Rug01 002163256 2014 0001 Ac [611519]

Faculteit Rechtsgeleerdheid
Universiteit Gent

Academiejaar 2013 -2014

The Notion “Consumer” in European Private Law

Masterproef van de opleiding
‘Master in de rechten’
Ingediend door
Ward Schoenmaekers
(student: [anonimizat]. 00904459)

Promotor: Prof. Dr. Maud Piers
Commissaris: Prof. Dr. Reinhard Steennot

i
ACKNOWLEDGEMENTS
A word of thanks hardly seems sufficient to praise our beloved for all they have done . Yet, know
that these few , silent words are nothing compared to a heart that speaks volumes. For it is
through the unremitting support of others that we can achieve that which we thought was
impossible. It is thanks to their belief in our capabilities that we keep on going when we feel like
we can no more .
First and foremost I would like to thank my promoto r, prof. dr. Maud Piers for having given me
the opportunity to study this subject, for her guidance and patience. I owe Ms Isabelle Bambust
my utmost gratitude for her constructive advice, supervision and insight . I would also like to
thank prof. dr. Reinhard Steennot for his clear vision and unlimited availability in times of need.
This thesis would have been impossible without the continuous su pport of my mother and
brother to whom I owe more than words can express.
Finally, I would like to express my gratitude towards my partner who stood by me with all of her
heart and reading glasses.

ii
TABLE OF CONTENTS

Acknowledgements ………………………….. ………………………….. ………………………….. ………………………….. ………………………. i
Table of contents ………………………….. ………………………….. ………………………….. ………………………….. ………………………….. ii
List of Tables ………………………….. ………………………….. ………………………….. ………………………….. ………………………….. …….. v
List of Abbrevations ………………………….. ………………………….. ………………………….. ………………………….. ……………………. vi
Introduction ………………………….. ………………………….. ………………………….. ………………………….. ………………………….. ……… 1
Chapter 1: European Consumer Policy ………………………….. ………………………….. ………………………….. ………………… 3
1 Ratio Legis of European Consumer Law ………………………….. ………………………….. ………………………….. ………. 3
2 The image of the European consumer ………………………….. ………………………….. ………………………….. ………….. 7
3 History of European Consumer Policy ………………………….. ………………………….. ………………………….. ………. 10
Chapter 2: A uniform notion of “consumer” in European private law? ………………………….. ……………….. 16
1 Legislative Harmonization ………………………….. ………………………….. ………………………….. ………………………….. . 16
2 Analysis of the EU Cons umer Acquis ………………………….. ………………………….. ………………………….. …………. 17
2.1 Consumer Contracts ………………………….. ………………………….. ………………………….. ………………………….. ….. 18
2.1.1 Doorstep Selling Directive 85/577/EEC ………………………….. ………………………….. …………………. 18
2.1.2 Consumer Credit Directive 87/102/EEC and 2008/48/EC ………………………….. …………….. 19
2.1.3 Unfair Contract Terms Directive 93/13/EEC ………………………….. ………………………….. ………… 20
2.1.4 Distance Selling Directive 97/7/EC ………………………….. ………………………….. …………………………. 22
2.1.5 Distance Marketing of Financial Services Directive 2002/65/EC ………………………….. ….. 22
2.1.6 Consumer Sales Directive 99/44/EC ………………………….. ………………………….. ……………………….. 23
2.1.7 Consumer Rights Directive 2011/83/EC ………………………….. ………………………….. ………………… 24
2.2 Product Liability, General Product Safety and Misleading Advertising ………………………….. .. 27
2.2.1 Product Liability Directive 85/374/EEC and General Product Safety Directive
2001/95/EC ………………………….. ………………………….. ………………………….. ………………………….. …………………… 27
2.2.2 Misleading Advertising Directive 84/450/EEC and Unfair Commercial Practices
Directive 2005/29/EC ………………………….. ………………………….. ………………………….. ………………………….. …. 29
2.3 Holidays and Travel ………………………….. ………………………….. ………………………….. ………………………….. ….. 30
2.3.1 Package Travel Directive 90/314/EEC ………………………….. ………………………….. …………………… 30
2.3.2 Timeshare Directive 94/47/EC and 2008/1 22/EC ………………………….. ………………………….. 32
2.4 Labelling ………………………….. ………………………….. ………………………….. ………………………….. ………………………. 33
2.4.1 Price Indication Directive 98/6/EC and its predecessors 79/581/EEC and
88/314 /EEC ………………………….. ………………………….. ………………………….. ………………………….. …………………… 33
2.5 Electronic Commerce ………………………….. ………………………….. ………………………….. ………………………….. .. 34

iii
2.5.1 E -Commerce Directive 2000/31/EC ………………………….. ………………………….. ……………………….. 34
2. 6 Jurisdiction and conflict of law rules ………………………….. ………………………….. ………………………….. ……… 35
3 Evaluation of the various consumer and trader definitions ………………………….. ………………………….. 38
3.1 Inconsistent wording ………………………….. ………………………….. ………………………….. ………………………….. … 38
3.2 Tendency towards consiste ncy ………………………….. ………………………….. ………………………….. …………… 40
3.3 Ambiguous Wording ………………………….. ………………………….. ………………………….. ………………………….. …. 42
3.4 Main Characteristics ………………………….. ………………………….. ………………………….. ………………………….. …. 43
Chapter 3: The ECJ’s interpretation of the consumer and trader definition ………………………….. ………. 43
1 Approach ………………………….. ………………………….. ………………………….. ………………………….. ………………………….. … 43
2 Main Characteristics ………………………….. ………………………….. ………………………….. ………………………….. …………. 44
2.1 Natural person ………………………….. ………………………….. ………………………….. ………………………….. ……………. 44
2.1.1 Bertrand v Paul Ott Kg [1978] ………………………….. ………………………….. ………………………….. ………. 45
2.1.2 Shearson Le hmann Hutton Inc. v TVB Treuhandgesellschaft für
Vermögensverwaltung und Beteiligungen mbH [1993] ………………………….. ………………………….. .. 46
2.1.3 Cape Snc v Idealservice Srl Case [2001] ………………………….. ………………………….. ………………….. 47
2.2 Private purpose ………………………….. ………………………….. ………………………….. ………………………….. ………….. 51
2.2.1 Criminal proceedings v Patrice Di Pinto [1991] ………………………….. ………………………….. ……. 51
2.2.2 Francesco Benincasa v Dentalkit Srl [1997] ………………………….. ………………………….. …………… 53
2.2.3 Bayerische Hypotheken -und Wechselbank AG v Edgard Dietzinger [1998] ……………. 57
2.2.4 Berliner Kindl Brauerei AG v Andreas Siepert [2000] ………………………….. ……………………… 58
2.3 Dual purpose transactions ………………………….. ………………………….. ………………………….. …………………… 61
2.3.1 Gruber v Bay Wa AG [2005] ………………………….. ………………………….. ………………………….. ………….. 61
2.4Recognition as a c onsumer ………………………….. ………………………….. ………………………….. ……………… 66
2.4.1 Gruber v Bay Wa AG [2005] ………………………….. ………………………….. ………………………….. ………….. 66
3 Evaluation of the ECJ Case Law ………………………….. ………………………….. ………………………….. …………………… 67
3.1 General Remark ………………………….. ………………………….. ………………………….. ………………………….. …………. 67
3.2 Main Characteristics: Interpret ed ………………………….. ………………………….. ………………………….. ………. 67
3.2.1 Natural Person ………………………….. ………………………….. ………………………….. ………………………….. …….. 67
3.2.2 Private Purpose ………………………….. ………………………….. ………………………….. ………………………….. …… 67
Chapter 4: Road to Uniformity ………………………….. ………………………….. ………………………….. ………………………….. … 79
1 Introduction ………………………….. ………………………….. ………………………….. ………………………….. ……………………….. 79
2 Vertical Approach ………………………….. ………………………….. ………………………….. ………………………….. ……………… 80
3 Horizontal Approach ………………………….. ………………………….. ………………………….. ………………………….. ………… 81
4 Conclusion ………………………….. ………………………….. ………………………….. ………………………….. ………………………….. . 82
Chapter 5: General Conclusion ………………………….. ………………………….. ………………………….. ………………………….. .. 83

