Judgment;Summary — ECLI:EU:C:2022:112
Date: 2022-02-24
Language of the case: Lithuanian
Court formation: Fourth Chamber
Subject matter: Consumer protection;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged: 
22 October 2020 
Referring court:  
Lietuvos Aukščiausiasis Teismas (Lithuania) 
Date of the decision to refer: 
21 October 2020 
Appellant on a point of law: 
UAB Tiketa 
Other parties in the appeal on a point of law: 
M. Š., 
VšĮ Baltic Music 
  
Subject matter of the action in the main proceedings 
The case concerns a dispute with regard to the refund of the amount paid by a 
consumer for tickets for an event and compensation for the non-pecuniary damage 
suffered as a result of the cancellation of the event. 
Subject matter and legal basis of the request for a preliminary ruling 
Interpretation of the provisions of Directive 2011/83 on the concept of a trader; 
third paragraph of Article 267 of the Treaty on the Functioning of the European 
Union 
Questions referred 
1. Is the concept of a trader defined in Article 2(2) of Directive 2011/83 to be 
construed as meaning that a person acting as an intermediary when a consumer 
EN 
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purchases a ticket may be regarded as a trader bound by the obligations set out in 
Directive 2011/83 and, accordingly, as a party to the sales contract or service 
contract against whom the consumer may file a claim or bring an action? 
1.1. Is it relevant for the interpretation of the concept of a trader defined in 
Article 2(2) of Directive 2011/83 whether the person acting as an intermediary 
when a consumer purchases a ticket has, before the consumer is bound by a 
distance contract, provided that consumer, in a clear and comprehensible manner, 
with all information on the main trader as laid down in Article 6(1)(c) and (d) of 
Directive 2011/83? 
1.2. Is the fact of intermediation to be deemed to have been disclosed in the case 
where the person involved in the process of the ticket purchase, before the 
consumer is bound by a distance contract, provides the name and legal form of the 
main trader as well as the information that the main trader assumes full 
responsibility for the event, its quality and content and information provided 
thereon and indicates that it itself acts only as a ticket distributor and is a disclosed 
agent? 
1.3. May the concept of a trader defined in Article 2(2) of Directive 2011/83 be 
construed as meaning that, given the legal relationship of twofold service (ticket 
distribution and event organisation) between the parties, both the ticket vendor 
and the event organiser can be deemed to be traders, that is to say, parties to the 
consumer contract? 
2. Is the requirement to provide information and to make that information 
available to the consumer in plain and intelligible language, as laid down in 
Article 8(1) of Directive 2011/83, to be construed and applied in such a way that 
the obligation to inform the consumer is considered to be fulfilled properly where 
such information is provided in the intermediary’s rules on the provision of 
services made available to the consumer on the website tiketa.lt before the 
consumer makes the payment confirming that he or she has become acquainted 
with the intermediary’s rules on the provision of services and undertaking to 
respect them as part of the terms and conditions of the transaction to be concluded 
by means of a so-called ‘click-wrap’ agreement, that is to say, by actively ticking 
a specific box in the online system and clicking on a specific link? 
2.1. Is it relevant for the interpretation and application of this requirement that 
such information is not provided on a durable medium and that there is no 
subsequent confirmation of the contract that contains all the information necessary 
under Article 6(1) of Directive 2011/83 on a durable medium as required under 
Article 8(7) of Directive 2011/83? 
2.2. Under Article 6(5) of Directive 2011/83, does that information provided in 
the intermediary’s rules on the provision of services form an integral part of the 
distance contract irrespective of whether that information is not provided on a 
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durable medium and/or there is no subsequent confirmation of the contract on a 
durable medium? 
Provisions of EU law cited 
Article 169 of the Treaty on the Functioning of the European Union (‘TFEU’) 
Article 38 of the Charter of Fundamental Rights of the European Union (‘the 
Charter’) 
Articles 1, 2(2), 6(1)(c) and (d) and 6(5), 8(1) and 8(7)(a) of Directive 
2011/83/EU of the European Parliament and of the Council of 25 October 2011 on 
consumer rights, amending Council Directive 93/13/EEC and Directive 
1999/44/EC of the European Parliament and of the Council and repealing Council 
Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of 
the Council (‘Directive 2011/83’) 
Article 2(b) of Directive 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 amending Council Directive 84/450/EEC, 
Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of 
the Council and Regulation (EC) No 2006/2004 of the European Parliament and 
of the Council (‘the Unfair Commercial Practices Directive’) 
Provisions of national law cited 
Civil Code of the Republic of Lithuania (‘the Civil Code’) 
Paragraph 3 of Article 6.2281 (‘Concept of a consumer contract and other 
notions’): 
‘3. “Entrepreneur” shall mean a natural or legal person or another 
organisation, or a unit thereof, seeking to conclude or concluding contracts for 
purposes of its trade, business, craft or profession, including persons acting on 
behalf or for the benefit of the entrepreneur. A legal person may be deemed to be 
an entrepreneur irrespective of the legal form of its constituent parties.’ 
