CJEU, 6th chamber, December 17, 2019, No C-465/19

THE COURT (Sixth Chamber),  

1 This request for a preliminary ruling concerns the interpretation of Article 2(8)(c) and (9) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64).  

2 The request has been made in proceedings between B & L Elektrogeräte GmbH and GC, concerning the conclusion between those parties of a contract for the sale of a steam vacuum cleaner at a trade fair.  

Legal context  

EU law  

3 Recitals 21 and 22 of Directive 2011/83 are worded as follows:  

‘(21) An off-premises contract should be defined as a contract concluded with the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader, for example at the consumer’s home or workplace. In an off-premises context, the consumer may be under potential psychological pressure or may be confronted with an element of surprise, irrespective of whether or not the consumer has solicited the trader’s visit. The definition of an off-premises contract should also include situations where the consumer is personally and individually addressed in an off-premises context but the contract is concluded immediately afterwards on the business premises of the trader or through a means of distance communication. … Purchases made during an excursion organised by the trader during which the products acquired are promoted and offered for sale should be considered as off-premises contracts.  

(22) Business premises should include premises in whatever form (such as shops, stalls or lorries) which serve as a permanent or usual place of business for the trader. Market stalls and fair stands should be treated as business premises if they fulfil this condition. Retail premises where the trader carries out his activity on a seasonal basis, for instance during the tourist season at a ski or beach resort, should be considered as business premises as the trader carries out his activity in those premises on a usual basis. Spaces accessible to the public, such as streets, shopping malls, beaches, sports facilities and public transport, which the trader uses on an exceptional basis for his business activities as well as private homes or workplaces should not be regarded as business premises. …’  

4 Article 2 of that directive, headed ‘Definitions’, provides:  

‘For the purpose of this Directive, the following definitions shall apply:  

…  

(8) “off-premises contract” means any contract between the trader and the consumer:  

(a) concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader;  

…  

(c) concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer; or  

…  

(9) “business premises” means:  

(a) any immovable retail premises where a trader carries out activity on a permanent basis; or  

(b) any movable retail premises where the trader carries out his activity on a usual basis;  

…’  

5 Article 9 of that directive, headed ‘Right of withdrawal’, provides in paragraph 1:  

‘Save where the exceptions provided for in Article 16 apply, the consumer shall have a period of 14 days to withdraw from a distance or off-premises contract, without giving any reason, and without incurring any costs other than those provided for in Article 13(2) and Article 14.’  

German law  

6 Directive 2011/83 was transposed into German law by the Gesetz zur Umsetzung der Verbraucherrechterichtlinie und zur Änderung des Gesetzes zur Regelung der Wohnungsvermittlung (Law implementing the Consumer Rights Directive and amending the Law regulating estate agencies), of 20 September 2013 (BGBl. 2013 I, p. 3642).  

The dispute in the main proceedings and the question referred for a preliminary ruling  

7 B & L Elektrogeräte is a company established in Germany which markets steam vacuum cleaners, inter alia at trade fairs.  

8 As is apparent from the order for reference, GC and his wife were at a trade fair which was taking place in Straubing (Germany). They were in the aisle of one of the fair’s exhibition halls, in front of B & L Elektrogeräte’s stand, when one of B & L Elektrogeräte’s employees addressed them, from the stand or in the aisle, in order to encourage them to purchase a vacuum cleaner.  

9 At the invitation of that company’s employee, GC and his wife went into the stand and entered into a contract for the sale of a vacuum cleaner.  

10 Later, GC informed B & L Elektrogeräte that he no longer wished to remain in that contract. He took the view that he had a right of withdrawal, in accordance with German law, and that he had not been informed of that right at the time he entered into that contract.  

11 B & L Elektrogeräte brought GC before the referring court, the Amtsgericht Straubing (District Court, Straubing, Germany), seeking to have GC ordered to pay the amount agreed in the contract.  

12 The referring court considers that the stand occupied by B & L Elektrogeräte at that trade fair should be regarded as ‘business premises’ within the meaning of Article 2(9) of Directive 2011/83, as interpreted by the Court in the judgment of 7 August 2018, Verbraucherzentrale Berlin (C‑485/17, EU:C:2018:642).  

13 The referring court states that the stand, which was located in one of the fair’s exhibition halls, was an open, not closed, space, and that consumers who, like GC and his wife did, stand still in the middle of an aisle in an exhibition hall in front of a trader’s stand, must expect to be approached by the trader.  

