The condition in article 6(1)(d) of Parliament and Council Regulation (EC) No 805/2004 21 April 2004 did not apply to contracts concluded between two persons who were not engaged in commercial or professional activities.

The claimant, Walter Vapenik, who was domiciled in Austria, brought action seeking an order that the defendant, Josef Thurner, who was domiciled in Belgium, pay a sum, resulting from a loan agreement they had concluded, before the Austrian court as the court for the place of performance of the contract chosen by the parties. Neither party was engaged in commercial or professional activities at the time the contract was concluded or when the action was brought. Although notice of the proceedings and the summons to appear were served on the defendant in Belgium, he did not appear before the court. The court therefore gave judgment in default, which was served on the defendant by post, which then became final and enforceable. The claimant then lodged an application before the Austrian court for a European Enforcement Order (“EEO”) for that judgment in accordance with Regulation (EC) No 805/2004. The court dismissed that application, referring to art 6(1)(d) and held that the action against the defendant, “the consumer”, had not been brought in the member state in which he was domiciled. The claimant appealed to the Landesgericht Salzburg, Austria.

Article 6(1) of Regulation (EC) No 805/2004, entitled “Requirements for certification as a European Enforcement Order”, provided: “A judgment on an uncontested claim delivered in a member state shall, upon application at any time to the court of origin, be certified as a European Enforcement Order if … (d) the judgment was given in the member state of the debtor’s domicile within the meaning of article 59 of [Council] Regulation (EC) No 44/2001, in cases where—a claim is uncontested … and—it relates to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession; and—the debtor is the consumer.”

The Landesgericht referred to the Court of Justice for a preliminary ruling the question whether the condition in article 6(1)(d) applied to contracts between two persons not engaged in commercial or professional activities.

The application provisions of European Union law which aimed to compensate for the imbalance between parties in contracts concluded between a consumer and a professional, could not be extended to persons with respect to whom that protection was not justified. There was no imbalance between the parties in a contractual relationship such as that at issue, so that relationship could not be subject to the system of special protection applicable to consumers contracting with persons engaged in commercial or professional activities. The rules of special jurisdiction over consumer contracts laid down in Regulation (EC) No 44/2001, which provided that the courts for the place where the consumer was domiciled were to have jurisdiction with respect to actions brought by and against him, were applicable only to contracts in which there was an imbalance between the contracting parties. Although certification as a EEO under Regulation No 805/2004 of a judgment with respect to an uncontested claim enabled the enforcement procedure laid down by Regulation No 44/2001 to be circumvented, the absence of such certification did not exclude the possibility of enforcing that judgment under the enforcement procedure laid down by the latter regulation. If, in the context of Regulation No 805/2004, a definition were to be adopted which was wider than that in Regulation No 44/2001, that might lead to inconsistencies in the application of those two regulations. Moreover, the definition of “consumers” within the meaning of article 6(1)(d) of Regulation No 805/2004 referred to a person who had concluded a contract for a purpose which was outside his trade or profession with a person who was acting in the exercise of his trade or profession.