1.

Online searches for goods and services are part of our daily lives and will undoubtedly henceforth be part of our culture. The number of online sales platforms has been steadily growing and, in 2016, 55% of EU citizens aged between 16 and 74 years old ordered goods and services online for their personal use. ( 2 ) The purpose of these platforms is to act as an online intermediary or broker. They enable direct contact between a trader and a consumer, or two traders, or two individuals, interested in acquiring new or used products for private purposes. ( 3 )

2.

In many cases, however, the advertisements published on online platforms do not make it clear whether the seller is a trader or an individual.

3.

The present reference for a preliminary ruling, which has been submitted to the Court by the Administrativen sad — Varna (Administrative Court, Varna, Bulgaria), concerns the interpretation of Article 2(b) and (d) of Directive 2005/29/EC. ( 4 )

4.

The request for a preliminary ruling has been made in proceedings between Evelina Kamenova and the Komisia za zashtita na potrebitelite (Bulgarian Consumer Protection Commission, ‘the CPC’) regarding a notice issued by the CPC establishing an administrative offence. The offence alleged against Evelina Kamenova relates to non-compliance with the Zakon za zashtita na potrebitelite ZZP (Law on Consumer Protection, ‘the ZZP’) for failing to provide information to consumers in connection with advertisements for the sale of goods published on an online platform.

5.

The referring court seeks to ascertain, in essence, whether a natural person who has published eight advertisements at the same time for the sale of different products on an online sales platform may be classified as a ‘trader’, and whether her activity constitutes a ‘commercial practice’ within the meaning of the Unfair Commercial Practices Directive.

6.

This case therefore gives the Court the opportunity to clarify the concept of ‘trader’ within the meaning of that directive, and the criteria to be taken into account by the national courts when assessing that concept in the specific context of online sales.

7.

Pursuant to Article 1 of the Unfair Commercial Practices Directive, read in conjunction with recitals 14 and 15 thereof, the purpose of that directive is to achieve a high level of consumer protection by introducing full harmonisation of national laws on unfair commercial practices.

8.

Article 2 of that directive provides:

‘For the purposes of this Directive:

…

…

…’

9.

In accordance with Article 3(1) of that directive, the directive ‘shall apply to unfair business-to-consumer commercial practices, as laid down in Article 5, before, during and after a commercial transaction in relation to a product’.

10.

As is clear from Article 1 of Directive 2011/83/EU, ( 5 ) the purpose of that directive is ‘through the achievement of a high level of consumer protection, to contribute to the proper functioning of the internal market by approximating certain aspects of the laws, regulations and administrative provisions of the Member States concerning contracts concluded between consumers and traders’.

11.

Article 2 of that directive provides:

‘For the purpose of this Directive, the following definitions shall apply:

…

…’

12.

In accordance with Article 3(1) of the Consumer Rights Directive, that directive ‘shall apply, under the conditions and to the extent set out in its provisions, to any contract concluded between a trader and a consumer ...’.

13.

Article 47 of the ZZP, promulgated in DV No 99 of 9 December 2005, in the version published in DV No 61 of 2014, in force since 25 July 2014, and Article 50 of the ZZP transpose, respectively, Articles 6 and 9 of the Consumer Rights Directive concerning, first, information requirements relating to distance contracts and, secondly, the right of withdrawal.

14.

The file of the case in the main proceedings shows that M. K. K. (the consumer in that case) acquired, under a distance sales contract, a used ‘Longines’ watch on the website http://olx.bg.

15.

On 20 October 2014, the watch, offered for sale by a user under the alias ‘eveto-ZZ’, was delivered to the consumer by a courier company. The sender’s name, address and telephone number were provided. After discovering that the watch did not match the description given in the advertisement published on the online sales platform, the consumer informed the seller, in a telephone conversation, that he wished to terminate the contract. The seller, however, refused to accept the return of the item in exchange for a refund.

16.

Consequently, the consumer lodged a complaint with the CPC. During its investigations, it was found that the sender of the watch under the alias ‘eveto-ZZ’ was Evelina Kamenova. According to the website manager, on 10 December 2014, the user ‘eveto-ZZ’ had published a total of eight advertisements for different products with a view to selling them. ( 6 )

17.

