Provisional text

delivered on 22 May 2025 (1)

Case C‑279/24

Liechtensteinische Landesbank (Österreich) AG

(Request for a preliminary ruling from the Oberster Gerichtshof (Supreme Court, Austria))

( Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EC) No 593/2008 – Article 3(1) and (2) – Choice of applicable law – Article 6(1) and (2) – Scope – Contract concluded between a professional and a consumer residing in another Member State – Activities directed to the Member State in which the consumer has his or her habitual residence after the conclusion of the contract containing a choice-of-applicable-law clause – Article 6(4)(a) – Exclusions – Investment services – Directive 93/13/EEC – Unfair terms )

I.Introduction

This request for a preliminary ruling referred by the Oberster Gerichtshof (Supreme Court, Austria) under Article 267 TFEU seeks the interpretation of Article 6 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), (2) and of Article 3(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. (3)

The request has been made in proceedings between AY, a consumer domiciled in Italy, and Liechtensteinische Landesbank (Österreich) AG, a bank having its registered office in Austria (‘the bank’), concerning the losses suffered by AY as a result of the purchase of financial products. AY brought proceedings before the Austrian courts, seeking damages for those losses, on the ground that the bank provided him with incorrect information and advice. AY claims that the bank directed its activities to Italy and that the clause agreed designating the applicable law should be disapplied, as Italian law is more advantageous to him than Austrian law. By reference to Italian law, he claims that the bank was in breach of its pre-contractual obligations and its obligation to provide information. The bank contends, on the contrary, that the choice of Austrian law is valid. In its submission, the transactions carried out were all requested by AY, who chose investments without obtaining advice. Those transactions were investments which suited AY and therefore the bank cannot be held liable under Austrian law.

The present case provides the Court with the opportunity to develop its case-law on consumer contracts. More specifically, the Court will have to rule for the first time on whether, in order to attain the objective of consumer protection, it is necessary to impose a change in the national legislation applicable to a contract on the ground of material acts carried out by a professional during the term of that contract, notwithstanding the fact that the contracting parties initially agreed that the legislation of a particular Member State would be applicable. In so far as considerations associated with legal certainty might preclude such an interpretation of EU law, the Court must strike a careful balance between the abovementioned interests, without losing sight of the principle of private autonomy, which plays a crucial role in contract law.

II.Legal framework

A.European Union law

1.Regulation No 593/2008

Article 3(1) and (2) of Regulation No 593/2008, entitled ‘Freedom of choice’, provides:

‘1. A contract shall be governed by the law chosen by the parties. The choice shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or to part only of the contract.

Article 6(1) to (4) of that regulation, entitled ‘Consumer contracts’, provides:

‘1. Without prejudice to Articles 5 and 7, a contract concluded by a natural person for a purpose which can be regarded as being outside his trade or profession (the consumer) with another person acting in the exercise of his trade or profession (the professional) shall be governed by the law of the country where the consumer has his habitual residence, provided that the professional:

(a)pursues his commercial or professional activities in the country where the consumer has his habitual residence, or

(b)by any means, directs such activities to that country or to several countries including that country,

and the contract falls within the scope of such activities.

3. If the requirements in points (a) or (b) of paragraph 1 are not fulfilled, the law applicable to a contract between a consumer and a professional shall be determined pursuant to Articles 3 and 4.

4. Paragraphs 1 and 2 shall not apply to:

(a)a contract for the supply of services where the services are to be supplied to the consumer exclusively in a country other than that in which he has his habitual residence;

…

(d)rights and obligations which constitute a financial instrument and rights and obligations constituting the terms and conditions governing the issuance or offer to the public and public take-over bids of transferable securities, and the subscription and redemption of units in collective investment undertakings in so far as these activities do not constitute provision of a financial service;

…’

2.Directive 93/13

Article 3 of Directive 93/13 provides, in paragraph 1:

‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.’

B.Austrian law

Paragraph 879(3) of the Allgemeinen bürgerlichen Gesetzbuchs (the Austrian Civil Code, ‘the ABGB’) provides:

‘A term in the general terms and conditions of a contract or in standard contracts which does not govern a fundamental obligation of one of the parties shall be regarded as void if, in the light of all the circumstances, it is seriously detrimental to one of the parties.’

III.The facts giving rise to the dispute in the main proceedings, the main proceedings and the questions referred for a preliminary ruling

In 2013, AY, who resides in Italy, wished to open a current account and a securities deposit account with the bank, whose registered office is in Austria.

In order to do so, AY first of all visited an agency of the bank in Austria and subsequently sent from Italy the account application form, signed by him, and the ‘customer profiles’ documents requested by the bank. In accordance with the bank’s general terms and conditions, which were sent to him, Austrian law governed all legal relationships between the parties.

In addition, it is apparent from the order for reference that, when signing the contract, AY opted for an ‘execution only’ relationship and that subsequently, although his customer profile was updated on a number of occasions, AY always expressly chose only ‘execution only’ transactions.

In September 2015 and June 2016, AY acquired exchange traded notes (‘ETNs’) via the bank, which he sold at a profit in July 2016.

Next, in October 2016, AY took part in an event organised by an Italian investment company in Padua (Italy), during which the managing director of the company introduced a fund whose portfolio included the abovementioned ETNs. An employee of the bank also took part in that event in order to introduce the bank to the investors present.

Between October 2017 and February 2018, AY, acting on his own initiative, purchased further shares in the ETNs via the bank. In addition, in October 2017, AY acquired, via the bank, shares in the fund which had been introduced at the event in Padua.

Last, taking the view that he had suffered financial loss as a result of the purchases of bonds and shares in the fund made after October 2017, AY claimed damages of EUR 140 217.10, together with interest, costs and ancillary costs, from the bank in respect of its failure to fulfil its obligation to provide advice and information.

