§2.2 The concept of trader

Article 2(b) ‘trader’ means any natural or legal person who, in commercial practices covered by this Directive, is acting for purposes relating to his trade, business, craft or profession and anyone acting in the name or on behalf of the trader. This definition covers not only traders who act on their own account but also persons, including consumers, acting ‘in the name of’ or ‘on behalf of’ another trader. For example: — A national court held that a company that placed advertisements in the media on behalf of and in the interests of another company, which was the service provider, was considered as a trader in the meaning of the national provisions transposing the UCPD (114). — National consumer protection authorities acting through the European Consumer Protection Cooperation (CPC) Network carried out a joint enforcement action on online games that offer in-app purchases. They clarified that, although liability for the content of an app primarily rests with the app developer, an app store provider could also be held responsible for ensuring that games on their platforms do not contain direct exhortations to children (115). Hence, under Article 2(b) in conjunction with relevant national laws on liability and sanctions, a trader can be held jointly liable with another trader for infringements of the UCPD committed by the latter on his behalf. Furthermore, the Court has clarified that in a situation where an operator’s commercial practices are put to use by another undertaking, acting in the name or on behalf of that operator, the UCPD could, in certain situations, be relied on against both that operator and the undertaking, if they satisfy the definition of ‘trader’ (116). This means that the Directive can be used to assess also the commercial practices of traders when those are directly connected with a consumer’s transaction with another trader in whose name or on behalf of whom such trader is acting. There may be situations where individuals who appear to be consumers selling products to other consumers could in fact be either traders themselves or acting on behalf of traders (‘hidden B2C’ sales). Whether a seller qualifies as a ‘trader’ or a consumer must be assessed on a case-by-case basis. In the Kamenova case, a person had published a total of eight sales advertisements for various new and second-hand goods on a website (117). The Court noted that 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’. The determination of the status by the national court must take into account different non-exhaustive and non-exclusive criteria. The criteria include the following: — whether the seller has a profit-seeking motive, including the fact that they might have received remuneration or other compensation for acting on behalf of a given trader; — the number, amount and frequency of transactions; — the seller’s sales turnover; whether the seller purchases products in order to resell them; — whether the seller is subject to VAT; — whether the sale is carried out in an organised manner; — whether the seller had a legal status which enabled them to engage in commercial activities; — whether the goods for sale were all of the same type or of the same value, and, in particular, whether the offer was concentrated on a small number of goods; — whether the seller had technical information and expertise relating to the products which the consumer did not necessarily have, resulting in a more advantageous position of the seller compared to that of the consumer; — whether the seller purchased these goods in order to resell them, thus making that a regular, frequent and/or simultaneous activity in comparison with her usual commercial or business activity (118). Persons whose main activity is to sell products online on a very frequent basis, purchasing products to resell them at a higher price, could for example fall within the definition of trader. Persons engaging in commercial endorsement activities online, such as influencer marketing (see section 4.2.6 for more information), could qualify as traders if they engage in such practices on a frequent basis, regardless of the size of their audience. Alternatively, in case the persons do not qualify as traders, they could nevertheless be considered to act ‘on behalf of’ the trader whose products are promoted by the practice and therefore fall within the scope of the Directive. The obligations to be clear about the commercial communication, in particular under Article 7(2) UCPD, apply to traders regardless of whether they are the supplier of the products or not. Organisations which pursue charitable or ethical goals may qualify as traders under the UCPD when they engage in commercial activities (e.g. the sale of products meeting certain ethical standards) towards consumers. Whenever they act as traders, they should comply with the UCPD insofar as their commercial activities are concerned. For instance, information about the origin of the product or its ethical aspects should not be misleading. The fact that an organisation is structured as ‘non-profit’ is not decisive to the assessment of whether it qualifies as a trader. The same applies to public authorities, which may, depending on the circumstances also qualify as a trader when carrying out commercial activities. For example: A municipality marketing discounted ticket prices for an art exhibition it organises could fall under the definition of trader in the UCPD. In the BKK Mobil Oil case, the Court confirmed that a public law body charged with a task of public interest such as managing a statutory health insurance fund, can qualify as a ‘trader’ as: ‘the EU legislature has conferred a particularly broad meaning on the term ‘trader’, which refers to ‘any natural or legal person’ which carries out a gainful activity and does not exclude from its scope either bodies pursuing task of public interest or those which are governed by public law’ (119). The Court also concluded that: ‘[…] BKK’s members, who must manifestly be regarded as consumers within the meaning of the Unfair Commercial Practices Directive, could be deceived by the misleading information circulated by that body thus preventing them from making an informed choice […] and leading them to take a decision they would not have taken in the absence of such information, as envisaged by Article 6(1) of that Directive. In those circumstances, whether the body at issue or the specific task it pursues are public or private is irrelevant’ (120). In particular, under Annex I of the UCPD (the ‘black list’) No 22, it is prohibited to falsely claim or create the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer. This includes the situation where a trader initially acts as a trader but then pretends to be a consumer, for example when the seller presents oneself as a professional car trader for the purposes of the transaction but later signs the contract as a natural person.

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