Provisional text

delivered on 30 April 2025 (1)

Case C‑197/24 [Šiľarský] (i)

AK

RU

(Request for a preliminary ruling from the Mestský súd Bratislava IV (Bratislava IV Municipal Court, Slovakia))

( Reference for a preliminary ruling – Directive 2011/7/EU – Combating late payment in commercial transactions – Concept of ‘undertaking’ – Concept of ‘commercial transaction’ – Directive 93/13/EEC – Contract for the provision of legal services with a view to founding a commercial company – Article 267 TFEU – Jurisdiction of the Court – Admissibility – Concept of ‘consumer’ – Natural person who availed him or herself of the services of a lawyer with a view to founding a commercial company )

Introduction

In the context of a contract for the provision of legal services concluded by a client with his or her lawyer with a view to founding a commercial company, in which the client was to become the managing director and one of the two founders and members, is that client, who is a natural person, already an undertaking or is he or she still a consumer? That is the question which is raised, in essence, by this request for a preliminary ruling. In the dispute in the main proceedings concerning payment of lawyer’s fees, the referring court is enquiring about the body of civil and commercial rules to be applied.

This case thus gives the Court an opportunity, in that context, to clarify the concept of ‘undertaking’ within the meaning of Directive 2011/7/EU on combating late payment in commercial transactions (2) (the first question referred) and that of ‘consumer’ within the meaning of Directive 93/13/EEC on unfair terms in consumer contracts (3) (the second question referred). It also offers an opportunity to consider whether the Court has jurisdiction to answer that second question when the dispute in the main proceedings does not, as such, relate to a contractual term, and whether that question is admissible.

Legal framework

European Union law

Recital 8 of Directive 2011/7 provides inter alia that the scope of that directive should be limited to payments made as remuneration for commercial transactions and that the directive should not regulate transactions with consumers or interest in connection with other payments.

Under Article 1 of Directive 2011/7, entitled ‘Subject matter and scope’:

‘1. The aim of this Directive is to combat late payment in commercial transactions, in order to ensure the proper functioning of the internal market, thereby fostering the competitiveness of undertakings and in particular of [small and medium-sized enterprises].

…’

Article 2 of that directive provides:

‘For the purposes of this Directive, the following definitions shall apply:

(1) “commercial transactions” means transactions between undertakings or between undertakings and public authorities which lead to the delivery of goods or the provision of services for remuneration;

…

(3) “undertaking” means any organisation, other than a public authority, acting in the course of its independent economic or professional activity, even where that activity is carried out by a single person;

…’

Article 6(1) of the directive provides that Member States must ensure that, where interest for late payment becomes payable in commercial transactions in accordance with Article 3 or 4 of that directive, the creditor is entitled to obtain from the debtor, as a minimum, a fixed sum of EUR 40.

Directive 93/13 provides in its twelfth recital that ‘whereas, however, as they now stand, national laws allow only partial harmonisation to be envisaged; whereas, in particular, only contractual terms which have not been individually negotiated are covered by this Directive; whereas Member States should have the option, with due regard for the Treaty, to afford consumers a higher level of protection through national provisions that are more stringent than those of this Directive’.

Article 1(1) of that directive states:

‘The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer.’

Article 2(b) of that directive provides:

‘For the purposes of this Directive:

…

(b) “consumer” means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession;

…’

Article 3(1) of Directive 93/13 provides that a contractual term which has not been individually negotiated is to 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.

Article 4 of that directive provides:

‘1. Without prejudice to Article 7, the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.

Article 8 of the directive provides:

‘Member States may adopt or retain the most stringent provisions compatible with the Treaty in the area covered by this Directive, to ensure a maximum degree of protection for the consumer.’

Slovak law

Commercial Code

Under Paragraph 2(2)(a) of zákon č. 513/1991 Zb. Obchodný zákonník (Law No 513/1991 establishing the Commercial Code; ‘the Commercial Code’) of 5 November 1991 (No 98/1991 Zb.), a businessperson is a person entered in the commercial register.

Paragraph 57(1) of the Commercial Code provides that, unless otherwise provided by that code, a company is to be founded by a contract signed by all the founders. The veracity of the signatures of the founders must be officially certified.

Paragraph 62(1) of the Commercial Code stipulates that the date of creation of the company is the date of its entry in the commercial register.

Paragraph 369c(1) of the Commercial Code, which transposes Article 6(1) of Directive 2011/7 into Slovak law, provides that ‘in the event of default by the debtor, the creditor shall, in addition to the claims under Paragraphs 369, 369a and 369b, also be entitled to a fixed sum of compensation for recovery costs, without the need for separate notification. …’.

Civil Code

Paragraph 52 of zákon č. 40/1964 Zb. Občiansky zákonník (Law No 40/1964 establishing the Civil Code), in the version applicable to the dispute in the main proceedings (‘the Civil Code’), provides:

‘(1) “Consumer contract” means any contract, regardless of its legal form, concluded between a seller or supplier and a consumer.

(2) Provisions concerning consumer contracts and all other provisions governing the legal relations into which a consumer has entered shall be applied in every case where that is to the advantage of the consumer. Different contractual arrangements or agreements whose content or purpose is to circumvent those provisions shall be invalid. The provisions of the Civil Code shall always prevail in all legal relations into which a consumer has entered, even where the provisions of commercial law would otherwise apply.

(3) A seller or supplier is a person who, when concluding and performing a consumer contract, acts in the course of his or her commercial activity or other trade, business or profession.

(4) A consumer is a natural person who, when concluding and performing a consumer contract, does not act in the course of his or her commercial activity or other trade, business or profession.’

