CELEX: 61989CC0361
Language: en
Date: 1990-12-12
Title: Opinion of Mr Advocate General Mischo delivered on 12 December 1990. # Criminal proceedings against Patrice Di Pinto. # Reference for a preliminary ruling: Cour d'appel de Paris - France. # Consumer protection - Doorstep canvassing. # Case C-361/89.

Important legal notice

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61989C0361

Opinion of Mr Advocate General Mischo delivered on 12 December 1990.  -  Criminal proceedings against Patrice Di Pinto.  -  Reference for a preliminary ruling: Cour d'appel de Paris - France.  -  Consumer protection - Doorstep canvassing.  -  Case C-361/89.  

European Court reports 1991 Page I-01189

Opinion of the Advocate-General

++++Mr President,  Members of the Court,  1. Mr Di Pinto, the accused in the main proceedings before the Cour d' Appel de Paris [Court of Appeal, Paris], is the manager of the private limited liability company Groupement de l' Immobilier et du Fonds de Commerce ("GNDIIC") which publishes a periodical in which businesses are advertised for sale. Following an initial approach by telephone, the company sends a representative to visit traders intending to sell their business. "Orders for publication" in the periodical, which are collected in circumstances to which I shall have cause to return, are accompanied by immediate payment of the price of the service, which varies between FF 3 000 and FF 30 000 depending on the format of the advertisement.  2. The proceedings brought against Mr Di Pinto are based on French Law No 72-1137 of 22 December 1972 on the protection of consumers with regard to canvassing and door-to-door selling (Official Journal of the French Republic of 23 December 1972, p. 13348, which I shall refer to as "the French Law on canvassing").  3. This Law provides inter alia that contracts concluded as a result of canvassing must refer to the customer' s right of cancellation within a seven-day period for reflection, and it prohibits the canvasser from taking any consideration whatever, whether directly or indirectly, before the period for reflection has expired.  4. Mr Di Pinto, whom the Cour d' Appel de Paris found guilty by default of having contravened those provisions, appealed against the enforcement of that judgment, and it was in the course of that appeal that the Cour d' Appel referred the two questions which I am now going to examine.  The first question  5. The first question is worded as follows:  "Is a trader canvassed at home in connection with the sale of his business entitled to the protection accorded to consumers by the Directive of the Council of the European Communities of 20 December 1985?"  6. The directive to which the Cour d' Appel refers is Directive 85/577/EEC "to protect the consumer in respect of contracts negotiated away from business premises" (Official Journal L 372, p. 31, "the directive").  7. The French Government pointed out in its observations that the question "refers only to canvassing in connection with a sale and does not specify the exact nature of the proposed contract". This statement led me to examine the documentation made available to the Court and I have come to the conclusion that it is more likely than not that the French court had very good reasons, to do with the way in which GNDIIC operates, to draft its question in very wide terms, i.e. without referring to canvassing for the sole purpose of collecting advertisements. One might also envisage situations in which estate agents attempt to secure the right, whether exclusive or non-exclusive, to sell a business or to assess its worth in return for valuable consideration.  8. It is also apparent from the documents before the Court that the expression "at home" contained in the question must be given a wide meaning which includes the place in which the trader carries on his trade or profession.  9. Now that the exact scope of the first question has been settled, it remains for me to determine which provisions of the directive need to be considered for the purpose of answering that question.  10. According to Article 1(1), the directive shall  "apply to contracts under which a trader supplies goods or services to a consumer and which are concluded:  - during an excursion organized by the trader away from his business premises, or  - during a visit by a trader  (i) to the consumer' s home or to that of another consumer;  (ii) to the consumer' s place of work;  where the visit does not take place at the express request of the consumer".  11. It follows from this provision that it is immaterial whether the canvassing takes place at the private home or at the place of work of the person concerned.  12. The condition that the visit does not take place at the express request of the consumer is satisfied in the main proceedings in the present case, since it is not disputed that it was the representatives of Mr Di Pinto' s company who took the initiative on each occasion. They contacted traders by telephone to ask whether they were intending to sell their business and to seek permission to visit them. The fact that traders agreed to such visits does not, in my view, justify the conclusion that such visits were made "at the express request of the consumer".  13. According to Article 2 of the directive;  " 'consumer' means a natural person who, in transactions covered by this directive, is acting for purposes which can be regarded as outside his trade or profession;  ' trader' means a natural or legal person who, for the transaction in question, acts in his commercial or professional capacity, and anyone acting in the name or on behalf of a trader".  