§3.2.2.1 Trader’s identity

In addition to the CRD provisions, Article 7(4)(b) of the UCPD stipulates that the information about the geographical address and identity of the trader is considered as material information in the case of an invitation to purchase. With respect to on-premises contracts, such information may be apparent from the context (see also section 3.1.3). In off-premises/distance contracts, the CRD requires the trader, who acts on behalf of another trader, to indicate also the identity and geographical address of that latter trader. Also online marketplaces, even where they are mere intermediaries and not ‘acting on behalf’ of another trader, must take steps to ensure that the consumer is duly informed about the identity of the actual trader offering the goods or services concerned, on the basis of the information provided by the trader itself. In fact, if the failure by the marketplace to inform about the identity of the actual trader creates the impression that the marketplace is the actual trader, this may result in the liability of the marketplace for the obligations of the trader. In case C-149/15 Wathelet (72) the Court dealt with the responsibility of an off-line intermediary (car garage) for the conformity of the goods sold to consumers under the former Consumer Sales of Goods Directive 1999/44/EC of the European Parliament and of the Council (73). The Court stated that, whilst Directive 1999/44/EC does not address the issue of liability of intermediaries vis-a-vis consumers, ‘it does not in itself preclude the possibility that the concept of ‘seller’, within the meaning of Article 1(2)(c) of Directive 1999/44/EC, 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 ’ (74). The Court also stated that ‘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 ’ (75). These Court’s conclusions concerning the liability of the offline intermediary for the conformity of goods could also be relevant for other intermediaries and other obligations of traders under EU law, including in an online context. In particular, online marketplaces could be found liable for the trader’s obligations regarding pre-contractual information or contractual performance under the CRD where, from the point of view of the consumer, they present themselves as traders under the (proposed) contract. In case C-149/15 Wathelet, the Court stressed that ‘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 .’ (76). However, even where the actual supplier is also a trader and the consumer would not be deprived of his or her rights, the consumer may not have concluded the contract if the identity of the actual trader was known. In particular, the consumer could have concerns about, for example, the reliability of such trader and the possibility of enforcing consumer rights towards it. A failure to provide information on the trader’s identity, or the provision of incorrect data, would constitute a breach of the CRD. It could also constitute a misleading practice under the UCPD, to the extent that it affects the consumer’s transactional decision. There are also sectoral provisions in EU law that strengthen this requirement. For example, in the case of online sale of medicinal products (77) blurring the distinction between marketplace and retailer is strictly prohibited. A marketplace offering medicinal products on the EU market should ensure that consumers can verify that the trader has the relevant authorisations and is operating in compliance with the law (78). The mode of performance of the contract involving a third party trader does not affect the rights and obligations regarding the contract ensuing from the CRD. For example, in the ‘dropshipping’ business model the trader does not keep in stock certain goods that it sells but instead, when ordered by a consumer, the trader purchases them from a third party and has them shipped directly to the customer. However, if the trader only processes the order as an intermediary and then forwards it to another trader for fulfilment in that second trader’s own name, then as per the Wathelet case, the first trader could be held liable towards the consumer where, from the point of view of the consumer, that trader presents himself as the seller of consumer goods under the contract. In order to avoid such liability the trader must clearly inform the consumer that it acts as an intermediary and provide information about the identity of the actual seller in a prominent manner (79). In this respect it should be noted that Article 6a(b), introduced by Directive (EU) 2019/2161, contains a specific additional requirement for the providers of online marketplaces to inform consumers about the status of the third party offering the goods, services or the digital content on the basis of the information provided by the third party (see section 3.4.2).

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