Law on the profession of lawyer

Paragraph 18(4) of zákon č. 586/2003 Z. z. o advokácii a o zmene a doplnení zákona č. 455/1991 Zb. o živnostenskom podnikaní (živnostenský zákon) v znení neskorších predpisov, of 4 December 2003 (No 239/2003 Z. z.) (Law No 586/2003 Z. z. on the profession of lawyer and amending and supplementing Law No 455/1991 Zb. on self-employment (Law on self-employment), as amended (‘the Law on the profession of lawyer’)) provides that, ‘in the course of providing legal services, a lawyer is obliged to inform the client, who is a consumer of legal services, of the amount of the remuneration for the act of providing legal services before that act commences. Otherwise, he or she shall not be entitled to remuneration …’.

The dispute in the main proceedings, the questions referred for a preliminary ruling and the procedure before the Court

The dispute in the main proceedings arises from an action brought by AK, a law firm (4) which is the applicant in the main proceedings, against RU, a natural person who is the defendant in the main proceedings. The dispute concerns payment of fees of the law firm for the provision of legal services amounting to EUR 3 250, plus default interest from 18 January 2023, and payment of recovery costs.

AK states that ‘in late March or early April 2022’ it was contacted by RU, who wanted to found a limited liability company under Slovak law. RU was to hold the position of managing director of that company and was to become one of its two founders and members. AK and RU thus concluded an oral mandate contract by which AK undertook to provide legal services in return for an agreed fixed sum of remuneration.

AK sent RU a draft company contract and other documents, as well as the invoice for its services, which was not settled by its due date, 17 January 2023. In the view of AK, this is a dispute governed by the provisions of commercial law and it therefore seeks payment of a fixed sum of compensation for recovery costs in the amount of EUR 40 pursuant to Paragraph 369c(1) of the Commercial Code, which transposes Article 6(1) of Directive 2011/7.

For his part, RU disputes that he entered into a contract for the provision of legal services with AK. According to RU, no agreement on remuneration was concluded and AK sent him the company contract and the other documents without having been solicited to that effect. RU considers that he is a consumer and contends that the dispute is therefore not governed under commercial law.

In those circumstances, the Mestský súd Bratislava IV (Bratislava IV Municipal Court, Slovakia), being uncertain as to whether the defendant in the main proceedings is to be regarded as an undertaking within the meaning of Directive 2011/7 or as a consumer within the meaning of Directive 93/13, has decided to stay the proceedings and to refer the following questions to the Court for a preliminary ruling:

‘(1) Must Article 1(2) of Directive [2011/7], in conjunction with Article 2(1) and (3) and Article 6(1) thereof, be interpreted as meaning that (i) a natural person who, in a case such as that in the main proceedings, avails him or herself of the legal services of a lawyer with a view to founding a commercial company, in which he or she is to become a managing director and one of the two founders and members, is to be regarded as an “undertaking”, and (ii) a transaction which, in a case such as that in the main proceedings, leads to the provision of services by a lawyer to such a person with a view to founding a commercial company, is to be regarded as a “commercial transaction”?

(2) If the answer to the first question is in the negative, must the term “consumer” used in Article 2(b) of [Directive 93/13], in conjunction with Article 8 thereof, be interpreted as meaning that, in a case such as that in the main proceedings, it also encompasses a natural person against whom a claim is made under a contract for the provision of legal services, where the object of that contract was the provision of services with a view to founding a company and [that natural person] was to become a managing director and one of the two founders and members of that company?’

The Commission and the Slovak Government have lodged written observations.

Analysis

First question

By its first question, the referring court asks the Court whether Article 1(2) of Directive 2011/7, read in conjunction with Article 2(1) and (3) and Article 6(1) thereof, must be interpreted as meaning that a natural person, who is not a ‘businessperson’ under Slovak law because a commercial company has not yet been founded, and who has availed him or herself of the services of a lawyer with a view to founding a commercial company, in which he or she is to become the managing director and one of the two founders and members, is to be regarded as an ‘undertaking’ within the meaning of that directive. The question is therefore whether the provision of services at issue constitutes a ‘commercial transaction’ on the ground that that person requested legal services for the purposes of a future professional activity. According to the referring court, it is necessary to answer that question in order to determine whether the applicant is entitled to a fixed sum of compensation under Article 6(1) of Directive 2011/7, as transposed by Paragraph 369c(1) of the Slovak Commercial Code.

In that regard, it should be noted at the outset that, under Article 1(2) of Directive 2011/7, the directive applies to all payments made as remuneration for ‘commercial transactions’. That concept is defined in Article 2(1) of that directive as setting out two cumulative conditions. Such transactions must, first, be carried out either between undertakings or between undertakings and public authorities and, second, lead to the delivery of goods or the provision of services for remuneration. (5)

In the present case, only the first condition, relating to the possibility of regarding RU as an ‘undertaking’, is addressed in the questions asked by the referring court.

It should be borne in mind that it follows from the requirements both of the uniform application of EU law and of the principle of equality that, in the absence of a reference to national law in Article 2(1) and (3) of Directive 2000/35, (6) the terms ‘undertaking’ and ‘commercial transactions’ must be given an autonomous and uniform interpretation. (7) Under Article 2(3) of Directive 2011/7, ‘undertaking’ means any organisation, other than a public authority, acting in the course of its independent economic or professional activity, even where that activity is carried out by a single person.