Article 2.133 (‘Legal effects of a transaction concluded by an agent’): 
‘1. A transaction concluded by one person (agent) in other person’s 
(principal’s) name by disclosing thereby the fact of agency and without 
exceeding the rights conferred, shall establish, alter and cancel directly the 
civil rights and obligations of the principal.  
2. The rights of an agent may also be inferred from the circumstances under 
which the agent acts (seller in retail trade, cashier, etc.). In the event that 
the conduct of a person gives reasonable grounds for third parties to think 
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that he or she, acting as a principal, has appointed the other person to be 
his or her agent, contracts concluded by that person in the principal’s name 
shall be binding on the principal.  
3. In the event that, when concluding a transaction, an agent fails to provide 
the information that he or she is acting in the principal’s name and in his or 
her interests, the principal shall acquire the rights and assume the duties 
arising from the transaction only where the other party to the transaction 
was in a position to understand from the circumstances of its conclusion that 
that transaction was concluded with an agent, or where the identity of the 
person with whom the transaction was concluded was of no importance to 
that party. 
[…]’ 
Paragraph 24 of Article 2 (‘Key concepts of this Law’) of the Law of the Republic 
of Lithuania on the protection of consumer rights (the version applicable in the 
present case is that which was in force from 11 November 2017 to 1 August 2018; 
‘the Law on Consumer Protection’): 
‘24. “Entrepreneur” shall mean a natural or legal person or another 
organisation, or a unit thereof, seeking to conclude or concluding contracts for 
purposes of its trade, business, craft or profession, including persons acting on 
behalf or for the benefit of the entrepreneur. A legal person may be deemed to be 
an entrepreneur irrespective of the legal form of its constituent parties.’ 
Brief summary of the facts and procedure 
1 The applicant, M. Š., purchased, online from the company Tiketa, tickets for a 
show organised by Baltic Music (‘the event organiser’). Tiketa is engaged in the 
distribution of tickets for events (concerts, shows and other events) organised by 
third parties. Tiketa does not itself engage in event-organising activities. 
2 Tiketa’s website contained the information that the event was being organised by 
Baltic Music and that Baltic Music was the event organiser which assumed full 
liability for the event and its quality and content as well as for any information 
provided concerning the event. Tiketa itself was mentioned as the ticket 
distributor acting as a disclosed agent [‘atsiskleidęs tarpininkas’; literally, 
‘disclosed intermediary’] (although national law normally uses the concept of 
‘atstovas’ (agent) whenever a contract is concluded in the name of, or on behalf 
of, another person). 
3 The event information that was publicly accessible did not state anything further 
about who was a party to the contract or about the refund procedure for tickets if 
the event were to be cancelled. Information on the service provider and on ticket 
refunds is provided in the rules on the provision of services published on Tiketa’s 
website. Neither those rules nor the confirmation of the contract entered into that 
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would feature the information contained in those rules were provided to the 
consumer on a durable medium. A portion of the rules on the provision of services 
(including the information that, if the event were to be cancelled, the event 
organiser would assume full responsibility for ticket refunding) was indeed 
included on the ticket generated as soon as the applicant had paid for it. 
4 When he arrived for the event, M. Š. learned that it would not be taking place. He 
therefore filed a claim with Tiketa and requested a refund of the ticket price and 
travel expenses incurred as well as compensation for non-pecuniary damage. 
Tiketa replied that it was not responsible for the cancellation of the event and 
advised the consumer to contact Baltic Music. The latter completely ignored the 
claims. 
5 M. Š. thereupon brought an action and requested that the defendants Tiketa and 
Baltic Music be jointly and severally ordered to pay compensation for the 
pecuniary and non-pecuniary damage suffered. The court of first instance partially 
upheld the action and awarded to the applicant a portion of the amounts claimed 
from the company Tiketa. Tiketa unsuccessfully lodged an appeal. Tiketa 
subsequently appealed on a point of law to the referring court [Lietuvos 
Aukščiausiasis Teismas; the Supreme Court of Lithuania]. 