In support of his claim, AY maintains, in essence, that the clause in the general terms and conditions designating the applicable law was unlawful and that he could therefore rely on the protection of the mandatory provisions of the law in force in his country of habitual residence, Italy, which are more favourable to him. Under the Italian legislation, the bank failed to fulfil its obligations to provide information and the contracts relating to the purchases of bonds and of shares in the fund at issue are therefore void.

The lower courts dismissed AY’s claim. They considered that, in the light of the agreement between the parties, Austrian law was applicable. In addition, as AY had not used any of the bank’s services in Italy as an ‘execution only’ customer, whether investment or any other advice, the exception in Article 6(4)(a) of Regulation No 593/2008 was applicable, such that AY could not therefore benefit from the provisions that cannot be derogated from by agreement by virtue of the law that would have been applicable, in the absence of choice, on the basis of paragraphs 1 and 2 of that article.

AY lodged an appeal on a point of law with the Oberster Gerichtshof (Supreme Court), the referring court. Before that court, AY submits, first, that his claim relates only to the transactions carried out after the event of October 2016 in Italy since, during that event, the bank had actively promoted the investments at issue in Italy, thus directing its activities to the Italian market within the meaning of Article 6(1)(b) of Regulation No 593/2008.

Second, AY reiterates that the choice-of-applicable-law clause should be disregarded as unfair, since he had not been informed, as a consumer, that he could rely on the protection guaranteed to him by the mandatory provisions of the country of his habitual residence, in accordance with Article 6(2) of Regulation No 593/2008.

Third, AY asserts that the exception in Article 6(4)(a) of Regulation No 593/2008 is not applicable in the present case, since the bank has a website in English on which he was able, as an Italian consumer, to consult all movements on his accounts, print extracts from his account and obtain information, opinions and analyses. In essence, the bank provided online investment services in Italy, the State of his residence, without his physical presence in Austria being necessary.

In the light of the foregoing, AY submits that the contracts for financial services which he entered into as a consumer for the transactions at issue are therefore governed, in accordance with Article 6(1) of Regulation No 593/2008, by the Italian legislation more favourable to him, which means that those contracts are void.

The referring court observes, as a preliminary point, that AY has always acted as a consumer, both when establishing the commercial relationship and when placing the orders for the acquisition of the financial products at issue. However, at the time when the commercial relationship was established, the conditions of Article 6 of Regulation No 593/2008 were not yet satisfied, since the bank did not yet carry out activities in Italy and had not yet directed its activities to that country.

Thus, according to the referring court, at the beginning of the commercial relationship, the parties had validly chosen Austrian law, a fortiori because, even in the absence of a choice of the applicable law, in accordance with Article 4(1)(b) of Regulation No 593/2008, the contract between AY and the bank, as a contract for the provision of banking services, would have been subject to Austrian law.

The referring court therefore wonders, in the first place, whether the satisfaction of the conditions of Article 6(1) of Regulation No 593/2008 in the course of an ongoing commercial relationship that is already established means that the legal effects of that provision are to apply to transactions carried out after satisfaction of those conditions, in spite of the fact that the choice of applicable law made by the parties at the time when that relationship was established was valid. The referring court considers that there is no doubt that the bank ‘directed’ its activities to the State of residence of the consumer after 2016 and that the subsequent orders placed by AY could be linked with those activities, in accordance with the Court’s case-law. (4) Consequently, Article 6 of that regulation would, in principle, be applicable from that point.

In the second place, on the assumption that Article 6 of Regulation No 593/2008 is applicable, the referring court raises the question of whether the conditions of the exception in Article 6(4)(a) of that regulation are satisfied in the main proceedings. It is unsure, in particular, whether the criterion that emerges from the judgment of 3 October 2019, Verein für Konsumenteninformation (C‑272/18, EU:C:2019:827), according to which it is necessary to ascertain whether it follows from the very ‘nature’ of the services that they can be supplied, as a whole, only outside the State in which the consumer has his or her habitual residence, in order to determine whether those services fall within the scope of that exception, may be transposed to the present case. In this instance, the referring court points out that the fact that AY could place his purchase orders from Italy using remote communications, access the bank’s website in English and consult his accounts on that website, are arguments against the ‘exclusive’ supply of the service in Austria.

In the third place, on the assumption that Article 6 of Regulation No 593/2008 is applicable but Article 6(4)(a) of that regulation is not, the referring court wonders, in essence, whether a choice-of-law clause concluded before the conditions for the application of Article 6 of that regulation are satisfied must be regarded, after those conditions have been satisfied, as unfair within the meaning of Article 3(1) of Directive 93/13 where that clause does not provide information about the legal consequences provided for in Article 6(2) of that regulation.

In those circumstances, the Oberster Gerichtshof (Supreme Court) decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

(1)‘(1) Must the legal consequences of orders for the acquisition of financial products placed by a consumer domiciled in State A (here Italy) on the basis of an ongoing business relationship with a bank domiciled in State B (here Austria) be assessed in accordance with the law resulting from Article 6 of Regulation [No 593/2008] if the conditions for the application of [that article] were met when the individual orders were placed but not when the business relationship was entered into and the parties had at that time chosen the law of State B for the entire business relationship in accordance with Article 3 of [that regulation]?

If question 1 is answered in the affirmative:

(2)Is the exception in Article 6(4)(a) of [Regulation No 593/2008] applicable where a bank opens accounts for a consumer domiciled in another Member State on the basis of a contract and subsequently acquires financial products for the consumer on the basis of the consumer’s orders that are attributed to the accounts, where the consumer may (also) place the orders by means of remote communications?

If question 1 is answered in the affirmative and question 2 is answered in the negative:

(3)Must a choice of law made before the conditions for the application of Article 6 of [Regulation No 593/2008] were met be regarded as unfair within the meaning of Article 3(1) of [Directive 93/13] after those conditions were met if the contract does not refer to the legal consequences of Article 6(2) of [that regulation]?’

IV.The proceedings before the Court

The order for reference, dated 8 April 2024, was received at the Court Registry on 22 April 2024.