In that regard, Directive 2011/7, the aim of which is to combat late payment in commercial transactions, in order to ensure the proper functioning of the internal market, thereby fostering the competitiveness of undertakings and in particular of small and medium-sized enterprises, is not intended to apply to all transactions leading to the delivery of goods or the provision of services for remuneration, in particular all one-off transactions concluded every day by private individuals. (8) Thus, it is not enough for a person to conclude a transaction relating to an economic activity for him or her to be an ‘undertaking’ and the transaction to be classified as ‘commercial’ within the meaning of Article 2(1) of that directive. The person must also act as an organisation within the framework of an independent economic or professional activity. (9)

30.That requirement means, first, that that person, whatever his or her form and legal status may be in national law, must exercise that activity in a structured and stable manner, so that the activity cannot be limited to an isolated one-off supply, and, second, that the transaction in question must form part of that activity. On the other hand, the activity in question does not necessarily have to be the principal economic or professional activity of the person concerned, or be linked to that activity. (10)

31.I wish to make clear, however, that, as far as the concept of ‘organisation’ is concerned, that requirement of exercising the activity in a structured and stable manner does not necessarily entail an organised structure such as the person concerned having his or her own premises, staff and tools or equipment used for that activity. (11)

32.Thus, all the circumstances of the case must be taken into consideration in determining whether a person is acting in the capacity of an ‘undertaking’ within the meaning of Article 2(3) of Directive 2011/7 and whether the transactions concluded by him or her are therefore commercial within the meaning of Article 2(1) of that directive.

33.In the dispute in the main proceedings, RU, the defendant in the main proceedings, is a natural person and the referring court does not mention any other circumstances relating to his status or activity that suggest that he should be classified as an ‘organisation acting in the course of its independent economic or professional activity’. None of the information provided by the referring court indicates that RU exercises an independent economic or professional activity in a structured and stable manner and nothing suggests that the transaction in question forms part of any such activity. Neither of the conditions for establishing the existence of an undertaking mentioned in point 30 of the present Opinion is therefore satisfied in the present case.

34.The referring court mentions in that connection the possibility of taking into account the future character of a professional activity covered by a contract. The Slovak Government, for its part, asserts that the nature, the subject matter and the purpose of the transaction at issue must be taken into consideration. In its view, natural persons involved in the process of creating a commercial company and who are acting in connection with the economic activity envisaged by that company may be regarded as an ‘undertaking’ and the relevant requirements should be examined in relation to the commercial company the creation of which has been envisaged, in accordance with the objective of Directive 2011/7 of combating late payment. It concludes that RU acted with the intention of systematically exercising an economic or professional activity and must be regarded as an undertaking which concluded a commercial transaction.

35.I am not convinced by that argument.

36.While it is true that the subject matter of the transaction concerned may, in some circumstances, be one of a number of factors to be taken into account in assessing whether Directive 2011/7 is applicable, (12) it cannot, any more than the intention of the person concerned, be sufficient in itself to classify that person as an ‘undertaking’ in the context of the conclusion of the transaction at issue.

37.I would recall that, in order to determine the scope of a provision of EU law, its wording, context and objectives must all be taken into account. (13)

38.First, it is clear from the wording of Article 2(3) of Directive 2011/7 that ‘undertaking’ is defined as an organisation ‘acting in the course of its … economic … activity’, which indicates that that undertaking exists at the time of conclusion of the transaction concerned. If the future intention to exercise such an economic activity had been envisaged by the legislature as an element in the definition of the concept of ‘undertaking’, it seems to me that this would have been explicit from the wording, (14) as it constitutes a significant enlargement of the scope of that directive.

39.Second, it seems that the contextual interpretation corroborates that textual interpretation. Directive 2011/7 applies ratione materiae to all payments made as remuneration for ‘commercial transactions’, provided they lead to the delivery of goods or the provision of services for remuneration. The broad character of that concept of ‘commercial transaction’ is limited, however, by the fact that it is defined ratione personae as transactions between ‘undertakings’, which requires an examination of whether or not the transaction was concluded in the capacity of an ‘undertaking’. (15) Accordingly, the finding that the person concerned was not an ‘undertaking’ within the meaning of Article 2(3) of Directive 2011/7 at the time of conclusion of the transaction is not, in my view, affected by the possibility that he or she could, in some circumstances, acquire that capacity subsequently. The possibility of a future change of his or her status in that regard would not seem to be a relevant factor to the assessment of the nature of the transaction concerned, even if that change was a consequence of the transaction. (16) I would add that, in order to be ‘commercial’, the transaction at issue must form ‘part of’ the activity concerned of the person at issue. (17) Thus, where it assesses the applicability of Directive 2011/7 in the light of the capacity of the parties, the Court has regard to the time of conclusion of the transaction concerned. (18)

40.Third, as regards the objective of Directive 2011/7, it should be recalled that, under Article 1(1) thereof, its aim is to combat late payment in commercial transactions, in order to ensure the proper functioning of the internal market, thereby fostering the competitiveness of undertakings and in particular of small and medium-sized enterprises. Nevertheless, I take the view that the objective of effective protection of the creditor against late payment cannot result in an alteration of the scope ratione personae of that directive such as to include a natural person who cannot be classified as an ‘undertaking’ at the time of conclusion of the transaction.

41.In the present case, at the time of conclusion of the transaction in question, none of the information provided by the referring court indicates that RU exercised an independent economic or professional activity or that he had presented himself to AK as acting in the course of any such activity. Furthermore, it is not disputed that RU was not yet the managing director or a member of the company, which had not yet been founded in Slovak law and which is not shown by the documents before the Court to have been ultimately created. Moreover, the subject matter of the transaction at issue between the parties in the main proceedings was the provision of legal services and, although the content of that legal advice related to the creation of a commercial company (drawing up of a draft company contract, preparation of other documents, examination of issues in relation to the establishment of the company and the personal participation of the future founders) there is nothing to suggest that the intention to create that company was genuine, especially since the referring court indicated that RU denied having instructed AK to draft that legal advice.