iv
Nederlandse samenvattin g (Summary in Dutch) ………………………….. ………………………….. ………………………… 84
Bibliography ………………………….. ………………………….. ………………………….. ………………………….. ………………………….. …… 85

v
LIST OF TABLES

Table 1: comparison of formerly and currently used European legislator's wording ………………….. 42
Table 2: overv iew ………………………….. ………………………….. ………………………….. ………………………….. ………………………. 78

vi
LIST OF ABBREVATIONS
CFR Common Frame of Reference
COM (EU) Commission document
EC European Community
ECJ European Court of Justice
ECR European Court Reports
EEC European Economic Community
ERCL European Review of Contract Law
ERPL European Review of Private Law
EU European Union
OJ L/C Official Journal of the EU, series legislation or
communication
DCFR Draft Common Frame of Reference
SEA Single European Act
TFEU Treaty on the Functioning of the EU
CMLRev Common Market Law Review
TVB Treuhandgesellschaft für
Vermögensverwaltung und Beteiligungen
VuR Verbraucher und Recht

vii
The Sun provides the energy for these to grow
They make their own food in case you didn't know
Growing in the ground making vegetables and fruits
Animals and people eat them, even their roots
I know what it is let me tell you, sir… It's a PRODUCER .
They depend on producers for their food
Eating healthy plants and o ther animals dude
You are one of these and so is your dad
So go eat an apple before it goes bad
I know what it is let me tell you, sir… It's a CONSUMER .1

1 POWER ARTS COMPANY , Food Chain , available at: http://www.totally3rdgrade.com/food_chain.html
accessed on the 8th of July 2014

1
INTRODUCTION
Today’s society is one that thrives on the expansion of the economy. It’s a society that needs us
to buy as much as we can afford , and sadly enou gh, even beyond such a limit. In other words, it
encourages consumption as an economic policy. The text above is part of a chi ldren’s song which
is frequently used to teach nine -year -olds the meaning of the word “producer” and “consumer” .
The lyrics of the song show that every age group is encouraged to consume, whether young or
old.
Encouraging consumers to consume, however, is not without risk. Consequently, a s it i s with
every game, there has to be a set of rules which keeps the game fair. The same is true for the
functioning of the market. Without a decent set of rules, market failure2 is what awaits us. By
virtue of rules re gulating the market wherever necessary, actors will be able to “play” in
relatively safe environment. The intent of this thesis is not to discuss all of the rules preventing
market failures, but to examine one of the most important actors on the playing fi eld, namely the
consumer.
The consumer is protected by a set of rules referred to as a consumer law. These rules are in
place to ensure consumers a minimum of protection while purchasing goods and/or services.
The consumers are usually offered additional protection, as they are generally deemed to be the
weaker party when entering into a contract with a trader or professional.
Evidently, the scope of the notion of “consumer” has to be restricted. With no restrictions
everyone would be able claim to be in a weaker position and in need of additional protection.
Such a situation would be unsustainable and would have an adverse effe ct, since courts would be
flooded and legal certainty inexistent. Hence, the restricted consumer definitions drafted by the
legislators. Due to those restrictions , not just anyone can claim the capacity of a consumer.
Our study focuses on the notion “consu mer” within European Private Law, so the rules that are
of significant importance to us are those that can be found in the existing Community legislation
relating to consumer protection ( hereinafter consumer acquis ). The European legislator has
adopted various consumer definitions in the consumer acquis . The purpose of my research is to
able to provide a decent answer when asked “Who is a consumer?”. In other words, to know
when a person can be qualified as a consumer. This research should help create a hig her
standard of legal certainty with regard to the notion “consumer”.

2 In economics, market failure is the inefficiency of a free market in allocating goods or services.

2
The first chapter will therefore give a short overview of the history of European consumer
policy , where I will discuss the ratio legis of European consumer, the consumer image and
finally the European consumer policy itself.
In t he second chapter I will examine the various consumer (and trader) definitions of the
consumer acquis . After which I will examine the uniformity, or lack thereof, of the consumer
definitions , as well as certain ambiguous aspects of the consumer definition.
In the third chapter I will examine all of the ECJ case law with regard to the consumer definition.
In this chapter I will mainly discuss the ambiguities which have, or have not been, interpreted by
the ECJ. At the end of this chapter I will give an overview of my findings in the form of a table, in
light of the second and third chapter .
In the fourth chapter I will briefly discuss the necessit y of uniform ity and provide certain
solutions to the issue.

3
CHAPTER 1: EUROPEAN CONSUMER POLICY
1 RATIO LEGIS OF EUROPEAN CONSUMER LAW
Since the middle of the 18th century the economic notion of consumer and producer have been
put on opposing sides. The word “consumer” is the agent noun of the verb to consume , which is
derived from the Latin word “consumere”3. This Latin word means to use up, eat or waste.
Whereas t he Latin word “producere” means to lead, bring forth or draw out4. This clearly states
the economic reason for putting producers and consumers on opposing sides. Thus , from a n
economic point of view it seems straightforward who should be qualified as a con sumer, namely
he who uses up goods or articles.
The contradiction of those two actors is still accurate to date . Generally, consumer law is viewed
as the branch of law that offers protection to consumers vis-à-vis producers, the latter also being
a trader , seller or supplier. In order to restore the economical and legal imbalance between both
parties .5
By studying the ratio legis of European Consumer Law in its entirety we will have a better
understanding of the underlying reasons of each consumer Directive individually. Which will
result in a more complete view of consumer definition , especially its limited scope.
Helping and prote cting the weak is a feature that is as old as time.6 Hence, it would certainly
seem fair to adopt measures that protect certain categories of people that are, in relation to
another party in a concrete situation, deemed to be the weaker party .7 Unfortunate ly the sense
of justice, equality and altruism is not enough to justify the additional protection through
government intervention. Government intervention is not without cost and an estimate should

3 D. HARPER , Online Etymology Dictionnary , available at
http://www.etymonline.com/index.php?term=consume&allowed_in_frame=0 accessed the 10th August
2014
4 D. HARPER , Online Etymology Dictionnary , available at
http://www.etymonline.com/index.php?allowed_in_frame=0&search=produce&searchmode=none .
accessed the 10th August 2014
5 A. VERMEE RSCH and M. DE WITTE , Europees Consumentenrecht , Antwerpen, Maklu, 2004, 13, No.2.
6 And we urge you, brothers, admonish the idle, encourage the fainthearted, help the weak, be patient with
them all: 1 Thessalonians 5:14
7 E. HONDIUS , “The protection of the Weak Party in a Harmonised European Contract Law: A Synthesis”,
Journal of Consumer Policy (2004) Vol. 27, No. 3, 245.

