OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 7 April 2016 ( 1 )

Case C‑149/15

Sabrina Wathelet

v

Garage Bietheres & Fils SPRL

(Request for a preliminary ruling from the cour d’appel de Liège (Court of Appeal, Liège, Belgium))

‛Request for a preliminary ruling — Consumer protection — Directive 1999/44/EC — Sale of consumer goods and associated guarantees — Article 1(2)(c) — Concept of ‘seller’ — Liability of a trader acting as intermediary for a non-professional seller’

I – Introduction

1. There is no question that consumers who purchase consumer goods from other private individuals do not enjoy the protection afforded by Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees. ( 2 ) However, is that also the case where a professional acting on behalf of a private individual intervenes in the sale, holding himself out to the consumer as the seller? That is the question in the present case.

2. This request for a preliminary ruling, made by the cour d’appel de Liège (Court of Appeal, Liège, Belgium), has arisen in a dispute between a consumer and a professional concerning the sale of a second-hand motor vehicle. The main issue is to establish whether a trader acting merely as an intermediary on behalf of the non-professional owner of the vehicle is liable to the consumer for any lack of conformity of the vehicle.

3. In that context, the referring court essentially asks the Court of Justice whether the concept of ‘seller’ referred to in Article 1(2)(c) of Directive 1999/44 includes a professional, such as the respondent in the main proceedings, who intervenes in a sale as an intermediary acting on behalf of a private individual, even though that provision does not mention that particular situation.

4. The Court is therefore called upon in this case to clarify the scope of the concept of ‘seller’ for the purposes of Directive 1999/44 and, consequently, the scope of the directive itself.

5. In the following analysis I shall begin by making some general observations about intermediaries and the method of interpreting the concept of ‘seller’, referred to in Directive 1999/44. Next, after considering both the wording of Article 1(2)(c) of the directive and the objective of that provision, I shall examine the scope of the concept of ‘seller’ for the purposes of the directive in order to provide an answer to the question referred for a preliminary ruling. Lastly, I shall address the questions of the national court’s own assessment and of the remuneration of the intermediary.

II – Legal framework

A – Directive 1999/44

6. Recital 1 of Directive 1999/44 refers to Article 153 of the EC Treaty (now Article 169 TFEU), which provides, inter alia: ‘In order to promote the interests of consumers and to ensure a high level of consumer protection, the [European Union] shall contribute to protecting the … economic interests of consumers, as well as to promoting their right to information … in order to safeguard their interests.’ ( 3 )

7. Recitals 5 and 6 of Directive 1999/44 state: ‘(5) … the creation of a common set of minimum rules of consumer law, valid no matter where goods are purchased within the Community, will strengthen consumer confidence and enable consumers to make the most of the internal market; (6) … the main difficulties encountered by consumers and the main source of disputes with sellers concern the non-conformity of goods with the contract; … it is therefore appropriate to approximate national legislation governing the sale of consumer goods in this respect, without however impinging on provisions and principles of national law relating to contractual and non-contractual liability’.

8. In so far as concerns the liability of sellers, recital 9 of the directive states: ‘(9) … the seller should be directly liable to the consumer for the conformity of the goods with the contract; … this is the traditional solution enshrined in the legal orders of the Member States; … nevertheless the seller should be free, as provided for by national law, to pursue remedies against the producer, a previous seller in the same chain of contracts or any other intermediary, unless he has renounced that entitlement; … this directive does not affect the principle of freedom of contract between the seller, the producer, a previous seller or any other intermediary; … the rules governing against whom and how the seller may pursue such remedies are to be determined by national law’.

9. Article 1(1) of the Directive 1999/44 states that the purpose of the directive is: ‘… the approximation of the laws, regulations and administrative provisions of the Member States on certain aspects of the sale of consumer goods and associated guarantees in order to ensure a uniform minimum level of consumer protection in the context of the internal market’.

10. To that end Directive 1999/44 imposes certain obligations on sellers vis-à-vis consumers. In particular, it imposes, under Article 2(1), an obligation to deliver goods to the consumer which are in conformity with the contract of sale and, under Article 3(1), liability to the consumer for any lack of conformity which exists at the time the goods are delivered.

11. Article 1(2)(c) of Directive 1999/44 defines the concept of ‘seller’ for the purposes of the directive’s application as follows: ‘“seller”: shall mean any natural or legal person who, under a contract, sells consumer goods in the course of his trade, business or profession’.

12. Article 4 of the directive, which is entitled ‘Right of redress, provides: ‘Where the final seller is liable to the consumer because of a lack of conformity resulting from an act or omission by the producer, a previous seller in the same chain of contracts or any other intermediary, the final seller shall be entitled to pursue remedies against the person or persons liable in the contractual chain. The person or persons liable against whom the final seller may pursue remedies, together with the relevant actions and conditions of exercise, shall be determined by national law.’

13. According to Article 1(1) thereof, Directive 1999/44 provides only for a minimum degree of harmonisation of national consumer protection rules. ( 4 ) Article 8 of the directive, entitled ‘National law and minimum protection’, provides, in paragraph 1 thereof: ‘The rights resulting from this directive shall be exercised without prejudice to other rights which the consumer may invoke under the national rules governing contractual or non-contractual liability.’

B – Belgian law

14. The concept of ‘seller’ as defined in Article 1(2)(c) of Directive 1999/44 was transposed literally into Belgian law by Article 1649a(2)(2) of the code civil belge (Belgian Civil Code).

III – The facts and the dispute in the main proceedings

15. On 24 April 2012, Ms Wathelet purchased a second-hand motor car from a limited liability company, Garage Bietheres & Fils SPRL (‘Bietheres’) for EUR 4000.