42.In addition, it would appear that the doubts raised by the referring court in the light of the judgments in Benincasa (19) and Česká spořitelna (20) have to be dismissed. The references for a preliminary ruling in those cases sought inter alia to determine which courts had jurisdiction. In the systems of the Brussels Convention and Regulation No 44/2001, the concept of ‘consumer’ governs the determination of rules on jurisdiction and, in particular, permits an applicant who is a ‘consumer’ to bring proceedings against the defendant before courts other than those of the State in which the defendant is domiciled. As has been highlighted by the Court, because it allows derogations from the fundamental rules relating to jurisdiction of courts, the interpretation of that concept of ‘consumer’ must, in that particular context, be strict. The Court has thus held that, in connection with those provisions concerning rules on jurisdiction, (21) the specific protection linked to status as a ‘consumer’ sought to be afforded by those provisions was unwarranted in the case of contracts for the purpose of a trade or professional activity, even if that activity is only planned for the future. (22) Consequently, in those cases, pursuing a trade or profession, not at the present time, but in the future, was taken into account in concluding that the natural person concerned was not a ‘consumer’ within the meaning of the relevant provisions of the Brussels Convention and of Regulation No 44/2001. (23)

43.However, if such reasoning is understood in the context of the determination of the court having jurisdiction at the time when proceedings are brought before it, it would not seem to be transposable to the dispute at issue here.

44.That strict interpretation of the concept of ‘consumer’, in which the professional purpose of the contract, the future trade or profession or changes in the contractual relationship constitute relevant elements for rejecting a person’s capacity as a ‘consumer’, is justified in the particular context of rules on jurisdiction. Furthermore, I note that both Article 13 of the Brussels Convention and Article 15 of Regulation No 44/2001 define ‘consumer’ by referring to a person concluding a contract ‘for a purpose’ which can be regarded as being outside his trade or profession, the notion of ‘purpose’ being absent from the definition of undertaking under Article 2(3) of Directive 2011/7.

45.By contrast, in the light of the foregoing considerations concerning the wording, the context and the objective of Directive 2011/7, (24) it does not seem to be justified to give a particularly broad meaning to the concept of ‘commercial transaction’ such that the subject matter and the objective of the transaction are considered to be decisive criteria governing the application ratione personae of that directive. (25) Thus, in the present case, the capacity of the debtor RU as an ‘undertaking’ must be assessed at the time of conclusion of the transaction the subject matter of which is the provision of legal services, irrespective of whether or not the company envisaged in the legal advice was ultimately created.

46.On the basis of all the foregoing considerations, I propose that the Court answer the first question referred to the effect that Article 1(2) of Directive 2011/7, read in conjunction with Article 2(1) and (3) and Article 6(1) thereof, must be interpreted as meaning that, subject to the existence of other circumstances from which it could be concluded that a natural person was acting in the course of his or her independent economic or professional activity that is structured and stable, which is for the referring court to ascertain, the fact that that person availed him or herself of the services of a lawyer with a view to founding a commercial company, in which he or she was to become the managing director and one of the two founders and members, cannot be sufficient in itself to classify that person as an ‘undertaking’ and, therefore, to classify the transaction concluded with the lawyer as ‘commercial’.

Second question

47.If the answer to the first question referred is in the negative, the referring court asks the second question in order to ascertain, in essence, whether Article 2(b) of Directive 93/13, read in conjunction with Article 8 thereof, must be interpreted as meaning that a natural person who availed him or herself of the services of a lawyer with a view to founding a commercial company, in which he or she was to become the managing director and one of the two founders and members, is to be regarded as a consumer within the meaning of that provision.

48.I consider it necessary to examine, first of all, the jurisdiction of the Court to answer that second question, then the admissibility of that question, before, finally, giving an answer on its substance.

Jurisdiction of the Court

49.It should be noted that Directive 93/13 applies only to, first, terms which have not been individually negotiated (Article 3 of that directive) and, second, terms other than those relating to the definition of the main subject matter of the contract or the adequacy of the price and the goods or services supplied (Article 4(2) of that directive).

50.In the present case, as is stated by the referring court and asserted by the Slovak Government, the case in the main proceedings does not concern a term, whether unfair or not, contained in the contract at issue (in this case an oral contract), but the definition of ‘consumer’ contained in Article 2(b) of Directive 93/13. Moreover, I note that, according to the request for a preliminary ruling, the applicant in the main proceedings undertook to provide legal services in return for the ‘agreed’ fixed sum of remuneration, which suggests that there was an individual negotiation regarding fees.

51.Directive 93/13, which concerns ‘unfair terms in consumer contracts’, is not therefore applicable as such to the substance of the dispute in the main proceedings.

52.Consequently, the question arises whether the dispute in the main proceedings has a connection with EU law and, therefore, whether the Court has jurisdiction to answer the second question referred: does the Court have jurisdiction to interpret a concept (‘consumer’) which appears in an act of secondary legislation (Directive 93/13), even though that act is not applicable in the dispute in the main proceedings?

53.The case-law regarding the jurisdiction of the Court in this field has undergone developments which have been analysed, systematised and summarised excellently and relevantly by numerous Advocates General (26) and by legal literature. (27) The Court itself clarified its analytical method in the judgment in Ullens de Schooten (28) in particular. In that judgment, after declaring that it had jurisdiction to answer the question which sought an interpretation of the principle of non-contractual liability of a State, because it constituted a principle inherent in the EU legal order, the Court carried out a substantive examination of whether the system of non-contractual liability of a Member State applied in a case which was confined in all respects within a single Member State, even though the provisions of the Treaties relating to the fundamental freedoms at issue (the freedom of establishment, the freedom to provide services and the free movement of capital) did not apply, in principle, to such a ‘purely internal’ situation. The Court mentioned, in paragraphs 50 to 53 of that judgment, the four scenarios in which those provisions had to be interpreted, even in that situation, and thus systematised the cases where EU law may be invoked (or interpreted) such that it is justified for an applicant to rely on it before his or her national court and for the national court to ask the Court about its scope, even though the situation does not fall within the scope of the rule invoked.

