Judgment of the Court (Third Chamber) of 15 October 2026.#K. Sz. and Others v Z. Fundusz Inwestycyjny Zamknięty en liquidation.#Request for a preliminary ruling from the Sąd Apelacyjny w Warszawie.#Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Article 1(1) – Scope – Article 2(b) – Concept of ‘consumer’ – Article 2(c) – Concept of ‘seller or supplier’ – Article 3(2) – Term which has not been individually negotiated – Articles of association of a closed-end investment fund – Subscription to that fund – Acquisition by a participant of investment certificates issued by that fund.#Case C-63/25.

Provisional text

JUDGMENT OF THE COURT (Third Chamber)

15 October 2026 (*)

( Reference for a preliminary ruling – Consumer protection – Directive 93/13/EEC – Unfair terms in consumer contracts – Article 1(1) – Scope – Article 2(b) – Concept of ‘consumer’ – Article 2(c) – Concept of ‘seller or supplier’ – Article 3(2) – Term which has not been individually negotiated – Articles of association of a closed-end investment fund – Subscription to that fund – Acquisition by a participant of investment certificates issued by that fund )

In Case C‑63/25,

REQUEST for a preliminary ruling under Article 267 TFEU from the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw, Poland), by decision of 21 November 2024, received by the Court on 28 January 2025, in the proceedings

K. Sz.,

H. Sz.,

W. Sz.

v

Z. Fundusz Inwestycyjny Zamknięty, in liquidation,

THE COURT (Third Chamber),

composed of C. Lycourgos, President of the Chamber, N. Fenger, S. Rodin, N. Piçarra and O. Spineanu-Matei (Rapporteur), Judges,

Advocate General: A. Biondi,

Registrar: V. Di Bucci,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–        W. Sz., H. Sz., K. Sz., by A. Car, adwokat,

–        Z. Fundusz Inwestycyjny Zamknięty, in liquidation, by J. Ziajka, radca prawny,

–        the Polish Government, by B. Majczyna, acting as Agent,

–        the European Commission, by P. Kienapfel and M. Owsiany-Hornung, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 4 June 2026,

gives the following

Judgment

1        This request for a preliminary ruling concerns the interpretation of Article 2(b) and (c) and Article 3(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

2        The request has been made in proceedings between K. Sz., H. Sz. and W. Sz., natural persons, and Z. Fundusz Inwestycyjny Zamknięty, a closed-end investment fund (‘FIZ’), concerning the latter’s refusal to honour requests for the redemption of investment certificates.

 The legal framework

 European Union law

 Directive 93/13

3        The tenth recital of Directive 93/13 states:

‘Whereas more effective protection of the consumer can be achieved by adopting uniform rules of law in the matter of unfair terms; whereas those rules should apply to all contracts concluded between sellers or suppliers and consumers; whereas as a result inter alia contracts relating to employment, contracts relating to succession rights, contracts relating to rights under family law and contracts relating to the incorporation and organisation of companies or partnership agreements must be excluded from this Directive’.

4        Under Article 1(1) of that directive:

‘The purpose of this Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer.’

5        Article 2(b) and (c) of that directive provides:

‘For the purposes of this Directive:

…

(b)      “consumer” means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business or profession;

(c)      “seller or supplier” means any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business or profession, whether publicly owned or privately owned.’

6        Under Article 3(1) and (2) of that directive:

‘1.      A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.

2.      A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract.

The fact that certain aspects of a term or one specific term have been individually negotiated shall not exclude the application of this Article to the rest of a contract if an overall assessment of the contract indicates that it is nevertheless a pre-formulated standard contract.

Where any seller or supplier claims that a standard term has been individually negotiated, the burden of proof in this respect shall be incumbent on him.’

 Polish law

 The Civil Code

7        Under Article 22¹ of the ustawa z dnia 23 kwietnia 1964 r. – Kodeks cywilny (Act of 23 April 1964 – Civil Code) (Dz. U. of 2023, item 1610) (‘the Civil Code’):

‘A “consumer” is a natural person who conducts with an entrepreneur a legal transaction which has no direct link to that person’s business or professional activity.’

8        Article 43¹ of the Civil Code provides:

‘An entrepreneur is a natural person, a legal person or an organisational unit as referred to in Article 33¹(1) carrying out business or professional activity in its own name.’