16. Ms Wathelet paid the sum of EUR 4000 to Bietheres. She did not, however, receive any proof of payment or sales receipt.

17. Bietheres took the vehicle for a roadworthiness test at its own expense and sent the application for registration of the vehicle to the relevant Belgian authority. Ms Wathelet agreed to pay the registration fee.

18. A few months later, in July 2012, the vehicle broke down. It was taken to Bietheres’ workshop for repairs. The garage determined the cause to be engine failure.

19. In a letter dated 13 November 2012 addressed to Bietheres, Ms Wathelet instructed the garage to return the vehicle to her and requested, amongst other things, the sales invoice.

20. On 17 November 2012, Ms Wathelet went to Bietheres to recover her vehicle. The garage refused to let her have the vehicle because she refused to sign an invoice for repairs costing EUR 2000, dated 17 November 2012. According to Ms Wathelet, it was then that she was informed that Bietheres was not the seller of the vehicle, but had instead acted merely as intermediary for a private individual. ( 5 )

21. In a letter dated 17 November 2012 addressed to Ms Wathelet, Bietheres pointed out that the vehicle which Ms Wathelet had purchased had been placed with it for sale on consignment and that she had immediately been informed that the vehicle belonged not to it but to a private individual. According to Bietheres, engine failure was a normal risk in any sale and purchase of a second-hand motor vehicle between private individuals. Consequently, Bietheres persisted in its refusal to return the vehicle to Ms Wathelet until the invoice for the repairs costing EUR 2000 was paid. Bietheres enclosed with its letter a receipt in the sum of EUR 4000 on which it had filled in, by hand, the name and surname of the non-professional owner and of the purchaser, Ms Wathelet. That document bears the signature of the abovementioned owner alone.

22. On 13 December 2012, Bietheres issued proceedings against Ms Wathelet before the tribunal de première instance de Verviers (Court of First Instance, Verviers, Belgium), claiming, amongst other things, payment of the invoice of 17 November 2012 for repairs costing EUR 2000, plus interest. Bietheres claimed that the vehicle purchased by Ms Wathelet had belonged to one of its customers and that the sale had been a sale from one private individual to another.

23. Ms Wathelet disputed Bietheres’ claim and brought a counter-claim pursuant to the Belgian Civil Code seeking the rescission of the sale and the refund of EUR 4000 plus interest. Ms Wathelet also claimed damages in the sum of EUR 2147.46. She maintained that the sale of the vehicle had been between Bietheres and herself and that she had not been in a position to know that Bietheres was not the seller.

24. The tribunal de première instance (Court of First Instance, Verviers) held Bietheres’ claim to be well founded in part and ordered Ms Wathelet to pay Bietheres the sum of EUR 2000 plus interest. It also declared Ms Wathelet’s counter-claim to be unfounded.

25. Ms Wathelet brought an appeal before the referring court, the cour d’appel de Liège (Court of Appeal, Liège), maintaining the claims she had made a first instance and requesting, in the alternative, the immediate return of the vehicle.

26. The referring court considers there to be strong, specific and consistent circumstantial evidence indicating that Ms Wathelet had not been informed, when the contract of sale was concluded, that it was a private sale. In this connection, the national court regards it as established that Ms Wathelet has never met the owner of the vehicle and that the garage acted as an intermediary in the sale without being remunerated for that service by the owner.

IV – The question referred for a preliminary ruling and the procedure before the Court

27. The referring court decided to stay the proceedings and refer the following question to the Court for a preliminary ruling: ‘Is the concept of “seller” of consumer goods referred to in Article 1649a of the Belgian Civil Code, inserted by the Law [of 1 September 1994] entitled “Law on consumer protection in the sale of consumer goods”, which transposes into Belgian law [Directive 1999/44 on certain aspects of the sale of consumer goods and associated guarantees], to be interpreted as including not only traders who, as sellers, transfer ownership in consumer goods to a consumer, but also traders who act as intermediaries on behalf of a non-professional seller, whether or not they are remunerated for that service and whether or not they have informed the prospective purchaser that the seller is a private individual?’

28. Written observations have been submitted by the Belgian, German and Austrian Governments and by the European Commission. There has been no hearing.

V – Legal assessment

A – Introductory remarks

1. The concept of ‘intermediary’

29. By way of introduction, it would seem to me helpful to make a few remarks about the concept of ‘intermediary’, which covers a range of situations the legal effects of which may be different and may vary from one country to another, ( 6 ) inasmuch as national contract law has been harmonised at European level only to a very limited extent. ( 7 )

30. The referring court has not stated in what sense it uses the term ‘intermediary’ in its request for a preliminary ruling.

31. As for Directive 1999/44, it contains no definition of the term ‘intermediary’, which appears in recital 9 and Article 4 thereof, and neither the provisions of the directive nor the preparatory work for it indicates in what sense that term is used in the directive. Neither has the Court of Justice had an opportunity to consider that question or, more generally, to examine the role and responsibilities of intermediaries in the field of consumer protection.

32. Nevertheless, the term ‘intermediary’ does appear in other directives on consumer protection. Several directives also contain an express definition of ‘trader’ that includes any person acting in the name of or on behalf of another trader. ( 8 ) The definition covers both professionals acting in their own name, who are generally regarded as bound by the contract under national contract law, ( 9 ) and those acting in the name of another person, who, by contrast, are not generally regarded as a party to the contract. ( 10 )

33. It is apparent from the request for a preliminary ruling that the owner of the vehicle in question has confirmed that the vehicle had belonged to her, that the sale was a ‘private sale, and that the garage [had merely acted] as an intermediary’. Moreover, the order for reference states that the proceeds of sale were transferred to the owner of the vehicle. ( 11 )

34. I would infer from that that the intermediary in the present case, Bietheres, acted in the sale in the name of and on behalf of the owner of the vehicle.

