Update 15 December 2021. Tobias Lutzi has concurring analysis here. Since he refers to me, we may now have started a renvoi vortex that, with some luck, wil swallow 2020 whole.
The CJEU held last week in C-774/19 AB and BB v Personal Exchange International Limited. I propose for the sake of our memories that we call it Personal Exchange International Limited or even PEIL. (No English version of the judgment available at the time of writing).
May 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, 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?
At 21 the referring court had signalled the linguistic difference in e.g. the Slovenian and the English version of Article 17 BIA (A15 in BI which is discussed in the judgment), where mention is made of elements over and above the use of ‘professional’ in the other language versions (e.g ‘trade and profession’ in the English version). The CJEU at 27 refers to the classic collective authentic force of the various language versions to dismiss paying too much attention to this difference.
With reference to Petruchová, the Court at 23 dismisses the relevance of whether the player’s winnings allow him to earn a living. Since the player does not beforehand know those winnings, the consumer title would become unpredictable which is of course a big no-no.
At 37 ff the intimate knowledge of the market is dismissed, too, with reference to Schrems: for this would make the title too dependent upon the subjective situation of the individual.
At 41 ff the Court does reiterate the dynamic interpretation of the title per Schrems (reminder: that has only so far been held in the direction of losing the protection one once has a consumer).
Finally, the frequency and length of play does not constitute a singularly relevant criterion either (at 46), even if they can be taken into account. However the Court confusingly (and unlike eg in Salvoni) does here refer to substantive consumer law in which it has held (eg in C‑105/17 Kamenova) that these elements do play some role.
All in all a fairly standard re-emphasis of earlier case-law. The referring court is asked to do the remaining math itself.
EU Private International Law, 3rd ed. 2021, 2.235 ff.