Tuesday, 15 November 2016

If it talks like a seller... - CJEU in Wathelet (C-149/15)

Last week the CJEU also issued a judgement in the Wathelet case (C-149/15) concerning interpretation of the Consumer Sales Directive (CSD) with regard to a sale of a second-hand vehicle in Belgium.

Ms Wathelet has purchased a second-hand vehicle for 4.000 Euro as a consumer from a professional garage and did not obtain any receipt, proof of payment or a sales invoice for this purchase. The garage paid for the roadworthiness test, while Ms Wathelet paid for the registration of the vehicle. The car has promptly broke down, before the consumer received the invoice for the purchase. The garage found that the fault was with the engine and charged Ms Wathelet for 2.000 Euro for its repair. She has refused to pay this repair price, claiming that the garage as the seller of the vehicle was responsible for this fault. At this point, Ms Wathelet was informed that the garage has never owned the car and has sold it on behalf of Ms Donckels, another consumer. Ms Donckels has, however, never received the full purchase price, as the garage withheld 800 Euro to credit repairs that have been conducted on the vehicle. The garage sent then a letter to Ms Wathelet, confirming its capacity as an intermediary, stating that the engine failure is an 'ordinary risk' when buying a second-hand car from another consumer, and attached an invoice for the purchase price of 4.000 Euro on which it was handwritten that Ms Donckels was the seller. The invoice only had the signature of Ms Donckels. The garage refused to return the car until the repair price of 2.000 Euro is paid in full and brought proceedings against Ms Wathelet for payment of this invoice. Ms Wathelet counter-claimed demanding termination of the contract of sale and damages.


The Court of Appeal in Liege, Belgium, finds that there is strong evidence that Ms Wathelet was never informed that it was a private sale and, therefore, asks the CJEU whether the notion of a 'seller' encompasses not only professional traders who transfer ownership of consumer goods to consumers, but also traders acting as intermediaries for private parties, and whether the answer would differ depending on whether they are remunerated for their services and whether the consumer was informed of the fact that the sale was a C2C sale.

The CJEU first determines that the notion of the seller should be interpreted autonomously for the purposes of the Consumer Sales Directive, considering its objectives. The notion does not cover intermediaries (par. 33), however, that does not mean that it could not cover traders who act as intermediaries (regardless of whether they are remunerated for their services - see par. 43) but present themselves as professional sellers to consumers, giving consumers false impression that they are concluding a B2C contract (par. 34). The CJEU states that literal interpretation of art. 1(2)(c) of CSD does not prevent such an interpretation, teleological arguments - supporting high level of consumer protection - strengthen it (par. 35-36). It is essential for consumers to know the identity of the seller, and whether it is a professional party, as they will only have remedies for non-conformity of the purchased goods from a professional seller under CSD (par. 37). The consumer should have, therefore, been informed that the owner was a private individual, eliminating information imbalance between the parties. (par. 39-40)

"Therefore, in circumstances such as those at issue in the main proceedings, in which the consumer can easily be misled in the light of the conditions in which the sale is carried out, it is necessary to afford the latter enhanced protection. Therefore, the seller’s liability, in accordance with Directive 1999/44, must be capable of being imposed on an intermediary who, by addressing the consumer, creates a likelihood of confusion in the mind of the latter, leading him to believe in its capacity as owner of the goods sold." (par. 41)

"...The degree of participation and the amount of effort employed by the intermediary in the sale, the circumstances in which the goods were presented to the consumer and the latter’s behaviour may, in particular, be relevant in that regard in order to determine whether the consumer could have understood that the intermediary was acting on behalf of a private individual." (par. 44)

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