Principal arguments of the parties in the main proceedings 
6 Tiketa argues that it is a publicly disclosed agent providing ticket-distribution 
services on behalf of the event organiser. It claims that the purchase of tickets has 
to be classified as the conclusion of a contract between M. Š. and the event 
organiser and that, at the moment when the contract is concluded, it, Tiketa, 
represents the event organiser. Tiketa takes the view that it is not responsible for 
any circumstances relating to the event, including its cancellation. 
7 Furthermore, Tiketa maintains that it fulfils the obligation to inform the consumer 
by providing information in the rules on the provision of services published 
online. Before making payment, the consumer confirms that he or she has become 
acquainted with the rules and undertakes to respect them as part of the terms and 
conditions of the transaction by means of a ‘click-wrap’ agreement, that is to say, 
by actively ticking a specific box in the online system and clicking on a specific 
link. 
Brief summary of the reasons for the referral 
8 The present Chamber faces questions concerning (a) the interpretation of the 
concept of a trader and (b) the fulfilment of the trader’s obligation to inform the 
consumer. 
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The interpretation of the concept of a trader 
9 The present proceedings concern what should be the appropriate classification of 
the legal relationship between the parties, the intermediary’s legal status and its 
obligations towards the consumer. 
10 In its case-law, the Court of Justice has explained that the notion of the term 
‘trader’ is to be construed particularly broadly as referring to any natural or legal 
person who carries out a gainful activity (judgment of 4 October 2018, Kamenova, 
C-105/17, EU:C:2018:808, paragraph 30). The national courts examining the case 
have also relied on a broad notion of the term ‘trader’. 
11 The present Chamber is unsure whether the definition of a trader covers both the 
entrepreneur acting on his own behalf, who is deemed to be contractually bound 
under national contract law, and a person acting on behalf of another person, who 
is not generally regarded as being a party to the contract. A comparison of various 
linguistic versions of Article 2(2) of Directive 2011/83 (English, French, German 
and Lithuanian) gives rise to reasonable doubts concerning the Lithuanian 
translation of the notion of a trader (in Lithuanian, ‘įskaitant kiekvieną kitą 
asmenį’ [literally: ‘including any other person’], and in English ‘including 
through any other person’) and its proper transposition. That said, the referring 
court takes the view that a comparative analysis of the various linguistic versions 
does not make it possible to define the exact scope of application of the concept of 
a trader. 
12 In accordance with a systematic and teleological interpretation of an autonomous 
concept of EU law, the objective of ensuring a high level of consumer protection 
(Article 169 TFEU, Article 38 of the Charter, Article 1 of Directive 2011/83) 
implies that an intermediary in a transaction may also be deemed to be a trader. 
The Court of Justice does not exclude this possibility in its case-law either. 
13 When interpreting the concept of a trader in the broader context of consumer 
protection, the Court of Justice has held that the term ‘trader’ defined both in 
Article 2(b) of the Unfair Commercial Practices Directive and in Article 2(2) of 
Directive 2011/83 must be interpreted uniformly. In order to be regarded as a 
trader within the meaning of Article 2(2) of Directive 2011/83, a natural or legal 
person must be acting ‘“for purposes relating to his trade, business, craft or 
profession” or in the name or on behalf of a trader’ (judgment of 4 October 2018, 
Kamenova, C-105/17, EU:C:2018:808, paragraphs 29 and 36; judgment of 
3 October 2013, Zentrale zur Bekämpfung unlauteren Wettbewerbs, C-59/12, 
EU:C:2013:634, paragraphs 36 and 37). 
14 The definition given in Article 2(b) of the Unfair Commercial Practices Directive 
leads to an assumption that a trader acting in his own name and a person acting in 
the name or on behalf of a trader are alternative entities coming within the scope 
of the definition of ‘a trader’. The Court of Justice case-law cited therefore 
provides a basis for taking the view that the scope ratione personae of Directive 
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2011/83 covers both a person acting for purposes relating to his own trade, 
business, craft or profession and a person acting in the name or on behalf of a 
trader. 
15 At the same time, the present Chamber is unsure whether the interpretation of the 
notion of a trader has to be linked to the disclosure of agency. Article 6 of 
Directive 2011/83 stipulates that, before a consumer is bound by a distance 
contract, the trader must provide the consumer with information in a clear and 
comprehensible manner, including the address and identity of the trader on whose 
behalf he is acting and the geographical address of the place of business to which 
the consumer may address any complaints. This gives rise to the following 
reasonable question: is it relevant for the interpretation of the notion of a trader 
whether a person acting in the name or on behalf of a trader has provided the 
consumer with that information on the main trader? In other words, can a 
consumer (a purchaser) file claims arising from a consumer contract against an 
intermediary only in the case where the latter has failed to disclose the fact of 
agency properly and has given the consumer the false impression that the 
intermediary is acting as the seller-owner of the goods in question (a party to the 
consumer contract)? (this is the position taken by the Court of Justice in its 
judgment of 9 November 2016, Wathelet, C-149/15, EU:C:2016:840; see 
paragraph 34 thereof). 