4
be made of the costs and benefits of intervention, as wel l as that of the potential impact of a
remedy on the market and the behaviour of those affected.8
It is clear that one can be considered as a weaker party from many different points of view. One
of those views is the economic view. The central economic ra tionale for government regulation
is market failure .9 Market failure occurs when there is a failure of one of the conditions for the
optimal operation of a competitive market .10 Such is the case when one of the economic actors in
the market does not have pe rfect information about the nature and value of the commodities
traded. Due to market failures, markets are not functioning as efficiently as they should and the
weaker economic actor on the playing field is the one who primarily suffers the consequences .
The consumer is that weak(er) actor. The market model of efficiency takes several factors as
given, which means that when those assumptions are thought to fall significantly, the necessity
for intervention appears11. The consumers are considered to be rat ional actors with free choices,
through which they act as a balancing factor .12 Therefore if consumers were to make bad or even
irrational decisions due to the inequality of bargaining power, which is, inter alia, a consequence
of the information failure, g overnment intervention is justified. Without such intervention the
market cannot reach an optimal point due to the lack of the balancing factor of the consumer .13
It is not our intent to elaborate on the specificities of the various tendencies covered by th e term
“economic rationale” and therefore, to avoid confusion, the term “economic rationale” will
hereinafter always refer to the inequality of bargaining power and its consequences for the
market.
This economic rationale can be found in the programme of 1 975, where the primary rationale
for consumer law seems to be the inequality of bargaining power.14 The imbalance in power, in

8 I. RAMSAY , Rationales for intervention in the consumer marketplace, Great Britain, Office of Fair trading,
1984, 3.1.;Consumers a re certainly not an isolated case, a quick view at e.g. the Brussels I regulation
reveals additional protection for employees, policyholders and consumers.
9 I. RAMSAY , Rationales for intervention in the consumer marketplace, Great Britain, Office of Fair trading,
1984, 3.1.
10 I. RAMSAY , Rationales for intervention in the consumer marketplace, Great Britain, Office of Fair trading,
1984, 3.1.
11 For many more assumptions: I. RAMSAY , Consumer law and policy: text an d materials on regulating
consumer markets , 61.
12 In other words, this is the economic rationale of consumer sovereignty, which assumes that the
consumer is ultimately in control: W.H. HUTT, Economists and the public: A Study of Competition and
Opinion, London, J.Cape, 1936, 377 p.
13 Even Adam Smith (author of the invisible hand theory) recognised the concept of inequality of
bargaining power, specifically in regard to workers: A. SMITH , An Inquiry into the Natura and Causes of the
Wealth of Nations , IV, Of Systems of political Economy , Dublin, Whitestone, Chamberlaine, W. Watson, 1776,
349.
14 Official Journal C 092 , 25/04/1975 P. 0002 – 0016, General considerations; This was generally the
primary rationale in the 1960s and 1970s: I. RAMSAY , Consumer law an d policy: text and materials on
regulating consumer markets , 53.

5
extremis, prevents the consumer’s free choice.15 Consequently, the aim of the economic rationale
was to empower the consumer as a rational actor with free choices as balancing factor and
driving force for the common market.16
Initially the economic rationale was the sole driving force behind European con sumer policy.17
Both the economic and the political rationale use the basic principles of contract law and share
the same philosophical roots and assumptions about individual freedom of choice.18 This
allowed the combined development of economic and politica l reasoning in limited and
connected areas.19 However, due to the ever -changing political rationale the connection between
the latter and the economic rationale became more and more vague. The political rationale
proclaimed a deep connection with European c itizenship and thus the necessity of limiting the
scope beyond the economic reasoning occurred. Aside from the political motives, it was also
necessary to secure legal certainty and at the same time protect as many customers as
possible.20 To do so the scop e of the legal definition of “consumer” had to be limited by creating
an abstract definition. This automatically meant that not every weaker party could be included,
and inversely, that some would benefit from consumer protection law even though they were
the stronger party in a concrete case. A further disadvantage of this reasoning is that by not
distinguishing between the different types of consumers, no special attention is given to
particularly weak consumers or groups of consumers.21
Consequently, not only has the political rationale lost its connection with the economic rationale,
it is in fact conflicting. Given that the economic rationale means to offer additional protection to
all buyers, purchasers, etc. that face inequality of bargaining power, th us without limiting the
scope to natural persons and/or persons acting outside their professional or trade activities.
One must not forget that the consumer is not a genuine legal but an economic construct, one that
has evolved over the years from buyer to customer and finally to consumer.22 In other words,

15 A similar rationale was expressed in the Consumer Policy Strategy for 2002 -2006: COMMISSION ,
Communication from the Commission to the European Parliament, the Council, the Economic and Soci al
Committee and the Committee of the Regions . Consumer policy strategy . COM (2002) 208 final, [2002] OJ C
137/2.
16 J. DEVENNEY AND M. KENNY (eds.), European consumer protection: theory and practice, Cambridge,
Cambridge University Press, 2012, 128.
17 J. DEVENNEY AND M. KENNY (eds.), European consumer protection: theory and practice, 128 ; Council
Resolution of 14 April 1975 on a preliminary programme of the European Economic Community for a
consumer protection and information policy [1975] OJ C 92/1.
18 J. DEVENNEY AND M. KENNY (eds.), European consumer protection: theory and practice, 128.
19 Ibid.
20 This is not a typographical error. The use of the word “customer” rather than “consumer” is meant to
stress the fact that, initially, all customers that face an imbalance in bargaining power are to be protected
and therefore included in the legal definition of a consumer.
21 M. BUSSANI AND F. WERRO (eds.), European private law: a handbook , v + 586 p.
22 J. DEVENNEY AND M. KENNY (eds.), European consumer protection: theory and practice, 126.

6
from an economic point of view the permanent exclusions of legal persons and persons acting in
pursuance of a trade or professional activity does not appear justified.
Embedding the citizens/consumers in the European project is part of the political approach of
the European Commission (hereinafter Commission) .23 That is why Schüler notes that the
reason for the limitation of consumers makes perfect sense from a political perspective, since
consumer law is a n instrument for reconnecting European citizens with the European project.
However, to do so , consumer law needs to provide a clear and visible link .24 Nevertheless,
Schüler does consider the combination of both rationales to lead to inconsistencies within the
European consumer approach .25
We are obliged to stress that the economic rationale all too easily considers consumers as
rational beings. The following section shall reveal that through the findings of behavioural
studies it can be concluded that consum ers are far from rational market actors. Consequently,
the “revised” economic rationale shall rather regularly lead to the conclusion that the
assumption of the consumer as a rational actor has not been met and therefore the need for
intervention is expect ed.26
In conclusion, the reason why it often seems unfair to protect one weaker party, but not the
other has to do with the fact that the economic rationale was the starting point for consumer
law. Which considers the need to protect every weaker market act or, in order to prevent market
failures. Yet, due to the political influence, that strongly refers to citizenship and sought legal
certainty, this connection with the economic rationale seems blurred and rather conflicting .27
Moreover, as seen above, the co nsumer is not a genuine legal but an economic construct.
Nevertheless, the current legal reasoning behind European consumer law is to counter the
imbalance in power and to reconnect the European citizens to the European project. Both goals
should help ens ure the functioning of the internal market.

23 J. DAVIES , The European consumer citizen in law and policy in consumption and public life , Houndmills,
Palgrave Macmillan, 2011, 7; R. DEHOUSSE AND J.H.H. WEILER , “The Dynamics of European Integration: The
legal Dimension” in Wallace, W. (ed.), The Dynamics of European Integration , London, Pinter, 1990, 242 –
260.
24 Which means, according to Schüler, that only natural persons can be citizens and thus consumer law
should only apply to them: J. DEVENNEY AND M. KENNY (eds.), European consumer protection: theory and
practice, 127.
25 Schüler considers that the economic rationale should lead to a consumer definition that is as wide as
possible whereas the political ration ale leads to a rather narrow definition in order to reconnect the
citizens with the EU. Schüler accidently mixes those rationales: J. DEVENNEY AND M. KENNY (eds.), European
consumer protection: theory and practice, 128.
26 By “revised economic rationale” w e mean an economic rationale that takes account of a new discipline
in economics, namely behavioural economics.
27 J. DEVENNEY AND M. KENNY (eds.), European consumer protection: theory and practice, 128.

