The introduction of internet and social networks as trading platforms has complicated the consumer’s awareness to realize when they are dealing with a commercial seller or a private individual.
The distinction, far from obvious, has consequences that are not negligible from a legal viewpoint.
In fact, subjects qualified as “professionals” are required to observe a series of duties imposed by European Union law to protect consumers such as the obligation to communicate to the consumer his rights and the identification data of the seller, while private subjects are not liable to such constraints.
However, it is not always easy to identify the private individual from the professional who “acts in the context of a commercial, industrial, craft or professional activity”.
With its decision of 4 October 2018, in the case C-105/17, the Court of Justice of the European Union provided some guidelines for understanding this difference.
In the case that originated the controversy, a Bulgarian citizen, after checking that the second-hand watch purchased on an online platform did not meet the features indicated in the advertisement, he expressed his willingness to terminate the distance selling contract. In response to the seller’s refusal to accept the product back for a price reimbursement on the basis that she was not a professional, the citizen submitted a claim to the Bulgarian Commission for Consumer Protection.
The case was submitted to the Court of Justice, which examined if a person who publishes, on a website, a high number of advertisements for the sale of products of considerable value could be classified as a ‘professional’ within the terms of Directive 2005/29 concerning unfair commercial practices.
The Court has ruled that, in cases where it is not easy to determine if the subject is acting as a professional, a case-by-case assessment by national courts is necessary and has indicated a number of indicator criteria to facilitate such a distinction. These include, in particular, the requirement for the trader to consider whether the sale was carried out in an organised way, if it is regular or profit-making, if the offer is restricted to a limited quantity of products, and to examine the legal ‘status’ and technical competence of the seller.
In these circumstances, the Court stated that a person who publishes on a website a particular number of advertisements to sale new and second-hand goods, as in this exanimated case, is not automatically to be classified as a professional trader.
As a consequence, if the activity of the seller which originated the case is qualified by the national court as not related to a commercial activity, independently of the profit purpose aimed and the number of publications on the site, she may legitimately still deny the right of withdrawal exercised by the consumer.
In conclusion, when making purchases online, it is necessary to pay attention to the features of the seller.
If the seller is not qualified as a professional in accordance with the Court’s explanations, he may derogate from the duties imposed by European legislation to protect the consumer, with the consequent restriction of his rights.