ECJ finds that a lawyer may be a consumer in a mixed business and consumer contract.

Horațiu Ovidiu Costea v SC Volksbank România SA, Case C 110/14, 3 September 2015

 

The Facts

A commercial lawyer entered into a credit agreement with a bank in his own capacity as the borrower and also as a representative of a law firm. He later applied to the ECJ for a declaration that a term in the contract was unfair. The question before the ECJ was whether a person who practices as a lawyer may be regarded as a “consumer” as defined by Article 2(b) of Council Directive 93/13/EEC on unfair terms in consumer contracts. The Directive seeks to put in place a system to protect the consumer where they are in a weaker position compared with the seller and defines a “consumer” as any natural person who […] is acting for purposes which are outside his trade, business or profession.

The Decision

The ECJ held that Article 2(b) of the Directive must be interpreted to mean that when a person concludes a credit agreement with a bank and that agreement is not linked to the person’s profession, the person may be regarded as a “consumer”.

Although a lawyer may have a significant level of technical knowledge they may be in a weaker position compared to the seller as they are unable to influence the contents of the agreement and are therefore in a weaker bargaining position. This case highlights the importance of considering both a person’s level of technical knowledge and bargaining position when considering whether they are a consumer.