7
2 THE IMAGE OF THE EUROPEAN CONSUMER28
A clear distinction has to be made between the image of the consumer and the notion of the
consumer. The notion of the consumer limits the personal scope of consumer law, whereas the
image of the consumer is based on certain perceptions of reality, such as the intellectual capacity
of a consumer29. The consumer image should also be distinguished from the ratio legis of
European consumer law. The ratio legis of European cons umer law is the answer to the question
why the government should intervene in the market . The consumer image on the other hand
reveals the characteristics of a consumer. The ratio legis , however, cannot be seen in isolation
from the consumer image, since t he latter with regard to certain circumstances reveal s the
necessity or lack thereof of consumer law.
It is self -evident that every consumer policy is closely connected to a certain consumer image on
which consumer law is built. The consumer image is neces sary to determine the circumstances
under which and the extent to which the legislator has to intervene.30Thus the consumer image
directly contributes to the development of consumer law. A short overview of the evolution of
the consumer image should therefo re help us understand consumer law.
The image of the European consumer has, since the beginning of European consumer policy,
been that of a circumspect, well -informed and a well -to-be-informed consumer who can and
shall decide on her or his own affairs at her or his own risk .31 Such is the consumer image that
was presented in the Cassis de Dijon case .32 That is why it should not surprise us that information
is a central device of this policy33. This is also illustrated by the European legislator’s clear
prefe rence for procedural measures over substantive measures in contract law over, inter alia ,
information requirements .34
The emphasis on the active and critical appro ach of the consumer also appeared in several
decisions of the ECJ, which confirmed the averag e, circumspect and well -informed

28 Even though our study is aimed at consumer direct ives which are less affected by the consumer image
than in cases of protectionist measures. It still has its use to discuss it here, since the consumer image
influences the cases in which the legislator has to intervene and to what extent: A. VERMEERSCH AND M. DE
WITTE , Europees Consumentenrecht , 15, No. 8; E. TERRYN , Het herroepingsrecht als instrument van
consumentenbescherming , unpublished, Doctoral thesis, Law K.U. Leuven, 2005, 97, No. 205.
29 E. TERRYN , Het herroepingsrecht als instrument van consumente nbescherming , 97.
30 Of course it is also very important for the ECJ to know what kind of consumer is in need of protection, in
order to rule whether a restrictive measure of the free movement of goods or services is justified. In that
respect: E. TERRYN , Het herroepingsrecht als instrument van consumentenbescherming , 97; C -120/78 Rewe –
Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649 [ cassis de dijon]
31 P. HOMMELHOFF , “Zivilrecht unter dem Einflu β europäischer Rechtsangleichung”, Archiv f ür die
civilistische Praxis (1992) Vol. 192, No ½.
32 C-120/78 Rewe -Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECR 649 [ cassis de
dijon] “the active and critical information -seeker”.
33 M. BUSSANI AND F. WERRO (eds.), European private law: a handbook , 261.
34 E. TERRYN , Het herroepingsrecht als instrument van consumentenbescherming , 99.

8
consumer .35The European consumer image, however, is not all that straightforward, and thus
the introduction of a nuance is in order. Firstly, the ECJ accepts that the influence of diverse
factors, such as social, cultural an d linguistic factors, should be considered .36 Since the consumer
image is that of the average, circumspect and well -informed consumer, it is certainly not unlikely
that the image varies between Member States .37 Secondly, the ECJ also seems to accept that
when a specific group of consumers is being targeted, the specific weaknesses of that group of
consumers can be taken into consideration .38
Notwithstanding, several authors point out that the consumer image is a legal and normative
concept in which empirical data only plays a secondary role .39 Clearly not all consumers are
average, circumspect and well -informed consumers. Through the usage of the aforementioned
image, European consumer law forces consumers to retri eve the information necessary to come
to a balanced decision .40
However, it should be clear that the current consumer image is not without controversy. The
core of the classic view in consumer behaviour about how consumers make decisions is based
on the ide a that a consumer is an information processing machine .41 In other words, it is based
on the idea that a consumer, when making decisions, acts rationally with regard to the available
information. Recent behavioural studies and their results have shown that consumers do not
necessarily decide in a rational manner .42 When making a decision the consumer is influenced by
far more than the information concerning the goods or services in question. Generally, personal
factors, such as mood, time pressure, etc. play a fair part in the consumer’s decision -making .43

35 E. TERRYN , Het herroepingsrecht als instrument van consumentenbescherming , 98; C-210/96 Gut
Springenheide et al. V Oberkreisdirektor Steinfurt, Lebensmittelüberwachung , [1998], ECR I -4657,
paragraph 31.
36 E. TERRYN , Het herroepingsrecht als instrument van consumentenbescherming , 98; M . BUSSANI AND F.
WERRO (eds.), European private law: a handbook , 262.
37 E. TERRYN , Het herroepingsrecht als instrum ent van consumentenbescherming , 98; C -220/98 Estée Lauder
Cosmetic v Lancaster Group, ECR I -117, paragraph 29.
38 E. TERRYN , Het herroepingsrecht als instrument van consumentenbescherming , 99; H.W. MICKLITZ , N. REICH
and P. ROTT, Understanding EU consumer law, Antwerp, Intersentia 2009, 45; C -282/87 Buet and
Educational Business Services v Minstère Public , [1989], ECR 1235. (In the light of minimum harmonization
measures, it is up to the Member States to provide an appropriate protection for those disfavou red or
minority groups.)
39 J. DREXL , “Community Legislation Continued: Complete Harmonisation, Framework Legislation or Non –
Binding Measures – Alternative Approaches to European Contract Law, Consumer Protection and Unfair
Trade Practices?“, EBLR (2002), Vol. 13, No. 6, 572.
40 Ibid.
41 M.S OLOMON , G. BAMOSSY , S. ASKEGAARD and M.K. HOGG, Consumer behaviour: a European Perspective ,
London, Prentice -Hall, 1999, 337.
42 M. SOLOMON et al ., Consumer behaviour: a European Perspective , 345.
43 M. SOLOMON et al., Consumer behavior: a European Perspective , 62; Instant gratification can also be
considered as such a factor, sometimes also described as bounded willpower, which results in consumers
acting against their long -term interests: hyperbolic discounting: I. RAMSAY , Consumer law and policy: text
and materials on regulating consumer markets , Oxford, Hart, 2007, 72.

9
Moreover, it is virtually impossible to carefully identify every alternative before choosing, due to
the lack of resources, mainly time. Therefore a consumer will often settle for a solution that is
just good enough, the so -called bounded rationality .44 In addition, consumers often make biased
decisions45. It should also be noted that the category of consumers that is most likely to search
less and thus to be less informed, is a category of consumers that is in need of more protection,
namely the lower -income shoppers .46
Consequently, a consumer is not unlikely to make an irrational decision based on little
information, hence the current consumer image is not consistent with the reality. Furthermore,
information a s a central device of consumer policy will not necessarily lead to consumers that
can act as a balancing factor .47 Fortunately the Commission is aware of the hiatus between the
existing consumer image and the consumer image based on reality .48 The awareness can be seen
in the consumer policy programme of 200 7 in which the Commission expressed the need for the
development of a more sophisticated understanding of consumer behaviour in order to devise
better regulation.49 Its concern for a better understanding of consumer behaviour continued
with the consumer policy programme of 2014, where the Commission stressed the further
development .50 Moreover, the various consumer Directives concerning different goods or
services prove a certain awareness that the situation matters .51 One last example is that of the
cooling -off periods, since this is an answer to the problem of bounded willpower, where
consumers are enticed by the promise of instant gratification without considering the long -term
interests .52
Finally, we shoul d look at several ECJ cases. Since, those cases seem to indicate a different
approach, one that is more in line with the findings of behavioural studies. Micklitz refers to two
cases, the Océano case53 and the Gabriel case54.55 In the first case the ECJ argued that a consumer

