Komisia za zashtita na potrebitelite v Evelina Kamenova.
Date: 2018-10-04
21


A preliminary point to be made is that, according to the Court’s settled case-law, in the procedure laid down in Article 267 TFEU, which provides for cooperation between national courts and the Court of Justice, it is for the latter to provide the referring court with an answer which will be of use to it and enable it to resolve the dispute before it. To that end, the Court may have to reformulate the questions referred to it and, in that context, to interpret all provisions of EU law which national courts require in order to resolve the disputes before them, even if those provisions are not expressly indicated in the questions referred to it by those courts (judgment of 19 October 2017, Otero Ramos, C‑531/15, EU:C:2017:789, paragraph 39 and the case-law cited).
22


Consequently, even if, formally, the referring court has limited its question to the interpretation of provisions of Directive 2005/29, it is for the Court to extract from all the information provided by the national court, in particular from the grounds of the decision to make the reference, the points of EU law which require interpretation in view of the subject matter of the dispute (see, to that effect, judgment of 19 October 2017, Otero Ramos, C‑531/15, EU:C:2017:789, paragraph 40 and the case-law cited).
30


That said, it should be noted that it follows from the wording of Article 2(b) of Directive 2005/29 that the EU legislature adopted a particularly broad notion of the term ‘trader’, which refers to ‘any natural or legal person’ who carries out a gainful activity and does not exclude from its scope either bodies pursuing a task of public interest or those which are governed by public law (judgment of 3 October 2013, Zentrale zur Bekämpfung unlauteren Wettbewerbs, C‑59/12, EU:C:2013:634, paragraph 32).
33


In that context, with regard to the actual wording of the definitions in Article 2(a) and (b) of Directive 2005/29 and in Article 2(1) and (2) of Directive 2011/83, the meaning and scope of the concept of ‘trader’, as used in those provisions, must be determined in relation to the related but diametrically opposed concept of ‘consumer’, which refers to any individual not engaged in commercial or trade activities (see, to that effect, judgment of 3 October 2013, Zentrale zur Bekämpfung unlauteren Wettbewerbs, C‑59/12, EU:C:2013:634, paragraph 33 and the case-law cited).
34


It is apparent from the case-law of the Court that, in relation to a trader, the consumer is in a weaker position, in that he must be deemed to be less informed, economically weaker and legally less experienced than the other party to the contract (judgments of 3 October 2013, Zentrale zur Bekämpfung unlauteren Wettbewerbs, C‑59/12, EU:C:2013:634, paragraph 35, and of 17 May 2018, Karel de Grote – Hogeschool Katholieke Hogeschool Antwerpen, C‑147/16, EU:C:2018:320, paragraph 54).
35


It follows that the notion of ‘trader’, within the meaning of Article 2(b) of Directive 2005/29 and Article 2(2) of Directive 2011/83, is a functional concept, requiring determination of whether the contractual relationship is amongst the activities that a person provides in the course of his or her trade, business or profession (see, by analogy, judgment of 17 May 2018, Karel de Grote – Hogeschool Katholieke Hogeschool Antwerpen, C‑147/16, EU:C:2018:320, paragraph 55 and the case-law cited).
37


With regard to the question whether an individual such as the defendant in the main proceedings comes within the concept of ‘trader’ within the meaning of those provisions, it must be stressed, as has been noted in point 50 of the Advocate General’s Opinion, that classification as a ‘trader’ requires a ‘case-by-case approach’. It follows that the referring court will have to examine, on the basis of all the facts in its possession, whether a natural person, such as the person at issue in the main proceedings, who published simultaneously on an online platform eight advertisements offering new and second-hand goods for sale, was acting for ‘purposes relating to his trade, business, craft or profession’ or in the name or on behalf of a trader.
38


As stated by the Advocate General in point 51 of his Opinion, in the context of that examination, the referring court will, in particular, have to verify whether the sale on the online platform was carried out in an organised manner, whether that sale was intended to generate profit, whether the seller had technical information and expertise relating to the products which she offered for sale which the consumer did not necessarily have, with the result that she was placed in a more advantageous position than the consumer, whether the seller had a legal status which enabled her to engage in commercial activities and to what extent the online sale was connected to the seller’s commercial or professional activity, whether the seller was subject to VAT, whether the seller, acting on behalf of a particular trader or on her own behalf or through another person acting in her name and on her behalf, received remuneration or an incentive; whether the seller purchased new or second-hand goods in order to resell them, thus making that a regular, frequent and/or simultaneous activity in comparison with her usual commercial or business activity, whether the goods for sale were all of the same type or of the same value, and, in particular, whether the offer was concentrated on a small number of goods.
39


It should be noted that the criteria set out in the preceding paragraph of this judgment are neither exhaustive nor exclusive, with the result that, in principle, compliance with one or more of those criteria does not, in itself, establish the classification to be used in relation to an online seller with regard to the concept of ‘trader’.
41


As regards, secondly, the question whether the activity of an individual, such as the defendant in the main proceedings, is a ‘commercial practice’, within the meaning of Article 2(d) of Directive 2005/29, it should be recalled that, according to settled case-law, that provision defines, using a particularly broad formulation, the concept of ‘commercial practices’ as extending to ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’ (judgment of 19 September 2013, CHS Tour Services, C‑435/11, EU:C:2013:574, paragraph 27 and the case-law cited).
42


Thus, in order for the activity in question to be regarded as a ‘commercial practice’, within the meaning of that provision, it must be established that that activity may be classified as a ‘practice that is commercial in nature’, that is to say, it must originate from a ‘trader’, and that it constitutes an act, omission, course of conduct or commercial communication ‘directly connected with the promotion, sale or supply of a product to consumers’ (see, to that effect, judgment of 17 October 2013, RLvS, C‑391/12, EU:C:2013:669, paragraph 37).