The matter at hand
Unimatic is a distribution company that sells products exclusively in trade fairs. In January 2015, Unimatic was participating in one such fair in Berlin, called ‘Grüne Woche’. At that trade fair a customer bought a steam vacuum cleaner (cost EUR 1.600,=) from the stand of Unimatic. The customer was not informed about the right of withdrawal as provided for in Article 9 of the Consumer Rights DirectiveDirective 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights.
The consumer organisation Verbraucherzentrale Berlin considered the transaction to have been an off-premises sales contract, in the sense of Article 2(8) of the Consumer Rights DirectiveDirective 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights and that therefore Unimatic was obliged to inform consumers about the right to withdrawal.
Verbraucherzentrale Berlin proceeded to bring an action against Unimatic to stop them from selling their products without providing information to consumers on their right of withdrawal.
The referring court asked whether ‘a trade fair stand in a hall which is used by a trader for the purpose of selling his products during a trade fair taking place for a few days each year constitute “immovable retail premises” within the meaning of Article 2(9)(a) Consumer Rights DirectiveDirective 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights or “movable retail premises” within the meaning of Article 2(9)(b) Consumer Rights DirectiveDirective 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights’. Furthermore, the referring court asked how the meaning of a trader conducting his business ‘on a usual basis’ is to be interpreted and especially if the perception of the consumer is relevant.
The judgment of the ECJ
The ECJ summarizes the referred questions as asking whether a trade stand in a fair at which a trader carriers out his activity for a few days each year constitutes “business premises” within the meaning of Article 2(9) Consumer Rights DirectiveDirective 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights.
The ECJ states that whether the business premises are movable or immovable is secondary; what is important is whether the activity is carried out “on a permanent basis” or “on a usual basis”. However, the Consumer Rights DirectiveDirective 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights does not specify what is meant by these concepts and the ECJ thus holds these concepts should be given their autonomous European meaning taking into account the objectives pursued by the Consumer Rights DirectiveDirective 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights (paragraph 27).
The reason for the distinction between on-premises and off-premises contracts is the element of surprise and the psychological pressure the consumer may be faced with as they do not expect to be approached by a trader and may not have time to properly consider the offer or compare prices (paragraphs 33 and 36). Therefore, if a consumer goes to a trader’s premises he can expect to be solicited and cannot claim to have been surprised (paragraph 34).
The ECJ highlights that business premises are “premises in which the trader usually carries out his business and which are clearly identified for sales to the public” (paragraph 37), and that according to consideration 22 of the Consumer Rights DirectiveDirective 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, market stalls can also be considered business premises provided that they serve as a usual place of business for the trader (paragraph 41). The same goes for “retail premises where the trader carries out his activity on a seasonal basis, for instance during tourist season in a ski or beach resort”. On the other hand the ECJ holds that “spaces accessible to the public, such as streets, shopping malls, beaches, sport facilities and public transport, which the trader uses on an exceptional basis for his business activities, as well as private homes or workplaces” should not be regarded as business premises. (paragraph 42).
The ECJ further stresses the importance of the perception of the average consumer in determining whether a stand in a trade fair can be considered business premises. Even though it refrains from making a judgment as to whether the trade stand in question qualifies as business premises it sets out the criteria to be used by the national court. A court stand in a trade fair can be business premises if, “in the light of all the factual circumstances surrounding that activity, in particular the appearance of the stand and the information relayed on the premises of the fair itself, a reasonably well-informed and reasonably observant and circumspect consumer could reasonably assume that the trader is carrying out his activity there and will solicit him in order to conclude a contract” (paragraph 46).