44 C.J. COBB AND W.D. HOYER , “Direct observation of search behaviour”, Psychology and marketing (1985)
Vol. 2, No. 3, 161 -79.
45 For more examples I refer to: J. DEVENNEY AND M. KENNY (eds.), European consumer protection: theory
and practice, 132.
46 Cathy J Cobb and Wayne D Hoyer, “Direct observation of search behaviour”, Psychology and marketing 2
(Fall 1985): 161 -79.
47 J. DEVENNEY AND M. KENNY (eds.), European consumer protection: theory and practice, 141.
48 Meaning the reality found by virtue of behavioural studies.
49 COMMISSION , ‘Communication from the Commission to the Council, the European Parliament and the
European Economic and Social Committe e – EU Consumer Policy strategy 2007 -2013 – Empowering
consumers, enhancing their welfare, effectively protecting them {SEC(2007) 321} {SEC(2007) 322}
{SEC(2007) 323} COM (2007) 99 final.
50 COMMISSION , Proposal for a Regulation of the European Parliament a nd of the Council on a consumer
programme 2014 -2020 {SEC(2011) 1320 final} {SEC(2011) 1321 final} COM (2011) 707 final.
51 J. DEVENNEY AND M. KENNY (eds.), European consumer protection: theory and practice, 142.
52 Ibid.
53 C-240 -244/98, Océano Grupo Editoria l v Quintero et al, [2000], ECR I -4941.
54 C-96/00, Rudolf Gabriel [2002] ECR I -6367.

10
should not lose the protection provided by the Unfair Contract Terms Directive , solely due to his
ignorance with regard to the unfairness of certain contract terms. In the second case the ECJ
considered the consumer to be economically weaker and less experienced in legal matters. Both
those arguments appear to suggest a consumer image of a weak and ignorant consumer who is
not all that circumspect. Terrryn argued that ECJ’s approach in those cases is not nec essarily the
beginning of an alternative consumer image.56 Both cases concerned the access to justice.
Therefore, it is not unreasonable that the ECJ might consider the access to justice to be of such
importance that not only the average, circumspect and we ll-informed consumer should be
protected , but also the weak and ignorant consumer.
Evidently, a well -informed consumer is in need of less protection than an uninformed consumer.
Considering th e average consumer as a well -informed consumer implies a lower l evel of
consumer protection. Nevertheless, t he importance of information in European law should not
necessarily be looked upon negatively. Drexl points out that the paradigm of the informed
consumer can prevent paternalis m and can contribute to a beneficia l decision making process
for the consumer .57 The fact that the consumer image also aims to ensure the functioning of the
internal market does not necessarily contravene consumer interests, since a well -functioning
internal market can increase the consumer’s choice . Nevertheless, in order for the con sumer
policy to work, it is imperative that the consumer image used by the European Union is in line
with the empirical consumer image .58
In conclusion, the current European consumer image is still that of an average, circumspect,
well -informed consumer. Ne vertheless, it seems that the findings of behavioural studies are
gradually beginning to have more influence. Furthermore, the current European consumer
image is not always interpreted strictly, especially when it concerns the access to justice.
3 HISTORY OF EUROPEAN CONSUMER POLICY
In the very beginning there was no specific consumer policy and only five incidental references
to consumers were made in the original Treaties of Rome of 1957. It was seen as somewhat
redundant, since the creation of a well -functioning internal market would lead to a market

55 H. MICKLITZ , “Zur Notwendigkeit eines neuen Konzepts für die Fortentwicklung des Verbraucherrechts
in der EU”, VuR (2003), 1.
56 E. TERRYN , Het herroepingsrecht als instrument van consumentenbescherming , 101, No. 215.
57 J. DREXL , “Community Legislation Continued: Complete Harmonisation, Framework Legislation or Non –
Binding Measures – Alternative Approaches to European Contract Law, Consumer Protection and Unfair
Trad e Practices?“, EBLR (2002), Vol. 13, No. 6, 572.
58 E. TERRYN , Het herroepingsrecht als instrument van consumentenbescherming , 102, No. 219.

11
where consumers would be sufficiently protected .59 Consumer protection was thus seen as a by –
product of the creation of an internal market.
The situation began to change following the Paris Summit in 1972 where t he Heads of State and
Governments emphasised, under the development of the social policy, that they attached much
importance to strengthening and co -ordi nating measures of consumer protection .60 Following
that event, the Cou ncil of the European Union (hereinafter Council) adopted a resolution in 1975
that , for the first time , explicitly stressed the protection of health, safety and economic interests
of consumers .61 In addition , the Council approved the principle of a consumer protection and
information policy and the principles, objectives and general description of action to be taken at
Community level.62
Shortly after , a preliminary programme for consumer protection and information policy was
adopted63, in which the Council recognised the consumer as the weaker party due to the shift
from being an individual purchaser in a small local market to a mere unit in a mass market . Even
though such mass markets certainly have their advantages, consumers were no longer able to
fulfil the role of a balancing factor in the economic system due to the loss of bargaining power .
Consequently, consume r interest s were in need of protection . Those interests were summed up
by a statement of five basic rights :
– the right to protection of health and safety
– the right to pr otection of economic interests
– the right of redress
– the righ t to information and education
– the right of representation (the right to be heard) .

59S. WEATHERILL , EU Consumer Law and Policy , Edward Elgar Publishing Limited, Cheltenham, 2005 UK, 4.
60 J. DAVIES , The European consumer citizen in law and policy in consumption and public life , Houndmills,
Palgrave Macmillan, 2011, 25; H.W. MICKLITZ , N. REICH and P. ROTT, Understanding EU consumer law ,
Antwerp, Intersentia, 2009, 9, 1.2; S. WEATHERILL , EU Consumer Law and Policy, 4; A.VERMEERSCH AND M. DE
WITTE , Europees Consumentenrecht , 9, No. 21; Statement from the Paris Summit, Bulletin EG, 1972, No 10,
14-26, available at: http://www.cvce.eu/obj/statement_from_the_paris_summit_19_to_21_october_1972 –
en-b1dd3d57 -5f31 -4796 -85c3 -cfd2210d6901.htm l, accessed 1 July 2014;
61 A.VERMEERSCH AND M. DE WITTE , Europees Consumentenrecht , 9, No. 11; Council Resolution of 14 April
1975 on a preliminary programme of the European Economic Community for a consumer protection and
information policy [1975] OJ C 92 /1.
62 Council Resolution of 14 April 1975 on a preliminary programme of the European Economic
Community for a consumer protection and information policy [1975] OJ C 92/1.
63Hereinafter referred to as “the programme of 1975”.