The parties to the main proceedings, the Czech Government and the European Commission lodged written observations within the period prescribed in Article 23 of the Statute of the Court of Justice of the European Union.

At the general meeting on 4 February 2025, the Court decided not to hold a hearing, in accordance with Article 76(2) of its Rules of Procedure.

V.Legal analysis

A.Preliminary remarks

30.Regulation No 593/2008 contains rules on the conflict of laws that make it possible to determine the law of the Member States applicable to contractual obligations. The material scope of that regulation is determined by Article 1, according to which that regulation is to apply, in situations involving a conflict of laws, to contractual obligations in civil and commercial matters. The matters listed in Article 1(2) are excluded from the scope of Regulation No 593/2008. If the contractual obligation in question comes within the scope of that regulation, the applicable law is to be determined according to the conflict-of-laws rules laid down therein. In accordance with Article 3 of that regulation, the principle of freedom of choice is to apply, that is to say, the parties may, in principle, freely designate the law applicable to their contract. If there is no express or implied choice of law, the applicable law is generally determined by Article 4 of that regulation, which lays down different classification rules for different types of contracts, and also by Article 5 et seq. of Regulation No 593/2008, which apply to particular types of contracts.

31.In the exercise of the powers conferred on it within the framework of preliminary reference proceedings, the referring court has made a number of findings that enable the contractual obligations in question to be classified. First of all, it follows from the order for reference that AY is a ‘consumer’ for the purposes of Article 6(1) of Regulation No 593/2008, notwithstanding the fact that, by virtue of his professional experience, he has a good understanding of financial transactions, of capital markets and of the finance market. That consumer is faced with the bank, which provided financial services to him as a ‘professional’ within the meaning of that provision. Next, the contractual obligations between AY and his bank are a ‘civil’ matter, within the meaning of Article 1(1) of that regulation, and therefore come within the scope of that regulation. Last, there is a ‘situation involving a conflict of laws’, since the bank relies on Austrian law, initially agreed between the parties, whereas AY invokes Italian law in order to enforce his rights.

32.It follows from all of those factors that the conflict rules laid down in Article 6 of Regulation No 593/2008 in relation to ‘consumer contracts’ may apply to the present case. They also form the subject matter of the main proceedings. The questions referred for a preliminary ruling, which will be examined in the order in which they were put, concern, in particular, the interpretation of the provisions referred to in paragraphs 1, 2 and 4 of Article 6 of that regulation. Only the third question concerns Directive 93/13, which is not directly concerned with the conflict-of-laws rules, but rather with the content of contractual provisions. The question raises important aspects connected with the relationship between the various normative acts of the European Union. In my analysis, I shall explain the legislative objective of those provisions and the interrelationship between them.

B.The first question

33.By its first question, the referring court seeks, in essence, to ascertain whether Article 6 of Regulation No 593/2008 applies to the acquisition of financial products when the conditions of that article, which were satisfied at the time of those transactions, were not yet satisfied when the contract underpinning those transactions was concluded.

34.If the answer to that question were to be in the affirmative, Italian law would be applicable in the present case under Article 6(1) of Regulation No 593/2008. If the answer were to be in the negative, Austrian law would be applicable under the clause designating the applicable law, which was agreed in accordance with Article 3(1) of that regulation.

1.The applicable law agreed under Article 3(1) of Regulation No 593/2008

35.Since the first question is formulated in abstract terms, it is appropriate to specify, in the interest of a better understanding of the legal issues involved, that the referring court proceeds from the premiss that the conditions of Article 6(1)(b) of Regulation No 593/2008 were satisfied subsequently, that is to say, after the conclusion of the contract, because the bank directed its professional activities to AY’s habitual State of residence.

36.As is apparent from the order for reference, there is no reason to conclude that the bank carried out a professional activity in Italy or in any way directed a professional activity to that country at the time when the contract was concluded. That is why, initially, there was no objective reason to doubt that Austrian law was applicable.

37.In the account application which he signed in 2013, AY accepted that the general conditions, which also included the clause designating the applicable law, would serve as ‘the basis of [their] present and future business relationship’. Therefore, from its unequivocal wording, the clause designating the applicable law, Austrian law, was intended also to apply to future transactions carried out within the framework of the contractual relationship between the parties.

2.The possibility of an ex post facto change in the law applicable to the framework contract under Article 6(1) of Regulation No 593/2008

38.Nonetheless, the referring court considers that, after the commencement of the commercial relationship in 2013, the bank engaged in conduct that justifies a fresh legal assessment of the circumstances. More specifically, the referring court argues, first, that it follows from the presentation which the bank made at the event held in Padua in October 2016 that the bank had actively promoted its activities in Italy and had thus directed its activities to the Italian market for the purposes of Article 6(1)(b) of Regulation No 593/2008. The referring court explains, second, that the subsequent orders placed by AY also came within the framework of those activities.

39.Although the legal classification of the facts is a matter for the referring court, under its own responsibility, (5) it is appropriate, for the purposes of this Opinion, first to examine whether that fresh legal assessment of the situation is justified. That approach makes it possible to avoid interpreting a provision of EU law that cannot apply in such circumstances and is intended to provide a useful reply to that court. I shall therefore first deal briefly with the question whether the considerations expressed by the referring court are sufficient to conclude that the legal conditions for the applicability of Article 6(1)(b) of Regulation No 593/2008 are satisfied in the present case, and then to consider, second, whether the legal effects sought by AY, namely a change in the applicable law, may be brought about in such circumstances.

(a)The formal satisfaction of the legal conditions

40.The first question would have to be answered in the affirmative if the bank had in fact directed its professional activities to the country in which the consumer has his or her habitual residence, as the referring court suggests.

41.That depends on the interpretation of the provision cited above, in particular of what is to be understood by the concept of professional activities ‘directed to’ the Member State in which the consumer has his or her habitual residence. In that regard, it should be noted that Regulation No 593/2008 contains no definition of that concept, which has not yet been interpreted by the Court.