On 27 February 2015, the CPC issued a notice establishing an administrative offence. On 17 March 2015, Evelina Kamenova contested that notice on the ground that she did not have the status of trader and the provisions of the ZZP therefore did not apply to her. The CPC adopted a penalty decision against Evelina Kamenova on the basis of Article 207 of the ZZP for infringement of Article 47(1), points (2), (3), (5), (7), (8), and (12), and Article 50 of the ZZP. The CPC relied on the fact that Evelina Kamenova had failed to state, in each of the advertisements, the trader’s name, address and email address; the total cost, including all fees and taxes; the conditions of payment, delivery and performance; the consumer’s right to withdraw from the distance contract; the conditions, time limit and procedures for exercising that right; and a reminder of the existence of a legal guarantee of conformity for products in relation to the sales contract.

18.

Evelina Kamenova brought an action against the penalty decision before the Varnenski rayonen sad (District Court, Varna, Bulgaria). By judgment of 22 March 2016, that court annulled the CPC’s penalty decision on the ground that Evelina Kamenova did not have the status of ‘trader’ within the meaning of Paragraph 13(2) of the supplementary provisions of the ZZP, and referred to the Unfair Commercial Practices Directive, pointing out that the concept of ‘trader’ at issue is linked not to a single and isolated act, but to an activity, in connection with a trade, business or profession, which is systematic in nature.

19.

The CPC lodged an appeal in cassation against that judgment before the referring court.

20.

Taking the view that the outcome of the case in the main proceedings depended on the interpretation of the relevant provisions of EU law, the Administrativen sad — Varna (Administrative Court, Varna) by judgment of 16 February 2017, received at the Registry of the Court on 28 February 2017, decided to stay the proceedings and to refer the following question to the Court for a preliminary ruling:

‘Must Article 2(b) and (d) of Directive [2005/29] be interpreted as meaning that the action of a natural person who is registered on a website for the sale of goods, and who published a total of eight advertisements at the same time for the sale of different items via the website, is the action of a trader within the meaning of the legal definition in Article 2(b), represents a business-to-consumer commercial practice within the meaning of Article 2(d) and comes within the scope of the Directive pursuant to Article 3(1) thereof?’

21.

Written observations have been lodged by the German Government and the European Commission.

22.

By its question, the referring court seeks, in essence, to ascertain, first, whether Article 2(b) of the Unfair Commercial Practices Directive must be interpreted as meaning that a natural person registered on a website for the sale of goods may be classified as a ‘trader’ where that person publishes, on that website, eight advertisements at the same time for the sale of different products, and, secondly, whether that person’s activity constitutes a ‘commercial practice’ within the meaning of Article 2(d) of that directive.

23.

The question, therefore, is whether, in the context of the Unfair Commercial Practices Directive, a natural person, such as the defendant in the main proceedings, who has published eight advertisements for the sale of different products on an online sales platform should be classified as a ‘trader’, or whether such a person is excluded from the scope of that directive as she is not covered by the concept of ‘trader’, in view of the limited nature of her activity.

24.

Before examining that question, it should be noted that, in its question referred for a preliminary ruling, the referring court seeks only an interpretation of the Unfair Commercial Practices Directive. ( 7 ) However, the description of the facts of the dispute in the main proceedings given in the order for reference appears to suggest a failure to respect the rights conferred by the Consumer Rights Directive. It is clear from the order for reference that the defendant in the main proceedings was penalised for infringing Article 47(1), points (2), (3), (5), (7), (8) and (12), and Article 50 of the ZZP. As the Commission has pointed out, those provisions transpose, respectively, Article 6 of the Consumer Rights Directive concerning information requirements for distance contracts, and Article 9 of that directive concerning the right of withdrawal.

25.

Therefore, in view of the activity described in the order for reference, the issue of whether a natural person may be classified as a ‘trader’ within the meaning of Article 2(2) of the Consumer Rights Directive may be of relevance to the main proceedings.

26.

It should be observed that, in the procedure laid down by Article 267 TFEU providing for cooperation between national courts and the Court of Justice, it is for the latter to provide the national court with an answer which will be of use to it and enable it to determine the case before it. With this in mind, the Court may have to reformulate the questions referred to it. The Court may also find it necessary to consider provisions of EU law to which the national court has not referred in its questions. ( 8 )

27.

In those circumstances, the question referred must be understood as asking, in essence, first, whether Article 2(b) of the Unfair Commercial Practices Directive and Article 2(2) of the Consumer Rights Directive must be interpreted as meaning that a natural person registered on a website for the sale of goods may be classified as a ‘trader’ where that person publishes on that website eight advertisements at the same time for the sale of different products, and, secondly, whether that person’s activity constitutes a ‘commercial practice’ within the meaning of Article 2(d) of the Unfair Commercial Practices Directive.