54.In the present case, the fourth scenario set out in the judgment in Ullens de Schooten seems to be particularly relevant, as it covers cases in which, although the facts of the main proceedings are outside the direct scope of EU law, the provisions of EU law have been made applicable by national legislation, which, in dealing with situations confined in all respects within a single Member State, follows the same approach as that provided for by EU law. (29)

55.In such cases the Court maintains its jurisdiction by giving precedence to the interest of a uniform interpretation of the provisions of EU law in order to ensure that those situations and situations falling within the scope of EU law are treated in the same way. Thus, an interpretation by the Court of provisions of EU law in purely internal situations is warranted on the ground that they have been made applicable by national law directly and unconditionally, in order to ensure that internal situations and situations governed by EU law are treated in the same way. (30)

56.In that context, the referring court must indicate in what way the dispute pending before it has a connecting factor with the provisions of EU law at issue that makes the preliminary ruling on interpretation necessary for it to give judgment in that dispute, as required by Article 94 of the Rules of Procedure of the Court of Justice. (31)

57.In the present case, first, the referring court asks the Court to interpret a ‘concept’, in this instance the concept of ‘consumer’ as defined in Article 2(b) of Directive 93/13. In that regard, the Court has given a broad interpretation to the purpose of its jurisdiction to give an interpretation in preliminary ruling proceedings under points (a) and (b) of the first paragraph of Article 267 TFEU, a jurisdiction which also extends to ‘concepts taken from Union law’. There is a clear interest that, in order to forestall future differences of interpretation, concepts taken from EU law should be interpreted uniformly, irrespective of the circumstances in which they are to apply. (32)

58.Second, I wonder to what extent the concept of ‘consumer’ which appears in Directive 93/13 has been made applicable ‘directly and unconditionally’ by the Slovak provisions cited to internal situations such as those in this case and whether, notwithstanding the fact that no contractual term – whether unfair or not – has been invoked, the Court has jurisdiction to rule on the requested interpretation of the concept of ‘consumer’.

59.I would recall that, in essence, the reference is ‘direct’ where it is specific, as opposed to general, and that it is ‘unconditional’ where the EU provisions referred to are ‘applicable without limitation to the situation at issue in the main proceedings’, (33) which implies that the referring court cannot depart from the interpretation provided by the Court of Justice, (34) otherwise the answer to the question referred would be likely to bear no relation to the dispute in the main proceedings and, therefore, be purely hypothetical. (35)

60.In the present case, the referring court has made clear that the concept of ‘consumer’ in Paragraph 52(4) of the Slovak Civil Code transposes the concept defined in Article 2(b) of Directive 93/13 and that, by Paragraph 18(4) of the Slovak Law on the profession of lawyer, the Slovak Republic ‘introduced an obligation to apply the concept of “consumer” in relation to lawyers’ remuneration for the provision of legal services’. That court concludes, in essence, that if the second question it has referred were to be answered in the affirmative, it would thus be able, by applying those combined provisions, to resolve the dispute in the main proceedings.

62.It is true that the reference to EU law is not explicit in the provision of national law at issue and the court does not provide any concrete information (such as drafting history) in that regard. However, the referring court has exclusive jurisdiction to interpret national law under the system of judicial cooperation established in Article 267 TFEU. Furthermore, the Slovak Government does not dispute that the concept of ‘consumer’, the interpretation of which is sought, will be applicable in the present case, even though it suggests that the concept of ‘consumer’ should actually be interpreted having regard to the obligation to provide information and therefore having regard to Article 5(1)(c) and (4) of Directive 2011/83 on consumer rights.

63.In addition, Paragraph 52 of the Civil Code, which is cited by the referring court in its request for a preliminary ruling, relates, in subparagraph 2 thereof, to the provisions concerning consumer contracts, providing inter alia that they are to be applied, in essence, in every case where that is to the advantage of the consumer, different contractual arrangements or agreements whose content or purpose is to circumvent those provisions being invalid. That takes us back to Directive 93/13 on unfair terms and supports the referring court’s statement that Paragraph 52 of the Slovak Civil Code transposes the concept of ‘consumer’ in Directive 93/13.

64.Lastly, I see no reason to doubt that the referring court considers itself bound by the interpretation given by the Court, as it states that the answer given by the Court will enable it to resolve the dispute in the main proceedings.

65.Consequently, the Slovak legislature must be considered to have intended to make a direct and unconditional reference to the concept of ‘consumer’ within the meaning of Directive 93/13 in order that the same concept of ‘consumer’ is applied in internal situations governed by that provision of the Slovak Civil Code and in situations governed by Directive 93/13.

66.It follows that the fact that the situation at issue in the dispute in the main proceedings does not fall within the scope of Directive 93/13 does not prevent the Court from accepting that it has jurisdiction because the Slovak legislature may be considered to have decided to apply that concept of ‘consumer’. (36)

67.Third, I consider that there is an EU interest in maintaining the conceptual uniformity of the concept of ‘consumer’ in national and European contexts which are ‘functionally and legally comparable’, (37) which is the case where they pursue the same objective and concern the same subject matter, as in this case.

68.It is true that there is no single definition of ‘consumer’ across EU law (38) and each directive contains its own definition of the ‘consumer’ that is relevant for that act. (39) Moreover, that concept of ‘consumer’ is interpreted more or less broadly depending on the acts of secondary legislation at issue. (40)

69.Accordingly, the concept of ‘consumer’ within the meaning of a directive must be ‘extracted’ with caution from the scope of the EU act for which it is defined.

