According to the Court of Justice of the European Union, a person who publishes a number of sales advertisements on a website is not automatically a ‘trader’ but that activity may be regarded as a ‘commercial practice’ if that person is acting for purposes relating to his or her trade, business, craft or profession
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.
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.
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.