In a recent judgment, the Court of Justice of the European Union examines whether a company acting as an intermediary for a private individual in the sale of a consumer good to a consumer is also considered as a "seller" in the sense of the directive on consumer sales.
Directive 1999/44/EC on consumer sales defines "seller" as "any natural or legal person who, under a contract, sells consumer goods in the course of his trade, business or profession". There is no question that consumers who purchase consumer goods from other private individuals do not enjoy the protection granted by the rules on consumer sales (articles 1649bis et seq. of the Civil Code).
However, in a judgment of 9 November 2016 (C-149/15), the question arises whether this is also the case when a consumer buys a consumer good not directly from a private individual but via a professional intermediary. In the case at hand, a consumer had bought a second-hand car via a garage. The garage had not informed the buyer that the car was being sold on behalf of a private individual.
According to the Court of Justice, the concept of "seller" in the sense of Directive 1999/44/EC must be interpreted as also covering a trader who, although acting as intermediary on behalf of a private individual, has not duly informed the consumer of the fact that the owner of the goods sold is a private individual. Whether this is the case is for the referring court to determine, taking into account all the circumstances. This interpretation does not depend on whether the intermediary is remunerated for acting as an intermediary.
Hence, a trader is well advised to communicate to a consumer in a sale of goods the fact that he is selling on behalf of a private individual. If this is not done, according to this judgment, the trader will have the capacity of seller in the sense of the rules on consumer sales and must take into account the rules on consumer sales (which, among other things, provide for the consumer's right to free repair or replacement of defective goods if the conditions for this are met).
This decision is not only important for intermediaries who physically intervene in the sale of consumer goods, but also for traders acting through a digital platform as an intermediary in the sale of consumer goods.