14 That court indicates, however, that in the case before it, the aisle in question could manifestly not be regarded as business premises of the trader, since it did not serve to enable it to conduct business, but rather gave access to all the traders’ stands in that hall. The referring court wonders whether, since recital 22 of Directive 2011/83 clarifies that a public space which the trader uses on an exceptional basis does not, in principle, constitute ‘business premises’ within the meaning of Article 2(9) of that directive, the factual situation at issue in the main proceedings does not in fact correspond to the situation referred to in that recital.  

15 As a consequence, where a sales contract is concluded when the consumer and the trader are, respectively, outside and inside the business premises, which corresponds to the factual situation at issue in the case before it, that contract is an ‘off-premises contract’ within the meaning of Article 2(8)(c) of Directive 2011/83 and that consumer should be deemed to have the right of withdrawal.  

16 In those circumstances, the Amtsgericht Straubing (District Court, Straubing) decided to stay the proceedings and to refer the following question to the Court of Justice for a preliminary ruling:  

‘Does an off-premises contract within the meaning of Article 2(8)(c) of Directive 2011/83, with the consequence of entailing a right of withdrawal pursuant to Article 9 of [that] directive, arise if a trader at a trade fair who is in or in front of a sales stand that is deemed to constitute business premises within the meaning of Article 2(9) of [that] directive solicits a consumer who is standing in the aisle in front of the sales stand in an exhibition hall at a consumer trade fair without communicating with the trader, and the contract is subsequently concluded in the sales stand?’  

Consideration of the question referred  

17 Pursuant to Article 99 of the Rules of Procedure of the Court of Justice, where the reply to the question referred to the Court for a preliminary ruling may be clearly deduced from existing case-law or where the answer to the question referred for a preliminary ruling admits of no reasonable doubt, the Court may at any time, on a proposal from the Judge-Rapporteur and after hearing the views of the Advocate General, decide to rule by reasoned order.  

18 That provision should be applied in the present case.  

19 By its question, the referring court wishes to know, in essence, whether Article 2(8) of Directive 2011/83, in conjunction with Article 2(9) thereof, must be interpreted as meaning that a contract concluded between a trader and a consumer at a stand run by the trader at a trade fair, immediately after that consumer, who was in the aisle common to the various stands present in an exhibition hall of the fair, had been solicited by that trader, is an ‘off-premises contract’ within the meaning of that provision.  

20 As a preliminary remark, it is important to note that Directive 2011/83 defines an ‘off-premises contract’, first, in Article 2(8)(a), as any contract between the trader and the consumer concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader, and, second, in Article 2(8)(c), as any contract between the trader and the consumer concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer.  

21 The concept of ‘business premises’ is defined in Article 2(9) of that directive as, first, any immovable retail premises where a trader carries out activity on a permanent basis and, second, any movable retail premises where the trader carries out his activity on a usual basis.  

22 In that regard, the Court has previously held that one of the objectives of Directive 2011/83 is set out, inter alia, in recital 21 thereof, according to which, when he is outside the trader’s business premises, the consumer may be under potential psychological pressure or may be confronted with an element of surprise, irrespective of whether or not the consumer has solicited the trader’s visit. To that extent, the EU legislature also intended to include situations where the consumer is personally and individually addressed in an off-premises context but the contract is concluded immediately afterwards on the trader’s business premises or through a means of distance communication (judgment of 7 August 2018, Verbraucherzentrale Berlin, C‑485/17, EU:C:2018:642, paragraph 33).  

23 It follows that, while the EU legislature protected consumers, in respect of off-premises contracts, in cases in which, at the time the contract is concluded, the consumer is not in premises occupied on a permanent or usual basis by the trader, that is because it considered that, by visiting such premises spontaneously, that consumer can expect to be solicited by the trader so that, should the case arise, he could not properly claim subsequently that he was surprised by the offer made by the trader (judgment of 7 August 2018, Verbraucherzentrale Berlin, C‑485/17, EU:C:2018:642, paragraph 34).  

24 Concerning, more specifically, a situation in which a trader carries out his activity on a stand at a trade fair, it should be recalled that, as stated in recital 22 of Directive 2011/83, market stalls and fair stands should be treated as business premises if they serve as a permanent or usual place of business for the trader (see, to that effect, judgment of 7 August 2018, Verbraucherzentrale Berlin, C‑485/17, EU:C:2018:642, paragraph 41).  

