On 7th August 2018, the ECJ published its ruling for case Verbraucherzentrale Berlin eV v Unimatic Vertriebs GmbH (C‑485/17/) on the meaning of the term ‘business premises’ in the Consumer Rights Directive (Directive 2011/83/EU, hereafter CRD).
Facts of the case
Unimatic, a distribution company that sells products exclusively in trade fairs was participating in one such fair in Berlin, called ‘Grüne Woche’ (Green Week). There a customer bought a steam vacuum cleaner from the stand of Unimatic. The customer was not informed about the right of withdrawal.
The consumer organisation Verbraucherzentrale Berlin eV considered the transaction to have been an off-premises contract, according to art.2(8) CRD and therefore the trader was obliged to inform consumers about the right to withdrawal according to art.6(h) CRD. Verbraucherzentrale Berlin Ev proceeded to bring an action against Unimatic to stop them from selling their products without providing information to such consumers on their right of withdrawal.
The referring court is asking whether ‘a trade fair stand in a hall which is used by a trader for the purpose of selling his products during a trade fair taking place for a few days each year constitute “immovable retail premises” within the meaning of Article 2(9)(a) of Directive 2011/83 or “movable retail premises” within the meaning of Article 2(9)(b) CRD’. Furthermore, the referring court asked how the meaning of a trader conducting his business ‘on a usual basis’ is to be interpreted and especially if the perception of the consumer is relevant.
The court summed up the referred questions into whether a trade stand in a fair, such as the one in the case in question, constitutes business premises in the context of Article 2(9) CRD.
The court states that whether the business premises are movable or immovable is secondary; what is important is whether the activity is carried out on a usual basis or a permanent basis. The Consumer Rights Directive does not specify what is meant by usual or permanent basis and the concepts should be given their autonomous European meaning taking into account the objectives pursued by the CRD (para 27).
The reason for distinguishing off-premises contracts is the element of surprise and the psychological pressure the consumer may be faced with as they do not expect to be approached by a trader and nay not have time to properly consider the offer or compare prices. (paras 33,36). Therefore, if a consumer goes to a trader’s premises they can expect to be solicited and cannot claim they were surprised (para 34).
It should be highlighted that according to rec.22 CRD, market stalls can also be considered business premises provided that they serve as a usual place of business for the trader. (para 41).
The court stresses the importance of the perception of the average consumer in determining whether a stand in a trade fair can be considered business premises. Even though it refrains from making a judgement as to whether the trade stand in question qualifies as business premises it sets out the criteria to be used by the national court.
A court stand in a trade fair can be business premises if, if,’ in the light of all the factual circumstances surrounding that activity, in particular the appearance of the stand and the information relayed on the premises of the fair itself, a reasonably well-informed and reasonably observant and circumspect consumer could reasonably assume that the trader is carrying out his activity there and will solicit him in order to conclude a contract’.
Once more, it is seen that the concept of the average consumer is central to EU consumer law, yet the court does not provide any guidance to the national court as to how is the view of the average consumer to be ascertained. This may lead to divergent approaches in the Member States, which go against the objective, stated also in para 27 of this judgement of uniform application of EU law.