12
Thus, in essence the programme of 1975 proposed to break through the inequality of
contracting parties in consumer sales in order to create a market based on true equality by
offering additional protection to the weaker party .64 Therefore, making it possible for the
weaker party to fulfil his ro le in the market.
The second programme of 1981 confirmed the approach of the programme of 1975 .65
Furthermore , the Council of the European Union emphasised in its second programme that the
purpose of the second programme was to enable the Community to continue and intensify
measures taken in the European Consumer Law field, as well as creating conditions under which
an improved form of consultation between consumers on the one hand and manufacturers and
retailers on the o ther hand. In other words, the second programm e built upon the first
programme and deepened it.
The implementation of the consumer programmes , however, had its difficulties in the early
1980s. The adoption of positive harmonisation measures required Council unanimity .66 This
legal restriction which the Council faced, was one of the mai n reasons why progress was slow.
It is important to note that , contrary to the European legislator, the European Court of Justice
(hereinafter ECJ) did not suffer such a restriction and significantly influenced the development
of consumer policy during this period .67 Prior to the innovative Cassis de Dijon case of 1979 , the
ECJ did not directly deal with cases of consumer interests .68 This had to do with the fact that
before the Cassis de Dijon case , restrictions on the free movement of goods in the interests of
consumer protection could only be justified in so far as such restrictions served to protect the
health or life of the consume r.69 The judgment in Cassis de Dijon widened this protection to
include economic interests of the consumer . The acknowledgment that consumer protection was
as equally importan t as the fundamental freedoms was groundbreaking , as it went far beyond
the state of Community law at that time .70 By having done so, the ECJ raised the policy of
consumer protection to an objective of Community law and thus l egitimized both measures

64 J. DEVENNEY AND M. KENNY (eds.), European consumer protection: theory and practice ,127.
65 Council Resolution of 19 May 1981 on a second programme of the European Economic Community for a
consumer protection and information policy [1981] OJ C 133/1.
66 J. DAVIES , The European consumer citizen in law and policy in consumption and public life , 27; G.J. RIJKEN
AND E.H. HONDIUS (eds.), Handboek consumentenrecht: een overzicht van de rechtspositie van de consument ,
Amsterdam, Paris, 2006, 516; Four reasons for those difficulties were presented in: COMMISSION ,
Communication from the Commission to the Council. A new impetus for consumer protection policy , COM
(85) 314.
67 J. DAVIES , The European consumer citizen in law and policy in consumption an d public life , 27.
68 H. W. MICKLITZ , N. REICH and P. ROTT, Understanding EU consumer law , 11; C-120/78 Rewe -Zentral AG v
Bundesmonopolverwaltung für Branntwein [1979] ECR 649 [ cassis de dijon].
69 R. H. SCHULZE , H. SCHULTE -NÖLKE and J.M. JONES (eds.), A casebook on European consumer law , Oxford,
Hart, 2002, 37.
70 Ibid.

13
taken by Member States and the Community .71 This was basically an early implementation of the
programme of 1975 that formulated rights available to the consumer, which included the
consumer’s right to protect his economic interests and his right to information .72 The Cassis de
Dijon case also widened the consumer’s choice by introducing the pri nciple of mutual
recognitio n.73
The third programme is often referred to as “A Impetus for Consumer Protection Policy”, which
is the title of a paper published by the European Commission (hereinafter Commission) in June
1985 .74 This paper reviewed the progress in the light of the objectives of the programme of 1975
and concluded that progress towards the realization of the those objectives fell short . The paper
was welcomed by the Council resolution of 6 May 1986 .75
The delay in progress would last through to 198 7 when the Single European Act came into force
under influence of the Commission’s paper “A New Impetus for Consumer Protection Policy”76.
Not only was t he Single European Act the first treaty to expressly mention the protection of
consumer interests, it also significantly altered the relationship between consumer policy and
the process of approximation of laws since it affected the functioning of the internal market. In
particular the addition of A rticle 1 14 TFEU (Article 95 EC) , it required the institutions to “take as
a base a high level of protection” in proposals concerning “health, safety,… and consumer
protection” and procedurally introduced qualified majority voting for adoption in Council77. In a
certain sense the Single European Act can be marked as the actual beginning of serious progress
in the legislative development of the consumer acquis and thus of the definition of a consumer.
For the sake of completeness, it should be noted that the a uthors of the Single European Act did
not introduce an explicit legal basis regarding the competence of the Community in the field of
the promotion of consumer interests .

71 Ibid. Since the reasoning was based on the principle of mutual recognition and the protection of the
economic interests of consumers was considered a justified ground for protection: a Member State was
able to restrict the free movement of goods on the condition that it is necessary to protect their consumers
if the rule is prop and non -discriminatory.
72 R. H. SCHULZE , H. SCHULTE -NÖLKE and J.M. JONES (eds.), A casebook on European consum er law , 37.
73 Which means that goods that were marketed legally in one Member State must be given access to the
market of any other Member State, regardless of compliance with the regulatory framework in force in the
other Member State and applicable to it s domestic goods. : S. WEATHERILL , EU Consumer Law and Policy, 7.
74 Commission, Communication from the Commission to the Council. A new impetus for consumer protection
policy , COM (85) 314.
75 Council Resolution of 23 June 1986 concerning the future orientation of the policy of the European
Economic Community for the protection and promotion of consumer interests [1986] OJ C 167/1.
76 A.VERMEERSCH AND M. DE WITTE , Europees Consumentenrecht , 18, No. 12; Council Resolution of 23 June
1986 concerning the future orientation of the policy of the European Economic Community for the
protection and promotion of consumer interests [1986] OJ C 167/1; COMMISSION , Communication from the
Commission to the Council. A new impetus for consumer protection policy , COM ( 85) 314.
77 J. DAVIES , The European consumer citizen in law and policy in consumption and public life , 29.

14
The European Single Act expressly mentioned the protection of consumers, but it was not until
the signing of the Maastricht Treaty in 1992 that consumer protection was acknowledged as an
independent principle under Community law as per Article 129a .78 The latter article clarified
that the consumer policy was based on a double foundation : as an internal market policy on the
one hand and on the other hand as a specific action to support consumer policy measures taken
by Member States79. By doing so the consumer policy seems to have been freed from the internal
market policy80. The Maastricht Tre aty also set out in Article 3(b), that the Community’s power
is not exclusive, but bound b y the principles of subsidiarity and proportional ity81.
The next step was the Treaty of Amsterdam that came into force in 1999. Former Article 129 a
was amended by Article 15 3 EC that established autonomous consumer rights and extended the
Community’s power .82 Interesting to note is that Article 15 3 EC introduced the integration
principle. The integration principle makes it so that consumer protection requirements hav e to
be taken into account in defining and implementing other Community policies and activitie s.
The Nice Treaty which came into force in 2003 maintained the importance of consumer
protection with the appropriate legal framework .83 The Nice Treaty was more of a technical
nature and hardly modif ied the substance .84 The Lisbon Treaty did not add any notable changes
to the consumer policy.
For the sake of completeness, i t should be noted that since the early 1990s the Commission has
prepared four three -year action plan s.85 These action plans introduced initiatives that targeted
specific themes , e.g. product safety . The first action plan focused on four main sectors: consumer
representation, information, safety and transactions .86 Those four main sectors , especially
information and consumer representation, recur throughout most of the action plans. 87

78 H.W. MICKLITZ , N. REICH AND P. ROTT, , Understanding EU consumer law , 13, 1.6.
79 Ibid.
80 P. NEBBIA AND T. ASKHAM , EU Consumer law , Richmond, Rich mond law and tax, 2004, 9.
81 For more information on the subsidiarity principle I refer to N. Reich and G. Woodroffe (eds.), European
consumer policy after Maastricht , Dordrecht, Kluwer academic, 1994, 22 -33.
82H.W. MICKLITZ , N. REICH AND P. ROTT, Und erstanding EU consumer law , 14, 1.7 ; A.VERMEERSCH AND M. DE
WITTE , Europees Consumentenrecht , 9, No. 53.
83 H.W. MICKLITZ , N. REICH AND P. ROTT, Understanding EU consumer law , 15.
84 Due to the upcoming growth of the European Union the EU had to be prepared, which had been done by
revising 4 key areas which were mainly of a structural/institutional nature.
85 COMMISSION , Three year action plan of consumer policy in the EEC . COM (90) 98 final; COMMISSION ,
Consumer policy. Placing the single market at the service of European consumers. Second Commission three –
year action plan 1993 -1995 . COM (93) 378 final; COMMISSION , Communication from the Commission .
Priorities for consumer policy 1996 -1998. COM (95) 519 final; COMMISSION , Communication from the
Commission. Consumer policy action plan 1999 -2001 .COM (98) 696 final.
86 KENDALL , V., EC consumer law , London, Chancery law publishing, 1994, xii + 522 p.
87 For a clear and concise summary of thi s matter I refer to : P. NEBBIA AND T. ASKHAM , EU Consumer law , 28-
34.

