Opinion of Advocate General Rantos delivered on 4 October 2024.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2024:865
• Date: 04 October 2024

Provisional text

OPINION OF ADVOCATE GENERAL

RANTOS

delivered on 4 October 2024 (1)

Case C‑365/23 [Arce] (i)

SIA ‘A’

v

C,

D,

E

(Request for a preliminary ruling from the Augstākā tiesa (Senāts) (Supreme Court (Senate), Latvia))

( Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Article 1 – Scope – Article 2(b) – Concept of ‘consumer’ – Article 3(1) – Article 4(2) – Article 5 – Article 6(1) – Article 8a – Pre-formulated standard contract – Contract between a supplier providing sports development and career support services and a ‘rising star’ sportsperson of minor age represented by his parents – Term establishing the obligation to pay to that supplier remuneration equal to 10% of the income received by that sportsperson during the following 15 years – Charter of Fundamental Rights of the European Union – Article 17 – Right to property – Article 24 – Rights of the child )

I. Introduction

1. The present request for a preliminary ruling concerns the interpretation of Article 2(b), Article 3(1), Article 4(2), Article 5, Article 6(1) and Article 8a of Directive 93/13/EEC (2) on unfair terms in consumer contracts, read in the light of Article 17(1) and Article 24 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

2. The request has been made in proceedings between A, a limited liability company established under Latvian law in order to provide development services for sportspersons in Latvia (‘Company A’) and the natural persons C, an amateur ‘rising star’ sportsperson, and his parents, D and E (‘the parents’) concerning the recovery by Company A of the remuneration due from C for the provision of its sports development and career support services, provided for under the sports development and career support services contract concluded on 14 January 2009 between Company A, on the one hand, and C and his parents, on the other hand (‘the contract at issue’).

3. In the present case, the Court will have the task of assessing the applicability of EU law on consumer protection, in particular Directive 93/13, to a type of sports development and career support services contract, such as the contract at issue, in the particular context of a consumer initially of minor age, represented by his parents, who attained majority and became a professional sportsperson in the course of the contract. The judgment to be delivered, which will therefore determine the scope of that directive, will clearly affect the content of that type of contract far beyond the field of sport.

II. Legal framework

A. European Union law

1. Directive 93/13

4. According to the tenth, thirteenth and sixteenth recitals of Directive 93/13:

‘Whereas more effective protection of the consumer can be achieved by adopting uniform rules of law in the matter of unfair terms; whereas those rules should apply to all contracts concluded between sellers or suppliers and consumers; whereas as a result inter alia contracts relating to employment, contracts relating to succession rights, contracts relating to rights under family law and contracts relating to the incorporation and organization of companies or partnership agreements must be excluded from this Directive;

…

Whereas the statutory or regulatory provisions of the Member States which directly or indirectly determine the terms of consumer contracts are presumed not to contain unfair terms; whereas, therefore, it does not appear to be necessary to subject the terms which reflect mandatory statutory or regulatory provisions and the principles or provisions of international conventions to which the Member States or the Community are party; whereas in that respect the wording “mandatory statutory or regulatory provisions” in Article 1 (2) also covers rules which, according to the law, shall apply between the contracting parties provided that no other arrangements have been established;

…

Whereas the assessment, according to the general criteria chosen, of the unfair character of terms, in particular in sale or supply activities of a public nature providing collective services which take account of solidarity among users, must be supplemented by a means of making an overall evaluation of the different interests involved; whereas this constitutes the requirement of good faith; whereas, in making an assessment of good faith, particular regard shall be had to the strength of the bargaining positions of the parties, whether the consumer had an inducement to agree to the term and whether the goods or services were sold or supplied to the special order of the consumer; whereas the requirement of good faith may be satisfied by the seller or supplier where he deals fairly and equitably with the other party whose legitimate interests he has to take into account.’

5. 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.’

6. According to Article 2(b) of that directive, the concept of ‘consumer’ is defined as ‘any natural person who … is acting for purposes which are outside his trade, business or profession’. Under Article 2(c) of the directive, ‘seller or supplier’ means ‘any natural or legal person who … is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned’.

7. Article 3 of Directive 93/13 provides:

‘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.

2. A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract.

The fact that certain aspects of a term or one specific term have been individually negotiated shall not exclude the application of this Article to the rest of a contract if an overall assessment of the contract indicates that it is nevertheless a pre-formulated standard contract.

Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him.

…’

8. 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.

2. Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor to the adequacy of the price and remuneration, on the one hand, as against the services or goods supplies in exchange, on the other, in so far as these terms are in plain intelligible language.’

9. Article 5 of that directive states in particular that, ‘[i]n the case of contracts where all or certain terms offered to the consumer are in writing, these terms must always be drafted in plain, intelligible language’.

10. Article 6(1) of that directive provides:

‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’

11. Article 8 of Directive 93/13 provides that ‘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’.

12. According to Article 8a(1) of that directive;

‘Where a Member State adopts provisions in accordance with Article 8, it shall inform the Commission thereof, as well as of any subsequent changes, in particular where those provisions:

– extend the unfairness assessment to individually negotiated contractual terms or to the adequacy of the price or remuneration; or

– contain lists of contractual terms which shall be considered as unfair.’

2. Directive 2005/29/EC

13. Article 5(3) of Directive 2005/29/EC (3) is worded as follows:

‘Commercial practices which are likely to materially distort the economic behaviour only of a clearly identifiable group of consumers who are particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity in a way which the trader could reasonably be expected to foresee, shall be assessed from the perspective of the average member of that group. This is without prejudice to the common and legitimate advertising practice of making exaggerated statements or statements which are not meant to be taken literally.’

B. Latvian law

1. The Civil Code

14. Article 186 of the Latvijas Republikas Civillikums (Civil Code of the Republic of Latvia; ‘the Civil Code’), of 20 February 1937, (4) states that ‘parents shall jointly represent a child in his or her personal and property relations (joint representation)’.

15. According to Article 223 of the Civil Code, ‘the father and mother shall be the natural guardians of their minor children, on the basis of their right of custody’.

16. Article 293 of that code provides:

‘A guardian may, in the interests of the minor, enter into any type of contract concerning that minor and receive and make payments. All the foregoing acts shall be binding on the minor, provided the guardian has...