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Does a player who has something to learn about an online poker site and who is victorious – this player has won 227,000 euros in less than a month and a half – keeps the status of a non-professional “consumer” within the meaning of the regulation (EC)? No. 44/2001 of December 22, 2000 (known as the Brussels I Regulation) 1?

In a judgment of 10 December 20202 the Court of Justice of the European Union answered this question with a yes.

The dispute

The initial dispute was between Personal Exchange International Limited (“PEI”), a company that provides online gambling services (including poker), and Mr BB, a private individual based in Slovenia.

Mr BB had registered on PEI’s online gaming website and won € 227,000 in poker winnings in less than a month and a half.

Given this user who was a little too victorious, PEI decided to suspend Mr. BB’s account.

Mr BB decided to initiate legal proceedings in the Slovenian courts. He won his case in both the court of first instance and the appeals court. PEI then appealed to the Srhovno Sodisce (Supreme Court of Slovenia) to contest the appeal judgment.

The problem at stake

The discussion focused on the question of the international jurisdiction of the courts in relation to European Union law.

Since the beginning of this dispute, Mr BB, in his capacity as a consumer, has argued that the Slovenian courts have jurisdiction, which has enabled him to bring the matter to the competent court for the place where he is domiciled, ie Slovenia.

Indeed, it should be recalled that Section 4 “Jurisdiction over consumer contracts” of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (known as Brussels I Regulation)) entered into force at this time as follows:

“Article 15

  1. In matters related to a contract of a person, the consumer, for a purpose that may be considered outside his trade or professionWithout prejudice to Article 5 and Article 5 (5), jurisdiction is determined by this section:

[…]

c) In all other cases, the contract has been concluded with a person who carries out commercial or professional activities in the Member State of residence of the consumer or who directs these activities in any way to that Member State or to several states including this Member State and the contract falls within the scope of application such activities.

[…]

Article 16

  1. A consumer can bring an action against the other party to the contract either in the courts of the Member State in which that party is domiciled or in the courts of the place in which the consumer is domiciled. »

According to Mr BB, his ability as a consumer was determined to the extent that he had accepted the general terms and conditions unilaterally set by PEI, thereby placing him in an economically weaker position. He has not been registered as a professional for this poker game activity. He had never offered his services to anyone for a fee, and he had no sponsor at all.

Conversely, PEI argued that the courts of the Republic of Malta (as set out in the terms and conditions accepted by Mr BB) had the power to hear the case on the grounds that Mr BB was allegedly a professional poker player and could not do so. So take advantage of the more protective EU legislation that applies to consumers.

In support of this claim, PEI pointed out that Mr BB has lived off his poker games for several years and has reportedly played an average of nine hours a day.

According to the Slovenian Supreme Court, the question of international jurisdiction at the heart of this dispute therefore depended on whether Mr BB could be considered a “consumer” within the meaning of EU law as entering into a contract with PEI for a purpose that was outside of its own professional activity can be seen lying “within the meaning of the Brussels I Regulation.

The Slovenian Supreme Court has therefore referred the following question to the Court of Justice of the European Union (“ECJ”) for a preliminary ruling:

“Article 15 (1) of Regulation No. 44/2001 must be interpreted in such a way that an online poker game contract concluded by a person with a foreign operator of online games over the Internet and which is subject to the general terms and conditions of that operator can do so They can also be categorized as a contract entered into by a consumer for a purpose that may be considered outside his trade or profession, if that person has lived for several years on the income thus generated or the winnings from the game of poker, although he has done so has no formal registration for this type of activity and in no case does he offer this activity to third parties in the market as a paid service? “

Decision of the ECJ

The ECJ gave the following answer:

“Article 15 (1) of Regulation (EC) No. 44/2001 of the Council of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters is to be interpreted as meaning that a natural person residing in a Member State who has on the one hand concluded a contract with a company based in another member state for playing poker on the Internet in accordance with the conditions stipulated by the latter and on the other hand neither officially registered such an activity nor offered activities to third parties as a paid service do not lose the status of Consumer “within the meaning of this provision, even if that person plays the game a large number of hours per day, has extensive knowledge and receives significant profits from that game.”

The reasoning of the ECJ can be summarized as follows.

First of all, it was pointed out that the provisions provided for in Regulation (EC) No. 44/2001, which deviate from the general rule of jurisdiction, are to be interpreted strictly and that the term “consumer” in the sense of this regulation must be interpreted autonomously will.

It was then determined that the provisions of this Regulation should be interpreted objectively, for a “consumer” according to “the position of the person concerned in a given contract with regard to the nature and purpose of that contract, rather than” that person’s subjective situation “.

In the view of the ECJ, the fact that Mr BB had won significant sums of money was not a decisive criterion for qualification or non-qualification as a consumer, as recognizing a differentiation depending on the profits obtained would and would lead to legal uncertainty as to the interpretation of the European provisions undermine the predictability of the jurisdiction rules.

For the same reasons, the ECJ found that a person’s knowledge of the area covered by the contract does not lead to their loss of capacity as a “consumer”.

It also revealed that the fact that Mr BB played poker very regularly – nine hours a day – was indeed an element to be considered, but that element should be considered among and with others and, in itself, did not qualify exclude as a consumer.

According to the ECJ, after a strict interpretation of Article 15 of Regulation (EC) No. 44/2001, the decisive element was whether the person concerned was acting outside and independently of a professional activity, which seemed to be the case for Mr BB.

As such, an experienced poker player who receives substantial winnings and plays a significant number of hours online is still a consumer unless they have registered that activity as a professional or provided paid services to third parties relating to this and have accepted the terms and conditions, unilaterally determined by the online gambling company.

Finally, it should be noted that Regulation (EC) No. 44/2001, which was in force at the relevant time, has now been replaced by Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of December 12, 2012 on jurisdiction and the Recognition and enforcement of judgments in civil and commercial matters (known as the recast Brussels I Regulation).

However, since the provisions on jurisdiction for consumer contracts in these two regulations are identical, it makes sense to transfer the arguments of the ECJ to the currently applicable regulation (EU) No. 1215/2012.

Footnotes

1 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32001R0044&from=NL

2 C-774/19 – Personal Exchange International

To read in French, please click here.

The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.