K. Sz. & Ors v. Z. Fundusz Inwestycyjny Zamknięty

15 October 2026 – Court of Justice – C-63/25

Preliminary reference from Warsaw Court of Appeal (Poland) on national practice of excluding articles of association of closed-end investment fund from review for unfair terms, since they ‘do not constitute a contract’ [19]. Investors bought certificates on standard form accepting the articles [17]. Redemption requests reduced under the articles [18]. Articles not exempt, as ‘matters relating to company law must not be confused with contractual matters.’ [36] Practice precluded.

Articles of association excluded from review

1.
Article 1(1) and Article 2(b) and (c) of Council Directive 93/13/EEC (Unfair Terms Directive) on scope interpreted: ‘a general directive for consumer protection, intended to apply in all sectors of economic activity’ [30]. Contracts defined ‘by reference to the capacity of the contracting parties’ [31]. Arce, C-365/23 and FSMA, C-376/24.
1. 1.1
  Recital 10 of Unfair Terms Directive on company-law exclusion interpreted strictly: Recital excludes ‘contracts relating to the incorporation and organisation of companies or partnership agreements’ [32], but ‘must be interpreted strictly’ [34]. E. Friz, C-215/08, Asbeek Brusse and de Man Garabito, C-488/11, VEB.RF v. Council, C-572/24 P and First Bank, C-593/22.
2.
Verein für Konsumenteninformation, C-272/18 on contractual provisions in articles of association applied by analogy: Provisions on formation, nature and purpose of fund do not exclude ‘those articles of association in their entirety from the scope of Directive 93/13’ [36]. Redemption provisions, ‘characterising a contractual relationship between that fund and its participants’, mean ‘that that directive applies to the resulting contract’ [37].
1. 2.1
  Unfair Terms Directive interpreted purposively: Otherwise seller or supplier ‘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’ [40].
2. 2.2
  Separate subscription contract: Redemption provisions ‘must be regarded as forming an integral part of the contract for the subscription of those certificates’ [39].
3.
Article 3(2) of Unfair Terms Directive on terms not individually negotiated applied: Redemption provisions ‘drafted prior to any contact with prospective subscribers … non-negotiable and are imposed on those subscribers as a condition of entering into the contractual relationship.’ [43] Kuszycka, C-767/24.
4.
Lyoness Europe, C-455/21 on functional concept of consumer applied: Status ‘must be assessed by reference to a functional criterion’ [46]. Investors consumers ‘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’ [48]. Pouvin and Dijoux, C-590/17 and E. Friz, C-215/08.
1. 4.1
  Pouvin and Dijoux, C-590/17 on seller or supplier applied: ‘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.’ [50] Fund ‘carries on an investment activity in its own name, on a continuous and organised basis’ [51].
5.
Practice precluded: ‘provisions of the articles of association of a closed-end investment fund … 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 … 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”’.