9        Article 66(1) of that civil code provides as follows:

‘A declaration of intent to conclude a contract made to another party shall constitute an offer if it specifies the essential provisions of the contract.’

10      Under the terms of Article 385¹ of that civil code:

‘1.      The terms of a contract concluded with a consumer which have not been individually negotiated shall not be binding on the consumer if his or her rights and obligations are set forth in a way that is contrary to good practice and grossly infringes his or her interests (unlawful terms). This shall not apply to terms setting out the principal performances to be rendered by the parties, including those relating to price or remuneration, so long as they are worded clearly.

…

3.      The terms of a contract which have not been individually negotiated are those over whose content the consumer had no actual influence. This refers, in particular, to contractual terms taken from a standard contract proposed to that consumer by a contracting party.

…’

 The Law on Investment Funds

11      The ustawa o funduszach inwestycyjnych i zarządzaniu alternatywnymi funduszami inwestycyjnymi (the Law on investment funds and the management of alternative investment funds) (Dz. U. 2004 No 146, Dz. U. 2024, item 1546) (‘the Law on Investment Funds’) provides in Article 3:

‘1.      An investment fund is a legal person whose sole business is to invest the funds raised by offering its investment certificates in securities, money market instruments and other property rights laid down herein.

…

3. An investment fund conducts its operations with particular regard to the interests of participants of the fund, observing the investment risk mitigation rules laid down herein.

…’

12      Under Article 6(1) and (2) of that law:

‘1.      The participants of an investment fund are natural persons, legal persons or unincorporated organisational units:

…

2)      who hold a securities account in which investment certificates are registered, or who are entitled to investment certificates held in a collective account.

2.      Units or investment certificates represent the property rights of participants of the fund, as laid down by statute and the investment fund’s articles of association.’

13      Article 15(1) of that law provides:

‘The establishment of an investment fund, subject to Article 15a, requires:

1.      the granting of articles of association to the investment fund by a company;

…’

14      Under Article 117(1) and (3) of that law:

‘1.      The closed-end investment fund issues investment certificates.

…

3.      Individuals may acquire investment certificates in an investment fund, as referred to in Article 15(1a), provided that the value of an investment certificate from the fund’s initial issue is not less than the equivalent in Polish zlotys of EUR 40 000.’

15      Article 139 of the Law on Investment Funds provides:

‘1.      A closed-end investment fund may redeem the investment certificates it has issued, provided that its articles of association so provide.

…

3.      The articles of association of the closed-end investment fund set out the requirements, terms and conditions for the redemption of investment certificates, as well as the timeframes and procedures for giving notice of the redemption of certificates.

…’

 The dispute in the main proceedings and the questions referred for a preliminary ruling

16      On 7 June 2016, FIZ sent K. Sz., a doctor, and his parents, H. Sz. and W. Sz., both pensioners, a written offer to purchase investment certificates, setting out the terms and conditions of their issue in an annex presented as the sole legally binding document.

17      On the recommendation of an employee at their bank, K. Sz., H. Sz. and W. Sz. each purchased two investment certificates issued by FIZ, at a unit price of 186 714.14 zlotys (PLN) (approximately EUR 44 290). To that end, they completed a standard form in which they declared that they had read and understood the terms and conditions of issue of those certificates and accepted the terms and conditions governing their purchase, as well as FIZ’s articles of association.

18      On 26 March 2019, K. Sz., H. Sz. and W. Sz. submitted redemption requests to FIZ for all their certificates, which had previously been split by FIZ into 2 000 certificates per person. Following FIZ’s refusal of those requests on the ground that its articles of association authorised it to reduce the redemption requests, K. Sz., H. Sz. and W. Sz. brought an action on 20 September 2021 before the Sąd Okręgowy w Warszawie (Regional Court, Warsaw, Poland), seeking an order requiring FIZ to pay each of them the sum of PLN 356 962.74 (approximately EUR 84 660), plus statutory default interest from 30 September 2019 until the date of payment. The applicants argued that the term in FIZ’s articles of association providing for the reduction of redemption requests for certificates constituted an unlawful contractual term within the meaning of Article 385¹(1) of the Polish Civil Code, in that it did not set a limit on the reduction in redemptions and made the fulfilment of the redemption request contingent upon the value of FIZ’s liquid assets, a condition the fulfilment of which depended exclusively on FIZ.