42.However, it should be observed that that concept is very similar to that found in Article 15(1)(c) of Regulation (EC) No 44/2001 (6) and now in Article 17(1)(c) of Regulation (EU) No 1215/2012. (7) Under that provision, the court with jurisdiction to hear a case is to be determined by reference to the concept of professional activities ‘directed to’ the Member State of the consumer’s domicile. In that context, it should be borne in mind that the Court interpreted that concept in its judgment in Joined Cases Pammer and Hotel Alpenhof, (8) and that that relevant case-law might prove useful.

43.The fact that that provision, like Article 6(1)(b) of Regulation No 593/2008, is intended to resolve conflicts between different national legal systems argues, in my view, in favour of an approach that takes the underlying principles and criteria into account. In that context, it should be noted that it follows from recital 24 of Regulation No 593/2008 that the EU legislature wished to ensure consistency with Regulation No 44/2001, requiring that the concept of directed activity as a condition for applying the consumer protection rule be ‘interpreted harmoniously’. The approach proposed in this Opinion is therefore consistent with the express intention of the EU legislature.

44.In the Pammer and Hotel Alpenhof judgment, the Court held that an activity is ‘directed’ to the consumer’s State where the trader has manifested its intention to establish commercial relations with consumers from one or more other Member States, including that of the consumer’s domicile. There must therefore be evidence, before any contract with that consumer was concluded, that the trader envisaged doing business with consumers domiciled in other Member States, including the Member State of that consumer’s domicile, in the sense that it was minded to conclude a contract with those consumers. (9)

45.In the present case, it is common ground that the bank attended an event in Italy, represented by one of its employees, the sole purpose of which could only be to conclude new contracts or to carry out new transactions with the customers present. I therefore agree with the referring court’s assessment that such conduct must be interpreted as meaning that the banks’ activities were also ‘directed to’ Italy, within the meaning of Article 6(1)(b) of Regulation No 593/2008, with a view to concluding contracts with consumers.

46.In that regard, the bank’s argument that, in essence, the fact of having directed a professional activity to the consumer’s country of habitual residence does not render Article 6(1) of Regulation No 593/2008 applicable unless there is a causal link between the professional’s activity in the consumer’s country of residence and the conclusion of the contract, must be rejected. In fact, the Court has already held, in the Emrek judgment, (10) which concerned the interpretation of an equivalent provision on jurisdiction, namely Article 15(1)(c) of Regulation No 44/2001, that it does not require the existence of a causal link between the means employed to direct the commercial or professional activity to the Member State of the consumer’s domicile, namely an internet site, and the conclusion of the contract with the consumer. However, the existence of such a causal link constitutes evidence of the connection between the contract and such activity. (11) In the spirit of a ‘harmonious interpretation’ of the concept of ‘directed activity’, found in Regulation No 593/2008 and in Regulation No 44/2001, (12) the same interpretation must be given to Article 6(1)(b) of Regulation No 593/2008, (13) so that in the present case proof of a causal link between the bank’s presence at the event in Padua in October 2016 and the purchase of the securities by AY after that event is not required. The fact that the referring court does not mention such a causal link does not in itself render Article 6(1) of that regulation inapplicable.

(b)The application of the legal effects to the present case

47.In principle, the fact that the conditions for the application of Article 6(1)(b) of Regulation No 593/2008 are satisfied should trigger the legal consequence envisaged by that provision, namely the application of the Italian legislation on consumer contracts to the circumstances of the present case. That would mean a change in the applicable law during the term of the contract, notwithstanding the fact that Austrian law had initially been chosen by the parties under Article 3(1) of that regulation.

48.From that perspective, it should be noted that the wording of Article 6(1) of Regulation No 593/2008 does not make express provision for the possibility of changing the law applicable to a consumer contract when the legal conditions laid down in subparagraph (a) or subparagraph (b) of that provision were not satisfied at the beginning of the contractual relationship but materialised during the course of that relationship. That provision governs the ‘classic’ situation of determining the law applicable to a consumer contract where those requirements are satisfied at the beginning of the contractual relationship. The particular feature of a situation associated with a change of circumstances in the course of an ongoing commercial relationship means it is necessary to achieve a link between Article 3(1) and Article 6(1) of that regulation, which should respect both the autonomy of the parties in their choice of the applicable law and the protection of the consumer in such a relationship.

49.As a preliminary point, it should be borne in mind that Article 6(1)(b) of Regulation No 593/2008 is intended to protect the consumer, in so far as it provides for the application of the law of the country of the consumer’s habitual residence. Thus, the law with which the consumer is familiar is declared to be applicable, which is of considerable importance, since not all consumers are aware that contractual relationships with a cross-border element may lead to a conflict of laws. (14) Owing to their lack of experience in commercial matters, consumers are deemed to be worthy, in the view of the EU legislature, of protection by comparison with professionals, as may be seen from recital 23 of that regulation. Indeed, the possible applicability of legislation with which a consumer is not familiar may deprive him or her of the protection afforded by the legal order of the country in which he or she is habitually resident.

50.However, to my mind, a different assessment seems appropriate when the consumer concludes the contract voluntarily and with full knowledge of the consequences of the choice of applicable law. That conclusion is all the more convincing when the consumer travels to the country in which the professional is established in order to conclude a contract there and when at that time the professional does not carry out any activity in the country of the consumer’s habitual residence.