70.However, Directive 93/13 relates to cases which are concerned with the EU legislation that harmonises across the Member States a specific field of law. Consequently, the rules contained in the EU legislation concerned apply irrespective of the purely internal nature of the situation at issue in the main proceedings. It also applies to situations without a cross-border element. (41)

71.Furthermore, the system of protection implemented by Directive 93/13 is based on the fact that the consumer is in a weak position vis-à-vis the seller or supplier. That is also the case in various European consumer directives. (42) Thus, where wordings do not include substantial differences, the Court interprets concepts in a convergent manner and has already had occasion to highlight the determination of the EU legislature to give horizontal scope to the definition of ‘consumer’. (43)

72.I therefore consider that, in the specific circumstances of the case, which show that the national and European contexts raised by the referring court are ‘functionally and legally comparable’, there is an EU interest in the concept of ‘consumer’ contained in Directive 93/13 being interpreted uniformly by the Court in order to forestall the risk of differences of interpretation on that subject in the applicable national provisions.

73.In those circumstances, I take the view that the Court has jurisdiction to rule on the second question asked by the referring court.

Admissibility of the second question referred for a preliminary ruling

74.In so far as it can be inferred from the Slovak Government’s reference to the order in Rozhlas a televízia Slovenska of 28 April 2022 (44) that it is claiming that the second question referred for a preliminary ruling is inadmissible, I will briefly recall that questions relating to EU law enjoy a presumption of relevance. The Court may refuse to rule on a question referred by a national court only where it is quite obvious that the interpretation of EU law that is sought bears no relation to the actual facts of the main action or its purpose, where the problem is hypothetical, or where the Court does not have before it the factual or legal material necessary to give a useful answer to the questions submitted to it. It is also apparent from settled case-law, which is now reflected in Article 94 of the Rules of Procedure, that the need to provide an interpretation of EU law which will be of use to the referring court requires that court to define the factual and legislative context of the questions it is asking or, at the very least, to explain the factual circumstances on which those questions are based. The order for reference must also set out the precise reasons why the national court is unsure as to the interpretation of EU law and considers it necessary to refer a question to the Court for a preliminary ruling. (45) The justification for a reference for a preliminary ruling is not that it enables advisory opinions on general or hypothetical questions to be delivered but rather that it is necessary for the effective resolution of a dispute. (46)

75.In the present case, it would seem that the referring court has satisfied those requirements adequately in the light of the information provided, which is summarised inter alia in point 60 of the present Opinion.

76.First, the referring court has explained the reasons why that interpretation is sought and the importance it will have for the dispute in the main proceedings. (47) Thus, even though, as has already been stated, the dispute in the main proceedings does not appear to relate to a contractual term and, substantively, does not therefore fall within the scope of Directive 93/13, the interpretation of EU law that is sought is objectively necessary for the resolution of the dispute in the main proceedings and therefore does not appear obviously to bear no relation to the actual facts of the main action or its purpose.

77.Second, it is clear from the clarifications given by the referring court that the question is not hypothetical. I note, moreover, that those clarifications enabled the Slovak Government and the Commission to exercise their right under Article 23 of the Statute of the Court of Justice of the European Union to submit observations.

78.Third, the Court also seems to have before it the factual or legal material necessary to give a useful answer to the questions submitted to it.

79.Consequently, in my view, the referring court has satisfied the requirements laid down in Article 94 of the Rules of Procedure and the request for a preliminary ruling is therefore admissible.

Interpretation of Article 2(b) of Directive 93/13, read in conjunction with Article 8 thereof

80.The referring court asks, in essence, whether Article 2(b) of Directive 93/13, read in conjunction with Article 8 thereof, must be interpreted as meaning that a natural person who availed him or herself of the services of a lawyer with a view to founding a commercial company, in which he or she was to become the managing director and one of the two founders and members, is to be regarded as a ‘consumer’ within the meaning of that provision.

81.I note that the status of the person concerned as a ‘consumer’ 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. (48) Moreover, the Court has already recognised that a broad interpretation of the concept of ‘consumer’ is necessary in order to allow the protection granted to all natural persons finding themselves in the weaker position vis-à-vis the seller or supplier. (49)

82.In the present case, I consider that both the wording of the definition of ‘consumer’, which is in the present tense, (50) and the context and the objective of consumer protection pursued by Directive 93/13 support the view that the defendant in the main proceedings, as a natural person who has not yet undertaken the activity with a view to which he had declared to the lawyer that he was interested in her legal services, is to be regarded as a ‘consumer’. Indeed, there is nothing to suggest that the defendant in the main proceedings was already carrying on a trade, business or profession to which that contract for the provision of legal services related. In addition, that assessment, which is a matter for the referring court, must have regard to the time of conclusion of the contract for the provision of legal services in accordance with Article 4(1) of Directive 93/13 and in accordance with the objective of consumer protection where that consumer concludes a contract with a seller or supplier. (51) In that regard, in its assessment the national court must take into consideration all the circumstances of the case in order to determine whether the natural person concerned acted within his or her trade, business or profession or acted for purposes outside that trade, business or profession. (52)

83.Accordingly, the status of the person concerned as a ‘consumer’ is not assessed in the light of his or her objective of becoming, as the case may be, an economic operator, but in the light of the answer to the question whether or not, at the time the contract at issue is concluded, he or she is acting within his or her trade, business or profession.

84.In the light of the information contained in the request for a preliminary ruling and subject to verifications in that regard by the referring court, status as a ‘consumer’ must, in my view, be accepted in the present case. It seems, moreover, that the same would hold for the concept of ‘consumer’ within the meaning of Directive 2011/83.

