1.

There is no question that consumers who purchase consumer goods from other private individuals do not enjoy the protection afforded by Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees. ( 2 ) However, is that also the case where a professional acting on behalf of a private individual intervenes in the sale, holding himself out to the consumer as the seller? That is the question in the present case.

2.

This request for a preliminary ruling, made by the cour d’appel de Liège (Court of Appeal, Liège, Belgium), has arisen in a dispute between a consumer and a professional concerning the sale of a second-hand motor vehicle. The main issue is to establish whether a trader acting merely as an intermediary on behalf of the non-professional owner of the vehicle is liable to the consumer for any lack of conformity of the vehicle.

3.

In that context, the referring court essentially asks the Court of Justice whether the concept of ‘seller’ referred to in Article 1(2)(c) of Directive 1999/44 includes a professional, such as the respondent in the main proceedings, who intervenes in a sale as an intermediary acting on behalf of a private individual, even though that provision does not mention that particular situation.

4.

The Court is therefore called upon in this case to clarify the scope of the concept of ‘seller’ for the purposes of Directive 1999/44 and, consequently, the scope of the directive itself.

5.

In the following analysis I shall begin by making some general observations about intermediaries and the method of interpreting the concept of ‘seller’, referred to in Directive 1999/44. Next, after considering both the wording of Article 1(2)(c) of the directive and the objective of that provision, I shall examine the scope of the concept of ‘seller’ for the purposes of the directive in order to provide an answer to the question referred for a preliminary ruling. Lastly, I shall address the questions of the national court’s own assessment and of the remuneration of the intermediary.

6.

Recital 1 of Directive 1999/44 refers to Article 153 of the EC Treaty (now Article 169 TFEU), which provides, inter alia:

‘In order to promote the interests of consumers and to ensure a high level of consumer protection, the [European Union] shall contribute to protecting the … economic interests of consumers, as well as to promoting their right to information … in order to safeguard their interests.’ ( 3 )

7.

Recitals 5 and 6 of Directive 1999/44 state:

8.

In so far as concerns the liability of sellers, recital 9 of the directive states:

9.

Article 1(1) of the Directive 1999/44 states that the purpose of the directive is:

‘… the approximation of the laws, regulations and administrative provisions of the Member States on certain aspects of the sale of consumer goods and associated guarantees in order to ensure a uniform minimum level of consumer protection in the context of the internal market’.

10.

To that end Directive 1999/44 imposes certain obligations on sellers vis-à-vis consumers. In particular, it imposes, under Article 2(1), an obligation to deliver goods to the consumer which are in conformity with the contract of sale and, under Article 3(1), liability to the consumer for any lack of conformity which exists at the time the goods are delivered.

11.

Article 1(2)(c) of Directive 1999/44 defines the concept of ‘seller’ for the purposes of the directive’s application as follows:

‘“seller”: shall mean any natural or legal person who, under a contract, sells consumer goods in the course of his trade, business or profession’.

12.

Article 4 of the directive, which is entitled ‘Right of redress, provides:

‘Where the final seller is liable to the consumer because of a lack of conformity resulting from an act or omission by the producer, a previous seller in the same chain of contracts or any other intermediary, the final seller shall be entitled to pursue remedies against the person or persons liable in the contractual chain. The person or persons liable against whom the final seller may pursue remedies, together with the relevant actions and conditions of exercise, shall be determined by national law.’

13.

According to Article 1(1) thereof, Directive 1999/44 provides only for a minimum degree of harmonisation of national consumer protection rules. ( 4 ) Article 8 of the directive, entitled ‘National law and minimum protection’, provides, in paragraph 1 thereof:

‘The rights resulting from this directive shall be exercised without prejudice to other rights which the consumer may invoke under the national rules governing contractual or non-contractual liability.’

14.

The concept of ‘seller’ as defined in Article 1(2)(c) of Directive 1999/44 was transposed literally into Belgian law by Article 1649a(2)(2) of the code civil belge (Belgian Civil Code).

15.

On 24 April 2012, Ms Wathelet purchased a second-hand motor car from a limited liability company, Garage Bietheres & Fils SPRL (‘Bietheres’) for EUR 4000.