25 It also follows from that recital that, by contrast, spaces accessible to the public, such as streets, shopping malls, beaches, sports facilities and public transport, which the trader uses on an exceptional basis for his business activities, as well as private homes or workplaces should not be regarded as business premises (see, to that effect, judgment of 7 August 2018, Verbraucherzentrale Berlin, C‑485/17, EU:C:2018:642, paragraph 42).  

26 It is in the light of those considerations that the Court held, in the judgment of 7 August 2018, Verbraucherzentrale Berlin (C‑485/17, EU:C:2018:642), that Article 2(9) of Directive 2011/83 must be interpreted as meaning that a stand run by a trader at a trade fair, at which he carries out his activity for a few days each year, constitutes ‘business premises’ within the meaning of that provision 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, which is for the national court to ascertain.  

27 In the present case, it follows from the order for reference that the contract at issue in the main proceedings was concluded between GC, a consumer, and B & L Elektrogeräte, a trader, at a stand run by the latter at a trade fair, and that the referring court considers that stand to be ‘business premises’ within the meaning of Article 2(9) of Directive 2011/83, as interpreted by the Court in the judgment of 7 August 2018, Verbraucherzentrale Berlin (C‑485/17, EU:C:2018:642).  

28 In those circumstances, it is necessary to assess whether the fact that that contract was concluded immediately after the consumer, who was in the aisle common to the various stands present in an exhibition hall of the fair, had been solicited by that trader, nevertheless allows that contract to be regarded as an ‘off-premises contract’ within the meaning of Article 2(8) of Directive 2011/83.  

29 In that regard, the aisle common to the various stands present in the exhibition hall in which the stand run by B & L Elektrogeräte was located, cannot be considered to be ‘business premises’ within the meaning of Article 2(9) of Directive 2011/83, in so far as that aisle provided access to all the traders’ stands in that hall.  

30 That fact, which was established by the referring court, corresponds to the situation referred to in recital 22 of Directive 2011/83, according to which spaces accessible to the public, such as streets and shopping malls, should not be regarded as ‘business premises’.  

31 In those circumstances, it must be held that a contract between a trader and a consumer, concluded in the business premises of the trader immediately after the consumer was personally and individually addressed in a place which is not the trader’s business premises, such as the aisle common to the various stands present in an exhibition hall of a fair, in the simultaneous physical presence of the trader and the consumer, is an ‘off-premises contract’ in accordance with Article 2(8)(c) of Directive 2011/83.  

32 As was noted in paragraph 22 above, when he is away from the trader’s business premises, the consumer may be under potential psychological pressure or may be confronted with an element of surprise, irrespective of whether or not the consumer has solicited the trader’s visit. Recital 21 of Directive 2011/83 states that, to that extent, the EU legislature also intended to include situations where the consumer is personally and individually addressed in an off-premises context but the contract is concluded immediately afterwards on the trader’s business premises.  

33 That element of surprise is present in a situation such as that at issue in the main proceedings, where a consumer is in the hall of a trade fair — which is the space common to the various stands present in that hall, so that, against that background, only the stand of the trader in question constitutes its business premises — and where that consumer is addressed by that trader in order to conclude, immediately afterwards, a contract at its stand. Accordingly, such a contract must be considered to be an ‘off-premises contract’ within the meaning of Article 2(8)(c) of Directive 2011/83.  

34 It follows from all the foregoing considerations that the answer to the question referred is that Article 2(8) of Directive 2011/83, in conjunction with Article 2(9) thereof, must be interpreted as meaning that a contract concluded between a trader and a consumer at a stand run by the trader at a trade fair, immediately after the consumer, who was in the aisle common to the various stands present in an exhibition hall of the fair, had been solicited by that trader, is an ‘off-premises contract’ within the meaning of that provision.  

Costs  

35 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.  

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

Article 2(8) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, in conjunction with Article 2(9) thereof, must be interpreted as meaning that a contract concluded between a trader and a consumer at a stand run by the trader at a trade fair, immediately after the consumer, who was in the aisle common to the various stands present in an exhibition hall of the fair, had been solicited by that trader, is an ‘off-premises contract’ within the meaning of that provision.