Whether a person who concluded a contract falling under Article 17(1)(c) is a "consumer" depends on the current and future purposes of concluding that contract, not on the nature of the activity pursued by that person as an employed or self-employed person.

In deciding whether a person who concluded a contract falling under point (c) is a "consumer", the court may take into account the impression that person's conduct created for the other contracting party. That includes, in particular, the person's failure to object to contractual terms describing him or her as a trader, even where the contract was concluded through an intermediary professionally active in the field covered by the contract, that intermediary later asked whether VAT could be shown on the invoice, or the person resold the goods shortly after concluding the contract and may have made a profit.

If, after an overall assessment of the information available, the national court cannot determine to the requisite legal standard certain circumstances surrounding the conclusion of the contract - in particular the information in the contract or the involvement of an intermediary at the time of conclusion - it must assess the probative value of the available information under national law. That includes deciding under national law whether the benefit of the doubt must be given to the person claiming "consumer" status.

For Article 17(1) of Regulation No 1215/2012 and Article 6(1) of Regulation No 593/2008, "trade or profession" covers paid employment as well as self-employed activity. An agreement between an employee and a third party other than the employer named in the employment contract, under which that third party is directly liable to the employee for the employer's obligations under that contract, is not a contract concluded outside and independently of any trade or professional activity or purpose.

A natural person who concludes a financial contract for differences with a finance company and carries out transactions through that company may be a "consumer" within the meaning of Article 17(1), provided that concluding that contract did not fall within that person's professional activity; that is for the national court to ascertain. For that classification, the fact that the person carried out a high volume of transactions within a relatively short period or invested significant sums in those transactions is, as such, in principle irrelevant. The fact that the person is a "retail client" within the meaning of Article 4(1) point 12 of Directive 2004/39/EC is also, as such, in principle irrelevant.

A natural person who uses a brokerage company to trade on the international FOREX market under a contract such as a CfD is a "consumer" for Article 17(1) if entering into that contract did not fall within that person's professional activity, which is for the national court to ascertain. For that classification, the value of the transactions, the scale of the financial risk, the person's knowledge or expertise in financial instruments, and that person's active conduct in the transactions are, as such, in principle irrelevant. It is likewise, as such, in principle irrelevant that the financial instruments fall outside Article 6 of Regulation No 593/2008 or that the person is a "retail client" within the meaning of Article 4(1)(12) of Directive 2004/39/EC.

A debtor who entered into a credit agreement to renovate an immovable property that is his domicile, with the intention in particular of providing tourist accommodation services, is not a "consumer" within the meaning of Article 17(1) of Regulation No 1215/2012. The exception is where, in the light of the transaction as a whole for which the contract was concluded, the contract has such a tenuous link to that professional activity that it is clear that the contract is essentially for private purposes - which is for the referring court to ascertain.