16.

Ms Wathelet paid the sum of EUR 4000 to Bietheres. She did not, however, receive any proof of payment or sales receipt.

17.

Bietheres took the vehicle for a roadworthiness test at its own expense and sent the application for registration of the vehicle to the relevant Belgian authority. Ms Wathelet agreed to pay the registration fee.

18.

A few months later, in July 2012, the vehicle broke down. It was taken to Bietheres’ workshop for repairs. The garage determined the cause to be engine failure.

19.

In a letter dated 13 November 2012 addressed to Bietheres, Ms Wathelet instructed the garage to return the vehicle to her and requested, amongst other things, the sales invoice.

20.

On 17 November 2012, Ms Wathelet went to Bietheres to recover her vehicle. The garage refused to let her have the vehicle because she refused to sign an invoice for repairs costing EUR 2000, dated 17 November 2012. According to Ms Wathelet, it was then that she was informed that Bietheres was not the seller of the vehicle, but had instead acted merely as intermediary for a private individual. ( 5 )

21.

In a letter dated 17 November 2012 addressed to Ms Wathelet, Bietheres pointed out that the vehicle which Ms Wathelet had purchased had been placed with it for sale on consignment and that she had immediately been informed that the vehicle belonged not to it but to a private individual. According to Bietheres, engine failure was a normal risk in any sale and purchase of a second-hand motor vehicle between private individuals. Consequently, Bietheres persisted in its refusal to return the vehicle to Ms Wathelet until the invoice for the repairs costing EUR 2000 was paid. Bietheres enclosed with its letter a receipt in the sum of EUR 4000 on which it had filled in, by hand, the name and surname of the non-professional owner and of the purchaser, Ms Wathelet. That document bears the signature of the abovementioned owner alone.

22.

On 13 December 2012, Bietheres issued proceedings against Ms Wathelet before the tribunal de première instance de Verviers (Court of First Instance, Verviers, Belgium), claiming, amongst other things, payment of the invoice of 17 November 2012 for repairs costing EUR 2000, plus interest. Bietheres claimed that the vehicle purchased by Ms Wathelet had belonged to one of its customers and that the sale had been a sale from one private individual to another.

23.

Ms Wathelet disputed Bietheres’ claim and brought a counter-claim pursuant to the Belgian Civil Code seeking the rescission of the sale and the refund of EUR 4000 plus interest. Ms Wathelet also claimed damages in the sum of EUR 2147.46. She maintained that the sale of the vehicle had been between Bietheres and herself and that she had not been in a position to know that Bietheres was not the seller.

24.

The tribunal de première instance (Court of First Instance, Verviers) held Bietheres’ claim to be well founded in part and ordered Ms Wathelet to pay Bietheres the sum of EUR 2000 plus interest. It also declared Ms Wathelet’s counter-claim to be unfounded.

25.

Ms Wathelet brought an appeal before the referring court, the cour d’appel de Liège (Court of Appeal, Liège), maintaining the claims she had made a first instance and requesting, in the alternative, the immediate return of the vehicle.

26.

The referring court considers there to be strong, specific and consistent circumstantial evidence indicating that Ms Wathelet had not been informed, when the contract of sale was concluded, that it was a private sale. In this connection, the national court regards it as established that Ms Wathelet has never met the owner of the vehicle and that the garage acted as an intermediary in the sale without being remunerated for that service by the owner.

27.

The referring court decided to stay the proceedings and refer the following question to the Court for a preliminary ruling:

‘Is the concept of “seller” of consumer goods referred to in Article 1649a of the Belgian Civil Code, inserted by the Law [of 1 September 1994] entitled “Law on consumer protection in the sale of consumer goods”, which transposes into Belgian law [Directive 1999/44 on certain aspects of the sale of consumer goods and associated guarantees], to be interpreted as including not only traders who, as sellers, transfer ownership in consumer goods to a consumer, but also traders who act as intermediaries on behalf of a non-professional seller, whether or not they are remunerated for that service and whether or not they have informed the prospective purchaser that the seller is a private individual?’

28.

Written observations have been submitted by the Belgian, German and Austrian Governments and by the European Commission. There has been no hearing.

