit of its employees, where that benefit is wholly unconnected with and remote from its normal trade and business, acts for purposes relating to the undertaking. 27. The Court ruled that a trader canvassed with a view to the conclusion of an advertising contract concerning the sale of his business was not to be regarded as a consumer, noting that those acts which he had referred to were 'managerial acts performed for the purpose of satisfying requirements other than the family or 24. By that question, the national court personal requirements of the trader'. 10 seeks an interpretation of the term '[to act] for purposes which are outside his trade, business or profession' which is part of the 8 — Case C-361/89 [1991] ECR I-1189. definition of 'consumer' included in Arti- 9 — OJ 1985 L 372, p. 31. cle 2(b) of the Directive. 10 — Di Pinto, paragraph 16, emphasis added.
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28. The reference to 'family or personal are outside his trade, business or profes- requirements' shows that the status of the sion', referred to in Directive 93/13. consumer as a natural person affects the meaning of terms such as '[to act] for purposes which can be regarded as outside his trade or profession', in Directive 29. I therefore propose that no answer be 85/577, or '[to act] for purposes which given to the first question.
V — Conclusion
30. I propose that the Court give, the following answer to the Giudice di Pace di Viadana as follows:
Article 2(b) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts is to be interpreted as meaning that the term 'consumer' refers only to natural persons.
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