The matter at hand

A consumer bought a watch on the online market place www.olx.bg under a distance contract. Taking the view that that watch did not match the description given in the advertisement published on the website, he lodged a complaint with the Consumer Protection Commission, Bulgaria (‘CPC’) after the supplier had refused to accept the return of the item in exchange for a refund of the sum paid.

Following investigations, the CPC established that a Ms Kamenova, acting under the profile ‘eveto-ZZ’, had sold the watch. According to the manager of the online market place, the person using that profile had published a total of eight sales advertisements for various products on that website.

By decision of 27 February 2015, the CPC found that Ms Kamenova had committed an administrative offence and imposed on her several fines, because she had failed to state, in each of the advertisements, the information required under the provisions in Bulgarian law implementing Article 6(1) of the Consumer Rights DirectiveDirective 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, including the consumer’s right to withdraw from the distance contract.

Ms Kamenova brought an action against that decision before the Rayonen sad Varna (District Court, Varna, Bulgaria), which annulled that decision on the ground that Ms Kamenova was not a ‘trader’ within the meaning of the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market  and the Consumer Rights DirectiveDirective 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights.

The CPC lodged an appeal against that judgment before the referring court, the Administrativen sad — Varna (Administrative Court, Varna, Bulgaria), which referred to matter to the ECJ for a preliminary ruling on whether a natural person who sells goods through an online market place and who published a total of eight advertisements at the same time for the sale of different items via that market place, is a ‘trader’ within the meaning of the aforementioned directives.

The judgment of the ECJ

First of all, the ECJ notes that the concept of ‘trader’ is defined almost identically in Article 2(b) of the Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market  and Article 2(2) of the Consumer Rights DirectiveDirective 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights. Considering, further, that both directives are based on Article 114 TFEUTreaty on the Functioning of the European Union and pursue the same objectives, the ECJ holds that the concept of ‘trader’ as defined in those directives, must be interpreted uniformly (paragraphs 24 – 29).

As to the meaning and scope of the concept of ‘trader’, the ECJ notes that both directives require that the person concerned is acting ‘for purposes relating to his trade, business, craft or profession’ or in the name of or on behalf of a trader. With reference to its judgments in Zentrale zur Bekämpfung unlauteren Wettbewerbs (C‑59/12) and Karel de Grote (C‑147/16), the ECJ recalls that in that context, the notion of ‘trader’ must be interpreted “in relation to the related but diametrically opposed concept of ‘consumer’, which refers to any individual not engaged in commercial or trade activities” (paragraph 33) and “is a functional concept, requiring determination of whether the contractual relationship is amongst the activities that a person provides in the course of his or her trade, business or profession” (paragraph 35).

With regard to the question whether an individual such as the defendant in the main proceedings comes within the concept of ‘trader’ the ECJ holds that this requires a ‘case-by-case approach’ and is for the referring court to examine on the basis of all the facts in its possession. Circumstances relevant for that examination include, in particular, “whether the sale on the online platform was carried out in an organised manner, whether that sale was intended to generate profit, whether the seller had technical information and expertise relating to the products which she offered for sale which the consumer did not necessarily have, with the result that she was placed in a more advantageous position than the consumer, whether the seller had a legal status which enabled her to engage in commercial activities and to what extent the online sale was connected to the seller’s commercial or professional activity, whether the seller was subject to VAT, whether the seller, acting on behalf of a particular trader or on her own behalf or through another person acting in her name and on her behalf, received remuneration or an incentive; whether the seller purchased new or second-hand goods in order to resell them, thus making that a regular, frequent and/or simultaneous activity in comparison with her usual commercial or business activity, whether the goods for sale were all of the same type or of the same value, and, in particular, whether the offer was concentrated on a small number of goods” (paragraph 38)

The ECJ, however, stresses that these criteria are neither exhaustive nor exclusive and that “the mere fact that the sale is intended to generate profit or that a person publishes, simultaneously, on an online platform a number of advertisements offering new and second-hand goods for sale is not sufficient, by itself, to classify that person as a ‘trader’” (paragraph 40).

As regards the question whether the activity of the defendant in the main proceedings is a ‘commercial practice’ within the meaning of Unfair Commercial Practices DirectiveDirective No 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market, the ECJ holds that this requires that “the practice originates from a trader” (paragraph 43) and that the relevant activity “constitutes an act, omission, course of conduct or commercial communication directly connected with the promotion, sale or supply of a product to consumers” (paragraph 42).

Considering that the circumstances listed by the referring court are insufficient to classify the defendant as a ‘trader’, it follows that these are also insufficient to regard the activity of the defendant at issue in the main proceedings as a ‘commercial practice’.

On this basis, the ECJ concludes “that a natural person (…) who publishes simultaneously 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’, only if that person is acting for purposes relating to his trade, business, craft or profession, this being a matter for the national court to determine, in the light of all relevant circumstances of the individual case” (paragraph 45).