jugador póker

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On December 10, the Sixth Chamber of the Court of Justice of the European Union (CJEU) ruled on contracts entered into by consumers and, in particular, on the interpretation of the concept of “consumer” in online poker playing contracts.

It should first be noted that the player in question, whose case the CJEU analyzed, had, for several years, lived on the income obtained from his winnings from playing poker, even though he had no formal registration for that type of activity, nor had he offered that activity to third parties on the market as a paid service.

The CJEU opened its reasoning by recalling the need to interpret Article 15(1) of Regulation 44/2001 strictly, considering that the Article would always apply in relation to judicial competence providing that the following 3 requirements were met, cumulatively:

  1. A contracting party will have the status of consumer when acting in a context that can be understood as outside of their trade or profession;
  2. The contract has effectively been entered into between a consumer and a professional; and
  3. The contract falls within one of the categories included in Article 15(1), paragraphs (a) to (c).

In the case at hand, the Court considered that for a Player to be a “consumer”, the following must be taken into consideration:

  • The amounts won by the Player cannot be a deciding factor in classifying him as a “consumer” or not, as the Regulation gives no guidance as to what should be considered “considerable winnings”.
  • The Player’s prior knowledge, enabling him to obtain the winnings, cannot be considered a deciding factor in classifying him as a “consumer”, as this status should be examined looking solely at his position in a specific contract, without his subjective circumstances playing a defining role.
  • Any changes in the existing contractual relationship between the Player and the game platform must be taken into account, as the status of “consumer” can only be attributed to the Player if he uses the platform for non-professional purposes and this use does not subsequently become professional.
  • The number of hours that the Player dedicates to poker, with the frequency of the activity being understood as one of the elements to be considered when determining if the Player’s activity is professional or not. However, this criterion cannot be the only determiner, and must take into account the fact that the Player had no formal registration for that type of activity, nor had he offered that activity to third parties on the market as a paid service.

Based on the above, the CJEU confirmed that it is for the national courts of the country of origin to decide whether the Player effectively acted outside and independently of any trade or profession, and to define the consequences. In doing so, they may consider elements such as: (i) the amount of the winnings obtained by the Player; (ii) the Player’s possible knowledge; and (iii) the frequency of the Player’s activity.

In summary, the CJEU laid out parameters to analyze whether or not certain players may be considered consumers. In any case, this test must be applied on a case by case basis, taking into consideration various factors that, taken as a whole, may result in a professional player not enjoying the protection that EU consumer legislation affords.

Authors: Monica Ferrer and Jorge Monclús

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