The judges of the European Court of Justice (CJEU) ruled, in a judgment delivered on Thursday 4 October (Case C-105/17), that a person publishing several sales advertisements on a website could not automatically be considered a ‘professional'.
A consumer acquired a used watch on an online sales platform, but subsequently asked the seller to terminate the sales contract due to differences between the actual product and what was presented in the sales announcement.
When the seller of the watch refused, the consumer filed a complaint with the Bulgarian Consumer Protection Commission (CPC). In December 2014, the Commission noted that eight sales announcements were still published on the site by the seller.
In February 2015, the CPC imposed several administrative fines on the seller in question, as he was guilty of an administrative offence for failing to provide several essential indications on the sales advertisements.
The seller then brought an action before the Bulgarian courts, considering that the provisions of the Bulgarian law which justified the fines did not apply to him, since he did not possess the status of 'professional'. When the dispute was brought before the Varna Administrative Court, it referred the matter to the Court for a preliminary ruling as to whether a person publishing a relatively large number of advertisements for the sale of goods of significant value on a website could be qualified as a 'professional' within the meaning of the Unfair Commercial Practices Directive (2005/29/EC).
In their judgment, the magistrates first consider that the qualification of 'professional' within the meaning of the directive in question presupposes that the person acts for 'purposes relating to his commercial, industrial, craft or liberal activity', in the name or on behalf of a 'professional'. The judges add that the qualifications of a ’professional' must be analysed in the light of the notion of 'consumer', targeting any individual not engaged in commercial or professional activities.
Consequently, the CJEU considers that it is for the national court to assess whether the seller is a 'professional' in the light of the above-mentioned factors. To base its decision, the latter may in particular verify whether the sale is lawful or for profit. (Original in version in French by Lucas Tripoteau)