28.

To answer that question, I consider it necessary to determine, first of all, whether, in the present case, it would be appropriate to provide a uniform interpretation of the definition of the concept of ‘trader’, since that concept is almost identical in the context of the directives concerned. ( 9 ) It is necessary, in my view, first to establish the degree of harmonisation brought about by those directives in order to ascertain whether such an approach is appropriate.

29.

In the first place, before addressing the issue of the degree of harmonisation brought about by the directives concerned, it is necessary to highlight a fundamental point: the concept of ‘trader’ is defined almost identically ( 10 ) in both directives and both definitions are closely linked to the pursuit of an economic activity.

30.

That said, it should be added, in the second place, that, in order to be able to provide a uniform interpretation of the definition of the concept of ‘trader’ within the meaning of the directives concerned, it is necessary to establish whether the degree of harmonisation brought about by those two directives — and of which their respective rules are part — is the same. I would point out, in that regard, that the assessment of the degree of harmonisation brought about by a directive must be based on the wording, as well as the meaning and purpose, of that directive. ( 11 )

31.

I would observe, first of all, that the Unfair Commercial Practices Directive applies, under Article 3(1) thereof, ‘to unfair business-to-consumer commercial practices, as laid down in Article 5, before, during and after a commercial transaction in relation to a product’, ( 12 ) whereas the Consumer Rights Directive applies, in accordance with Article 3(1) thereof, ‘under the conditions and to the extent set out in its provisions, to any contract concluded between a trader and a consumer’.

32.

Thus, despite the difference between their respective scopes, those directives are based on Article 114 TFEU ( 13 ) and, in this respect, pursue the same objectives, namely to contribute to the proper functioning of the internal market and to ensure a high level of consumer protection in the legislative, regulatory and administrative framework they cover. ( 14 )

33.

I would note, furthermore, that to achieve those objectives, the EU legislature introduced full harmonisation ( 15 ) of the rules covered by the directives concerned. ( 16 )

34.

As regards the Unfair Commercial Practices Directive, it is clear from recital 14 thereof that it introduces ‘full harmonisation’. ( 17 ) That harmonisation relates to rules concerning unfair commercial practices, including misleading advertising by traders with regard to consumers, which, at EU level, harm consumers’ economic interests. ( 18 ) More specifically, such full or exhaustive harmonisation covers the entire field covered by that directive. ( 19 )

35.

Furthermore, it is clear from recital 15 of the Unfair Commercial Practices Directive that that directive brings about ‘full harmonisation’ of the rules of national law, subject to certain exceptions. ( 20 ) Therefore, as expressly provided for in Article 4 of that directive, entitled ‘Internal market’, Member States may not adopt stricter rules than those provided for in that directive, even in order to achieve a higher level of consumer protection. ( 21 )

36.

As regards the Consumer Rights Directive, its objective is to harmonise national rules in the areas within its scope. ( 22 ) More specifically, it is clear from a combined reading of recitals 4, 5 and 7 of that directive that its purpose is ‘full’ harmonisation of certain aspects of consumer distance and off-premises contracts, namely consumer information and the right of withdrawal in those types of contracts. ( 23 )

37.

Furthermore, under Article 4 of that directive, entitled ‘Level of harmonisation’, ‘Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions to ensure a different level of consumer protection, unless otherwise provided for in this Directive’. ( 24 ) That directive therefore brings about ‘complete’ or maximum harmonisation.

38.

In short, everything seems to suggest that the EU legislature brought about the same degree of harmonisation of the respective rules of each of the directives in question. For the purposes of this analysis, I am interested only in complete or maximum harmonisation, since any absence of that type of harmonisation of the directives concerned could create problems as regards the uniform interpretation of the definition of the concept of ‘trader’.

39.

In the light of all of the foregoing, I consider that a uniform interpretation of the concept of ‘trader’ in the context of these two directives is appropriate, given the almost identical definitions of the concept of ‘trader’ laid down by the EU legislature, the fact that those definitions are closely linked to the pursuit of an economic activity, and the degree of complete harmonisation sought by the EU legislature in the national rules covered by the directives in question.

40.