19      By a judgment of 2 November 2022, the Sąd Okręgowy w Warszawie (Regional Court, Warsaw) dismissed the action. According to that court, FIZ’s articles of association, which set out the rights and obligations of the fund’s participants in relation to the fund and the company acting as its management body, do not constitute a contract and are therefore not subject to review under Article 385¹(1) of the Civil Code.

20      The applicants lodged an appeal against that judgment before the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw, Poland), which is the referring court. The latter raises the question of how, in the light of Article 2(b) and (c) and Article 3(2) of Directive 93/13, the legal relationship between, on the one hand, the participants of a closed-end investment fund and purchasers of investment certificates, and, on the other hand, that fund, which is the issuer of those securities. The Court considers it necessary to interpret those provisions, in view of the divergent interpretations by the Polish courts as to the application, to purchasers of investment certificates issued by closed-end funds, of the provisions of the Civil Code relating to consumer protection.

21      First, the referring court asks whether a participant of a closed-end investment fund may be classified as a ‘consumer’ within the meaning of Article 2(b) of Directive 93/13, given that the investment certificates acquired are, at the same time, securities of both a financial and a corporate nature, including, in particular, the right to participate in the investors’ council.

22      Secondly, the referring court asks whether FIZ can be regarded as a ‘seller or supplier’ within the meaning of Article 2(c) of that directive. That court notes that a closed-end investment fund has legal personality under Polish law, that it is managed and represented vis-à-vis third parties by an entity operating as a public limited company which is not bound to the fund’s participants by a contractual relationship, and that it carries out investment activities in its own name, on a continuous and organised basis, and pursues a profit-making objective, which constitutes an economic activity within the meaning of Article 43¹ of the Civil Code.

23      Thirdly, the referring court asks whether a provision in the articles of association of a closed-end investment fund which sets out the rights and obligations of participants, including the rules governing the redemption of investment certificates, may be regarded as a term of a contract ‘not individually negotiated’, within the meaning of Article 3(2) of Directive 93/13.

24      That court has doubts as to the legal nature of the relationship between a closed-end investment fund and its participants. In particular, that court highlights the dual role of the fund’s articles of association, which serve both as the instrument of incorporation of a legal person and as a participation agreement entered into by that fund with its participants. It does not rule out the possibility that that legal relationship may be classified as a ‘standard form contract’, characterised by the absence of negotiation regarding the content of the contract, and subject, as such, to the provisions of Article 385¹(1) of the Civil Code.

25      In those circumstances, the Sąd Apelacyjny w Warszawie (Court of Appeal, Warsaw) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1)      Is a natural person – a participant in a closed-end investment fund and a purchaser of registered securities issued by that fund in the form of investment certificates, if those certificates are acquired for purposes unrelated to that person’s trade, business or profession, and the purpose of joining the fund is primarily to invest savings – a consumer within the meaning of Article 2(b) of Directive [93/13]?

(2)      Is a closed-end investment fund whose sole business is to invest the funds raised by offering its investment certificates in securities, money market instruments and other property rights laid down in [articles of association] a seller or supplier within the meaning of Article 2(c) of Directive 93/13?

(3)      Is a provision of a closed-end investment fund’s articles of association laying down the fund participant’s rights and obligations, including the rules and deadlines for the redemption of investment certificates by the fund from participants, a contractual term which has not been individually negotiated within the meaning of Article 3(2) of Directive 93/13 if the participant was able to read the articles of association before joining the fund and accepted those articles of association by way of a written declaration upon taking up the investment certificates?’

 The questions referred for a preliminary ruling

26      According to settled case-law, in the context of the procedure for cooperation between national courts and the Court established by Article 267 TFEU, it is for the Court to provide the national court with a useful answer enabling it to resolve the dispute before it. With that in mind, it is for the Court, where necessary, to reformulate the questions referred to it. Furthermore, the Court may also find it necessary to consider provisions of EU law which the national court has not referred to in its questions (see, to that effect, judgment of 18 June 2026, FSMA, C‑376/24, EU:C:2026:497, paragraph 32 and the case-law cited).

27      Whilst the referring court, by its first and second questions, asks, first, whether a participant of a closed-end investment fund is a ‘consumer’ and, secondly, whether that fund is a ‘seller or supplier’ within the meaning of Article 2(b) and (c) of Directive 93/13, by its third question, the referring court asks, in essence, whether a provision in the articles of association of a closed-end investment fund, which sets out the conditions for the redemption of investment certificates, must be regarded as a contractual term ‘not individually negotiated’, within the meaning of Article 3(2) of that directive, where the participant was made aware of those articles of association before joining the fund and accepted their content in a written declaration at the time of subscribing for those certificates.

