According to a recent judgment of the Court of Justice of the European Union (CJEU 6th chamber 10 Dec. 2020, aff. C-774/19), the person playing online poker does not lose the quality of consumer. hours a day, who has extensive knowledge and perceives large gains from this game.
The facts: a regular poker player who lives on his winnings
Procedure and question put to the CJEU: does the assiduous player lose his quality of consumer?
The Slovenian lower courts recognized their jurisdiction by holding that the user had acted as a consumer when he opened his user account on the company's website. The Supreme Court of Slovenia, hearing an appeal for review, questions the jurisdiction of the Slovenian courts. The answer to this question, according to her, depends on whether the user has entered into a contract with the company as " consumer, for a use that may be considered foreign to his professional activity ", within the meaning of article 15 §1 of regulation n ° 44/2001. The Slovenian Supreme Court then decides to stay the ruling and asks the CJEU the following preliminary question:
« Should Article 15 (1) of Regulation No 44/2001 be interpreted as meaning that a contract concluded by a consumer for purposes unrelated to his professional activity should also be considered as a contract to play Internet poker, concluded remotely by an individual with a foreign operator of Internet games and subject to the general conditions determined by the latter if the individual has lived for several years on the income received and gains from poker games although he has not officially declared such activity and he does not offer this activity on the market to third parties either. as a paid service ? »
CJEU response
The Court of Justice of the European Union specifies:
"A natural person domiciled in a Member State who, on the one hand, has concluded a contract with a company established in another Member State to play poker on the internet and, on the other hand, has neither officially declared such activity nor offered this activity to third parties as a paid service does not lose the quality of "consumer", even if she plays this game a large number of hours per day, has extensive knowledge and receives large payouts from this game »
On the amount of winnings
The game of poker is a game of chance involving both the risk of losing the sums invested and the chance of wagering large amounts. It would therefore not be compatible with the objective of predictability of the rules of jurisdiction pursued by the regulation to determine the jurisdiction, and therefore the quality of consumer or professional, according to the amount won or lost.
On the level of knowledge
The concept of consumer is objective in nature and is independent of the knowledge and information that the data subject actually has. The quality of consumer must be examined with regard only to the position of a person in a given contract, taking into account the nature and the purpose of this one.
On the regularity of the activity
The regularity of an activity is one element among others to be taken into account and does not by itself determine the qualification to be retained with regard to a natural person with regard to the concept of " professional ". The Court bases its decision above all on the fact that this activity does not give rise to the sale of goods or to the provision of services.
