ECJ: Posting Ads for Sale on the Internet Does Not Make the Author a Trader

A person who publishes a number of sales announcements on a website does not automatically acquire the "trader" quality. Such actions for the publication of advertisements for the sale of new and second-hand goods may be considered as 'commercial practice' if the author of those advertisements acts for purposes which are within his trade, business, craft or profession. This is the decision of the European Court of Justice in Luxembourg today, pronounced on a Bulgarian case against a private person - Evelina Kamenova.

The case is as follows - A consumer bought a watch on the website under a distance contract. Taking the view that that watch did not match the description given in the advertisement published on the website, he lodged a complaint with the CPC after the supplier refused to accept the return of the item in exchange for a refund of the sum paid. The CPC's inspection found that a seller is a private person who has registered a profile on the site where there are eight more advertisements for the sale of various goods, including the watch in question.

Later, the CPC drew an act of administrative violation to Mrs. Kamenova and imposed fines on her under the Consumer Protection Act as a trader. Kamenova appealed against the penal decree in front the Varna District Court, which repealed it on the ground that is not a trader within the meaning of paragraph 13 (2) of the Supplementary Provisions of the CPA, and within the meaning of Directive 2005/29 of the European Parliament and the Council from 2005 on unfair business-to-consumer commercial practices in the internal market. The CPC asked the ECJ whether in this case the natural person selling a relatively large number of goods - eight advertisements, of considerable value was a trader.

In its decision, the ECJ states that in order for a person to be classified as a "trader" within the meaning of the Directive he must have acted "for purposes which are within his trade, business, craft or profession" or on behalf of or at the expense of a trader.

“The referring court will have to verify whether the sale on the online platform was carried out in an organized 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 types or of the same value, and whether the offer was concentrated on a small number of goods”, is said in the decision.

The criteria set out in the preceding paragraph of this judgment are neither exhaustive nor exclusive, with the result that, 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 а "trader".

In conclusion, the fact that a natural person publishes on a website a certain number of advertisements for the sale of new and second-hand goods does not necessarily mean that he must be classified as a "trader" and his actions - a "commercial practice".

Petya Petrova

Petya Petrova is a journalist, believer, and traveler.

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