28      It should be noted that that court is thus considering whether such articles of association fall within the scope of that directive, as defined in Article 1(1) thereof.

29      It must therefore be held that, by its three questions, which may be examined together, the referring court asks, in essence, whether Article 1(1), Article 2(b) and (c) and Article 3(2) of Directive 93/13 must be interpreted as meaning that the articles of association of a closed-end investment fund, the activity of which consists in investing financial resources raised through an offer to acquire investment certificates in transferable securities or money market instruments, fall within the scope of that directive where the participant of that fund has acquired, for purposes falling outside the scope of a professional activity, investment certificates issued by the fund, and, if so, must a provision in those articles of association which sets out the conditions for the redemption of those certificates by the fund be regarded as a term of a contract ‘not individually negotiated’, within the meaning of Article 3(2), in a situation where the participant was made aware of those articles of association before joining that fund and accepted their content in a written declaration at the time of subscribing to those certificates.

30      In the first place, it should be noted that the scope of Directive 93/13 is defined in Article 1(1) thereof. According to that provision, the purpose of that directive is to approximate the provisions of the Member States relating to unfair terms in contracts concluded between a seller or supplier and a consumer. It is accordingly a general directive for consumer protection, intended to apply in all sectors of economic activity (judgment of 20 March 2025, Arce, C‑365/23, EU:C:2025:192, paragraph 44 and the case-law cited).

31      Article 2(b) and (c) of Directive 93/13 defines the terms ‘consumer’ and ‘seller or supplier’ as referring, respectively, to any natural person who, in contracts covered by that directive, acts for purposes which fall outside the scope of their professional activity, and any natural or legal person who, in contracts covered by that directive, acts within the scope of their professional activity, whether public or private. It is therefore by reference to the capacity of the contracting parties, according to whether they are acting for purposes relating to their trade, business or profession that the directive defines the contracts to which it applies (judgment of 20 March 2025, Arce, C‑365/23, EU:C:2025:192, paragraphs 45 and 46 and the case-law cited).

32      In the second place, the Court emphasised that, according to the tenth recital of that directive, it applies to ‘any contract’ concluded between a seller or supplier and a consumer, as defined in Article 2(b) and (c) of that directive (judgment of 30 May 2013, Asbeek Brusse and de Man Garabito, C‑488/11, EU:C:2013:341, paragraph 29). Furthermore, that tenth recital states that, consequently, ‘contracts relating to the incorporation and organisation of companies or partnership agreements’ are excluded from the scope of that directive.

33      According to settled case-law, even though the preamble to an EU act has no legally binding force and cannot be relied upon either to derogate from the provisions of the act in question or to interpret those provisions in a manner that is clearly contrary to their wording, it may explain their content, since the recitals in that preamble constitute important elements for the purposes of interpretation that may clarify the intentions of the author of that act (judgment of 5 February 2026, VEB.RF v Council, C‑572/24 P, EU:C:2026:74, paragraph 69 and the case-law cited).

34      In view of the objective of consumer protection pursued by Directive 93/13, the exclusions from its scope must be interpreted strictly (see, to that effect, judgments of 15 April 2010, E. Friz, C‑215/08, EU:C:2010:186, paragraph 32, and of 6 July 2023, First Bank, C‑593/22, EU:C:2023:555, paragraph 20 and the case-law cited).

35      In the present case, as regards the question of whether the articles of association of a closed-end investment fund fall within the scope of the exclusion referred to in the tenth recital of that directive, it is apparent from the information provided by the referring court, set out in paragraph 24 of the present judgment, that the articles of association of FIZ constitute both the instrument of incorporation of the investment fund and an agreement to participate in that fund, concluded between the fund and its participants. Subject to verification by that court, those articles of association therefore contain not only provisions relating to the nature and purpose of the fund, the name and registered office of the fund’s management company, the arrangements for representation and the principles of the investment policy, but also provisions relating, in particular, to the conditions and procedures for the redemption of investment certificates and the rules for calculating liquidity.