35. Consequently, I shall base the following analysis on a definition of the concept of ‘intermediary’ which includes any professional who, in a sale of consumer goods, acts vis-à-vis the consumer in the name of and on behalf of the non-professional owner of the goods sold. ( 12 )

36. Furthermore, in the absence of any indication to the contrary, I shall allow myself to assume that Bietheres was authorised by the owner of the vehicle to sell that vehicle. Accordingly, my analysis will solely relate to situations in which the intermediary acts with authority.

2. The subject of the question referred for a preliminary ruling

37. By its request for a preliminary ruling, the referring court questions the Court of Justice about the interpretation of the concept of ‘seller’ referred to in Article 1649a of the Belgian Civil Code, inserted by the Law of 1 September 1994 in order to transpose Article 1(2)(c) of Directive 1999/44 into Belgian law.

38. It must be stated at the outset that, pursuant to Article 267 TFEU, the Court has jurisdiction to give preliminary rulings concerning the interpretation of the Treaties and on the validity and interpretation of acts of the institutions of the European Union. The jurisdiction of the Court is confined to considering provisions of EU law only. It is for national courts to assess the scope of national provisions and the manner in which they must be applied. ( 13 )

39. Accordingly, the question referred must be understood as asking whether the concept of ‘seller’ within the meaning of Article 1(2)(c) of Directive 1999/44 is to be interpreted as including professionals acting in the name of and on behalf of a private individual, whether or not they are remunerated for that service and whether or not they have informed the consumer that the seller is a private individual.

3. The method of interpretation

40. Before considering the interpretation of the concept of ‘seller’ within the meaning of Article 1(2)(c) of Directive 1999/44, I shall make a few general observations that would appear helpful in that regard.

41. First of all, the Court has consistently held that the need for uniform application of EU law and the principle of equality require that, where provisions of EU law make no express reference to the law of the Member States for the purpose of determining their meaning and scope, they must normally be given an autonomous and uniform interpretation throughout the European Union, one that takes into account the context of the provision and the objective pursued by the legislation in question. ( 14 )

42. The definition of ‘seller’ given in Article 1(2)(c) of Directive 1999/44 contains no reference to national law. It must, therefore, be regarded as an autonomous concept of EU law the content of which is derived solely from sources of EU law.

43. Secondly, although the term ‘seller’ appears in other acts of EU law, ( 15 ) the particular definition given in Article 1(2)(c) of Directive 1999/44 is found only in that directive. It is therefore a unique concept and one that must be interpreted in light of the objectives pursued by that directive and in light of the particular function of sellers in the context of that directive. ( 16 )

44. Thirdly, the concept of ‘seller’, for the purposes of Directive 1999/44, must necessarily be objective in nature and based on certain verifiable elements drawn from the wording of Article 1(2)(c) of the directive (a ‘contract’, a sale of ‘consumer goods’, a ‘trade, business or profession’).

45. The concept is also functional and relational, since it is derived from the function of the person in a particular economic transaction: ( 17 ) the seller ‘sells’ consumer goods to a consumer in the context of a contract of sale. Consequently, determining which persons are covered by Article 1(2)(c) of Directive 1999/44 is not a static affair; it depends on their position in a given contractual relationship. The function of the seller must, principally, be apprehended from the viewpoint of the consumer, to whom the directive affords protection.

B – The interpretation of Article 1(2)(c) of Directive 1999/44

1. A literal interpretation of Article 1(2)(c)

46. According to the terms of Article 1(2)(c) of Directive 1999/44, the concept of ‘seller’ covers: ‘any natural or legal person who, under a contract, sells consumer goods in the course of his trade, business or profession’.

47. The definition of the concept of ‘seller’ in Directive 1999/44 thus does not refer to the concept of ‘intermediary’ and, more generally, the directive does not explicitly address the liability of intermediaries to consumers. ( 18 ) Nor does it appear that the question of the liability of intermediaries was discussed during the legislative procedure which preceded the adoption of that directive, ( 19 ) the central theme of which is the relationship between sellers and consumers, those being the principal persons to whom the directive is addressed.

48. The fact that Directive 1999/44 does not mention the liability of intermediaries to consumers is all the more significant in that the EU legislature did decide to include intermediaries among the operators having liability to consumers in several other directives on consumer protection. ( 20 )

49. In addition, the term intermediary is mentioned in Directive 1999/44 only in connection with the liability of intermediaries to final sellers. In accordance with Article 4 of the directive, where a final seller is liable to a consumer because of a lack of conformity resulting from an act or omission on the part of a manufacturer, a previous seller in the same chain of contracts or ‘any other intermediary’, the final seller is to be entitled to pursue remedies against the person or persons liable in the contractual chain. The second part of Article 4 states that the manner in which the parties who may be liable are identified and the relevant actions and conditions of exercise are to be determined in accordance with national law. ( 21 )

50. In light of the foregoing, I consider it to be clear, as do the Belgian, German and Austrian Governments and the Commission, that the concept of ‘seller’ referred to in Article 1(2)(c) of Directive 1999/44 does not include professionals acting in the name of and on behalf of private individuals where they are obviously acting in that capacity in a sale to a consumer. Such a professional is not ‘selling’ consumer goods ‘under a contract’; he is merely acting in a sale between private individuals, to which the directive is not intended to apply.

