„S. V.“ OOD v E. Ts. D.

• Jurisdiction: European Union
• Date: 27 October 2022
• Court: Court of Justice (European Union)

Provisional text

JUDGMENT OF THE COURT (Eighth Chamber)

27 October 2022 (*)

(Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Article 2(b) – Concept of ‘consumer’ – Article 2(c) – Concept of ‘seller or supplier’ – Natural person who owns an apartment in a building in co-ownership – Different types of legal relationships relating to the management and maintenance of that building – Difference in treatment, as regards the status of consumer, arising from the law of a Member State between co‑owners who have concluded an individual contract for the management and maintenance of the communal areas of such a building and those who have not concluded such a contract)

In Case C‑485/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Rayonen sad Nesebar (District Court, Nessebar, Bulgaria), made by decision of 23 July 2021, received at the Court on 5 August 2021, in the proceedings

‘S.V.’ OOD

v

E. Ts. D.,

THE COURT (Eighth Chamber),

composed of N. Piçarra, President of the Chamber, N. Jääskinen and M. Gavalec (Rapporteur), Judges,

Advocate General: N. Emiliou,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

– the Austrian Government, by A. Posch, J. Schmoll and M. Winkler-Unger, acting as Agents,

– the European Commission, by N. Nikolova, I. Rubene and N. Ruiz García, acting as Agents,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

gives the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Article 2(b) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) and of Article 2(1) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Directive 93/13 and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64).

2 The request has been made in proceedings between ‘S.V.’ OOD, a commercial company incorporated under Bulgarian law, managing a building in co-ownership, and E. Ts. D., a natural person who owns an apartment in that building, concerning the payment of sums due under a contract concluded for the management and maintenance of the communal areas of that building.

Legal context

European Union law

3 According to the tenth recital of Directive 93/13:

‘… more effective protection of the consumer can be achieved by adopting uniform rules of law in the matter of unfair terms; … those rules should apply to all contracts concluded between sellers or suppliers and consumers; …’

4 Article 1 of that directive provides:

‘1. 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.

2. The contractual terms which reflect mandatory statutory or regulatory provisions and the provisions or principles of international conventions to which the Member States or the Community are party, particularly in the transport area, shall not be subject to the provisions of this Directive.’

5 Article 2(b) and (c) of that directive is worded as follows:

‘For the purpose 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;

(c) “seller or supplier” means any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned.’

6 Article 3(1) of Directive 93/13 provides that ‘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.’

Bulgarian law

7 Article 2(1) of the zakon za upravlenie na etazhnata sobstvenost (Law on the management of co-owned property) (DV No 6 of 23 January 2009), in the version applicable to the facts in the main proceedings (‘the ZUES’), provides:

‘The management of the communal areas of co-owned buildings, built as part of a gated residential complex, shall be governed by a written contract, signed before a notary by the developer and owners of the residential units.’

8 Under Article 6(1)(10) of that law, owners are required to pay the managing and maintenance costs of the communal areas.

9 Article 9 of that law provides:

‘The procedures for managing the co-ownership of apartments shall take the form of a general meeting and/or owners’ association.’

10 Article 195(1) and (5) of the zakon za ustroystvo na teritoriata (Law on town and country planning) (DV No 1 of 2 January 2001), in the version applicable to the facts in the main proceedings, states:

‘(1) The owners of buildings shall retain them in a technical condition meeting the essential requirements of Article 169(1) and (3) …

…

(5) The mayor of the municipality may, by order, require the owners of buildings … to carry out the necessary works in the interests of safety, road safety, health, hygiene, aesthetics, cleanliness and public order.’

The dispute in the main proceedings and the questions referred for a preliminary ruling

11 E. Ts. D. is the owner of an apartment in a building in co-ownership, situated in Nessebar (Bulgaria).

12 Under a contract for the maintenance of the communal areas of that building, concluded on 9 January 2012 for an indefinite period, designating S.V., as ‘the managing agent’, and signed by E. Ts. D., the latter is required, as co-owner, to pay to that company annual charges of EUR 6 per square metre, excluding value added tax (VAT), for...