The CJEU has published a new judgment on a reference from
Bulgaria on the meaning of the term ‘trader’ as used in the Unfair Commercial
Practices Directive. Given the broad guidance that emerges, it is not likely to
help in day-to-day interpretation of consumer issues.
Background
Case
C-105/17 Komisia za zashtita na potrebitelite v Evelina Kamenova involves
the simple matter of the purchase of a second-hand watch by a consumer using an
online sales platform. After establishing that the watch did not correspond to
the description given in the sales advertisement, the consumer informed the
seller that he wished to withdraw from the contract. The seller, Ms Evelina
Kamenova, refused to take back the item in exchange for a refund. Consequently,
the consumer lodged a complaint with the Bulgarian Consumer Protection
Commission (CPC).
Having checked the platform, the CPC established that, on 10
December 2014, eight sales advertisements for various goods were still being
published on that site by Ms Kamenova operating under the profile ‘eveto-ZZ’.
By decision of 27 February 2015, the CPC found that Ms
Kamenova had committed an administrative offence and imposed several
administrative fines on the basis of national legislation on consumer
protection. According to the CPC, Ms Kamenova had failed to indicate, in each
of those advertisements, the trader’s name, postal address and email address,
the total price of the product put up for sale, inclusive of taxes and fees,
the payment conditions, the conditions of delivery and performance, the
consumer’s right to withdraw from the distance contract, the conditions, period
and procedures for exercising that right as well as a reminder that there was a
statutory guarantee of conformity of the goods sold.
Ms Kamenova brought an action against that decision before
the Bulgarian courts on the ground that she was not a ‘trader’ and that,
accordingly, the provisions of Bulgarian law were not applicable. It is in that
context that the Administrativen sad — Varna (Administrative Court, Varna,
Bulgaria) asks the Court of Justice whether a natural person who publishes
online a relatively high number of sales advertisements for goods of
significant value can be regarded as a ‘trader’ within the meaning of the
Unfair Commercial Practices Directive.
Judgment
The Court states first that, in order to be classified as a
‘trader’, within the meaning of the directive, it is necessary that the person
concerned should be acting ‘for purposes relating to his trade, business, craft
or profession’ or in the name of or on behalf of a trader.
The Court goes on to clarify that the meaning and scope of
the concept of ‘trader’ must be determined in relation to the concept of
‘consumer’, which refers to any individual not engaged in commercial or trade
activities. The Court finds, on this point, that it is for the national court
to determine, in each case, on the basis of all the facts in its possession,
whether a natural person, such as Ms Kamenova, was acting for purposes relating
to his or her trade, business, craft or profession by verifying, in particular,
whether the sale was carried out in an organised manner, whether it was a
regular occurrence or was for profit, whether the offer was concentrated on a
small number of goods, and to consider the legal status and technical
experience of the seller.
Moreover, in order for the activity in question to be
regarded as a ‘commercial practice’, the national court must establish that
that activity originates from a ‘trader’, and, secondly, that it constitutes an
act, omission, course of conduct or commercial communication ‘directly
connected with the promotion, sale or supply of a product to consumers’.
In those circumstances, the Court concludes that a natural
person who simultaneously publishes on a website a number of advertisements
offering new and second-hand goods for sale can be classified as a ‘trader’,
and such an activity can constitute a ‘commercial practice’, but only if that
person is acting for purposes relating to his or her trade, business, craft or
profession.
The full judgment is available here.