51.First, any recognition of the consumer’s right to invoke Article 6(1)(b) of Regulation No 593/2008 in order to bring about a change in the applicable law, irrespective of the fact that a choice of applicable law was made on the basis of Article 3(1) of that regulation, with full knowledge of the facts and in agreement with his or her contracting partner, would in my view devalue the principles of contractual freedom and freedom of choice, which are specifically at the heart of that regulation. As is apparent from recital 11 thereof, ‘the parties’ freedom to choose the applicable law [is] one of the cornerstones of the conflict-of-law rules in matters of contractual obligations’ (emphasis added). The Court has specifically recognised that in its case-law and has also held that the parties’ freedom to choose the law applicable to their contractual relationship must be respected. (15)

52.However, that would not be the case if a change in the applicable law depended solely on the will of one of the two contracting parties. In that context, it should be observed that Article 3(2) of Regulation No 593/2008 provides that ‘the parties may at any time agree to subject the contract to a law other than that which previously governed it, whether as a result of an earlier choice made under [that] Article or of other provisions of [the] Regulation’ (emphasis added). The only possibility allowed by the EU legislature of subsequently changing the applicable law is therefore that of a common agreement, an option of which AY and the bank clearly did not avail themselves. I therefore do not see any possibility to grant AY’s request to apply Italian law without calling into question the principles of contractual freedom and freedom of choice. The abovementioned provision, which reflects those principles, would be rendered ineffective if the bank were in a position, by unilaterally directing its activities to Italy, to modify the choice of applicable law. From that point of view, it may be maintained that the immutability of the applicable law also helps to protect the consumer. A change in applicable law by means of a unilateral act by a professional might entail the application of a law that provides less protection to consumers than that agreed between the parties.

53.Second, as I have already stated in this Opinion, considerations of legal certainty also argue against the application of Article 6(1) of Regulation No 593/2008 in the sense of permitting the applicable law to be changed during the term of the contract. As is apparent from recital 16 of that regulation, ‘to contribute to the general objective of this Regulation, legal certainty in the European judicial area, the conflict-of-law rules should be highly foreseeable’. Such foreseeability would be lacking, in my view, if it were accepted that the law applicable to a contractual relationship could be changed by a unilateral action of one of the parties to that contract. In that regard, it should be borne in mind that, in the case-law relating to that regulation, the Court has referred on a number of occasions to the requirements of legal certainty and, in particular, to the need to ensure the foreseeability of the law in contractual relationships involving consumers. (16)

54.I consider that that legislative objective would be seriously undermined if it were accepted that a subsequent change in the law applicable to the contract might be made not only independently of the will of the parties, but also following a fortuitous and single event. That, in my view, is the precise thrust of AY’s argument, since it relies on the event organised in Padua as an event capable by itself of bringing about such a change in the applicable law. However, although that event might be interpreted as meaning that the bank had thereafter directed its activities to Italy, (17) it does not appear to have had an impact on the contractual relationship between AY and the bank. Although AY asserts that he met an employee of the bank on that occasion, there is no indication that the existing contract was amended. Nor does it seem to me that such an event was on a large scale, of such a kind as to acquire any legal significance, in particular from the perspective of any change in the applicable law. According to the information provided by the referring court, the employee in question did not present funds or other financial products, but only the bank for which he worked.

The opposite point of view would have serious consequences for legal certainty. Any type of conduct by the professional towards his or her customers, even of the most discreet kind, would have to be examined in order to ascertain whether it entails a change in the law applicable in ongoing commercial relationships. It must also be borne in mind that any change in the applicable law, depending on the legal system concerned, would have a considerable influence on the contractual relationship between the parties. An ex post facto change in the applicable law would be liable to lead to the modification of an essential element of the contract. According to the account provided by the referring court, in the event that Italian law is applicable, the bank would be required to advise AY about his investments. Yet such advice was not provided for under the ‘execution only’ relationship agreed between the parties.

It cannot be ruled out that the bank’s obligation to provide advice would therefore also require an adjustment of the agreed remuneration. An ex post facto change in the applicable law would therefore call into question the essential content of the contract (essentialia negotii). (18) Not only would such an amendment raise numerous questions about the rights and obligations of the contracting parties, but the very existence of the contract might be jeopardised if, as the referring court explains, Italian law provided that failure to comply with the obligation to provide information rendered the contract void.

In addition, it is necessary to take into account that an extensive interpretation, such as that recommended by AY, would affect not only the contract between him and the bank, but potentially also a large number of contracts with a cross-border link. A bank operating throughout the entire European internal market (19) might be deterred from extending its international presence in order to avoid the unforeseeability inherent in the risk of a change in the applicable law in ongoing contractual relationships with consumers. Such an approach might prevent it from taking advantage of the internal market, which would also be to the detriment of potential customers wishing to benefit from financial services. (20) The proper functioning of the internal market, and of other related areas of integration, such as the area of freedom, security and justice, referred to in recitals 1 and 6 of Regulation No 593/2008, would be affected by uncertainty about the determination of the applicable law. It is therefore clear that the application of Article 6(1) of that regulation in circumstances such as those of the present case would give rise to serious problems from the point of view of legal certainty.

(c)Intermediate conclusion

For the reasons set out in the preceding points, I consider that Article 6(1) of Regulation No 593/2008 should not be interpreted broadly, in so far is it does not permit an ex post facto change in the law applicable to the contract in circumstances such as those of the present case. Conversely, the law agreed by the contracting parties in accordance with Article 3(1) of that regulation must prevail.

3.Assessment of the individual financial transactions

A different outcome might be envisaged if the various orders placed after the conditions for the application of Article 6(1) of Regulation No 593/2008 were satisfied were regarded as constituting autonomous contracts. The same would apply if those orders had altered the contract existing between the consumer and the bank to such an extent that that modification reflected not a mere updating or amendment of that contract but the creation of a new legal relationship between the contracting parties.

In that regard, it should be borne in mind that the Court held in its judgment in the case of Nikiforidis, that the entry into force of Regulation No 593/2008 did not lead to the application of that regulation to a contract concluded before it entered into force unless that contract had been amended to such an extent that a new contract had to be regarded as having been concluded. (21) In applying the basic idea that underlies that case-law, it would be necessary to examine whether the individual financial transactions carried out by AY over time may be legally distinguished from the initial contract concluded between AY and the bank or whether they entail a substantial modification of that contract. However, certain factors suggest that that is not so.