29.

By way of introduction, it would seem to me helpful to make a few remarks about the concept of ‘intermediary’, which covers a range of situations the legal effects of which may be different and may vary from one country to another, ( 6 ) inasmuch as national contract law has been harmonised at European level only to a very limited extent. ( 7 )

30.

The referring court has not stated in what sense it uses the term ‘intermediary’ in its request for a preliminary ruling.

31.

As for Directive 1999/44, it contains no definition of the term ‘intermediary’, which appears in recital 9 and Article 4 thereof, and neither the provisions of the directive nor the preparatory work for it indicates in what sense that term is used in the directive. Neither has the Court of Justice had an opportunity to consider that question or, more generally, to examine the role and responsibilities of intermediaries in the field of consumer protection.

32.

Nevertheless, the term ‘intermediary’ does appear in other directives on consumer protection. Several directives also contain an express definition of ‘trader’ that includes any person acting in the name of or on behalf of another trader. ( 8 ) The definition covers both professionals acting in their own name, who are generally regarded as bound by the contract under national contract law, ( 9 ) and those acting in the name of another person, who, by contrast, are not generally regarded as a party to the contract. ( 10 )

33.

It is apparent from the request for a preliminary ruling that the owner of the vehicle in question has confirmed that the vehicle had belonged to her, that the sale was a ‘private sale, and that the garage [had merely acted] as an intermediary’. Moreover, the order for reference states that the proceeds of sale were transferred to the owner of the vehicle. ( 11 )

34.

I would infer from that that the intermediary in the present case, Bietheres, acted in the sale in the name of and on behalf of the owner of the vehicle.

35.

Consequently, I shall base the following analysis on a definition of the concept of ‘intermediary’ which includes any professional who, in a sale of consumer goods, acts vis-à-vis the consumer in the name of and on behalf of the non-professional owner of the goods sold. ( 12 )

36.

Furthermore, in the absence of any indication to the contrary, I shall allow myself to assume that Bietheres was authorised by the owner of the vehicle to sell that vehicle. Accordingly, my analysis will solely relate to situations in which the intermediary acts with authority.

37.

By its request for a preliminary ruling, the referring court questions the Court of Justice about the interpretation of the concept of ‘seller’ referred to in Article 1649a of the Belgian Civil Code, inserted by the Law of 1 September 1994 in order to transpose Article 1(2)(c) of Directive 1999/44 into Belgian law.

38.

It must be stated at the outset that, pursuant to Article 267 TFEU, the Court has jurisdiction to give preliminary rulings concerning the interpretation of the Treaties and on the validity and interpretation of acts of the institutions of the European Union. The jurisdiction of the Court is confined to considering provisions of EU law only. It is for national courts to assess the scope of national provisions and the manner in which they must be applied. ( 13 )

39.

Accordingly, the question referred must be understood as asking whether the concept of ‘seller’ within the meaning of Article 1(2)(c) of Directive 1999/44 is to be interpreted as including professionals acting in the name of and on behalf of a private individual, whether or not they are remunerated for that service and whether or not they have informed the consumer that the seller is a private individual.

40.

Before considering the interpretation of the concept of ‘seller’ within the meaning of Article 1(2)(c) of Directive 1999/44, I shall make a few general observations that would appear helpful in that regard.

41.

First of all, the Court has consistently held that the need for uniform application of EU law and the principle of equality require that, where provisions of EU law make no express reference to the law of the Member States for the purpose of determining their meaning and scope, they must normally be given an autonomous and uniform interpretation throughout the European Union, one that takes into account the context of the provision and the objective pursued by the legislation in question. ( 14 )

42.

The definition of ‘seller’ given in Article 1(2)(c) of Directive 1999/44 contains no reference to national law. It must, therefore, be regarded as an autonomous concept of EU law the content of which is derived solely from sources of EU law.

43.

Secondly, although the term ‘seller’ appears in other acts of EU law, ( 15 ) the particular definition given in Article 1(2)(c) of Directive 1999/44 is found only in that directive. It is therefore a unique concept and one that must be interpreted in light of the objectives pursued by that directive and in light of the particular function of sellers in the context of that directive. ( 16 )

44.