16 The present Chamber also poses the question of whether the legal relationship 
which has arisen between the parties to the proceedings might be classified as the 
provision of a twofold service (ticket distribution and event organisation), 
meaning that both the ticket vendor and the event organiser can be deemed to be 
traders, that is to say, parties to the consumer contract. The referring court takes 
the view that in such a case the legal relationship between the purchaser, the ticket 
vendor and the organiser is to be classified as comprising two contracts: (1) a 
contract for services between the ticket purchaser (the consumer) and the event 
organiser concluded through the agent (Tiketa) whereby the organiser undertakes 
to stage the event in accordance with the conditions set out in the ticket; and (2) a 
contract between the intermediary (Tiketa) and the ticket purchaser under which 
Tiketa sells tickets to the purchaser and undertakes to provide the essential 
information listed in Article 6 of Directive 2011/83. 
The fulfilment of the trader’s obligation to inform the consumer 
17 The present Chamber is also unsure how the fulfilment of the obligation to inform 
the consumer imposed on the trader by Directive 2011/83 affects the legal 
classification of the parties’ relationship and whether the proper fulfilment of the 
obligation to inform the consumer is in all cases inextricably linked to the 
requirement that the consumer be provided with confirmation of the contract and 
pre-contractual information on a durable medium. 
18 It must be assumed that the obligation to inform is fulfilled properly where (1) all 
the information listed in Article 6(1)(a) to (t) of Directive 2011/83 is provided and 
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(2) that information is provided in a clear and comprehensible manner. As the 
event information made publicly accessible on Tiketa’s website contained only a 
portion of the required information, the question arises as to whether, with a view 
to ensuring effective consumer protection, it is sufficient if, before concluding a 
distance contract, the trader provides detailed information, including information 
on the service provider and ticket refunds, only in the rules on the provision of 
services. 
19 This manner of providing pre-contractual information also raises a question as to 
its compliance with the requirement of transparency. The obligation of 
transparency has two essential dimensions: clarity, which must apply to the 
outward manner in which the information is put before the consumer, and thus to 
the way in which the information is read and understood in the environment 
within which the transaction is carried out; and comprehensibility, which refers to 
the specific content of the information, which must inform the consumer of the 
legal consequences of his choices (see Opinion of Advocate General Pitruzzella of 
28 February 2019 in Amazon EU, C-649/17, EU:C:2019:165, point 107). 
20 In this regard, the present Chamber is faced with the reasonable question as to 
whether the provision of information on ticket refunds in the rules on the 
provision of services is to be viewed as a proper way to ensure that the consumer 
unequivocally understands which person is a party to the contract concluded and 
against whom he can file claims or bring an action in the event of unsatisfactory 
performance of the contract. 
21 Furthermore, it has not been established in the present proceedings that such 
information had been provided on a durable medium, and there was no subsequent 
confirmation of the contract such as to contain all the information required under 
Article 6(1) of Directive 2011/83 on a durable medium. 
22 According to the case-law of the Court of Justice, the term ‘durable medium’ 
means any instrument which enables the payment service user to store information 
addressed personally to him in a way accessible for future reference for a period 
of time adequate to the purposes of the information and which allows the 
unchanged reproduction of the information stored (judgment of 25 January 2017, 
BAWAG, C-375/15, EU:C:2017:38, paragraph 40). 
23 According to the case-law of the Court of Justice, a durable medium must ensure 
that the consumer is in possession of the information referred to in Article 6(1) of 
Directive 2011/83 to enable him to exercise his rights where necessary. The mere 
provision of that information on the entrepreneur’s website does not satisfy the 
requirements for a durable medium (see judgments of 5 July 2012, Content 
Services, C-49/11, EU:C:2012:419, paragraphs 42 to 44, and of 9 November 2016, 
Home Credit Slovakia, C-42/15, EU:C:2016:842, paragraph 35). 
24 Finally, the present Chamber seeks to establish whether the provision in 
Article 6(5) of Directive 2011/83 provides a basis for taking the view that the 
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rules on the provision of services published on the website of UAB Tiketa become 
an integral part to the distance contract, and, accordingly, whether the provisions 
of those rules may be deemed to be fair only if the information given therein has 
been provided to the consumer on a durable medium.