It is apparent from the order for reference that, in signing the contract under which the securities deposit account and the current account were opened, AY and the bank entered into a contractual relationship of indeterminate duration. That contract constitutes a kind of ‘framework contract’, since that contract served as the basis for all subsequent orders for the purchase and sale of financial products placed by AY. In so far as AY opted for an ‘execution-only relationship’, the bank acted, to put it simply, as an intermediary (an agent), that is to say, it purchased the corresponding financial products in accordance with AY’s instructions and on his behalf.

All the orders placed by AY and carried out by the bank therefore form part of that framework contract, irrespective of the date on which they were executed. Likewise, there is no indication that the contractual relationship between AY and the bank was modified after the bank, according to the referring court, began to ‘direct’ its activity to Italy. It is for the referring court, however, to determine whether, and if so, to what extent the contractual relationship that commenced between AY and the bank in 2013 was subject to an amendment of such magnitude that it would give rise not to a mere updating or amendment of that contract but to the creation of a new legal relationship between the contracting parties. In the absence of any indication to the contrary in the order for reference, it may be assumed for the purposes of the present case that there was no substantial change in the contractual relationship.

4.Answer to the first question

In answer to the first question, I consider that the legal effects of orders for the purchase of financial products given by a consumer resident in State A to a bank established in State B within the framework of an ongoing commercial relationship must be assessed in the light of the law designated by the parties in the contract that gave rise to the commercial relationship even if, after the contract was concluded, the conditions for the application of Article 6(1) of Regulation No 593/2008 are satisfied and were satisfied when the various orders were placed.

C.Further considerations

In view of my proposed answer to the first question referred for a preliminary ruling, there is no longer any need to examine the second and third questions referred. I shall nonetheless examine them, in the interest of completeness and in case the Court should choose not to follow my proposed answer to the first question.

1.The second question

By its second question referred for a preliminary, the referring court asks whether, if the answer to the first question is in the affirmative, the exception in Article 6(4)(a) of Regulation No 593/2008 applies to the present case. In the words of that provision, Article 6(1) and (2) of that regulation is not to apply to a contract for the supply of services where the services are to be supplied to the consumer exclusively in a country other than that in which he or she has his or her habitual residence.

Although that provision does not itself contain a definition of the concept of ‘contract for services’, it is clear that consumer protection in the EU internal market requires that the concept be interpreted autonomously and broadly, in the light of the relevant economic conception for Article 56 et seq. TFEU, rather than by reference to the contract law of the Member States. (22) It is therefore appropriate to apply an approach similar to that applied in the Court’s case-law relating to the second indent of Article 5(1)(b) of Regulation No 44/2001, reproduced in the second indent of Article 7(1)(b) of Regulation No 1215/2012.

Thus, the concept of ‘services’ encompasses any economic activity performed in the interest of others, (23) unless the obligation to transfer ownership of a good is predominant. (24) Such a concept includes a wide range of services, including financial services. (25) I therefore agree with the referring court that a contract for the purchase of securities on behalf of a customer should be classified as a contract for the supply of services within the meaning of Article 6(4)(a) of Regulation No 593/2008. The contract in question therefore comes within the material scope of that provision.

Likewise, that provision requires that the services are to be supplied to the consumer ‘in a country other than that in which he [or she] has his [or her] habitual residence’. The reason for that exception may be summarised as follows. In the circumstances described by that provision, a consumer cannot reasonably expect that the law of his or her country of habitual residence will be applied in derogation from the general rules on the determination of the applicable law, because the contract has closer links with the country in which the other contracting party is resident, even if the supplier has advertised or marketed the service in the country in which the consumer is resident. (26)

That raises the question as to which characteristics the services in question must have in order to be regarded as being available ‘exclusively’ in a particular Member State. The Court examined that question in the judgment in Verein für Konsumenteninformation, and held that, in order to determine whether that exception applies, ‘it is necessary to ascertain whether it follows from the very nature of the contracted services that they can be supplied, as a whole, only outside the State in which the consumer has his [or her] habitual residence’. (27) The Court also made clear in that context that ‘where, as stipulated in the contracts at issue in the main proceedings, the place of the actual supply of services is in a country other than that in which the consumer receives those services, it must be considered that the services are supplied “exclusively” outside of the consumer’s Member State of habitual residence only where the consumer has no possibility of receiving them in his State of residence and must travel abroad in order to do so’. (28) In other words, the services in question must be services which, by their nature, can be supplied only in a specific place.

To my mind, those conditions are not satisfied in the present case since it is clear from the order for reference, first of all, that the bank, on the basis of the contract concluded with AY, opened a securities deposit account and a current account in Austria and subsequently, executing the orders placed by AY and acting on his behalf, acquired financial products which were credited to his accounts. Next, AY was able to place his purchase orders from Italy by means of remote communications (telephone, email). According to the referring court, AY was also able to access the bank’s website in English and consult his accounts on that site. Last, that court assumes that the bank had also communicated information to AY about the execution of his orders. It therefore appears that, in his capacity as a consumer, AY was able to use the bank’s services from anywhere at all. It follows that Article 6(4)(a) of Regulation No 593/2008 is not applicable in such circumstances.

For the reasons set out above, I propose that the answer to the second question referred should be that the exception in Article 6(4)(a) of Regulation No 593/2008 does not apply where a bank, on the basis of a contract, opens accounts for a consumer residing in another Member State, then, executing orders placed by that consumer, and acting on his or her instructions, acquires financial products which are credited to those accounts, including where those orders are (also) placed by means of telecommunications equipment.

2.The third question

By its third question, the referring court asks, in essence, whether a choice-of-applicable-law clause must be regarded as ‘unfair’ within the meaning of Article 3(1) of Directive 93/13, where, after the contract was concluded, the conditions for the application of Article 6 of Regulation No 593/2008 are satisfied, on the ground that, at the time when the contract was concluded, the consumer’s attention had not been drawn to the legal effects of paragraph 2 of that latter provision.

