A natural person who simultaneously publishes several ads for new or used goods on a website, can only be considered to be an "entrepreneur" if this person acts in the framework of a commercial, professional or craft activity.
The case
A consumer buys a watch on an online platform. The seller placed a total of eight ads for diverse - new and used - goods, under a pseudonym. The question was, whether the seller was acting as an entrepreneur and if therefore the protective provisions for consumer businesses would apply (e.g. comprehensive information duties, right to withdrawal).
What is decisive is whether the seller acted within the scope of commercial, craft or professional activities or on behalf of an entrepreneur or trader. This has to be decided from case to case, which means that the (Bulgarian) court in charge of this case has to evaluate all the relevant information presented.
Assessment of the CJEU
However, the European Court of Justice (CJEU) created a set of criteria that have to be considered by the court. Those are neither exclusive nor restrictive, which means that the fulfilment of one or more of those criteria alone is not sufficient to classify an online seller as an entrepreneur (e.g. if the sale had the purpose to make profit or if the seller published several ads one the online platform).
This article was first published by the legal department of the Austrian consumer association (VKI) and translated by ECC Austria. Read the full verdict in English at the website of the CJEU.
Find out more about your rights as a consumer in our section regarding online shopping.