The concept of ‘business-to-consumer commercial practices’ is defined in Article 2(d) of the Unfair Commercial Practices Directive as meaning ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’. The concepts of ‘consumer’ and ‘trader’ therefore lie at the heart of the definition of this concept, so that the issue of whether a situation falls within the scope of that directive depends, decisively, on their interpretation. The existence of a commercial practice within the meaning of that directive may be accepted only where it concerns both a trader and a consumer.

41.

Analysis of the scope ratione personae of the Unfair Commercial Practices Directive is fundamental since it is only in a situation where the defendant in the main proceedings has the status of ‘trader’ that it would be necessary to examine whether her activity constitutes a commercial activity within the meaning of the directive.

42.

The concept of ‘trader’ is defined, in Article 2(b) of the Unfair Commercial Practices Directive, as meaning ‘any natural or legal person who, in commercial practices covered by this Directive, is acting for purposes relating to his trade, business, craft or profession and anyone acting in the name of or on behalf of a trader’.

43.

I note, in that regard, that the Court has already held that it is clear from the wording of Article 2(b) of that directive that ‘the EU legislature has conferred a particularly broad meaning on the term “trader”, which refers to “any natural or legal person” which carries out a gainful activity and does not exclude from its scope either bodies pursuing a task of public interest or those which are governed by public law’. ( 25 ) I would point out, in that regard, that such a natural or legal person is acting, in my view, for purposes relating to an act carried out within his trade, business, craft or profession.

44.

In the present case, the fact that the defendant in the main proceedings has the status of natural person does not exclude the classification of ‘trader’. However, in order for that person to be regarded as covered by that concept within the meaning of Article 2(b) of the Unfair Commercial Practices Directive, it is also necessary to determine whether she is acting for purposes relating to such a trade, business, craft or profession or in the name or on behalf of a trader.

45.

The Court has also stated that, with regard to the actual wording of the definitions in Article 2(a) and (b) of that directive, the meaning and scope of the concept of ‘trader’ which is used in that directive must be determined in relation to the related but diametrically opposed concept of ‘consumer’, which refers to any individual not engaged in commercial or trade activities. ( 26 ) It pointed out, in that regard, that the objective of the Unfair Commercial Practices Directive, which is to fully protect consumers against practices of that kind, relies on the assumption that, in relation to a trader, the consumer is in a weaker position, in that the consumer must be considered to be economically weaker and less experienced in legal matters than the other party to the contract. ( 27 ) Thus, the concept of consumer is of the utmost importance and the provisions of that directive are essentially designed with the consumer as the target and victim of unfair commercial practices in mind. ( 28 )

46.

In view of the considerations set out in points 29 to 39 of this Opinion according to which, first, the Unfair Commercial Practices Directive and the Consumer Rights Directive define the concept of ‘trader’ almost identically, secondly, that concept is closely linked to the pursuit of an economic activity and, thirdly, the degree of harmonisation brought about by those directives is similar, I consider that the Court’s interpretation of the definition of the concept of ‘trader’ in the context of the Unfair Commercial Practices Directive is also valid for the purposes of the definition of the concept of ‘trader’ in the context of the Consumer Rights Directive.

47.

As noted by Advocate General Bot in his Opinion in Zentrale zur Bekämpfung unlauteren Wettbewerbs, ( 29 ) such an interpretation of the concept of ‘trader’ is consistent with that established by the EU legislature in the wider context of directives relating to consumer rights, and, in particular the Consumer Rights Directive, in which the EU legislature, in Article 2(2), defines trader as referring to ‘any natural person or any legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in his name or on his behalf, for purposes relating to his trade, business, craft or profession’. According to Advocate General Bot, the common thread running through directives relating to consumer protection is that ‘a trader may be a natural person or a public-law or private-law body who, in his relations with consumers, is acting for purposes relating to his trade or profession, which presupposes that he acts within the framework of a regular profit-making activity’. ( 30 )

48.

In the light of the foregoing, is a natural person such as the defendant in the main proceedings covered by the definition of the concept of ‘trader’ referred to in Article 2(b) of the Unfair Commercial Practices Directive and Article 2(2) of the Consumer Rights Directive?

49.

I do not think so. The simultaneous publication on an online platform of a total of eight advertisements for the sale of different new and used products does not seem to me to be sufficient to allow use of the classification of ‘trader’ within the meaning of those directives.

50.

However, it should be noted that the classification of ‘trader’ requires ‘a case-by-case approach’. ( 31 ) It is therefore appropriate, in the present case, for the referring court to carry out a specific analysis, on the basis of all the facts available to it to establish whether a person, such as the defendant in the main proceedings, is covered by the definition of ‘trader’.