Thirdly, the concept of ‘seller’, for the purposes of Directive 1999/44, must necessarily be objective in nature and based on certain verifiable elements drawn from the wording of Article 1(2)(c) of the directive (a ‘contract’, a sale of ‘consumer goods’, a ‘trade, business or profession’).

45.

The concept is also functional and relational, since it is derived from the function of the person in a particular economic transaction: ( 17 ) the seller ‘sells’ consumer goods to a consumer in the context of a contract of sale. Consequently, determining which persons are covered by Article 1(2)(c) of Directive 1999/44 is not a static affair; it depends on their position in a given contractual relationship. The function of the seller must, principally, be apprehended from the viewpoint of the consumer, to whom the directive affords protection.

46.

According to the terms of Article 1(2)(c) of Directive 1999/44, the concept of ‘seller’ covers:

‘any natural or legal person who, under a contract, sells consumer goods in the course of his trade, business or profession’.

47.

The definition of the concept of ‘seller’ in Directive 1999/44 thus does not refer to the concept of ‘intermediary’ and, more generally, the directive does not explicitly address the liability of intermediaries to consumers. ( 18 ) Nor does it appear that the question of the liability of intermediaries was discussed during the legislative procedure which preceded the adoption of that directive, ( 19 ) the central theme of which is the relationship between sellers and consumers, those being the principal persons to whom the directive is addressed.

48.

The fact that Directive 1999/44 does not mention the liability of intermediaries to consumers is all the more significant in that the EU legislature did decide to include intermediaries among the operators having liability to consumers in several other directives on consumer protection. ( 20 )

49.

In addition, the term intermediary is mentioned in Directive 1999/44 only in connection with the liability of intermediaries to final sellers. In accordance with Article 4 of the directive, where a final seller is liable to a consumer because of a lack of conformity resulting from an act or omission on the part of a manufacturer, a previous seller in the same chain of contracts or ‘any other intermediary’, the final seller is to be entitled to pursue remedies against the person or persons liable in the contractual chain. The second part of Article 4 states that the manner in which the parties who may be liable are identified and the relevant actions and conditions of exercise are to be determined in accordance with national law. ( 21 )

50.

In light of the foregoing, I consider it to be clear, as do the Belgian, German and Austrian Governments and the Commission, that the concept of ‘seller’ referred to in Article 1(2)(c) of Directive 1999/44 does not include professionals acting in the name of and on behalf of private individuals where they are obviously acting in that capacity in a sale to a consumer. Such a professional is not ‘selling’ consumer goods ‘under a contract’; he is merely acting in a sale between private individuals, to which the directive is not intended to apply.

51.

However, to my mind, that conclusion does not in itself rule out the possibility that a professional acting in the name of and on behalf of a private individual might, depending on the case, be regarded as a seller within the meaning of Article 1(2)(c) of Directive 1999/44 if, when dealing with a consumer, he gives the impression that he is acting as seller. In such a case the professional will appear, from the point of view of the consumer, to be ‘selling’ consumer goods ‘under a contract’‘in the course of his trade, business or profession’. Such a situation would appear to be comparable to the situation in which an intermediary acts in his own name. ( 22 ) Such an intermediary will, generally speaking, be bound by the contract ( 23 ) and must consequently be regarded as the seller within the meaning of Article 1(2)(c) of Directive 1999/44.

52.

The relatively broad definition of ‘seller’ given in Article 1(2)(c) of Directive 1999/44 militates in favour of the inclusion within its scope of professionals who, in dealings with consumers, give the impression that they are acting as seller.

53.

The question that arises is whether the exact wording of Article 1(2)(c) of Directive 1999/44 militates against that interpretation.

54.

In the dispute in the main proceedings it seems to me that the main textual issues relate, a priori, to the expressions ‘under a contract’ and ‘sells consumer goods’, inasmuch as the referring court regards it as established fact that Bietheres sells consumer goods in the course of its trade, business or profession. ( 24 )

55.