85.It would appear that the doubts of the referring court in the light of the judgment in Gruber (53) have to be dismissed for the same reasons, mutatis mutandis, as are set out in points 42 to 45 of the present Opinion regarding the judgments of 3 July 1997, Benincasa (C‑269/95, EU:C:1997:337), and of 14 March 2013, Česká spořitelna (C‑419/11, EU:C:2013:165). As the Court has already ruled, the strict interpretation of the concept of ‘consumer’ adopted in that judgment in Gruber for the purposes of determining the scope of the derogating jurisdictional rules laid down in Articles 13 to 15 of the Brussels Convention in the case of a dual purpose contract cannot be extended, by analogy, to the concept of ‘consumer’ within the meaning of Article 2(b) of Directive 93/13. (54)

86.In the light of all the foregoing considerations, I propose that the Court answer the second question referred to the effect that the concept of ‘consumer’ used in Article 2(b) of Directive 93/13, read in conjunction with Article 8 thereof, must be interpreted as meaning that a natural person who concluded a contract the object of which was the provision of legal services with a view to founding a commercial company, in which that natural person was to become the managing director and one of the two founders and members, has the status of ‘consumer’, subject to verifications to be made by the referring court regarding the circumstances of the case and seeking, in particular, to assess whether or not the natural person concerned was acting within his or her trade, business or profession.

Conclusion

87.On the basis of all the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Mestský súd Bratislava IV (Bratislava IV Municipal Court, Slovakia), as follows:

(1)Article 1(2) of Directive 2011/7/EU of the European Parliament and of the Council of 16 February 2011 on combating late payment in commercial transactions, as corrected, read in conjunction with Article 2(1) and (3) and Article 6(1) thereof,

(2)must be interpreted as meaning that, subject to the existence of other circumstances from which it could be concluded that a natural person was acting in the course of his or her independent economic or professional activity that is structured and stable, which is for the referring court to ascertain, the fact that that person availed him or herself of the services of a lawyer with a view to founding a commercial company, in which he or she was to become the managing director and one of the two founders and members, cannot be sufficient in itself to classify that person as an ‘undertaking’ and, therefore, to classify the transaction concluded with the lawyer as ‘commercial’.

(3)The concept of ‘consumer’ used in Article 2(b) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, as amended by Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011, read in conjunction with Article 8 thereof,

(4)must be interpreted as meaning that it encompasses a natural person who concluded a contract the object of which was the provision of legal services with a view to founding a commercial company, in which that natural person was to become the managing director and one of the two founders and members, subject to verifications to be made by the referring court regarding the circumstances of the case and seeking, in particular, to assess whether or not the natural person concerned was acting within his or her trade, business or profession.

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1

Original language: French.

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The name of the present case is a fictitious name. It does not correspond to the real name of any party to the proceedings.

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Directive of the European Parliament and of the Council of 16 February 2011 (OJ 2011 L 48, p. 1, and corrigendum OJ 2012 L 233, p. 3). That directive repealed, with effect from 16 March 2013, and replaced Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions (OJ 2000 L 200, p. 35).

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Council Directive of 5 April 1993 (OJ 1993 L 95, p. 29), as amended by Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights (OJ 2011 L 304, p. 64).

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4

The original creditor is a lawyer who became the managing director of the company which is the applicant in the main proceedings, to which she transferred her claim.

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As is noted by the referring court, the concept of ‘commercial transaction’ is broad and does not necessarily coincide with the concept of ‘contract’ (see, with regard to successive deliveries of goods or provision of services under a single contract, judgment of 1 December 2022, X (Deliveries of medical products) (C‑419/21, EU:C:2022:948, paragraphs 22 and 25)). Article 1(2) of Directive 2011/7 provides that the directive ‘shall apply to all payments made as remuneration for commercial transactions’, whether those transactions correspond to a specific contract or not. Similarly, it is sufficient that the transaction ‘gives rise’ to the delivery of goods or the provision of services (see, by analogy, judgment of 18 November 2020, Techbau (C‑299/19, EU:C:2020:937, paragraph 44)). The assessment of the question of the actual existence of the transaction (in this case an oral contract between AK and RU) is a matter for the referring court.

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6

Directive repealed by Directive 2011/7.

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7

See, by analogy, with regard to Directive 2000/35, which was replaced by Directive 2011/7, the directive at issue in the present case, judgment of 15 December 2016, Nemec (C‑256/15, EU:C:2016:954, ‘judgment in Nemec’, paragraph 38).

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8

See judgment in Nemec (paragraph 32).

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9

See judgment in Nemec (paragraph 33).

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10

See judgment in Nemec

(paragraphs 34 and 35). In that judgment, Mr Nemec had concluded a lease contract with the Association of Volunteer Firemen of Murska Sobota (Slovenia), under which he leased to the association a tanker to transport water in periods of drought. It was held that the contract at issue in the main proceedings related to an economic activity and had given rise to the issuing of an invoice and that, even though it was not covered by the activities of Mr Nemec (a self-employed craftsman whose activities were turning mechanical parts and welding), he could be considered to have acted as an ‘undertaking’ concluding a ‘commercial transaction’ where that transaction, although not part of the activities covered by his licence to conduct those activities, formed part of the exercise of an independent economic or professional activity that was structured and stable, which was for the referring court to ascertain in the light of all the circumstances of the case.

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See judgment of 14 November 2024, Agenciart – Management Artístico (C‑643/23, EU:C:2024:959, paragraph 33).

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See, to that effect, judgment of 9 July 2020, RL (Directive combating late payment) (C‑199/19, EU:C:2020:548, paragraph 26), in which the Court held that it was not clear from the order for reference whether J.M., in concluding the lease agreement for business premises with RL, had acted as an organisation in the course of its independent economic or professional activity and therefore also had the status of ‘undertaking’. The Court stated that the fact that the premises forming the subject matter of the lease agreement were for business use was an indication to that effect, but that it was nevertheless for the referring court to carry out the necessary verifications in that connection.

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See, for example, judgment of 12 December 2024, Tusnia (C‑725/23, EU:C:2024:1015, paragraph 20).

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I note, for example, that in defining ‘consumer’, Directive 93/13 states that this means any natural person who, in contracts covered by that directive, ‘is acting for purposes’ which are outside his trade, business or profession. The same holds for Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22), which defines consumer and trader by making explicit reference to the purposes of their respective actions. That is not the case with the concept of ‘undertaking’ in Directive 2011/7 at issue in the present case.