15
Subsequently, the Commission adopted several consumer policy strategy programmes. Contrary
to the action plans, a consumer policy strategy does not limit itself to the introduction of specific
initiatives . The purpose of the consumer policy strategy is to set forth objectives that should
maximise the consumer’s full potential. To date , there have been three consumer policy
strategies, of whic h the most recent one was adopted on 26 February 2014 .88
The Consumer Policy S trategy for 2002 -200689 had three main objectives: a high common level
of consumer protection, effective enforcement of consumer protection rules and the proper
involvement of consumer organisations in Community policies . Important to note here is that
the Commission ’s Consumer Policy Strategy for 2002 -2006 stated that the first objective
requires “moving away from the present situation of different sets of rules in each Member State
towards a more consistent environment for consumer protection across the EU ”.90 Furthermore,
concerning the protection of consumer’s economic interests the Commission stressed the need
“to re view and reform existing EU consumer protect ion Directives, to bring them up to date and
progressively adapt them from the minimum harmonisation to “full harmonisation” measures ”.91
The objectives of the Consumer Policy Strategy for 2007 -201392 reflect a high degree of
continuity with the previous EU consumer policy objective s. The same can be said about the
Consumer Policy Strategy for 2014 -2020.93

88 Regulation (EU) No 254/2014 of the European Parliament and of the Council of 26 February 2014 on a
multiannual consumer programme for the years 2014 -20 and repealing Decision No 1926/ 2006/EC
[2014] OJ L 84/42.
89 COMMISSION , Communication from the Commission to the European Parliament, the Council, the Economic
and Social Committee and the Committee of the Regions . Consumer policy strategy . COM (2002) 208 final,
[2002] OJ C 137/2.
90 COMMISSION , Communication from the Commission to the European Parliament, the Council, the Economic
and Social Committee and the Committee of the Regions . Consumer policy strategy . COM (2002) 208 final,
[2002] OJ C 137/5.
91 OJ 2002 C137/7: com (2002) 208
92 COMMISSION , ‘Communication from the Commission to the Council, the European Parliament and the
European Economic and Social Committee – EU Consumer Policy strategy 2007 -2013 – Empowering
consumers, enhancing their welfare, effectively protecting them {SEC( 2007) 321} {SEC(2007) 322}
{SEC(2007) 323} COM (2007) 99 final.
93 Regulation (EU) No 254/2014 of the European Parliament and of the Council of 26 February 2014 on a
multiannual consumer programme for the years 2014 -20 and repealing Decision No 1926/2006/EC
[2014] OJ L 84/42.

16
CHAPTER 2: A UNIFORM NOTION OF “CONSUMER ” IN EUROPEAN
PRIVATE LAW ?
1 LEGISLATIVE HARMONIZATIO N
In chapter 1 we have seen that the entry into force of the Maastricht Treaty in 1993 brought
with it the explicit formal recognition of consumer protection as an EC competence .
Nevertheless, it should be noted that European consumer law is primarily compos ed of the
harm onization of national laws of consumer protection , before and after th e Maastricht Treaty.
Evidently , prior to the entry into force of the Maastricht Treaty , the measures taken by the
European legislator could only be of a harmonising nature .
The harmonization of national laws of consumer protection was not a n end in itself . On the
contrary , those harmonising measures were the means to ensure the functioning of the internal
market . One dominant argument justifies the h armonising approach to consumer law . The
argument is view from two perspectives, that of the trader and that of the consumer. From t he
perspective of a trader the differences between consumer laws of various Member States are
considered as a serious obstacle t o cross -border consum er transactions within the EU. Mainly
because traders could deter from dealing across b orders, due to their insecurity of the different
levels of protection of their costumers in various Member States .94 From the perspective of the
consumer there appears to be a lack of consumer confidence . The concern is that consumers are
not confident that they will be adequately protected when buying goods or services in another
Member State . As a result the consumer restrain from participating in cross -border trading .95
The argument suggest s that th e objective of the establishment and functioning of the internal
market was the sole rationale for the harmonization of national laws . It is true that, especially in
the early days , the harmonising consumer measures were part o f the internal market policy .96
Nevertheless, the harmonization of national laws of consumer protection has always served two
purposes, i.e., the internal market and the consumer interests. In other words the rationale

94 J. DEVENNEY and M. KENNY (eds.), European consumer protection: theory and practice, 7.
95 The strength of the “confident consumer” argument is rather questionable, since other factors could be
more significant, e.g. language barrier: Ibid; T. WILHELMSSON , “The Abuse of the “Confident Consumer” as a
Justification for EC Consumer Law”, Journal of Consumer Policy (2004) Vol. 27, No. 3, 317 -337.
96 The use of the only legislative alternative at the time, meaning (Article 100 EEC) harmoniza tion as an
objective to establish and ensure the functioning of the internal market, only magnified the consumers
policy as part of the internal market policy.

17
behind the harmonising consumer measures was to ensure the establishment and functioning of
the internal market and the protection of consumer interests .97
When the Single European Act came into force in 19 87 the harmonising landscape changed
considerably . Article 114 TFEU implemented by the SEA introduced a qualified majority vote ,
whereas Article 115 TFEU requires un animity .98 Evidently , Article 114 TFEU became the new
legal basis for the following consumer Directives and lead to a serious increase in consumer
legislation . Interesting to note is that Article 114 TFEU does not limit the harmonising measures
to the use of directives , but permits a high level of harmonization, e .g. regulations .99 Yet, it is not
because a sword is raised, that it will be used. In other words, having the possibi lity to use
something , e.g. Regulations, does not mean it will be used. The same is true for the qualified
majority voting, many consumer Directives were still adopted unanimousl y. In any case, the
European legislator saw its instruments increase in the consumer area.
2 ANALYSIS OF THE EU CONSUMER ACQUIS
In order to acquire more insight into the consumer notion in European private law, I am
required the analyse the consumer acquis . Since the consumer is largely present in the area of
contract law it only seems fitting to examine this area extensively. Nevertheless, to get a
complete picture of the issue at hand my research cannot be limited to contract law, and
therefore should include all of the significant areas of law with regard to the consumer .
To process the various Directives , we have chosen to discuss each Directive individually. The
objective of each Directive will be presented, followed by the legal definition of a consumer and
trader. The reason for discussing the definition of a trader is s imple. It is impossible for a person
to have the capacity of a consumer and trader in relation to one and the same contract. As a
result, having the capacity of a trader will, in relation to one and the same contract, exclude you
from being qualified as a consumer .100 Furthermore, the consumer and trader definition are
complementary and should be considered as a w hole. Therefore, we feel obliged to examine both
definitions .

97 The ECJ has long confirmed this point of view e.g. C -361/89 Criminal proceedings v Patrice Di Pinto
[1991] ECR I -01189 (hereinafter Di Pinto case); S. WEATHERILL , EU Consumer Law and Policy, 64; Reich, N.
and Woodroffe, G. (eds.), European consumer policy after Maastricht , 331.
98 Renumbered Article 100a EEC to article 95 EC and finally article 11 4 TFEU. Article 100 EEC was
renumbered to Article 94 EC and finally to Article 115 TFEU
99 Article 114TFEU refers to “measures of approximation”, whereas Article 115 TFEU explicitly refers to
“directives for the approximation”.
100 For the sake of simplicity, we use the term “trader” to refer to the commercially active counterpart of
the consumer. Nevertheless, in certain Directives the “trader” is referred to as producer, creditor, etc.
depending on the content of the Directive.