51. However, to my mind, that conclusion does not in itself rule out the possibility that a professional acting in the name of and on behalf of a private individual might, depending on the case, be regarded as a seller within the meaning of Article 1(2)(c) of Directive 1999/44 if, when dealing with a consumer, he gives the impression that he is acting as seller. In such a case the professional will appear, from the point of view of the consumer, to be ‘selling’ consumer goods ‘under a contract’‘in the course of his trade, business or profession’. Such a situation would appear to be comparable to the situation in which an intermediary acts in his own name. ( 22 ) Such an intermediary will, generally speaking, be bound by the contract ( 23 ) and must consequently be regarded as the seller within the meaning of Article 1(2)(c) of Directive 1999/44.

52. The relatively broad definition of ‘seller’ given in Article 1(2)(c) of Directive 1999/44 militates in favour of the inclusion within its scope of professionals who, in dealings with consumers, give the impression that they are acting as seller.

53. The question that arises is whether the exact wording of Article 1(2)(c) of Directive 1999/44 militates against that interpretation.

54. In the dispute in the main proceedings it seems to me that the main textual issues relate, a priori, to the expressions ‘under a contract’ and ‘sells consumer goods’, inasmuch as the referring court regards it as established fact that Bietheres sells consumer goods in the course of its trade, business or profession. ( 24 )

a) The expression ‘under a contract’

55. Neither the wording of Directive 1999/44 ( 25 ) nor the preparatory work for it elucidates the precise meaning of the expression ‘under a contract’. In order to determine the meaning of that expression, it is therefore necessary to consider its usual meaning in everyday language, while also taking into account the context in which it occurs and the objectives pursued by the legislation of which it is a part. ( 26 )

56. I concur with the Commission’s analysis that the expression ‘under a contract’ presupposes the existence of a contract, either written or oral.

57. As regards this expression, the Commission points out that it is for the national courts to establish whether there has been a contract of sale and, if so, to identify the parties between whom it was concluded and, in particular, to establish whether it was concluded between a consumer and a seller within the meaning of Directive 1999/44.

58. The Belgian, German and Austrian Governments argue that only a person who is a party to a contract as seller will be directly liable to a consumer under a contract of sale and that the only question which arises, in so far as concerns the concept of ‘seller’ within the meaning of Article 1(2)(c) of Directive 1999/44, is therefore who is the party with whom the consumer has concluded the contract. ( 27 )

59. I do not wholly endorse this approach according to which the concept of ‘seller’ is determined by identifying the parties to a contract.

60. Admittedly, the seller, as defined in accordance with Directive 1999/44, is in the majority of cases the person who binds himself by contract to deliver the goods sold. Nevertheless, for the purposes of the application of Directive 1999/44, it is necessary in my opinion to distinguish between identifying the parties to a contract, on the one hand, and identifying the seller for the purposes of Article 1(2)(c) of the directive, on the other.

61. It is important to bear in mind in this connection the minimal degree of harmonisation brought about by the directive. Identifying the parties to a contract is governed by the general rules of the Member States relating to contracts of sale, which have not been harmonised by the directive. ( 28 )

62. It follows, in my opinion, that identifying the parties to a contract in accordance with national law cannot be the decisive factor in the assessment that is called for by Article 1(2)(c) of the directive. The concept of ‘seller’, as an autonomous concept of EU law, derives its content solely from sources of EU law. That conclusion is supported by the objective of the directive, which is to ensure at least a minimum, uniform level of protection of consumers in the European Union, no matter where goods are purchased within the Union. ( 29 )

63. Consequently, the expression ‘under a contract’, as such, merely presupposes the existence of a contract and does not preclude the interpretation that I would recommend, which is that a professional acting in the name of and on behalf of an individual must be regarded as a seller within the meaning of Article 1(2)(c) of Directive 1999/44 if, in dealings with a consumer, he gives the impression that he is acting in that capacity.

b) The expression ‘sells consumer goods’

64. According to its usual meaning in everyday language the term ‘sells’ signifies that one person, the seller, transfers goods to another person, the purchaser, against payment of a sum of money which constitutes the purchase price of the goods.

65. As the Belgian Government emphasises, Article 1(2)(c) of Directive 1999/44 does not provide that the seller must be the owner of the goods sold. ( 30 )

66. In the absence of any suggestion to that effect in the wording of Article 1(2)(c) of Directive 1999/44 or in the preparatory work for the directive a narrow interpretation of that provision, according to which the seller can be none other than the owner of the goods sold, seems to me illogical, given that an intermediary acting in his own name is, as a rule, bound by the contract ( 31 ) even though he is not the owner of the goods sold.

67. I would also reiterate that the directive covers only a very limited part of the general rules of the Member States relating to contracts of sale and does not affect national laws relating to ownership.

68. Moreover, Directive 1999/44 is principally concerned with guarantees associated with consumer goods and liability for any lack of conformity. In that context, from the viewpoint of the consumer, who is the subject of the protection afforded by the directive, it would seem irrelevant that the owner of the goods and the seller of the goods should necessarily be the same person.

69. In other words, in the context of Directive 1999/44, in order to assume the mantle of seller, the operator in question need not necessarily be the owner of the goods in question. ( 32 ) Accordingly, there is no reason to restrict the scope of the concept of ‘seller’ to the owner of the goods sold.

2. A teleological interpretation of Article 1(2)(c)

70. A teleological interpretation of Article 1(2)(c) of Directive 1999/44 supports the literal interpretation of that provision, according to which a professional acting in the name of and on behalf of a private individual may be regarded as a seller within the meaning of that provision if, in dealings with a consumer, he gives the impression that he is acting as seller.