Neither the wording of Directive 1999/44 ( 25 ) nor the preparatory work for it elucidates the precise meaning of the expression ‘under a contract’. In order to determine the meaning of that expression, it is therefore necessary to consider its usual meaning in everyday language, while also taking into account the context in which it occurs and the objectives pursued by the legislation of which it is a part. ( 26 )

56.

I concur with the Commission’s analysis that the expression ‘under a contract’ presupposes the existence of a contract, either written or oral.

57.

As regards this expression, the Commission points out that it is for the national courts to establish whether there has been a contract of sale and, if so, to identify the parties between whom it was concluded and, in particular, to establish whether it was concluded between a consumer and a seller within the meaning of Directive 1999/44.

58.

The Belgian, German and Austrian Governments argue that only a person who is a party to a contract as seller will be directly liable to a consumer under a contract of sale and that the only question which arises, in so far as concerns the concept of ‘seller’ within the meaning of Article 1(2)(c) of Directive 1999/44, is therefore who is the party with whom the consumer has concluded the contract. ( 27 )

59.

I do not wholly endorse this approach according to which the concept of ‘seller’ is determined by identifying the parties to a contract.

60.

Admittedly, the seller, as defined in accordance with Directive 1999/44, is in the majority of cases the person who binds himself by contract to deliver the goods sold. Nevertheless, for the purposes of the application of Directive 1999/44, it is necessary in my opinion to distinguish between identifying the parties to a contract, on the one hand, and identifying the seller for the purposes of Article 1(2)(c) of the directive, on the other.

61.

It is important to bear in mind in this connection the minimal degree of harmonisation brought about by the directive. Identifying the parties to a contract is governed by the general rules of the Member States relating to contracts of sale, which have not been harmonised by the directive. ( 28 )

62.

It follows, in my opinion, that identifying the parties to a contract in accordance with national law cannot be the decisive factor in the assessment that is called for by Article 1(2)(c) of the directive. The concept of ‘seller’, as an autonomous concept of EU law, derives its content solely from sources of EU law. That conclusion is supported by the objective of the directive, which is to ensure at least a minimum, uniform level of protection of consumers in the European Union, no matter where goods are purchased within the Union. ( 29 )

63.

Consequently, the expression ‘under a contract’, as such, merely presupposes the existence of a contract and does not preclude the interpretation that I would recommend, which is that a professional acting in the name of and on behalf of an individual must be regarded as a seller within the meaning of Article 1(2)(c) of Directive 1999/44 if, in dealings with a consumer, he gives the impression that he is acting in that capacity.

64.

According to its usual meaning in everyday language the term ‘sells’ signifies that one person, the seller, transfers goods to another person, the purchaser, against payment of a sum of money which constitutes the purchase price of the goods.

65.

As the Belgian Government emphasises, Article 1(2)(c) of Directive 1999/44 does not provide that the seller must be the owner of the goods sold. ( 30 )

66.

In the absence of any suggestion to that effect in the wording of Article 1(2)(c) of Directive 1999/44 or in the preparatory work for the directive a narrow interpretation of that provision, according to which the seller can be none other than the owner of the goods sold, seems to me illogical, given that an intermediary acting in his own name is, as a rule, bound by the contract ( 31 ) even though he is not the owner of the goods sold.

67.

I would also reiterate that the directive covers only a very limited part of the general rules of the Member States relating to contracts of sale and does not affect national laws relating to ownership.

68.

Moreover, Directive 1999/44 is principally concerned with guarantees associated with consumer goods and liability for any lack of conformity. In that context, from the viewpoint of the consumer, who is the subject of the protection afforded by the directive, it would seem irrelevant that the owner of the goods and the seller of the goods should necessarily be the same person.

69.

In other words, in the context of Directive 1999/44, in order to assume the mantle of seller, the operator in question need not necessarily be the owner of the goods in question. ( 32 ) Accordingly, there is no reason to restrict the scope of the concept of ‘seller’ to the owner of the goods sold.

70.

A teleological interpretation of Article 1(2)(c) of Directive 1999/44 supports the literal interpretation of that provision, according to which a professional acting in the name of and on behalf of a private individual may be regarded as a seller within the meaning of that provision if, in dealings with a consumer, he gives the impression that he is acting as seller.

71.

