Case C‑534/15

Pavel Dumitraș

and

Mioara Dumitraș

v

BRD Groupe Société Générale — Sucursala Judeţeană Satu Mare

(Request for a preliminary ruling from

the Judecătoria Satu Mare)

‛Reference for a preliminary ruling — Consumer protection — Directive 93/13/EEC — Unfair terms — Article 1(1) — Article 2(b) — Status of consumer — Assignment of a debt by novation of loan agreements — Contracts providing immovable property as security entered into by individuals not having any professional relationship with the new debtor company’

Summary — Order of the Court (Tenth Chamber), 14 September 2016

1. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Scope — Contracts providing immovable property as security or guarantee contracts concluded with a credit institution by a natural person outside his trade, business or profession and without any functional links with the company which benefits from the guarantee — Included

   (Council Directive 93/13, Recital 10 and Art. 1(1) and (2)(b) and (c))

2. Consumer protection — Unfair terms in consumer contracts — Directive 93/13 — Concept of consumer — Contracts providing immovable property as security or guarantee contracts concluded with a credit institution to guarantee the obligations contracted by a commercial company with that institution — Included

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

1.  Articles 1(1) and 2(b) of Directive 93/13 on unfair terms in consumer contracts must be interpreted as meaning that that directive applies to a contract of guarantee or a contract providing security concluded between a natural person and a credit institution in order to secure contractual obligations owed by the commercial company to the credit institution under a credit agreement, where that natural person acted for purposes outside his trade, business or profession and has no link of a functional nature with that company, which is for the national court to ascertain.

   As the 10th recital of Directive 93/13 states, the uniform rules of law in the matter of unfair terms should apply to ‘all contracts’ concluded between sellers or suppliers and consumers, as defined in Article 2(b) and (c) thereof. In that connection, the purpose of the contract is, subject to the exceptions listed in that recital, irrelevant in determining the scope of the 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 Directive 93/13 defines the contracts to which it applies.

   (see paras 26-28, 40, operative part)

2.  The concept of a consumer within the meaning of Article 2(b) of Directive 93/13 on unfair terms in consumer contracts is objective in nature and must be assessed by reference to a functional criterion, consisting in an assessment of whether the contractual relation at issue has arisen in the course of activities outside a trade, business or profession. The 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 circumstances of the case and all of the evidence, whether the contracting party in question may be categorised as a consumer within the meaning of that directive.

   As to whether a natural person who agrees to secure obligations that a commercial company has contracted with a credit institution under a credit agreement may be regarded as a consumer, such a contract providing security or a contract of guarantee if it can be described, with regard to its purpose, as a contract which is ancillary to the principal contract which gives rise to the debt it secures, from the point of view of the contracting parties it presents itself as a distinct contract, as it is concluded between persons other than the parties to the principal contract. In the case of a natural person who has given security for the performance of the obligations of a commercial company, it is therefore for the national court to establish whether that person acted for purposes relating to his trade, business or profession or because of functional links he has with that company, such as a directorship or a non-negligible shareholding, or whether he acted for purposes of a private nature.

   (see paras 31-34)