On 25 January 2018, the Court of Justice of the European Union issued a judgment in the case C-498/16 between Maximilian Schrems and Facebook Ireland Limited, stating on the definition of “consumer” under Articles 15 and 16 of Brussels I.
The referring court asks, in essence, (A) whether Article 15 of Regulation No 44/2001 must be interpreted as meaning that the activities of publishing books, lecturing, operating websites, fundraising and being assigned the claims of numerous consumers for the purpose of their enforcement do not entail the loss of a private Facebook account user’s status as a ‘consumer’ within the meaning of that article and (B) whether Article 16(1) of Regulation No 44/2001 must be interpreted as meaning that it does not apply to the proceedings brought by a consumer for the purpose of asserting, in the courts of the place where he is domiciled, not only his own claims, but also claims assigned by other consumers domiciled in the same Member State, in other Member States or in non-member countries.
Facts of the case
Mr Schrems claimed, in essence, that the defendant has committed numerous infringements of data protection provisions. During these proceedings, Mr Schrems has published two books on his legal proceedings against alleged infringements of data protection, has given lectures, some of which were remunerated, in particular with professionals, has registered a number of internet websites such as blogs, online petitions as well as crowdfunding sites to finance legal proceedings against the defendant in the main proceedings. Furthermore, he has founded an association which seeks to uphold the fundamental right to data protection, has received various prizes and has had assigned to him, by more than 25 000 people worldwide, claims to be brought in the present case. It should however be noted that the association founded by Mr Schrems and seeking to enforce data protection is a non-profit organisation, and the necessary costs are also funded and the corresponding donations gathered, administered and distributed.
The claim concerns the violations occurred in respect of private Facebook accounts of both Mr Schrems and seven other persons who assigned to him their claims relating to those accounts.
The decision of the Court
In its decision, the Court observes, as regards the first question, thatthe notion of a ‘consumer’ for the purposes of Articles 15 and 16 of Regulation No 44/2001 must be strictly construed, reference being made to the position of the person concerned in a particular contract, having regard to the nature and objective of that contract and not to the subjective situation of the person concerned, since the same person may be regarded as a consumer in relation to certain transactions and as an economic operator in relation to others.
It is necessary, in particular, to take into account, as far as concerns services of a digital social network which are intended to be used over a long period of time, subsequent changes in the use which is made of those services and Ttis interpretation implies that a user of such services may, in bringing an action, rely on his status as a consumer only if the predominately non-professional use of those services, for which the applicant initially concluded a contract, has not subsequently become predominately professional.
On the other hand, the Court observes that “the expertise which that person may acquire in the field nor his assurances given for the purposes of representing the rights and interests of the users of those services can deprive him of the status of a ‘consumer’ within the meaning of Article 15 of Regulation No 44/2001”, because an interpretation of the notion of ‘consumer’ which excluded such activities would have the effect of preventing an effective defence of the rights that consumers enjoy in relation to their contractual partners who are traders or professionals, including those rights which relate to the protection of their personal data. Such an interpretation would disregard the objective set out in Article 169(1) TFEU of promoting the right of consumers to organise themselves in order to safeguard their interests.
In conclusion, the Court answer to the first question is that “Article 15 of Regulation No 44/2001 must be interpreted as meaning that the activities of publishing books, lecturing, operating websites, fundraising and being assigned the claims of numerous consumers for the purpose of their enforcement do not entail the loss of a private Facebook account user’s status as a ‘consumer’ within the meaning of that article”.
Regarding the second question, the Court notes that it has already held that, since the special system established in Article 15 et seq. of Regulation No 44/2001 is inspired by the concern to protect the consumer as the party deemed to be economically weaker and less experienced in legal matters than the other party to the contract, the consumer is protected only in so far as he is, in his personal capacity, the plaintiff or defendant in proceedings. Consequently, an applicant who is not himself a party to the consumer contract in question cannot enjoy the benefit of the jurisdiction relating to consumer contracts. In fact, the condition that a contract must have been concluded between the consumer and the trader or professional concerned makes it possible to ensure that the attribution of jurisdiction is predictable, which is one of the objectives of Regulation No 44/2001, as is apparent from recital 11 thereof.
Finally, Article 16(1) of Regulation No 44/2001 must be interpreted as meaning that it does not apply to the proceedings brought by a consumer for the purpose of asserting, in the courts of the place where he is domiciled, not only his own claims, but also claims assigned by other consumers domiciled in the same Member State, in other Member States or in non-member countries.