36      It should be noted, in that regard, that matters relating to company law must not be confused with contractual matters. Consequently, the mere fact that the articles of association of an investment fund contain provisions relating to the formation, nature and purpose of that fund does not have the effect of excluding those articles of association in their entirety from the scope of Directive 93/13, provided that certain provisions of those articles of association display, as the Advocate General noted, in essence, in point 26 of his Opinion, share characteristics similar to those of terms governing the content of a synallagmatic contractual relationship (see, by analogy, judgment of 3 October 2019, Verein für Konsumenteninformation, C‑272/18, EU:C:2019:827, paragraph 37).

37      It must therefore be held that, in order to ensure the protection of consumers intended by Directive 93/13, the existence, in the articles of association of an investment fund, of provisions of a contractual nature relating, amongst other things, to the terms and conditions for the redemption of investment certificates, and thereby characterising a contractual relationship between that fund and its participants, means that that directive applies to the resulting contract provided that the other conditions laid down by that directive are met.

38      Furthermore, it is also apparent from the request for a preliminary ruling that the applicants in the main proceedings received a written offer to purchase investment certificates issued by the fund in question, which they accepted by completing standard forms in which they declared that they had read and accepted the terms and conditions governing the redemption of those certificates, as well as the fund’s articles of association.

39      It therefore appears, subject to verification by the referring court, that a separate contract for the sale of investment certificates was concluded between FIZ and those applicants. As the Advocate General noted, in essence, in points 33 to 35 of his Opinion, the disputed statutory provisions relating to the redemption of those certificates must be regarded as forming an integral part of the contract for the subscription of those certificates resulting from the applicants’ signing of the forms referred to in the previous paragraph. Those provisions were thus incorporated into the contractual relationship between the applicants and FIZ.

40      If those provisions were excluded from the scope of Directive 93/13 solely on the ground that they form an integral part of an investment fund’s articles of association, the seller or supplier concerned would be free to include in those articles of association provisions that are disadvantageous to the consumer in order to remove them from scrutiny as to whether they are unfair, thereby undermining the achievement of the objectives of that directive.

41      It should be noted, in that regard, that the system of protection established by Directive 93/13 is based on the idea that the consumer is in a weaker position vis-à-vis the seller or supplier, as regards both his or her bargaining power and his or her level of knowledge, which leads to the consumer agreeing to terms drawn up in advance by the seller or supplier without being able to influence the content of those terms (judgment of 11 December 2025, Kuszycka, C‑767/24, EU:C:2025:962, paragraph 42 and the case-law cited).

42      In that context, in accordance with Article 3(2) of that directive, a term is deemed not to have been individually negotiated where it has been drawn up in advance and the consumer has, as a result, been unable to influence its content, in particular in the context of a standard form contract.

43      As the Advocate General noted, in essence, in points 39 to 41 of his Opinion, and subject to verification by the referring court, on the one hand, the statutory provisions relating to the redemption of investment certificates were drafted prior to any contact with prospective subscribers and are intended to govern, in a uniform manner, a diverse range of relationships with those subscribers, and, on the other hand, those provisions are non-negotiable and are imposed on those subscribers as a condition of entering into the contractual relationship.

44      It follows that the contract for the subscription of investment certificates cannot fall within the scope of the exclusion referred to in the tenth recital of Directive 93/13, and that the provision for the redemption of those certificates must be regarded as a term of a contract ‘not individually negotiated’, within the meaning of Article 3(2) of that directive.

45      In the light of the case-law referred to in paragraphs 31 and 32 of the present judgment, it is also necessary to ascertain whether, in the context of the contract for the subscription of investment certificates, the applicants in the main proceedings and FIZ acted, respectively, as a ‘consumer’ and a ‘seller or supplier’ within the meaning of Article 2(b) and (c) of that directive.

46      As regards the status of ‘consumer’, within the meaning of Article 2(b) of that directive, that must be assessed by reference to a functional criterion, consisting in an assessment of whether the contractual relation at issue has arisen in the course of activities outside a trade, business or profession. It is for the national court to establish, by also taking into consideration the nature of the services offered by the seller or supplier concerned, whether the natural person acted in the course of his or her trade, business or profession or whether he or she acted for purposes outside that trade, business or profession (see, to that effect, judgment of 8 June 2023, Lyoness Europe, C‑455/21, EU:C:2023:455, paragraphs 48 and 50).