71. The primary function of a seller, in the context of Directive 1999/44, is to deliver to the consumer goods which are in conformity with the contract of sale and to repair or replace them in the event of any lack of conformity. ( 33 ) To that end, the concept of ‘seller’, within the meaning of Article 1(2)(c), defines the group of persons against whom a consumer may have recourse in the event that goods are not in conformity with the contract.

72. It is, therefore, clearly imperative that a consumer should be able to identify the seller in the event of a lack of conformity. Moreover, knowing who the seller is could be vitally important for a consumer who must choose between several sellers and who must therefore assess the expertise, professionalism and solvency of the sellers and their ability to acquit themselves of their responsibilities in the event of a lack of conformity.

73. In a situation where a professional acts as intermediary for a private individual, as in the present case, the consumer’s ignorance of the seller’s identity would be even more detrimental, since the consumer would be ignorant of his legal position and of the legal remedies available to him. Thus, if it transpires that the seller is a private individual, the binding nature of the consumer’s rights, enshrined in Article 7(1) of Directive 1999/44, would not apply and the consumer would not enjoy the protection afforded by the directive. Consequently, a non-professional seller could, amongst other things, escape liability for latent defects in the goods sold. That illustration is all the more pertinent with regard to the sale of second-hand motor vehicles.

74. It follows that the effective protection of consumers implies that the consumer should know if the seller is a private individual. As the Belgian Government asserts, that information is comparable to the ‘material information that the average consumer needs, according to the context, to take an informed transactional decision’ which the seller is required to give the consumer under Article 7(1) of Directive 2005/29/EC. ( 34 )

75. Consequently, in order to ensure the effectiveness of Directive 1999/44, it is necessary, in my opinion, to follow the recommended interpretation and to include within the scope of Article 1(2)(c) of the directive professionals acting in the name of and on behalf of private individuals where, in dealings with consumers, they give the impression that they are acting as seller. In such a case, the intermediary has, to my mind, made an ‘irrevocable decision’ and should not be able to escape his responsibilities, in the event that the goods lack conformity, by referring the consumer to the private individual in question, whom it could be impossible to locate or who could even be insolvent. ( 35 )

76. The proposed interpretation seems to me to be consistent with the case-law of the Court according to which the system of protection implemented by EU directives on consumer protection is based on the idea that the consumer is in a weaker position vis-à-vis the seller or supplier as regards both his bargaining power and his level of knowledge. ( 36 )

77. Where the consumer has not been informed that the seller is a private individual, there is a significant asymmetry of information between the consumer and the intermediary. ( 37 ) That asymmetry of information can only be corrected at the initiative of the intermediary, for whom it is, generally, easy to remedy the situation. ( 38 ) Moreover, the asymmetry of information will often have been created, or at very least perpetuated, by the intermediary, which corroborates the thesis that it must be possible to impose the seller’s liability pursuant to Directive 1999/44 on an intermediary who, in dealings with a consumer, gives the impression that he is acting as seller.

78. The contrary interpretation, according to which a professional acting as an intermediary is, in any event, excluded from the scope of Article 2(1)(c) of Directive 1999/44, would undermine the overall objective pursued by EU legislation on consumer protection, enshrined in Article 169 TFEU (formerly Article 153 EC), which is to ensure a high level of consumer protection and, consequently, consumer confidence, which is essential to the functioning of the internal market.

C – The assessment to be carried out by the national court

79. It is for the national court to ascertain, taking into account all the circumstances of the case and all the evidence, ( 39 ) whether the professional may be regarded as the seller, within the meaning of Article 1(2)(c) of Directive 1999/44, that is, whether, in dealings with the consumer, he has given the impression that he is acting as seller of the goods in question.

80. Nevertheless, it seems to me appropriate to make a few general observations about the assessment that must be carried out by the national court.

81. First of all, it is important to bear in mind the premiss that Directive 1999/44 does not cover the liability of intermediaries to consumers. ( 40 ) It follows, in my view, that only in exceptional cases should the seller’s liability under the directive be imposed on an intermediary.

82. Consequently, an intermediary who does no more than put a consumer in touch with a non-professional owner should in no case be regarded as the seller for the purposes of the directive. In order to impute liability to an intermediary, it is necessary for the intermediary to have at least taken an active role in the sale.

83. In this connection the referring court may take into account all the circumstances surrounding the part that the professional has played in the sale at issue, chief among which is the fact that the goods were displayed at the professional’s premises.

84. As a rule, that circumstance gives rise, in my opinion, to a strong presumption that the consumer was under the impression that the professional was acting as seller. In such a situation, a professional who wishes to relieve himself of liability under Directive 1999/44 must, in my view, prove that the consumer knew or ought to have known, when concluding the contract of sale, that the seller was a private individual. I would point out that it will normally be easy for a professional to prove that the consumer was aware of the identity of a non-professional seller: he will merely have to adduce evidence that he informed the consumer thereof, something which the intermediary is indisputably in the best position to do.

85. In addition, in order to establish whether, in dealings with the consumer, the professional gave the impression that he was acting as seller, the referring court may also take account of the following circumstances: — the specific efforts made by the professional in the context of the sale, — the volume of correspondence between the consumer and the professional and what was discussed by them, — the fact that the consumer paid the purchase price of the goods to the professional, and — the expenditure incurred by the professional in connection with the sale, to the extent that the consumer knew of the same.

86. The referring court can also establish whether the professional generally sells consumer goods of the particular type concerned by the contract of sale at issue, and may take that factor into account.