The primary function of a seller, in the context of Directive 1999/44, is to deliver to the consumer goods which are in conformity with the contract of sale and to repair or replace them in the event of any lack of conformity. ( 33 ) To that end, the concept of ‘seller’, within the meaning of Article 1(2)(c), defines the group of persons against whom a consumer may have recourse in the event that goods are not in conformity with the contract.

72.

It is, therefore, clearly imperative that a consumer should be able to identify the seller in the event of a lack of conformity. Moreover, knowing who the seller is could be vitally important for a consumer who must choose between several sellers and who must therefore assess the expertise, professionalism and solvency of the sellers and their ability to acquit themselves of their responsibilities in the event of a lack of conformity.

73.

In a situation where a professional acts as intermediary for a private individual, as in the present case, the consumer’s ignorance of the seller’s identity would be even more detrimental, since the consumer would be ignorant of his legal position and of the legal remedies available to him. Thus, if it transpires that the seller is a private individual, the binding nature of the consumer’s rights, enshrined in Article 7(1) of Directive 1999/44, would not apply and the consumer would not enjoy the protection afforded by the directive. Consequently, a non-professional seller could, amongst other things, escape liability for latent defects in the goods sold. That illustration is all the more pertinent with regard to the sale of second-hand motor vehicles.

74.

It follows that the effective protection of consumers implies that the consumer should know if the seller is a private individual. As the Belgian Government asserts, that information is comparable to the ‘material information that the average consumer needs, according to the context, to take an informed transactional decision’ which the seller is required to give the consumer under Article 7(1) of Directive 2005/29/EC. ( 34 )

75.

Consequently, in order to ensure the effectiveness of Directive 1999/44, it is necessary, in my opinion, to follow the recommended interpretation and to include within the scope of Article 1(2)(c) of the directive professionals acting in the name of and on behalf of private individuals where, in dealings with consumers, they give the impression that they are acting as seller. In such a case, the intermediary has, to my mind, made an ‘irrevocable decision’ and should not be able to escape his responsibilities, in the event that the goods lack conformity, by referring the consumer to the private individual in question, whom it could be impossible to locate or who could even be insolvent. ( 35 )

76.

The proposed interpretation seems to me to be consistent with the case-law of the Court according to which the system of protection implemented by EU directives on consumer protection is based on the idea that the consumer is in a weaker position vis-à-vis the seller or supplier as regards both his bargaining power and his level of knowledge. ( 36 )

77.

Where the consumer has not been informed that the seller is a private individual, there is a significant asymmetry of information between the consumer and the intermediary. ( 37 ) That asymmetry of information can only be corrected at the initiative of the intermediary, for whom it is, generally, easy to remedy the situation. ( 38 ) Moreover, the asymmetry of information will often have been created, or at very least perpetuated, by the intermediary, which corroborates the thesis that it must be possible to impose the seller’s liability pursuant to Directive 1999/44 on an intermediary who, in dealings with a consumer, gives the impression that he is acting as seller.

78.

The contrary interpretation, according to which a professional acting as an intermediary is, in any event, excluded from the scope of Article 2(1)(c) of Directive 1999/44, would undermine the overall objective pursued by EU legislation on consumer protection, enshrined in Article 169 TFEU (formerly Article 153 EC), which is to ensure a high level of consumer protection and, consequently, consumer confidence, which is essential to the functioning of the internal market.

79.

It is for the national court to ascertain, taking into account all the circumstances of the case and all the evidence, ( 39 ) whether the professional may be regarded as the seller, within the meaning of Article 1(2)(c) of Directive 1999/44, that is, whether, in dealings with the consumer, he has given the impression that he is acting as seller of the goods in question.

80.

Nevertheless, it seems to me appropriate to make a few general observations about the assessment that must be carried out by the national court.

81.

First of all, it is important to bear in mind the premiss that Directive 1999/44 does not cover the liability of intermediaries to consumers. ( 40 ) It follows, in my view, that only in exceptional cases should the seller’s liability under the directive be imposed on an intermediary.

82.