This question concerns the relationship between Regulation No 593/2008 and Directive 93/13, a matter which the Court has already had the opportunity to address in the judgment in Verein für Konsumenteninformation. (29) The Court emphasised in its judgment that EU legislation in principle allows choice-of-law terms. Article 6(2) of that regulation provides that the parties may choose the law applicable to a consumer contract, provided that the protection is ensured which the consumer is afforded by provisions of the law of his or her country that cannot be derogated from by agreement. (30)

The Court made clear that a pre-formulated term on the choice of the applicable law designating the law of the Member State in which the seller or supplier is established is unfair only in so far as it displays certain specific characteristics inherent in its wording or context which cause a significant imbalance in the rights and obligations of the parties. In particular, the unfairness of such a term may result from a formulation that does not comply with the requirement of being drafted in plain and intelligible language set out in Article 5 of Directive 93/13. That requirement must, having regard to the consumer’s weak position vis-à-vis the seller or supplier with respect in particular to his or her level of knowledge, be interpreted broadly. (31)

Likewise, the Court observed that, where the effects of a term are specified by mandatory statutory provisions, it is essential that the seller or supplier informs the consumer of those provisions. That is the case of Article 6(2) of Regulation No 593/2008, which provides that the choice of applicable law must not have the result of depriving the consumer of the protection afforded to him or her by provisions that cannot be derogated from by agreement by virtue of the law which would have been applicable in the absence of choice. (32) The Court thus held that a term is unfair in so far as it misleads the consumer by giving him or her the impression that only the law of that Member State applies to the contract, without informing him or her that under the aforementioned provision he or she also enjoys the protection of the mandatory provisions of the law that would be applicable in the absence of that term, (33) namely the provisions of the law of the country in which he or she has his or her habitual residence. (34)

It is important, however, to draw attention to the fact that the referring court is faced with a specific situation in the present case, namely one in which there is a possible subsequent change in the law applicable to the contract as a result of the conduct of the professional, on the basis of Article 6(1)(b) of Regulation No 593/2008. The question therefore arises whether the protection of a consumer against an unfair term under Directive 93/13 may be envisaged in such circumstances, which, in view of the answer which I intend to give to the first question, (35) can only constitute a hypothetical situation.

However, and even if it were accepted that the law initially chosen by the parties might change because the conditions laid down in Article 6(1) of Regulation No 593/2008 were subsequently satisfied (which I do not recommend), the consumer would then be protected by the law of the country of his or her habitual residence, the law chosen would no longer be applicable and the protection of the consumer by the second sentence of Article 6(2) of that regulation would be meaningless.

In any event, the question of the possible unfairness of the choice-of-law clause applicable to the consumer contract in the circumstances of the present case must be answered in the negative. In that regard, it should be noted that the referring court does not raise a question about the validity of the clause at the time when the contract was signed, but at the time when, years after the contract was signed, the conditions for the application of Article 6 of Regulation No 593/2008 were satisfied. However, it follows from the Court’s case-law that the unfairness of a contractual term is to be assessed, on the basis of Article 3(1) of Directive 93/13, by reference to the time of conclusion of the contract at issue, taking account of all the circumstances which could have been known to the seller or supplier at that time, and which were of such a nature that they could affect the future performance of the contract, since a contractual term may give rise to an imbalance between the parties which manifests itself only during the performance of the contract. (36)

Accordingly, ‘compliance by a seller or supplier with the requirement of transparency laid down in Article 4(2) and Article 5 of Directive 93/13 must be assessed by reference to the information available to that seller or supplier on the date of conclusion of the contract with the consumer.’ (37) From that perspective, I consider that, in the absence of indications suggesting the contrary, it is necessary to proceed from the principle that the bank had no objective reason to presume that a change in the law applicable to the contract might take place in the future and that it was therefore necessary to inform AY of such a possibility. Seen from that aspect, it seems to me that the bank cannot be accused of having failed to fulfil its obligation of transparency.

Nor is it obvious which acts of EU law, in addition to the general obligation in the field of services to provide information of contractual terms relating to the legislation applicable to the contract, (38) would require the professional in the present case to warn the consumer of any possible change in the applicable law. That covers in particular the precise legal consequences arising from the application of Article 6(2) of Regulation No 593/2008, in conjunction with the mandatory provisions of national legislation, taking into account the fact that in order to fulfil such an obligation it would be necessary to carry out a complex legal assessment of the situation. (39) An obligation to provide information to the consumer cannot be understood as entailing a general obligation for the professional to supply legal advice, especially in relation to uncertain events.

In the light of the foregoing, I consider that the answer to the third question referred should be that a choice-of-applicable-law clause is not to be regarded as unfair within the meaning of Article 3(1) of Directive 93/13 when, after the contract has been concluded, the conditions for the application of Article 6 of Regulation No 593/2008 are satisfied, on the ground that, at the time of conclusion of the contract, the consumer’s attention had not been drawn to the legal effects of paragraph 2 of that provision.

VI.Conclusion

Having regard to all of the foregoing considerations, I propose that the Court should answer the questions for a preliminary ruling referred by the Oberster Gerichtshof (Supreme Court, Austria), as follows:

The legal effects of orders for the purchase of financial products given by a consumer residing in State A to a bank established in State B within the framework of an ongoing commercial relationship must be assessed by reference to the law designated by the parties in the contract that gave rise to the commercial relationship, even if, after that contract was concluded, the conditions for the application of Article 6(1) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) are satisfied and were satisfied when the various orders were placed.

—

1Original language: French.

2OJ 2008 L 177, p. 6.

3OJ 1993 L 95, p. 29.

4See judgments of 7 December 2010, Pammer and Hotel Alpenhof, (C‑585/08 and C‑144/09, EU:C:2010:740, paragraph 75 et seq.), and of 17 October 2013, Emrek, (C‑218/12, EU:C:2013:666, paragraph 32).

5See judgments of 21 July 2005, Coname (C‑231/03, EU:C:2005:487, paragraph 10); of 10 March 2011, Privater Rettungsdienst und Krankentransport Stadler (C‑274/09, EU:C:2011:130, paragraphs 29 and 36); and of 21 May 2015, Kansaneläkelaitos (C‑269/14, EU:C:2015:329, paragraph 25).