87. Secondly, it seems clear to me that the need to comply with the principle of the effectiveness of consumer protection cannot be stretched so far as to make up fully for total inertia on the part of the consumer concerned. ( 41 ) Accordingly, an intermediary should not be regarded as the seller for the purposes of Directive 1999/44 where the national court considers that the average consumer, that is to say, a consumer who is reasonably well informed and reasonably observant and circumspect, ( 42 ) could not reasonably have been unaware, when concluding the contract, that the professional was acting merely as an intermediary for a private individual. ( 43 ) In this regard, a written sale agreement containing the name of the non-professional seller would provide a very strong indication that the consumer was aware of that aspect, provided that the document was given to the consumer prior to the conclusion of the sale.

D – The remuneration of the intermediary

88. The question of the remuneration of the intermediary for his services is connected with the contractual relationship between the non-professional owner and the intermediary, which, generally speaking, falls outside the scope of Directive 1999/44, except in so far as concerns the entitlement of a final seller, pursuant to Article 4 of the directive, to pursue remedies against an intermediary in the event of a lack of conformity resulting from an act or omission on the intermediary’s part. ( 44 )

89. Moreover, the question of whether or not the intermediary has been remunerated for his services seems to me to be irrelevant from the consumer’s viewpoint. Generally, the consumer will not even know whether or not the intermediary has been remunerated.

90. Accordingly, like the Commission and the Austrian Government, I consider that the question of whether or not the intermediary has been remunerated for his services is not relevant to the assessment relating to Article 1(2)(c), the purpose of which it to establish whether a professional is to be regarded as the seller for the purposes of the directive. ( 45 )

91. To impose on an intermediary the obligations of a seller under Directive 1999/44 when the intermediary has received no remuneration, or at most only very modest remuneration, might seem, prima facie, unreasonable.

92. However, it must be borne in mind that the intermediary will not necessarily bear the final economic burden. On the contrary, in the event of the non-conformity of the goods sold, the cost of which would fall on an intermediary-as-seller for the purposes of Directive 1999/44, the intermediary will be entitled, under Article 4 of Directive 1999/44 and in accordance with the conditions laid down by relevant national law, to pursue remedies against the party or parties liable, that is to say, generally speaking, the non-professional seller.

93. Indeed, the interpretation of Article 1(2)(c) of Directive 1999/44 which I recommend merely implies that the intermediary assumes the risk of the non-professional owner’s insolvency, which is nevertheless a matter of fundamental importance to the consumer. That result seems to me to be far from unreasonable, given that the intermediary may easily eliminate that risk by informing the consumer of the identity of the non-professional seller or by adding a risk premium to the remuneration fixed for his services.

VI – Conclusion

94. In light of the foregoing, I propose that the Court should answer the question referred for a preliminary ruling by the cour d’appel de Liège (Court of Appeal, Liège, Belgium) as follows: Article 1(2)(c) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees must be interpreted as including professionals who act in the name of and on behalf of a private individual, whether or not they are remunerated for their services, where, in dealings with a consumer, they give the impression that they are acting as seller.

( 1 ) Original language: French.

( 2 ) OJ 1999 L 171, p. 12.

( 3 ) 1997 consolidated version of the EC Treaty (OJ 1997 C 340, p. 173).

( 4 ) In its proposal of 8 October 2008, which led to the adoption of Directive 2011/83/EU of the European Parliament and of the Council on consumer rights (COM(2008) 614 final) the Commission proposed the replacement of four directives, including Directive 1999/44, by a ‘single horizontal instrument’ based on full harmonisation in the field of consumer protection. However, that approach was rejected by the Council. The final version of Directive 2011/83, of 25 October 2011 (OJ 2011 L 304, p. 64), contains only one amendment to Directive 1999/44, namely the insertion of a new Article 8a, which requires the Member States, when adopting more stringent consumer protection provisions than those provided for in Article 5(1) to (3) and Article 7(1) of Directive 1999/44, to inform the Commission thereof.

( 5 ) It is apparent from the order for reference that the owner of the vehicle did not receive the full sale price, Bietheres having kept the sum of EUR 800 on account of repairs carried out on the vehicle so that it could be offered for sale.

( 6 ) See ‘Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference (DCFR)’, a document prepared at the Commission’s request by the Study Group on a European Civil Code and the Research Group on EC Private Law (Acquis Group), 2009, Book II, Chapter 6, entitled ‘Representation’.

( 7 ) However, see the Commission’s proposal of 11 October 2011 for a regulation of the European Parliament and of the Council on a Common European Sales Law (COM(2011) 635 final), which, with regard to cross-border contracts, envisages a ’self-standing uniform set of contract law rules including provisions to protect consumers, the Common European Sales Law, which is to be considered as a second contract law regime within the national law of each Member State’ (section 1, p. 4 of the proposal), subject to the agreement of the contracting parties.

( 8 ) See, inter alia, Article 2 of Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ 1985 L 372, p. 31) (repealed by Directive 2011/83) and Article 2(1)(e) of Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts (OJ 2009 L 33, p. 10). See also Article 2(2) of the Commission’s proposal of 8 October 2008 which led to the adoption of Directive 2011/83, mentioned above (footnote 4 to this Opinion).

( 9 ) See ‘Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference (DCFR)’, op. cit., Book II, Chapter 6, note I.1 under section II.-6:106, entitled ‘Representative acting in own name’.

( 10 ) Idem, section II.6:105, entitled ‘When representative’s act affects principal’s legal position’.

( 11 ) See footnote 5 to this Opinion.

( 12 ) That is to say, a narrower definition than that used in the EU acts mentioned in footnote 8 to this Opinion.

