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.
Questions
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.
Answers
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.