14. Articles 4 and 5 of the directive provide in substance that the trader is required to inform the consumer in writing of his right to rescind the contract within a period of not less than seven days.  15. Article 7 provides that "if the consumer exercises his right of renunciation, the legal effects of such renunciation shall be governed by national laws, particularly regarding the reimbursement of payments for goods or services provided and the return of goods received".  16. The first question thus seeks to ascertain whether a trader canvassed at his home or at his place of work and who concludes on that occasion any transaction whatever connected with the sale of his business "is acting for purposes which can be regarded as outside his trade or profession" (first paragraph of Article 2) or whether, on the contrary, he "acts in his commercial or professional capacity" (second paragraph of Article 2).  17. Mr Di Pinto and the United Kingdom take the view that a trader in such a case is not acting "for purposes which can be regarded as outside his trade or profession".  18. According to Mr Di Pinto, the trade or profession of a trader must be considered as a whole, with the result that it is not permissible to draw distinctions according to the ways in which it is exercised.  19. Against this, however, it must be pointed out that the persons referred to in Article 2 of the directive are not defined in abstracto, but rather according to what they do in concreto. The same person may be sometimes a trader and sometimes a consumer.  20. The United Kingdom, for its part, considers that  "it would ... unnecessarily narrow the definition of 'consumer' (1) [to equate] the activities of a trade or profession only to the usual or necessary 'day-to-day' activities of that particular trade or profession; more unusual or less 'day-to-day' , or less directly associated, activities such as the placing of advertisements, the re-arranging of finance or the sale or purchase of premises are activities which in commercial and everyday terms are considered as undertaken for the purposes of a trade or profession. It is difficult to see how, although it is not a 'day-to-day' activity of a business or one associated particularly with any one business rather than another, the sale of a business can be seen as anything other than the activity undertaken for the purposes of a trade or profession. Whilst it may be an activity common to all businesses rather than to a particular business it is certainly not an activity common to all consumers" (paragraph 14 of the observations).  21. I believe however that the interpretation given by Mr Di Pinto and the United Kingdom unduly neglects the word "his" [trade or profession] which features both in the first and second paragraphs of Article 2. Thus, it is in my view significant that at the end of the passage cited above the United Kingdom refers to an "activity undertaken for the purposes of a (2) trade or profession". It is in fact impossible to argue that when a trader engages in certain preparatory steps which will lead to the sale of his business, he remains within the framework of his trade or profession as a butcher, baker or hotelier. It is nonetheless the possessive pronoun which is used.  22. The essential element in my view is the fact that the various decisions which precede the sale of a business are not acts with regard to which the average trader has any experience or know-how which distinguishes him from non-traders. Admittedly, it is possible to find traders who own several grocery stores or a number of cafés and who have therefore purchased businesses on several occasions, whereby they have gained a certain degree of experience. Such people, however, are more likely to decide to sell their business following an adequate period of consideration and are likely themselves to take the initiative to approach an estate agency or a specialized periodical.  23. The directive is obviously intended to protect the average consumer, and consequently also the trader who unexpectedly finds himself in the position of a consumer in so far as he is required to perform an act in which, in the majority of cases, he will be involved only once in his life.  24. Such a person may be "unprepared", in the words of the fourth recital in the preamble to the directive, because he has not had the time to prepare himself for such negotiations in sufficient detail. He is often also unable "to compare the quality and price of the offer with other offers". Even if a trader occasionally places advertisements for his business in a local paper or in a publicity brochure edited by a local association, he will not necessarily be familiar with the proper price which may be required for the insertion of an announcement concerning the sale of a business in a periodical distributed nationally.  25. He may in particular regret having agreed even to place an advertisement because, having considered the matter in depth, he no longer wishes to sell. If the advertisement nonetheless appears, it may create the impression that the business is no longer in a healthy condition and this may in turn give rise to suspicion on the part of suppliers. It is also possible that the trader may come to the conclusion that the price advertised is too low. Finally, there may have been an element of uncertainty as to the exact nature of the canvasser' s involvement or the trader may have been mistaken as to the purpose of the contract which he signed.  26. With regard to the United Kingdom' s argument that the sale of a business "is certainly not an activity common to all consumers", I would like to point out that the joint purchase of a holiday apartment is also not an activity common to all consumers, but that that does not prevent the consumer from being entitled to the protection afforded by the directive when he is subjected to canvassing in this regard.  