CJEU, 5th chamber, November 9, 2016, No C-149/15

THE COURT (Fifth Chamber),

1 This request for a preliminary ruling concerns the interpretation of Article 1(2)(c) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ 1999 L 171, p. 12).

2 The request has been made in proceedings between Ms Sabrina Wathelet and the Bietheres & Fils SPRL garage (the 'Bietheres garage') concerning a sale of a second-hand vehicle.

Legal context

EU law

3 Recital 9 of Directive 1999/44 is worded as follows:

'... the seller should be directly liable to the consumer for the conformity of the goods with the contract; ... this is the traditional solution enshrined in the legal orders of the Member States; ... nevertheless the seller should be free, as provided for by national law, to pursue remedies against the producer, a previous seller in the same chain of contracts or any other intermediary, unless he has renounced that entitlement; ... this Directive does not affect the principle of freedom of contract between the seller, the producer, a previous seller or any other intermediary; ... the rules governing against whom and how the seller may pursue such remedies are to be determined by national law'.

4 Article 1(1) of Directive 1999/44 provides:

'The purpose of this Directive is the approximation of the laws, regulations and administrative provisions of the Member States on certain aspects of the sale of consumer goods and associated guarantees in order to ensure a uniform minimum level of consumer protection in the context of the internal market.'

5 Article 1(2)(c) of Directive 1999/44 defines the concept of 'seller' as 'any natural or legal person who, under a contract, sells consumer goods in the course of his trade, business or profession'.

6 Article 2(1) of Directive 1999/44 provides:

'The seller must deliver goods to the consumer which are in conformity with the contract of sale.'

7 Article 4 of that directive, entitled 'Right of redress' provides:

'Where the final seller is liable to the consumer because of a lack of conformity resulting from an act or omission by the producer, a previous seller in the same chain of contracts or any other intermediary, the final seller shall be entitled to pursue remedies against the person or persons liable in the contractual chain. The person or persons liable against whom the final seller may pursue remedies, together with the relevant actions and conditions of exercise, shall be determined by national law.'

8 Article 8 of Directive 1999/44, entitled 'National law and minimum protection', provides:

'(1) The rights resulting from this Directive shall be exercised without prejudice to other rights which the consumer may invoke under the national rules governing contractual or non-contractual liability.

(2) Member States may adopt or maintain in force more stringent provisions, compatible with the Treaty in the field covered by this Directive, to ensure a higher level of consumer protection.'

Belgian law

9 Article 1649bis of the Civil Code provides:

'(1) The present section is applicable to sales of consumer goods by a seller to a consumer.

(2) For the purposes of this section:

...

(2)(ii) "seller": any natural or legal person who sells consumer goods in the course of his trade, business or profession.'

The facts of the main proceedings and the question referred for a preliminary ruling

10 In April 2012, Ms Wathelet purchased a second-hand vehicle from the Bietheres garage in her capacity as a consumer. The amount of EUR 4 000, corresponding to the sale price of that vehicle, was paid by Ms Wathelet to that garage. The latter did not provide Ms Wathelet with a receipt, proof of payment or with a sales invoice.

11 The Bietheres garage had a roadworthiness test carried out on that vehicle at its own cost. It also sent the application for registration to the competent Belgian authorities, the cost of which was borne by Ms Wathelet.

12 In July 2012, pending the receipt by Ms Wathelet of the invoice relating to it, the vehicle at issue broke down and was taken by Ms Wathelet to the Bietheres garage to be repaired. The latter found that the engine had failed.

13 When Ms Wathelet wanted to recover her repaired vehicle, she was issued with an invoice relating to the costs of repair for an amount of EUR 2 000. She refused to pay it on the ground that those costs should be borne by the Bietheres garage as seller of that vehicle.

14 Ms Wathelet was then informed that her vehicle had never belonged to that garage which had not sold it not on its own account, but on behalf of Ms Donckels, herself a private individual. The Bietheres garage acted only in the capacity of intermediary.

15 The referring court held that Ms Donckels had not received the amount corresponding to the full sale price, since the Bietheres garage withheld the sum of EUR 800 for the repairs carried out in order to offer the vehicle for sale.

16 By letter dated 17 November 2012, sent to Ms Wathelet, the Bietheres garage confirmed that it acted as an intermediary in the sale at issue. Moreover, it claimed that the engine failure constituted an ordinary risk in the context of the purchase of a second-hand vehicle from a private individual. Therefore, it continued to refuse to return the vehicle to Ms Wathelet so long as the repair invoice is not paid in full. The Bietheres garage enclosed with its letter a receipt for the sum of EUR 4 000, the first name and surname of the non-trade seller and those of the buyer, Ms Wathelet, entered by hand. That document contained, however, only the signature of Ms Donckels.