( 13 ) Judgment in Innoventif (C‑453/04, EU:C:2006:361, paragraph 29) and order in Koval’ský (C‑302/06, EU:C:2007:64, paragraph 17 and the case-law cited).

( 14 ) See, inter alia, the judgments in Seattle Genetics (C‑471/14, EU:C:2015:659, paragraph 23) and Axa Belgium (C‑494/14, EU:C:2015:692, paragraph 21 and the case-law cited).

( 15 ) See, inter alia, Article 3(h) of Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (OJ 2004 L 364, p. 1).

( 16 ) Conversely, the definition of ‘consumer’ given in Article 1(2)(a) of Directive 1999/44 does appear in other EU acts. See, inter alia, Article 2(b) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29) and Article 2(2) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19). The latter directive was repealed by Directive 2011/83.

( 17 ) In similar fashion, the Court held that the concept of ‘consumer’ within the meaning of Article 2(b) of Directive 93/13 is ‘objective in nature’ and ‘must be assessed by reference to a functional criterion, consisting in an assessment of whether the contractual relation at issue has arisen in the course of activities outside a trade, business or profession’ (order in Tarcău, C‑74/15, EU:C:2015:772, paragraph 27). See also the judgment in Costea (C‑110/14, EU:C:2015:538, paragraph 21) and the Opinion of Advocate General Cruz Villalón in Costea (C‑110/14, EU:C:2015:271, point 28). As regards the concept of ‘consumer’ for the purposes of Article 13 of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, signed in Brussels on 27 September 1968 (OJ 1978 L 304, p. 36), see the judgment in Benincasa (C‑269/95, EU:C:1997:337, paragraph 16), in which the Court stressed the importance of ‘the position of the person concerned in a particular contract, having regard to the nature and aim of that contract’.

( 18 ) See also the Green Paper on the Review of the Consumer Acquis (COM(2006) 744 final, section 4.2).

( 19 ) The possibility of including provisions on the liability of manufacturers to consumers has, on the other hand, been the subject of discussion. See, inter alia, the Green Paper on Guarantees for Consumer Goods and After-sales Services (COM(93) 509 final), the resolution of the European Parliament of 6 May 1994 on the Commission Green Paper on Guarantees for Consumer Goods and After-sales Services (OJ 1994 C 205, p. 562), the Opinion of the Economic and Social Committee of 27 November 1996 on the proposal for the directive (points 1.4 and 2.5, OJ 1997 C 66, p. 5), the resolution of the European Parliament of 10 March 1998 on the proposal for the directive (amendments 4, 5 and 25, OJ 1998 C 104, p. 30) and the Commission’s amended proposal (COM(1998) 217 final, section 5).

( 20 ) See footnote 8 to this Opinion.

( 21 ) See also recital 9 of Directive 1999/44, which states that the directive ‘does not affect the principle of freedom of contract between the seller, the producer, a previous seller or any other intermediary’. Similarly, in private international law, Article 1(2)(g) of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ 2008 L 177, p. 6) provides that ‘the question whether an agent is able to bind a principal … in relation to a third party’ is excluded from the scope of the regulation.

( 22 ) The two situations are juxtaposed in ‘Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference (DCFR)’, op. cit., Book II, Chapter 6, note I.1 under section II.-6:106: ‘When the representative, despite having authority, does an act in the representative’s own name or otherwise in such a way as not to indicate to the third party an intention to affect the legal position of a principal, the act affects the legal position of the representative in relation to the third party as if done by the representative in a personal capacity’. See also Article 13(1) of the Convention on Agency in the International Sale of Goods, signed in Geneva on 17 February 1983, in accordance with which acts bind only the agent and the third party if ‘(a) the third party neither knew nor ought to have known that the agent was acting as an agent, or (b) it follows from the circumstances of the case, for example by reference to a contract of commission, that the agent undertakes to bind himself only’.

( 23 ) See point 32 of this Opinion.

( 24 ) One might wonder whether the expression ‘in the course of his trade, business or profession’ implies that the professional must generally sell consumers goods of the particular type concerned by the sale in question. Such an interpretation would seem to me to be going too far, but that does not mean that that fact would not be relevant when assessing whether, in dealings with a consumer, an intermediary has given the impression of acting as seller. See point 86 of this Opinion.

( 25 ) The expression ‘under a contract’ did not, in fact, appear in the Commission’s initial proposal (Proposal for a European Parliament and Council directive on the sale of consumer goods and associated guarantees (COM(95) 520 final) of 18 June 1996 or in its amended proposal (Amended proposal for a European Parliament and Council directive on the sale of consumer goods and associated guarantees (COM(98) 217 final) of 31 March 1998. The expression was inserted into Article 1(2)(c), without any explanation, in the Council’s Common Position (EC) No 51/98 of 24 September 1998 with a view to adopting the directive (OJ 1998 C 333 p. 46) and accepted by the European Parliament in its Decision of 17 December 1998 on the Council’s common position (OJ 1999 C 98, p. 226).

( 26 ) See the judgments in Content Services (C‑49/11, EU:C:2012:419, paragraph 32).

( 27 ) See also Reich, N., Micklitz, H.W., Rott, P., and Tonner, K., European Consumer Law, 2nd ed., Intersentia, p. 173, and Bianca, M., and Grundmann, S. (ed.), EU Sales Directive, Commentary, Intersentia, p. 114.

( 28 ) In its explanatory memorandum to the proposal for a directive, the Commission explains that the directive says nothing about the general rules of the Member States applicable to sales contracts, those relating to the formation of the contract, the absence of consent, etc. The Commission also emphasises that the proposal is intended to cover only a very limited number of the questions raised by the sale of consumer goods. See the Proposal for a European Parliament and Council Directive on the sale of consumer goods and associated guarantees (COM(95) 520 final), section II(d) and section III, re Article 7 (now Article 8 of Directive 1999/44).