27. Of course, I agree with the Commission that a trader whose business is to sell businesses, and who is canvassed for the purpose of selling his own business, cannot be regarded as a consumer within the meaning of the directive. That is, however, so unlikely an occurrence that I do not believe it necessary to include a reservation in this regard in my suggested reply.  28. Finally, we ought to note that an affirmative answer by the Court to the first question would in no way make it impossible to carry on activities such as those of Mr Di Pinto. Contracts could continue to be signed immediately.  29. The only difference would be that the companies in question would be required in future to await the expiry of the seven-day period within which the contract may be cancelled before contacting potential purchasers or placing an advertisement in their windows, if those companies are acting as estate agents, or to send the advertisement for printing, if they are editing a periodical.  30. For all the above reasons, and in accordance with the arguments presented by the French Government and by the Commission, which I have not mentioned here but with which I agree, I would suggest that the Court reply to the first question as follows:  "A trader canvassed at his home or his place of work in connection with the sale of his business is entitled to the protection accorded to consumers by Council Directive 85/577/EEC of 20 December 1985."  The second question  31. The second question in the preliminary reference is worded as follows:  "Is Article 8(I)(e) of the Law of 22 December 1972 compatible with the aforementioned directive and the other provisions of Community law protecting consumers in cases of doorstep canvassing?"  Article 8(I)(e) of the French Law on canvassing provides that Articles 1 to 5 of that Law, which define the protection given to consumers, are not to apply to  "the sale, hire or hire-purchase of goods or objects or the provision of services offered for the requirements of an agricultural, industrial or commercial undertaking or a professional activity".  32. It should be noted that the Criminal Chamber of the French Cour de Cassation ruled in separate criminal proceedings brought against Mr Di Pinto that  "the services provided by GNDIIC were those of an intermediary between owners and potential purchasers of commercial businesses, transactions which by their very nature fall outside the requirements of such businesses" (judgment of 4 December 1989).  33. Apart from Directive 85/577, I am unaware of any other Community legislation which protects consumers canvassed at their home or at their place of work. The question referred must therefore be answered solely in the light of that directive. Reworded in such a way as to take account of the fact that the Court may not, in proceedings for a preliminary ruling, give a formal ruling on the compatibility of national legislation with Community law, (3) the second question thus seeks in substance to ascertain whether Directive 85/577 must be interpreted as precluding a Member State from using the concept of "provision of services offered for the requirements of a commercial undertaking" as a criterion where it is necessary to decide whether a trader enters into an obligation as a trader or as a consumer, if the case law of the Member State in question interprets that concept in the manner referred to above.  34. My view is that Article 8 of the French Law, which excludes from the protection accorded to consumers the "provision of services offered for the requirements of ... [a] commercial undertaking", covers substantially the same ground as Article 2 of the directive, which treats as a trader, and not as a consumer, any person who "acts in his commercial or professional capacity".  35. Furthermore, even if it is admitted, as it has been by the representative of the French Government, that Article 8(I)(e) of the French Law accords consumers wider protection than the directive, it is also necessary to conclude, as he has done, that the two texts are not incompatible, since Article 8 of the directive provides that  "this directive shall not prevent Member States from adopting or maintaining more favourable provisions to protect consumers in the field which it covers".  36. In those circumstances, I may therefore conclude that Directive 85/577 must be interpreted as meaning that it does not preclude the use of the criterion referred to above.  37. The Commission also correctly pointed out that Member States were not obliged to comply with Directive 85/577 until 23 December 1987 and that the facts of which Mr Di Pinto stands accused occurred in July 1985 and during 1986 and 1987. I share the Commission' s view that for that reason the directive cannot be relied on in the main proceedings. While national courts are free to interpret domestic law in the light of the directive, even though compliance with that directive had not yet become mandatory at the material time, it has become clear that, in the present case, the directive is of no assistance to the defendant in the main proceedings.  Conclusion  38.I would for those reasons suggest that the Court reply as follows to the questions referred by the Cour d' Appel de Paris:  "1. A trader canvassed at his home or at his place of work in connection with the sale of his business is entitled to the protection accorded to consumers by Council Directive 85/577/EEC of 20 December 1985;  2. The provisions of that directive must be interpreted as meaning that they do not preclude national legislation which confers the protection accorded to consumers on traders canvassed at their home or at their place of work, where the services offered them are not 'for the requirements' of the commercial undertaking in question."  (*) Original language: French.  (1) It would appear that "trader" is meant.  (2) Not underlined in the original.  (3) See most recently the decision in Case C-196/89 Criminal Proceedings against Nespoli and Cripa [1990] ECR I-3647, at paragraph 8.  Translation