Opinion of the Advocate General — ECLI:EU:C:2016:217
Date: 2016-04-07
Language of the case: French
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary — Judgment of the Court (Fifth Chamber), 9 November 2016 1. EU law — Interpretation — Principles — Independent and uniform interpretation 2. Consumer protection — Sale of consumer goods and associated guarantees — Directive 1999/44 — Scope — Seller — Concept — Trader acting as intermediary on behalf of a non-trade seller without having duly informed the consumer of that status — Included (European Parliament and Council Directive 1999/44, Art. 1(2)(c)) 1. See the text of the decision. (see para. 28) 2. The concept of ‘seller’, for the purposes of Article 1(2)(c) of Directive 1999/44 on certain aspects of the sale of consumer goods and associated guarantees, must be interpreted as covering also a trader acting as intermediary on behalf of a private individual who has not duly informed the consumer of the fact that the owner of the goods sold is a private individual, which it is for the referring court to determine, taking into account all the circumstances of the case. The above interpretation does not depend on whether the intermediary is remunerated for acting as intermediary. Article 1(2)(c) of Directive 1999/44 limits the circle of persons against whom consumers may take action in order to enforce their rights under that directive. Consequently, it is essential that consumers are aware of the identity of the seller, and in particular whether he is acting as a private individual or as a trader, so that they are able to benefit from the protection conferred on them by the directive. Therefore, in circumstances in which the consumer can easily be misled in the light of the conditions in which the sale is carried out, it is necessary to afford the latter enhanced protection. Therefore, the seller’s liability, in accordance with Directive 1999/44, must be capable of being imposed on an intermediary who, by addressing the consumer, creates a likelihood of confusion in the mind of the latter, leading him to believe in its capacity as owner of the goods sold. Moreover, it is for the competent national court to assess whether a trader may be regarded as the ‘seller’, for the purposes of Article 1(2)(c) of Directive 1999/44, where he fails to duly inform the consumer that he was not the owner of the goods in question. The degree of participation and the amount of effort employed by the intermediary in the sale, the circumstances in which the goods were presented to the consumer and the latter’s behaviour may, in particular, be relevant in that regard in order to determine whether the consumer could have understood that the intermediary was acting on behalf of a private individual. (see paras 37, 41, 44, 45, operative part)