§1.1 The notions of ‘trader’ and ‘consumer’

As laid down in its Article 1, the CRD applies to ‘contracts concluded between consumers and traders’. Therefore, for a contract to be covered by the Directive, it is necessary to establish that one party thereto is a trader, as defined in Article 2(2), and the other party a consumer, as defined in Article 2(1). According to Article 2(1), ‘consumer’ is any natural person who, in contracts covered by the Directive, is acting for purposes which are outside his/her trade, business, craft or profession. It follows from that provision that two cumulative conditions must be satisfied in order for a person to fall within the scope of that concept, namely that: (i) the person is a natural person, and (ii) the persons acts for non-professional purposes. As explained in Recital 13, Member States may maintain or introduce national legislation corresponding to the provisions of the Directive in relation to contracts that fall outside the scope of the Directive, for example, by extending the application of national rules also to natural persons who are not consumers within the meaning of Article 2(1) or to legal persons, such as non-governmental organisations, start-ups or small and medium-sized enterprises. In this respect, in case C-329/19 Condominio di Milano (8), the Court confirmed that the concept of ‘consumer’ can be expanded by national case-law in such a way that its protective rules also apply to a contract between a trader and a subject of the law, which is not a natural person, such as the ‘condominio’ (co-owners’ association) in Italian law. Furthermore, the Court held that the concept of ‘consumer’ refers to an individual not engaged in commercial or trade activities (9). This second criterion should be interpreted in light of Recital 17, which introduces the qualification of ‘predominant use’: ‘[…] in the case of dual purpose contracts where the contract is concluded for purposes partly within and partly outside the person’s trade and the trade purpose is so limited as not to be predominant in the overall context of the contract that person should also be considered as a consumer’. Thus, a natural person who, in contracts covered by this Directive, is acting for purposes which are primarily outside of his trade, business, craft or profession would also fall under the definition of ‘consumer’. Such classification should be based on a case-by-case assessment (10). ‘Trader’ is defined in Article 2(2) as a natural or legal person acting ‘for purposes relating to his trade, business, craft or profession’ or in the name or on behalf of a trader. Not only privately owned, but also publicly owned persons can be qualified as a trader. In case C-105/17 Kamenova (11) , the Court noted that the concept of ‘trader’ is defined almost identically in both the CRD and the Unfair Commercial Practices Directive 2005/29/EC of the European Parliament and of the Council (12) (hereinafter referred to as ‘UCPD’) and thus must be interpreted uniformly. Relying on the case law developed under the UCPD, the Court interpreted the notion of ‘trader’ broadly considering that it must be determined in relation to the related but diametrically opposed concept of ‘consumer’. In relation to a trader, the consumer is in a weaker position, and he/she must be deemed to be less informed, economically weaker and legally less experienced than the other party to the contract. Classification as a ‘trader’ requires a case-by-case assessment of the, taking into account the following indicative criteria: (i) whether the sale was carried out in an organised manner; (ii) whether that sale was intended to generate profit; (iii) whether the seller had technical information and expertise relating to the products which they offered for sale which the consumer did not necessarily have, with the result that the seller was placed in a more advantageous position than the consumer; (iv) whether the seller had a legal status which enabled them to engage in commercial activities; (v) to what extent the sale was connected to the seller’s commercial or professional activity; (vi) whether the seller was subject to VAT; (vii) whether the seller, acting on behalf of a particular trader or on his/her own behalf or through another person acting in his/her name and on his/her behalf, received remuneration or an incentive; (viii) whether the seller purchased new or second-hand goods in order to resell them, thus making that a regular, frequent and/or simultaneous activity in comparison with their usual commercial or business activity; (ix) whether the goods for sale were all of the same type or of the same value; and (x) whether the offer was concentrated on a small number of goods. The CJEU emphasised that these criteria are neither exhaustive nor exclusive, and, in principle, compliance with one or more of the criteria is not sufficient, by itself, to classify that person as a ‘trader’. The mere fact that the sale is intended to generate profit or that a natural person publishes, simultaneously, on an online platform a number of advertisements offering new and second-hand goods for sale cannot suffice, by itself, to classify that person as a ‘trader’ (13). In situations where an intermediary (such as an online marketplace) or a trader representing another trader is involved, these different traders should make it clear to the consumer which trader is the contractual party for the consumer and what the respective roles and responsibilities of the different traders are. This question is further addressed in section 3.2.2.1. In this respect, Directive (EU) 2019/2161 amended the CRD, introducing a requirement for the providers of online marketplaces to inform the consumer whether the third party supplier is acting as a ‘trader’ or ‘non-trader’ (peer-consumer), on the basis of a declaration by the third party supplier to the provider of the online marketplace. The information requirements for online marketplaces are addressed in section 3.4.2.

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