17 In December 2012, the Bietheres garage brought proceedings against Ms Wathelet before the tribunal de première instance de Verviers (Court of First Instance, Verviers, Belgium) for payment of the repair invoice, which amounted to EUR 2 000 plus statutory interest.

18 By pleadings lodged at the registry of the tribunal de première instance de Verviers (Court of First Instance, Verviers), Ms Wathelet brought a counter-claim seeking rescission of the sale of the vehicle together with reimbursement in the amount of EUR 4 000 paid by her plus interest, and the payment of damages and interest in the amount of EUR 2 147.46. Ms Wathelet contested in addition the merits of the applications made by the Bietheres garage.

19 The tribunal de première instance de Verviers (Court of First Instance, Verviers) ordered Ms Wathelet to pay the invoice for the repairs, plus interest, by dismissing Ms Wathelet's counter-claim. The latter lodged an appeal against that judgment before the referring court.

20 That court held that Ms Wathelet was a 'consumer', within the meaning of the civil code and that the vehicle amounted to 'consumer goods', for the purposes of that legislation. It also held that the Bietheres garage sold consumer goods in the course of its trade, business or profession.

21 The Bietheres garage denied, by contrast, being a party to the contested sale, stating that the owner of the vehicle at issue, Ms Donckels, had put that vehicle on display for sale on its premises and that it was therefore a private sale.

22 The referring court states, however, that there is strong, specific and consistent circumstantial evidence indicating that Ms Wathelet was not informed that it was a private sale.

23 In those circumstances, the cour d'appel de Liège (Court of Appeal, Liège, Belgium) decided to stay proceedings and to refer the following questions to the Court for a preliminary ruling:

'Must the term "seller" of consumer goods referred to in Article 1649bis of the Belgian Civil Code, as inserted by the Law of 1 September 1994 entitled "Law concerning consumer protection in matters involving the sale of consumer goods", which transposes into Belgian law Directive 1999/44 "on certain aspects of the sale of consumer goods and associated guarantees", be interpreted as covering not only a trader who, as seller, transfers ownership of consumer goods to a consumer, but also a trader who acts as intermediary for a non-trade seller, whether or not he is remunerated for his intervention and whether or not he has informed the prospective buyer that the seller is a private individual?'

The question referred for a preliminary ruling

24 First of all, it should be noted that it is apparent from the case file that the owner of the second-hand vehicle at issue was Ms Donckels and not the Bietheres garage and that, consequently, it was a private sale, the Bietheres garage acting merely as intermediary.

25 In addition, the referring court concluded that the sale price, after deduction of the costs of repair carried out in order to offer the vehicle at issue for sale, was transferred to the owner of the vehicle. Moreover, nothing in the case file supports the conclusion that the Bietheres garage had not been authorised, by the owner of that vehicle, to sell it.

26 It follows that, in the main proceedings, the Bietheres garage acted as a trader in the sale of a consumer product, on behalf of the owner of that product, herself an ordinary individual who authorised that sale.

27 It is therefore necessary to determine whether, in those circumstances, consumers who have purchased consumer goods enjoy the protection guaranteed by Directive 1999/44 in so far as the intermediary can be regarded as a seller within the meaning of that directive.

28 In that regard, it should be noted that, according to the Court's settled case-law, it follows from the need for a uniform application of EU law that, in so far as a provision thereof makes no reference to the law of the Member States with regard to a particular concept, that concept must be given an independent and uniform interpretation throughout the European Union which must take into account the context of the provision and the objective pursued by the legislation in question (see, to that effect, the judgments of 18 October 2011, Brüstle, C-34/10, EU:C:2011:669, paragraph 25, and of 15 October 2015, Axa Belgium, C-494/14, EU:C:2015:692, paragraph 21 and the case-law cited).

29 To the extent that Article 1(2)(c) of Directive 1999/44 defines the concept of 'seller' without making reference to national laws concerning the meaning to be given to that concept, that provision must therefore be regarded, for the purposes of the application of that directive, as containing an autonomous concept of EU law which must be interpreted in a uniform manner throughout the territory of the European Union.

30 Moreover, although the term 'seller' is found in other acts of EU law, the particular definition thereof in Article 1(2)(c) of Directive 1999/44 is found only in that directive. Therefore, as the Advocate General concluded in point 43 of his Opinion, it is a concept which must be interpreted in the light of the aims of that directive, as well as in the light of the particular function of the 'seller' in the context of that directive.

31 Article 1(2)(c) of Directive 1999/44 defines a seller as 'any natural or legal person who, under a contract, sells consumer goods in the course of his trade, business or profession'.