( 29 ) See, in particular, recital 5 of Directive 1999/44. In point 2.1 of its Opinion of 27 November 1996 on the Commission’s proposal for a directive, the Economic and Social Committee emphasised the objective of ensuring that consumers purchasing goods from another Member State should have the same protection with regard to defective goods as if they had purchased the goods from the Member State in which they reside.

( 30 ) I do not, on the other hand, completely share the Austrian Government’s view that the wording of Article 1(2)(c) does not necessarily require a transfer of ownership. In my opinion, the term ‘to sell’ does imply a transfer of ownership to the consumer. That does not rule out the possibility, which the Austrian Government asserts, of a contract of sale with a retention of title; it merely means that the contract concerns the transfer of ownership in goods to a consumer.

( 31 ) See point 32 of this Opinion.

( 32 ) Whilst it is true that a professional who is not the owner of the goods is generally not in a position, without the owner’s consent, to arrange for the repair or replacement of the goods in accordance with Article 3(2) and (3) of Directive 1999/44 in the event of a lack of conformity, Article 3(5) of the directive expressly confers on consumers the right to require an appropriate reduction in the price or to rescind the contract if the seller has not provided redress within a reasonable time, and those are matters to which a professional is certainly capable of attending.

( 33 ) See Article 2(1) and Article 3 of Directive 1999/44.

( 34 ) Directive 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 (OJ 2005 L 149, p. 22). Article 7(4) of Directive 2005/29 mentions, as an example of material information, ‘the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting’.

( 35 ) See, by analogy, the judgment in Gruber (C‑464/01, EU:C:2005:32, paragraphs 50 and 51), concerning the classification of a contract as a ‘contract concluded by a person for a purpose which can be regarded as being outside his trade or profession’ within the meaning of Article 13 of the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, signed in Brussels on 27 September 1968. That case concerned the converse situation in which the consumer held himself out to be acting as a professional. The Court held that, if the objective evidence in the file was not sufficient to demonstrate that the supply in respect of which a contract with a dual purpose had been concluded had a non-negligible business purpose, the national court would have to ‘determine whether the other party to the contract could reasonably have been unaware of the private purpose of the supply because the supposed consumer had in fact, by his own conduct with respect to the other party, given the latter the impression that he was acting for business purposes’. See also the Opinion of Advocate General Jacobs in Gruber (C‑464/01, EU:C:2004:529, point 51).

( 36 ) See, concerning Directive 1999/44, the judgment in Faber (C‑497/13, EU:C:2015:357, paragraph 42) and, concerning Directive 93/13, the judgments in Bucura (C‑348/14, EU:C:2015:447, paragraph 52), Costea (C‑110/14, EU:C:2015:538, paragraph 18 and the case-law cited), BBVA (C‑8/14, EU:C:2015:731, paragraph 17 and the case-law cited) and Kušionová (C‑34/13, EU:C:2014:2189, paragraph 48 and the case-law cited) and the order in Tarcău (C‑74/15, EU:C:2015:772, paragraph 24).

( 37 ) See, in similar fashion, the Opinion of Advocate General Sharpston in Faber (C‑497/13, EU:C:2014:2403, point 66) concerning the conformity of the delivered goods with the contract.

( 38 ) See also Article 7 of the Commission’s proposal for a directive of 8 October 2008, mentioned in footnote 4 to this Opinion. With Article 7(1) of the proposed directive, the Commission proposed that intermediaries should be required to disclose to consumers, prior to the conclusion of a contract, whether they are acting in the name of or on behalf of another consumer and that, if so, the contract concluded should be regarded as a contract between two consumers, rather than a contract between the consumer and the trader, and, as such, falling outside the scope of the directive. Furthermore, according to Article 7(2) of the proposed directive, an intermediary who did not fulfil that obligation would be deemed to have concluded the contract in his own name. However, Article 7 of the proposed directive was not retained. See, inter alia, the Council’s general approach of 16 December 2010 (Documents 16933/10 and 16933/1/10 ADD 1) and the amendments to the Commission’s proposal adopted by the European Parliament on 24 March 2011 (P7_TA(2011)0116).

( 39 ) See, to that effect, in relation to the concept of ‘consumer’, the judgments in Faber (C‑497/13, EU:C:2015:357, paragraphs 38 to 48) and Costea (C‑110/14, EU:C:2015:538, paragraphs 22 and 23) and the order in Tarcău (C‑74/15, EU:C:2015:772, paragraph 28).

( 40 ) See point 50 of this Opinion.

( 41 ) See the judgment in Kušionová (C‑34/13, EU:C:2014:2189, paragraph 56 and the case-law cited).

( 42 ) See the judgment in Bucura (C‑348/14, EU:C:2015:447, paragraph 56).

( 43 ) See, in similar fashion, the judgment in Gruber (C‑464/01, EU:C:2005:32, paragraph 51) concerning the classification of a contract as a ‘contract concluded by a person for a purpose which can be regarded as being outside his trade or profession’, within the meaning of Article 13 of the the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, signed in Brussels on 27 September 1968.

( 44 ) See point 12 of this Opinion.

( 45 ) The German Government argues that the fact that a professional is remunerated by the owner for his services could be an indication that he is selling not in his own name but in the name of the owner, provided that the consumer is aware of that remuneration. Whilst I agree with that, I wonder whether such a situation could arise in practice, inasmuch as the consumer is rarely aware of the contractual relationship between a seller and an intermediary.