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See, to that effect, judgment in Nemec (paragraph 43): ‘…the referring court must determine whether in the present case Mr Nemec concluded the contract at issue in the main proceedings in the capacity of an “undertaking” within the meaning of Article 2(1) of Directive 2000/35’. Emphasis added.

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See, by analogy, in the different context of Directive 93/13, judgment of 20 March 2025, Arce (C‑365/23, EU:C:2025:192, paragraphs 47 to 51), in which the Court held, thereby following Opinion of Advocate General Rantos in the same case (C‑365/23, EU:C:2024:865, points 55 to 57), that the status of ‘consumer’ of a person had to be assessed at the time when the contract in question was concluded. Thus, a minor who, on the date on which a contract for services for development and career support for a sportsperson was concluded, did not pursue, on a professional basis, the sporting activity concerned, does not lose the status of ‘consumer’ within the meaning of Article 2(b) of Directive 93/13 on the ground that he became a professional sportsperson during the performance of the contract.

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See points 29 and 30 of the present Opinion.

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See, for example, judgment of 14 November 2024, Agenciart – Management Artístico (C‑643/23, EU:C:2024:959, paragraph 35): ‘… entering into an agency contract is, for a person in the acting profession, part of that person’s professional activity and is closely linked to that activity, since, if that person did not pursue that profession, the conclusion of such an agency contract, which specifically consists of the promotion and management of that activity, would necessarily be devoid of purpose’. Emphasis added.

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The dispute in the main proceedings in the judgment of 3 July 1997, Benincasa (C‑269/95, EU:C:1997:337), concerned a franchising contract containing a jurisdiction clause the validity of which depended on whether or not Mr Benincasa, the plaintiff who brought proceedings against the co-contracting company before the court for the place of performance of the contract, was a ‘consumer’ within the meaning of the first paragraph of Article 13 and the first paragraph of Article 14 of the Convention signed at Brussels on 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 32), as amended by the successive conventions on the accession of new Member States to that convention (‘the Brussels Convention’).

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The dispute in the main proceedings in the judgment of 14 March 2013, Česká spořitelna (C‑419/11, EU:C:2013:165), concerned a bill of exchange obligation of the managing director of a company who gave an aval on a blank promissory note, made out by that company in favour of a bank, as a guarantee for a credit contract and the question of jurisdiction over that dispute pursuant to Article 15 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 (OJ 2001 L 12, p. 1), which replaces the Brussels Convention in relations between Member States.

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See also judgments of 25 January 2018, Schrems (C‑498/16, EU:C:2018:37, paragraphs 29 to 32), and of 10 December 2020, Personal Exchange International (C‑774/19, EU:C:2020:1015, paragraphs 29 and 31).

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It is also clear from paragraphs 41 and 42 of the judgment of 10 December 2020 in Personal Exchange International (C‑774/19, EU:C:2020:1015), that changes in the contractual relationship, in the case of provision of services over a long period of time, may be considered in ascertaining status as a ‘consumer’ or as a ‘trader’. Paragraph 46 of that judgment also mentions the regularity of an activity as one of a number of factors to be taken into account.

For example, the same definition is included in Directives 2011/83 (on consumer rights), 2005/29 (concerning unfair business-to-consumer commercial practices in the internal market), Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) (OJ 2013 L 165, p. 63) and Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC (OJ 2019 L 136, p. 28), namely ‘consumer’ means any natural person who ‘is acting for purposes which are outside that person’s trade, business, craft or profession’, which is not fundamentally different from the definition of ‘consumer’ in Directive 93/13 (‘is acting for purposes which are outside his trade, business or profession’).

See, for example, judgment in YYY. (paragraphs 40 and 45).

That order of manifest inadmissibility (C‑638/21, EU:C:2022:339) concerned a dispute between the Slovak national public law body RTVS and a person liable for the compulsory broadcasting fee and did not therefore concern a contract, but rather a legal relationship governed by statutory provisions. That order also states that the referring court had no doubt that the applicant in the main proceedings was not a sellers or supplier and that the defendant was not a consumer (paragraph 22).

The order of manifest inadmissibility of 6 June 2023, Rozhlas a televízia Slovenska (C‑669/22, EU:C:2023:473), also concerned a dispute between RTVS and a person liable for the broadcasting fee and the link established between the national provisions and Directive 93/13 was held to have been explained with an insufficient level of clarify and precision (paragraph 29).

See, inter alia, judgment in LivaNova (paragraphs 53 and 54).

See judgment of 26 March 2020, Miasto Łowicz and Prokurator Generalny (C‑558/18 and C‑563/18, EU:C:2020:234, paragraph 44).

In that respect the present case differs from the situation at issue in the order of 28 April 2022, Rozhlas a televízia Slovenska (C‑638/21, EU:C:2022:339, paragraphs 23 to 25).

See, inter alia, judgment in YYY. (paragraph 30).

See judgment in YYY. (paragraphs 35 to 38 and the case-law cited). See also, with regard, more specifically, to contracts between consumers and lawyers, judgments of 15 January 2015, Šiba (C‑537/13, EU:C:2015:14), and of 12 January 2023, D.V. (Lawyer’s fees – Principle of an hourly rate) (C‑395/21, EU:C:2023:14).

Consumer thus means any natural person who ‘is acting’ for purposes which are outside ‘his’ trade, business or profession, which suggests that it is at the time of conclusion of the contract that it is to be assessed whether or not that trade, business or profession exists. It is then that the consumer needs to be protected.

Under Article 4(1) of Directive 93/13, ‘the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent’.

See judgment of 24 October 2024, Zabitoń (C‑347/23, EU:C:2024:919, paragraph 31).

Judgment of 20 January 2005 (C‑464/01, EU:C:2005:32).

Judgment in YYY. (paragraph 51).