32 It should be noted that the concept of 'seller', so defined, is objective in nature (see, by analogy, the judgment of 3 September 2015, Costea, C-110/14, EU:C:2015:538, paragraph 21, and the order of 19 November 2015, C 74/15, Tarcâu, EU:C:2015:772, paragraph 27) and is based on elements such as the existence of a 'contract', the sale of 'consumer goods' and the existence of a 'trade, business or profession'.

33 It is true that that concept does not cover intermediaries. More generally, Directive 1999/44 does not include a definition of the concept of 'intermediary' although the latter features in recital 9 and Article 4 of that directive. In addition, the latter does not, in the context of a sales contract, concern the liability of intermediaries vis-a-vis consumers.

34 The fact remains that, as the Advocate General stated, in essence, in point 51 of his Opinion, such a contract does not in itself preclude the possibility that the concept of 'seller', within the meaning of Article 1(2)(c) of Directive 1999/44, 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. That 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.

35 In that regard, it should be noted, in the first place, that nothing in the wording of Article 1(2)(c) of Directive 1999/44 precludes such an interpretation.

36 In the second place, it should be noted that the teleological interpretation of Article 1(2)(c) of Directive 1999/44, in the light of the purpose thereof to ensure a high level of consumer protection (judgment of 3 October 2013, Duarte Hueros, C-32/12, EU:C:2013:637, paragraph 25), supports the interpretation of that provision referred to in paragraph 34.

37 Under Article 2(1) and Article 3 of Directive 1999/44, the seller is obliged to deliver goods to the consumer which are in conformity with the contract of sale and, in the event of a lack of conformity, to repair or replace them, in accordance with Article 2(3) thereof. Therefore, Article 1(2)(c) of that directive limits the circle of persons against whom consumers may take action in order to enforce their rights under that directive. Consequently, it is essential that consumers are aware of the identity of the seller, and in particular whether he is acting as a private individual or as a trader, so that they are able to benefit from the protection conferred on them by the directive.

38 If therefore, in circumstances such as those at issue in the main proceedings, a trader acts as an intermediary on behalf of a private individual, the consumer's ignorance concerning the capacity in which that trader acts in the sale would deprive him of his rights guaranteed by Directive 1999/44 and which, according to Article 7(1) thereof, are binding.

39 In that regard, for the purposes of ensuring effective protection for consumers in the context of Directive 1999/44, it is essential that that consumer be informed that the owner is a private individual. That interpretation makes it possible to give practical effect to that directive and is compatible with the Court's case-law, according to which the system of protection introduced under that legislation is based on the idea that the consumer is in a weak position vis-à-vis the trader, as regards both his bargaining power and his level of knowledge (judgment of 4 June 2015, Faber, C-497/13, EU:C:2015:357, paragraph 42).

40 There is a significant imbalance, concerning information, between the consumer and the professional intermediary, in particular where the consumer is not informed of the fact that the owner of the goods sold is, in reality, a private individual.

41 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.

42 A contrary interpretation which excludes, in any event, a trader acting as an intermediary from the scope of application of Article 1(2)(c) of Directive 1999/44 would undermine the overall purpose pursued by the EU legislation on consumer protection and laid down in Article 169 TFEU, namely to ensure a high level of consumer protection and, consequently, consumer confidence.

43 In the third place, concerning the question of the intermediary's remuneration, it should be noted that, since that remuneration is part of the contractual relationship between the non-trade owner and the intermediary, it does not, in principle, come within the scope of application of Directive 1999/44. Therefore, as the Austrian Government and the European Commission observed, the question 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 Directive 1999/44.

44 It is for the competent national court to assess whether, in a situation such as that at issue in the main proceedings, a trader may be regarded as the 'seller', for the purposes of Article 1(2)(c) of Directive 1999/44, where he fails to duly inform the consumer that he was not the owner of the goods in question, which involves, on the part of that court, taking into consideration all of the circumstances of the case (see, by analogy, judgment of 4 June 2015, Faber, C-497/13, EU:C:2015:357, paragraphs 38 and 39). 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.

45 In view of the above, the concept of 'seller', for the purposes of Article 1(2)(c) of Directive 1999/44, must be interpreted as covering also a trader acting as intermediary on behalf of a private individual who has not duly informed the comsumer of the fact that the owner of the goods sold is a private individual, which it is for the referring court to determine, taking into account all the circumstances of the case. The above interpretation does not depend on whether the intermediary is remunerated for acting as intermediary.

Costs

46 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fifth Chamber) hereby rules:

The concept of 'seller', for the purposes of Article 1(2)(c) of Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, must be interpreted as covering also a trader acting as intermediary on behalf of a private individual who has not duly informed the consumer of the fact that the owner of the goods sold is a private individual, which it is for the referring court to determine, taking into account all the circumstances of the case. The above interpretation does not depend on whether the intermediary is remunerated for acting as intermediary.