Consequently, an intermediary who does no more than put a consumer in touch with a non-professional owner should in no case be regarded as the seller for the purposes of the directive. In order to impute liability to an intermediary, it is necessary for the intermediary to have at least taken an active role in the sale.

83.

In this connection the referring court may take into account all the circumstances surrounding the part that the professional has played in the sale at issue, chief among which is the fact that the goods were displayed at the professional’s premises.

84.

As a rule, that circumstance gives rise, in my opinion, to a strong presumption that the consumer was under the impression that the professional was acting as seller. In such a situation, a professional who wishes to relieve himself of liability under Directive 1999/44 must, in my view, prove that the consumer knew or ought to have known, when concluding the contract of sale, that the seller was a private individual. I would point out that it will normally be easy for a professional to prove that the consumer was aware of the identity of a non-professional seller: he will merely have to adduce evidence that he informed the consumer thereof, something which the intermediary is indisputably in the best position to do.

85.

In addition, in order to establish whether, in dealings with the consumer, the professional gave the impression that he was acting as seller, the referring court may also take account of the following circumstances:

86.

The referring court can also establish whether the professional generally sells consumer goods of the particular type concerned by the contract of sale at issue, and may take that factor into account.

87.

Secondly, it seems clear to me that the need to comply with the principle of the effectiveness of consumer protection cannot be stretched so far as to make up fully for total inertia on the part of the consumer concerned. ( 41 ) Accordingly, an intermediary should not be regarded as the seller for the purposes of Directive 1999/44 where the national court considers that the average consumer, that is to say, a consumer who is reasonably well informed and reasonably observant and circumspect, ( 42 ) could not reasonably have been unaware, when concluding the contract, that the professional was acting merely as an intermediary for a private individual. ( 43 ) In this regard, a written sale agreement containing the name of the non-professional seller would provide a very strong indication that the consumer was aware of that aspect, provided that the document was given to the consumer prior to the conclusion of the sale.

88.

The question of the remuneration of the intermediary for his services is connected with the contractual relationship between the non-professional owner and the intermediary, which, generally speaking, falls outside the scope of Directive 1999/44, except in so far as concerns the entitlement of a final seller, pursuant to Article 4 of the directive, to pursue remedies against an intermediary in the event of a lack of conformity resulting from an act or omission on the intermediary’s part. ( 44 )

89.

Moreover, the question of whether or not the intermediary has been remunerated for his services seems to me to be irrelevant from the consumer’s viewpoint. Generally, the consumer will not even know whether or not the intermediary has been remunerated.

90.

Accordingly, like the Commission and the Austrian Government, I consider that the question of whether or not the intermediary has been remunerated for his services is not relevant to the assessment relating to Article 1(2)(c), the purpose of which it to establish whether a professional is to be regarded as the seller for the purposes of the directive. ( 45 )

91.

To impose on an intermediary the obligations of a seller under Directive 1999/44 when the intermediary has received no remuneration, or at most only very modest remuneration, might seem, prima facie, unreasonable.

92.

However, it must be borne in mind that the intermediary will not necessarily bear the final economic burden. On the contrary, in the event of the non-conformity of the goods sold, the cost of which would fall on an intermediary-as-seller for the purposes of Directive 1999/44, the intermediary will be entitled, under Article 4 of Directive 1999/44 and in accordance with the conditions laid down by relevant national law, to pursue remedies against the party or parties liable, that is to say, generally speaking, the non-professional seller.

93.

Indeed, the interpretation of Article 1(2)(c) of Directive 1999/44 which I recommend merely implies that the intermediary assumes the risk of the non-professional owner’s insolvency, which is nevertheless a matter of fundamental importance to the consumer. That result seems to me to be far from unreasonable, given that the intermediary may easily eliminate that risk by informing the consumer of the identity of the non-professional seller or by adding a risk premium to the remuneration fixed for his services.

94.

In light of the foregoing, I propose that the Court should answer the question referred for a preliminary ruling by the cour d’appel de Liège (Court of Appeal, Liège, Belgium) as follows:

Article 1(2)(c) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees must be interpreted as including professionals who act in the name of and on behalf of a private individual, whether or not they are remunerated for their services, where, in dealings with a consumer, they give the impression that they are acting as seller.