On 9 November 2016, the Court of Justice of the European Union ("ECJ") handed down a judgment in response to a request for a preliminary ruling from the Liège Court of Appeal (the "Court") regarding the interpretation of the concept of "seller" for the purposes of Directive 1999/44/EC of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (the "Consumer Sales Directive"). The ECJ held that the concept of a "seller" within the meaning of the Consumer Sales Directive also covers traders acting as intermediaries on behalf of a private individual who fail to inform the consumer that the owner of the goods sold is a private individual (ECJ, 9 November 2016, Case C-149/15, Sabrina Wathelet v. Garage Bietheres & Fils SPRL).

The reference for a preliminary ruling was made in proceedings between Garage Bietheres & Fils SPRL (the "Car Dealer") and Sabrina Wathelet, who had bought a second-hand car from the Car Dealer for EUR 4,000. The car broke down even before Ms. Wathelet had received a receipt, proof of payment or sales invoice. When Ms. Wathelet sought to recover her repaired vehicle from the Car Dealer, she was issued with an invoice relating to the costs of repair for an amount of EUR 2,000. Ms. Wathelet refused to pay on the ground that those costs should be borne by the seller of the vehicle. The Car Dealer disagreed, arguing that it had never owned the vehicle and had simply acted in the capacity of intermediary on behalf of another private individual, Ms. Donckels. Therefore, the Car Dealer initiated proceedings against Ms. Wathelet for payment of the repair services.

After the Verviers Court of First Instance had sided with the Car Dealer, Ms. Wathelet lodged an appeal with the Court. Finding that there was strong, specific and consistent circumstantial evidence indicating that Ms. Wathelet had not been informed that there was a private sale, the Court decided to stay the proceedings and ask the ECJ whether the Car Dealer should be regarded as a "seller" within the meaning of Article 1(2)(c) of the Consumer Sales Directive. Article 1(2)(c) defines the term "seller" as "any natural or legal person who, under a contract, sells consumer goods in the course of his trade, business or profession".

The ECJ started its analysis by emphasising that the term "seller", as used in the Consumer Sales Directive, must be interpreted in the light of (i) the aims of the Consumer Sales Directive; and (ii) the particular function of the "seller" in the context of the Consumer Sales Directive.

Although noting that the concept of a "seller" does not cover intermediaries, the ECJ concluded that that concept "can be interpreted as covering a trader who acts on behalf of a private individual where, from the point of view of the consumer, he presents himself as the seller of consumer goods under a contract in the course of his trade, business or profession". It explained that "[t]hat trader could create confusion in the mind of the consumer by giving him the false impression that he is acting as the seller-owner of the goods".

According to the ECJ, nothing in the wording of Article 1(2)(c) of the Consumer Sales Directive precludes such an interpretation. Moreover, this interpretation is in line with the objective underpinning the Consumer Sales Directive, which is to ensure a high level of protection to consumers who are considered to be in a weak position vis-à-vis professional sellers. The opposite interpretation would deprive consumers from the protection granted by the Consumer Sales Directive.

The ECJ continued that, as the concept of "seller" limits the circle of persons against whom consumers may take action in order to enforce their rights under the Consumer Sales Directive, traders should duly inform consumers if and when they are acting as intermediaries on behalf of a private individual.

Finally, the ECJ added that the question of whether the trader acting as an intermediary is remunerated or not is not relevant for the purposes of determining whether he must be classified as a "seller" within the meaning of Article 1(2)(c) of the Consumer Sales Directive.

In view of this ruling, traders who act as intermediaries on behalf of private individuals should inform consumers in clear terms of the fact that they are not the owner of the goods sold. Should they fail to do so, they may be held liable under the Consumer Sales Directive if the goods sold are not in conformity with the sales contract.

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