§4.2.2 Intermediation of consumer contracts with third parties

Following the amendments by Directive (EU) 2019/2161, the UCPD includes a specific definition of ‘online marketplace’, which is an online platform enabling customers to buy products offered by third party suppliers (traders or consumers) directly on the interface of the marketplace. The ‘online marketplace’ is a technology-neutral concept, including also app stores that provide digital content and services. Many online marketplaces also offer their own products in addition to the third party traders’ products. Some marketplaces only host professional third party suppliers, others have a mixture of offers from private individuals and professionals or only facilitate the relations between peer consumers (certain collaborative or sharing economy platforms where suppliers and users genuinely share assets, resources, time and skills on a not-for-profit basis, such as car rides by splitting the costs). Online marketplaces must take steps to make sure that the consumer is duly informed about the identity of the trader 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 it being liable for the obligations of the trader. The Court of Justice analysed the issue of the identity of the trader in the Wathelet case (342), which dealt with the responsibility of an offline 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 (343). The Court stated (paragraphs 33-34) 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, 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.’ The Court also stated (paragraph 44) 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.’ 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 intermediaries could be found liable for the trader’s obligations regarding pre-contractual information or contractual performance where, from the point of view of the consumer, they present themselves as traders under the (proposed) contract. In the Wathelet case, the Court stressed (paragraph 37) 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.’ However, even where the actual supplier was also a trader and the consumer was not, accordingly, deprived of his or her rights, the consumer may not have concluded the contract if the identity of the actual trader was known due to, for example, concerns about the reliability of such a trader and the possibility of enforcing consumer rights towards it. Further guidance on the concept of ‘trader’ can be expected in the pending Case C-536/20 Tiketa, which deals with the question of whether an online intermediary (ticketing platform) can be held liable jointly with the trader actually providing the service, if the intermediary has failed to provide clear information that it is acting merely as an intermediary. A new point (f) was added to Article 7(4) by Directive (EU) 2019/2161. It specifically requires the providers of an online marketplace to inform the consumer, in any invitation to purchase, whether the third party offering the products is a trader or non-trader (such as a peer consumer), on the basis of the information provided by that third party supplier. Directive (EU) 2019/2161 added the same and further information requirements for online marketplaces in the CRD (Article 6a). Article 7 – Misleading omissions 4. In the case of an invitation to purchase, the following information shall be regarded as material, if not already apparent from the context: (f) for products offered on online marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online marketplace. The purpose of this information requirement specifically for online marketplaces is to make sure that consumers always know from whom they are buying a product on the online marketplace – a trader or another consumer. An erroneous assumption that the third party supplier is a trader can cause problems for the consumer if something goes wrong with the online purchase (e.g. non-conformity of the goods), and if it then turns out that consumer protection rules, such as the right to withdraw within 14 days or the legal guarantee, actually do not apply to the contract concluded. The UCPD (and the CRD) provision specifies that the information about the status of the third party supplier should be based on a declaration of that supplier that the online marketplace then transmits to the consumer. Therefore, the online marketplace may rely primarily on the declaration provided by the third party supplier. This approach is in line with the prohibition on imposing general monitoring obligations on online intermediaries under the e-Commerce Directive, to the extent the relevant provisions of the e-Commerce Directive apply to the online marketplace. At the same time, it is without prejudice to the marketplace’s obligations regarding illegal content, such as acting on the basis of a notice making the platform aware of specific fraudulent offers by traders (344). It should be stressed that this provision is an information requirement to promote clarity for consumers shopping on online marketplaces. The self-declaration is good indicator of the supplier’s legal status but it does not replace the definition of a ‘trader’ that remains to be applied in accordance with the specified criteria. In this respect, reference should be made to point 22 of the UCPD Annex I, which prohibits traders from pretending that they are non-traders. This prohibition applies to any incorrect or inaccurate declaration of being a non-trader under this new information rule. To stimulate the traders to declare their status correctly, Article 6a(1)(c) of the CRD also requires the provider of the online marketplace to warn the consumer that they do not benefit from consumers rights where the third party supplier has declared its status as non-trader. Finally, in the Kamenova case concerning an individual seller on an online platform the Court provided additional criteria for determining whether a person qualifies as trader (see section 2.2 on the notion of trader).

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