47      The concept of ‘consumer’, is objective in nature and is distinct from the concrete knowledge the person in question may have, or from the information that person actually has (judgment of 21 March 2019, Pouvin and Dijoux, C‑590/17, EU:C:2019:232, paragraph 24). An interpretation of the concept of ‘consumer’, within the meaning of Article 2(b) of Directive 93/13, which excludes from that concept a natural person acting for purposes which are outside the scope of a trade, business or profession on the ground that he or she derives certain financial benefits from his or her participation in the scheme concerned would be tantamount to preventing the protection granted by that directive to all natural persons in a weak position vis-à-vis a seller or supplier and making non-professional use of the services offered by the latter, from being ensured (judgment of 8 June 2023, Lyoness Europe, C‑455/21, EU:C:2023:455, paragraph 53).

48      In the present case, it is apparent from the request for a preliminary ruling, in particular from the wording of the first question, that K. Sz., H. Sz. and W. Sz. acquired the investment certificates for purposes unrelated to their professional activities. Subject to the checks which it is for the referring court to carry out, they must therefore be regarded as ‘consumers’ within the meaning of Article 2(b), without the fact that the rights they derive from their investment in FIZ are of both a financial and a social nature having any bearing in that regard (see, by analogy, judgment of 15 April 2010, E. Friz, C‑215/08, EU:C:2010:186, paragraphs 28 to 30).

49      As regards the concept of ‘seller or supplier’, within the meaning of Article 2(c) of Directive 93/13, it refers to any professional activity, ‘whether publicly owned or privately owned’. Consequently, Article 2(c) is capable of applying to bodies whether run for profit or not, without excluding entities that pursue a task in the public interest (judgment of 21 March 2019, Pouvin and Dijoux, C‑590/17, EU:C:2019:232, paragraph 35 and the case-law cited).

50      The concept of ‘seller or supplier’, within the meaning of Article 2(c), is a functional concept involving an assessment of whether the specific contractual relationship falls within the scope of the activities in which a person engages on a professional basis. Just like the concept of ‘consumer’, within the meaning of Article 2(b) of Directive 93/13, it is objective in nature and does not depend on whether the seller or supplier decides to act in the context of its main activity or a secondary and ancillary one (judgment of 21 March 2019, Pouvin and Dijoux, C‑590/17, EU:C:2019:232, paragraphs 36 and 41).

51      In the present case, it is apparent from paragraph 22 above that FIZ carries on an investment activity in its own name, on a continuous and organised basis, whilst being represented in dealings with third parties by an investment company with separate legal personality, which is not bound to the participants by a contractual relationship. In those circumstances, which it is for the referring court to verify, FIZ must be regarded as a ‘seller or supplier’ within the meaning of Article 2(c) of Directive 93/13.

52      It follows from all of the foregoing grounds that Article 1(1), Article 2(b) and (c) and Article 3(2) of Directive 93/13 must be interpreted as meaning that provisions of the articles of association of a closed-end investment fund, the activity of which consists of investing in transferable securities or money market instruments financial resources raised by means of an offer to acquire investment certificates, fall within the scope of that directive where the participant of that fund has acquired, for purposes falling outside the scope of a professional activity, investment certificates issued by the fund, and where those provisions of the articles of association define the conditions for the redemption of those certificates by the fund, thereby establishing a contractual relationship between the fund and that participant. A provision in those articles of association laying down such conditions for the redemption of investment certificates must be regarded as a contractual term ‘not individually negotiated’, within the meaning of Article 3(2), in a situation where the participant has taken note of those articles of association before joining that fund and has accepted their content in a written declaration at the time of subscribing for those certificates without being able to negotiate that term.

 Costs

53      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Third Chamber) hereby rules:

Article 1(1), Article 2(b) and (c) and Article 3(2) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

must be interpreted as meaning that provisions of the articles of association of a closed-end investment fund, the activity of which consists of investing in transferable securities or money market instruments financial resources raised by means of an offer to acquire investment certificates, fall within the scope of that directive where the participant of that fund has acquired, for purposes falling outside the scope of a professional activity, investment certificates issued by that fund, and where those provisions of the articles of association define the conditions for the redemption of those certificates by the fund, thereby establishing a contractual relationship between the fund and that participant. A provision in those articles of association laying down such conditions for the redemption of investment certificates must be regarded as a contractual term ‘not individually negotiated’, within the meaning of Article 3(2), in a situation where the participant has taken note of those articles of association before joining that fund and has accepted their content in a written declaration at the time of subscribing for those certificates without being able to negotiate that term.

[Signatures]

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*      Language of the case: Polish.