On-line Playing: An Skilled Poker Participant Stays A “shopper” In accordance To The CJEU – Media, Telecoms, IT, Leisure

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Does a player who is a little too experienced and victorious
for an online poker site – this player having won 227,000
euros in less than a month and a half – retain the status of
non-professional “consumer” within the meaning of
Regulation (EC) No 44/2001 of December 22, 2000 (known as the
Brussels I Regulation)1?

In a judgment issued on December 10, 20202, the
Court of Justice of the European Union answered yes to this
question.

The dispute

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

Mr. B.B. had registered on PEI’s online gaming site and had
won, in less than a month and a half, 227,000 euros in poker
winnings.

Faced with this user a little too victorious for it, PEI decided
to block Mr. B.B.’s account.

Mr. B.B. decided to initiate legal proceedings before the
Slovenian courts. He won his case both before the First Instance
Court and before the Court of Appeals. PEI then appealed to
the Vrhovno sodisce (Supreme Court of Slovenia)
to challenge the appellate judgment.

The issue at stake

The question of the international jurisdiction of the courts
with regard to European Union law lied at the heart of the
discussions.

Since the beginning of this dispute, Mr. B.B., in his capacity
as consumer, asserted that Slovenian courts were competent, which
allowed him to bring the matter before the court having
jurisdiction over the place where he was domiciled, i.e.
Slovenia.

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

“Article 15

  1.  In matters relating to a contract concluded
    by a person, the consumer, for a purpose which can be
    regarded as being outside his trade or profession
    ,
    jurisdiction shall be determined by this Section, without prejudice
    to Article 4 and point 5 of Article 5:

(…)

c) in all other cases, the contract has been concluded with
a person who pursues commercial or professional activities in the
Member State of the consumer’s domicile or, by any means,
directs such activities to that Member State or to several States
including that Member State, and the contract falls within the
scope of such activities.

(…)

Article 16

  1. A consumer may bring proceedings against the other
    party to a contract either in the courts of the Member State in
    which that party is domiciled or in the courts for the place where
    the consumer is domiciled.
     »

According to Mr. B.B., his capacity as a consumer was
established insofar as he had accepted the general terms and
conditions unilaterally set by PEI, thus placing him in an
economically weaker position, he was not registered as a
professional for this poker playing activity, he had never offered
his services to third parties in return for payment, and he had no
sponsor whatsoever.

Conversely, PEI claimed that the courts of the Republic of Malta
(as designated in the general terms and conditions accepted by Mr.
B.B.) were competent to hear the case on the ground that Mr. B.B.
was allegedly a professional poker player and could not, therefore,
benefit from the more protective EU jurisdictional rules that apply
to consumers.

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

According to the Slovenian Supreme Court, the issue of
international jurisdiction at the heart of this dispute therefore
depended on whether Mr. B.B. could be considered, within the
meaning of EU law, as having concluded a contract with PEI as a
“consumer, for a purpose that can be regarded as being
outside his professional activity” within the meaning of
the Brussels I Regulation.

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

“Must Article 15(1) of Regulation No 44/2001 be
interpreted as meaning that an online poker playing contract,
concluded remotely over the internet by an individual with a
foreign operator of online games and subject to that operator’s
general terms and conditions, can also be classified as a contract
concluded by a consumer for a purpose which can be regarded as
being outside his trade or profession, where that individual has,
for several years, lived on the income thus obtained or the
winnings from playing poker, even though he has no formal
registration for that type of activity and in any event does not
offer that activity to third parties on the market as a paid
service?”

Decision of the CJEU

The CJEU provided the following answer:

“Article 15(1) 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 is to be
interpreted as meaning that a natural person domiciled in a Member
State who, on the one hand, has concluded a contract with a company
based in another Member State to play poker on the Internet,
pursuant to terms and conditions determined by the latter, and on
the other hand, has neither officially registered such activity nor
offered such activity to third parties as a paid service does not
lose the status of “consumer” within the meaning of this
provision, even if that person plays the game for a large number of
hours per day, has extensive knowledge and receives substantial
winnings from that game.”

The reasoning of the CJEU can be summarized as follows.

First of all, it pointed out that the rules provided for in
Regulation (EC) No 44/2001 that constitutes a derogation from the
general rule of jurisdiction are to be interpreted strictly and
that the concept of “consumer” within the meaning of that
Regulation must be interpreted autonomously.

It then specified that the provisions of that Regulation must be
interpreted objectively, namely for a “consumer”,
according to the “position of the relevant person
concerned in a given contract, in relation to the nature and
purpose of that contract, and not to the subjective situation of
that person”.

According to the CJEU, the fact that Mr. B.B. had won
substantial sums of money was not a determining criterion for the
qualification or non-qualification as consumer, since recognizing a
differentiation depending on the winnings received would lead to
legal uncertainty as to the interpretation of the European
provisions and would undermine the predictability of jurisdictional
rules.

For the same reasons, the CJEU specified that an
individual’s knowledge in the area covered by the contract that
has been entered into does not make him/her lose his/her capacity
as “consumer”.

It also indicated that the fact that Mr. B.B. was playing poker
on a very regular basis – nine hours a day – was indeed
an element to be taken into account, but this element ought to be
considered among and with others and could not in itself rule out
the qualification as consumer.

According to the CJEU, the element that was really decisive,
following a strict interpretation of Article 15 of Regulation
44/2001, was whether the relevant person acted outside and
independently of any professional activity, which seemed to be the
case for Mr. B.B..

As such, an experienced poker player who receives substantial
winnings and spends a significant number of hours playing online is
still a consumer, insofar as he/she has not registered this
activity as a professional or provided paid services in this
respect to third parties and has accepted the general terms and
conditions determined unilaterally by the online gambling
company.

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

However, as the provisions on jurisdiction over consumer
contracts are identical in these two Regulations, it is reasonable
to transpose the CJEU’s reasoning to Regulation (EU) No.
1215/2012 currently applicable.

Footnotes

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

2 C-774/19 – Personal Exchange
International

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