51.

That analysis will seek, in particular, as the German Government and the Commission have rightly pointed out, to establish whether the online platform sale was made in an organised manner and for profit; ( 32 ) whether that sale occurs over a certain duration and with a certain frequency; ( 33 ) whether the seller has a legal status which enables her to engage in commercial transactions, and to what extent the online sale is connected to the seller’s commercial activity; ( 34 ) whether the seller is subject to VAT; ( 35 ) whether the seller, acting in the name of a specific trader or on his behalf or through any other person acting in her name or on her behalf, received remuneration or an incentive; ( 36 ) whether the seller purchases new or used goods with a view to selling them on, thus making that a regular, frequent and/or simultaneous activity in relation to her trade; ( 37 ) whether the amount of profit generated on the sales confirms that the transaction made falls within the scope of a commercial activity, ( 38 ) and/or whether the products for sale are all of the same type or value, in particular, whether the offer is focused on a limited number of products. ( 39 )

52.

It should be noted that those criteria are neither exhaustive nor exclusive, and therefore, in principle, meeting one or more of the criteria does not, in itself, establish the classification to be used in relation to an online seller with regard to the concept of ‘trader’. It will therefore be necessary to make an overall assessment taking account of all the relevant criteria in order to decide on the classification to be used. Those criteria will thus enable the national courts to determine whether a person, such as the defendant in the main proceedings, is carrying out a commercial activity which places him in a stronger position than the consumer and, consequently, whether there is an imbalance between the trader and the consumer.

53.

However, it is for the referring court, in view of the foregoing considerations, to assess, on the basis of the facts available to it and based, inter alia, on the criteria set out in the preceding points, whether that person may be classified as a ‘trader’ within the meaning of those directives.

54.

Where the referring court considers the person concerned to be a ‘trader’ within the meaning of Article 2(b) of the Unfair Commercial Practices Directive, it will be necessary to determine whether the activity she carries out constitutes a ‘commercial practice’ within the meaning of Article 2(d) of the Unfair Commercial Practices Directive.

55.

As regards the issue of whether the activity of a natural person such as the defendant in the main proceedings may fall within the scope of the Unfair Commercial Practices Directive, I would point out, at the outset, that the Court has already ruled that Article 2(d) of that directive gave a particularly broad definition of the concept of ‘commercial practices’ as meaning ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’. ( 40 )

56.

Thus, to conclude that the activity at issue constitutes a commercial practice within the meaning of that article, it must be verified that that activity, first, may be classified as a practice which is ‘commercial in nature, that is to say, [it] must originate from traders’, and, secondly, is an act or commercial communication ‘directly connected with the promotion, sale or supply of their products to consumers’. ( 41 )

57.

I would point out, in this connection, that the commercial activity criterion, the existence of which must be verified, corresponds to the idea on which the system of protection introduced by the EU directives on consumer protection is based, namely that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge and that there is a real risk that the consumer, particularly because of a lack of awareness, will not rely on the legal rule that is intended to protect him. ( 42 )

58.

Having regard to the analysis set out in points 40 to 52 of this Opinion, there seems to be nothing to suggest that the publication, at the same time, of eight advertisements for the sale of different products may be considered to be an activity covered by the concept of ‘trader’ within the meaning of Article 2(d) of the Unfair Commercial Practices Directive and, therefore, that a position of weakness may exist as a result of such an activity, in the present case, between the defendant in the main proceedings and the buyer.

59.

However, it is for the referring court to give a ruling in that regard when assessing whether a natural person such as the defendant in the main proceedings has the status of ‘trader’, taking into account all of the criteria set out in points 51 and 52 of this Opinion.

60.

In the light of all of the foregoing conclusions, I propose that the Court answer the question referred by the Administrativen sad — Varna (Administrative Court, Varna, Bulgaria) as follows:

Article 2(b) of Directive 2005/29/ЕC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC and Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) and Article 2(2) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council must be interpreted as meaning that a natural person, such as the defendant in the main proceedings, registered on an online platform for the sale of goods cannot be classified as a ‘trader’ when publishing, on that website, eight advertisements at the same time for the sale of different products.

However, it is for the referring court to assess, in the light of all the other circumstances of the present case, whether that person may be classified as a ‘trader’ within the meaning of those directives and, therefore, whether the activity she carries out constitutes a ‘commercial practice’ within the meaning of Article 2(d) of the Directive 2005/29.