§1.2.1.1 The definitions of ‘seller or supplier’ and ‘consumer’

Whereas, according to Article 2(b), consumers have to be natural persons, pursuant to Article 2(c), a seller or supplier can be a legal or natural person. In order to establish whether a given person is a seller or supplier or a consumer it is important to look at the balance of power between the parties in relation to the contract in question. Typical factors are the asymmetry of information, knowledge and expertise or bargaining power. The notions of ‘seller or supplier’ and ‘consumer’ are functional concepts based on the role of the parties in relation to the contract at issue. At the same time, the notion of ‘consumer’ is objective and reflects the typically weaker position of the seller or supplier's counterpart, meaning that superior knowledge and experience of a specific consumer does not disqualify such person from being a ‘consumer’ for the purposes of the UCTD (25). The Court explained this functional approach as follows (26): ‘53 It is therefore by reference to the capacity of the contracting parties, according to whether or not they are acting for purposes relating to their trade, business or profession, that the directive defines the contracts to which it applies […] (27).’ ‘55 [It follows that] the notion of “seller or supplier”, within the meaning of Article 2(c) of Directive 93/13 is a functional concept, requiring determination of whether the contractual relationship is amongst the activities that a person provides in the course of their trade, business or profession […] (28).’ In order to establish whether a natural person who pursues a trade, business or profession is a seller or supplier or a consumer, it is important to establish whether the contract in question relates to one of these activities or not. Despite certain variations of the term ‘seller or supplier’ in different language versions (29) of Article 2(c) UCTD, this notion has to be interpreted uniformly (30) and in light of the objectives of the Directive (31). This means that more restrictive terminology used in certain language versions of the UCTD and in the national transposition cannot restrict the types of contracts covered by the UCTD and, thereby, its scope of protection (32). In fact, ‘seller or supplier’ pursuant to Article 2(c) will have to be interpreted in the same way as the term ‘trader’ in other consumer protection directives, and the case law in relation to the terms ‘trader’ and ‘consumer’ in other directives is, in principle, also relevant for the UCTD (33). The Court (34) has stated that the definition of ‘seller or supplier’ in Article 2(c), has to be interpreted broadly: ‘47 Article 2(c) of the directive defines the term “seller or supplier” as any natural or legal person who, in contracts covered by this directive, is acting for purposes relating to his trade, business or profession, whether publicly or privately owned. 48 It is clear from the wording itself of that provision that the EU legislature intended a broad definition to be given to the notion of “seller or supplier” […] (35).’ Therefore, every natural or legal person is a seller or supplier when the contract relates to their professional activity, including where the activity is of a public nature or in the public interest (36) or governed by public law (37). Organisations or bodies that pursue a task of public interest or charitable or ethical goals will qualify as sellers or suppliers in relation to contracts on the sale of products or the services of any kind to consumers. In this respect, it is immaterial that an activity is carried out on a ‘not-for-profit’ basis. According to the Court (38), ‘[i]t follows that Article 2(c) of Directive 93/13 does not exclude from its scope of application entities that pursue a task in the public interest, nor those that are governed by public law […] (39). Furthermore, […], since tasks of a public nature and in the public interest are often conducted on a not-for-profit basis, the fact that a body is a not-for-profit organisation is irrelevant to the definition of the notion of “seller or supplier”, within the meaning of that provision.’ This means that, for instance, also contracts relating to health and care services will, in principle, be covered, regardless of the legal nature of the provider. The Court has also specified that, in order to be considered a ‘seller or supplier’, it is not necessary that a contract reflects a person's main activity and can thus relate to a complementary or ancillary activity (40). Therefore, for instance, a loan offered by a company to its employees (41) or a loan granted to a student by an education establishment (42) can be covered. In sum, whether a person qualifies as a ‘seller or supplier’ or a ‘consumer’ must be assessed on a case-by-case basis in relation to the specific contract at issue, taking account of the nature and purpose of the contract in question and the fact that the UCTD aims at the protection of consumers as the typically weaker party. This also means that a given natural person can be a ‘seller or supplier’ in relation to certain contracts, e.g. a lawyer in relation to a contract on the provision of legal services (43), and a ‘consumer’ in relation to other contracts, e.g. a loan taken out for private purposes (44). In this respect, the Court (45) has stated: ‘In such a situation, even if a lawyer were considered to display a high level of technical knowledge [… (46)], he could not be assumed not to be a weak party compared with a seller or supplier. […] the weaker position of the consumer vis-à-vis the seller or supplier, which the system of protection implemented by Directive 93/13 is intended to remedy, relates both to the consumer's level of knowledge and to his bargaining power under terms drawn up in advance by the seller or supplier the content of which that consumer is unable to influence.’ Furthermore, a natural person acting, under an ancillary contract, as a guarantor for a contract concluded between two commercial entities has to be considered as a consumer where that person acted for purposes outside his trade, business or profession, and has no functional link with the borrowing company. A functional link may consist, for instance, in being a director of that company or holding non-negligible shares in it (47).

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07