6Council Regulation of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).

7Regulation 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).

8Judgment of 7 December 2010, Pammer and Hotel Alpenhof (C‑585/08 and C‑144/09, EU:C:2010:740).

9Judgment of 7 December 2010, Pammer and Hotel Alpenhof (C‑585/08 and C‑144/09, EU:C:2010:740, paragraphs 75 and 76).

10Judgment of 17 October 2013 (C‑218/12, EU:C:2013:666).

11Judgment of 17 October 2013, Emrek (C‑218/12, EU:C:2013:666, paragraph 32).

12See point 43 of this Opinion.

13Calliess, G.-P., Rome Regulations: Commentary (Calliess, Gralf-Peter/Moritz Renner, 3rd Edition, Kluwer Law International, Alphen aan den Rijn, 2020, Article 6, paragraph 54, p. 190, is also in favour of that case-law being applied in the context of Regulation No 593/2008.

14See, to that effect, Calliess, G.-P., Rome Regulations: Commentary (Calliess, Gralf-Peter/Moritz Renner, 3rd Edition, Kluwer Law International, Alphen aan den Rijn, 2020, Article 6, paragraph 3, p. 164.

15See judgment of 17 October 2013, Unamar (C‑184/12, EU:C:2013:663, paragraph 49).

16See judgments of 18 October 2016, Nikiforidis (C‑135/15, EU:C:2016:774, paragraph 36) and of 14 September 2023, Diamond Resorts Europe and Others (C‑632/21, EU:C:2023:671, paragraph 75).

17See point 45 of this Opinion.

18The services and goods supplied, on the one hand, and the price and remuneration, on the other, are the core of a contractual relationship (see Opinion of Advocate General Wahl in Andriciuc and Others, C‑186/16, EU:C:2017:313, point 34).

19It is the internal market with its fundamental freedoms, in particular the freedom to provide services, that is relevant in the present case. The internal market established within the European Union is extended to the States of the European Free Trade Association (EFTA), including Liechtenstein, by the Agreement on the European Economic Area (EEA) (see judgment of 28 October 2010, Établissements Rimbaud, C‑72/09, EU:C:2010:645, paragraph 20).

20Cordero-Moss, G., ‘The impact of EU law on Norwegian private international law’, Acta Universitatis Carolinae Iuridica, Vol. 66, No 4 (2020), p. 34, emphasises the need for a choice of law in today’s world. According to the author, a lack of foreseeability of the rights and obligations of contracting parties may have a deterrent effect and, in the worst case, restrict the international activity of economic operators wishing to trade or invest in the internal market.

21See judgment of 18 October 2016 (C‑135/15, EU:C:2016:774, paragraph 37).

22Calliess, G.-P., Rome Regulations: Commentary (Calliess, Gralf-Peter/Moritz Renner), 3rd Edition, Kluwer Law International, Alphen aan den Rijn, 2020, article 6, paragraph 60, p. 192.

23See judgment of 14 July 2016, Granarolo (C‑196/15, EU:C:2016:559, paragraph 37).

24Mankowski, P., Brussels Ibis Regulation: Commentary (Magnus, Ulrich/Mankowski, Peter), 1st Edition, Sellier European Law Publishers, Cologne, 2016, article 7, paragraph 97 et seq.

25Schulze, R., Bürgerliches Gesetzbuch, 12th Edition, Nomos, Baden-Baden, 2024, article 6 Rom I-VO, paragraph 7; Mankowski, P., Brussels Ibis Regulation: Commentary (Magnus, Ulrich/Mankowski, Peter), 1st Edition, Sellier European Law Publishers, Cologne, 2016, article 7, paragraph 114, p. 201.

26McParland, M., The Rome I Regulation on the Law Applicable to Contractual Obligations, Oxford, 2015, p. 554, paragraph 12, p. 198.

27Judgment of 3 October 2019 (C‑272/18, EU:C:2019:827, paragraph 51). Emphasis added.

28Judgment of 3 October 2019, Verein für Konsumenteninformation (C‑272/18, EU:C:2019:827, paragraph 52). Emphasis added.

29Judgment of 28 July 2016 (C‑191/15, EU:C:2016:612).

30See judgment of 28 July 2016, Verein für Konsumenteninformation (C‑191/15, EU:C:2016:612, paragraph 66).

31Judgment of 28 July 2016, Verein für Konsumenteninformation (C‑191/15, EU:C:2016:612, paragraphs 67 and 68).

32Judgment of 28 July 2016, Verein für Konsumenteninformation (C‑191/15, EU:C:2016:612, paragraph 69).

33See judgment of 28 July 2016, Verein für Konsumenteninformation (C‑191/15, EU:C:2016:612, paragraph 71).

34See judgment of 14 September 2023, Club La Costa and Others (C‑821/21, EU:C:2023:672, paragraph 74).

35See point 63 of this Opinion.

36See judgment of 9 July 2020, Ibercaja Banco (C‑452/18, EU:C:2020:536, paragraph 48).

37See judgment of 9 July 2020, Ibercaja Banco (C‑452/18, EU:C:2020:536, paragraph 49). Emphasis added.

38In accordance with Article 22(1)(g) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36), Member States are to ensure that providers of services make available to recipients information about the existence of contractual clauses, if any, used by the provider concerning the law applicable to the contract and/or the competent courts. However, under Article 2(2)(b) thereof, financial services are excluded from the scope of that directive.

39Rühl, G., ‘The Unfairness of Choice-of-Law Clauses, Or: The (Unclear) Relationship of Art. 6 Rome I Regulation and the Unfair Terms in Consumer Contracts Directive’, Common Market Law Review, 55, 2018, p. 219 et seq., points out the complexity of that provision, which causes problems even for legal practitioners. According to the author, the Court’s case-law must not be understood as meaning that the professional is required to list all the provisions of the consumer’s country of residence that take precedence over the law chosen.