18
Obviously , one of the objective s of harmonising con sumer Directives is the harmonisation of
certain national laws. That is why this will not be mentioned recurrently during the discussion of
the various directives .
In essence, I will try to find the true scope of the notion of consumer in the consumer acquis and
with it the main characteristics. Moreover, t he analysis will provide us with an answer to the
question whether a uniform consumer notion , in general or in a specific are of law, exists on a
European level.
2.1 CONSUMER CONTRACTS
2.1.1 Doorstep Selling Directive 85/577/EEC101
The Doorstep Selling Directive stems directly from the preliminary programme for consumer
protection and information policy which had provided that appropriate measures should be
taken to protect consumers against unfair commercial practices i n respect of doorstep selling102.
The Directive applies to contracts under which a trader supplies goods or services to a consumer
and which are concluded at a time when the consumer is in his or her natural environment ,
generally at home. The reason for th e adoption of this Directive has to do with the fact that
consumers were deemed to be in nee d of protection since, in such cases, the consumer is
surprised and unprepared while facing an unexpected opportunity , with the added high –
pressure selling methods o f the trader103. In addition, the consumer is not able to compare the
quality and the price of the offer with other offers, i.e., he is not able to make a well -informed
decision. Consequently , those circumstances often lead to consumers acting rather irrational and
not in their best interests.
Article 2 of the Directive defined a consumer as “a natural person who, in transactions covered
by this Directive, is acting for purposes which can be regarded as outside his trade or
profession ”. The sam e Article defined a trader as “ a natural or legal person who, for the
transaction in question, acts in his commercial or professional capacity, and anyone acting in the
name or on behalf of a trader” .
At first glance t he definition of a trader seems to be the exact opposite of the definition of a
consumer , if not for several subtle nuance s. Obviously , a natural person or legal person acting in
pursuit of his commercial or professional activities cannot be considered a c onsumer. In that
regard the definition of a trader is indeed the exact opposite of th at of the consumer. However,

101 Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts
negotiated away from business premises. [1985] OJ L 372/0031 -0033.
102 Council Resolution of 14 April 1975 on a preliminary programme of the European Economic
Community for a consumer protection and information policy [1975] OJ C 92/1.
103 P. NEBBIA AND T. ASKHAM , EU Consumer law , 239.

19
the legal person that is not acting in pursuit of his commercial or professional activities will not
be considered a trader nor will he be con sidered a consumer, since a textual analysi s revealed
that every legal person is excluded from the definition of a consumer .104 The initial proposal of
the Directive did not comprise the words “ acting in the name or on behalf of a trader”.105 The
European Economic and Social Committee was of the opinion that properly authorised
representatives should also be included in the trader definition.106 Adding those words did not
widen the trader definition, since even in the absence of those words, the inc lusion of such
authorised representatives is implied .
Article 2 reveals an ambiguity, namely the use of the word “regarded” . The use of this word
makes it rather unclear whether a transaction designated for private use, which also has a
(slight ) professional use , can be “regarded ” as outside of his trade or profession . This,
essentially , concerns the debate whether or not dual purpose transactions can be considered as
private purpose transactions , which will be discussed further 107.
As o f 13 June 2014 the Directive on Consumer Rights will be the governing measure concerning,
inter alia , doorstep selling108.
2.1.2 Consumer Credit Directive 87/102 /EEC109 and 2008/48 /EC110
In Chapter 1 we have mentioned that information is the central device of th e consumer policy.
This tendency is particularly clear in measures concerning financial services, such as the
Consumer Credit Directive. The key objective of the Directive is, indeed, to improve the

104 The relevance should not be underestimated. For instance, if the counterparty of a consumer does not
have the capacity of a trad er, the consumer will not be able to rely on the protection provided by this
Directive.
105 COMMISSION , Proposal for a Council Directive to Protect the Consumer in respect of Contracts which have
been negotiated away from Business Premises , COM (76) 514 fina l, [1977] OJ C 22/6.
106 Opinion of the Economic and Social Committee on the proposal for a Council Directive to protect the
consumer in respect of contracts which have been negotiated away from business premises, [1977] OJ C
180/39 -43.
107H. SCHULTE -NÖLKE , C. TWIGG -FLESNER , and M. EBERS , (eds.), EC Consumer Law Compendium –Comparative
Analysis – Annotated Compendium including a comparative analysis of the Community consumer acquis, s.l.,
Universität Bielefeld, 2007, 170. Available at
http://ec.europa.eu/consumers/cons_int/safe_shop/acquis/comp_analysis_en.pdf accessed on 10th July
2014
108 Directive 2011/83/EU Of the European Parliament and of the Council of 25 October 2011 on consumer
rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and
of the Council and repealing Council Directive 85/557/EE C and Directive 97/7/EC of the European
Parliament and of the Council [2011] OJ L 304/64.
109 Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and
administrative provisions of the Member States concerning consum er credit, [7987] OJ L 42/0048 -0053.
110 Directive 2008/48/EC of the European Parliament and of the Council of 23 April 2008 on credit
agreements for consumers and repealing Council Directive 87/102/EEC, [2008] OJ L 133/66.

20
transparency in the provision of credit by ensuring that the consumer receives adequate
information on the conditions and cost of credit111.
Article 2(a) defines a consumer as “a natural person who, in transactions covered by this
Directive, is acting for purposes which can be regarded as outside his trade or profession”. Once
more we notice the use of the word “regarded” which makes it unclear whether a person
entering into a dual purpose transaction can be qualified as a consumer112. This definition, aside
from the use of the word “regarded”, is one of the more common definitions and is exactly the
same as the consumer definition of the Doorstep Selling Directive. Article 2(b) defines a creditor
as “a natural or legal person who grants credit in the course of his trade, business or profession,
or a group of such person s”. The wording “in the course of” points to the fact that it is not
necessary to grant credit as a main activity, it should suffice even if it is only occasionally, as long
as it is part of his business.
In 2008 a new Consumer Credit Directive was adopted. With the adoption the new Directive
introduced a slightly different wording of the consumer and creditor definition. Article 3(a)
defines a consumer as “a natural person who, in transactions covered by this Directive, is acting
for purposes wh ich are outside his trade, business or profession”.113Arti cle 3(b) defines a
creditor as “a natural or legal person who grants or promises to grant credit in the course of his
trade, business or profession”.114 The new Directive like the former Directive, comp rises the
same personal scope, regardless of the different wording of the consumer and creditor
definition. One of the key changes, however, was the introduction of full harmonisation.115
2.1.3 Unfair Contract Terms Directive 93/13 /EEC116
The first programme o f 1975 already set forth the idea to protect consumers from unfair
commercial practices in the area of unfair contract terms .117 The subsequent programmes
continued to stress the need for protection in this area and the first steps towards such
protection we re taken .118 Micklitz correctly notes that justification for a consumer policy
intervention can be found in the asymmetry of economic powers which was only possible

111 Council Resolution of 14 April 1 975 on a preliminary programme of the European Economic
Community for a consumer protection and information policy [1975] OJ C 92/1.
112 The word “regarded” was also used in the definition of the Doorstep Selling Directive.
113 Notice that the word “regarded” was omitted from the definition.
114 The words “or promises” were added to the creditor definition. This does not change the scope of the
Directive, since promises were also included under the former Directive. The former Directive only
referred to “promises ” in the first paragraph of Article 2(a) where it defines the credit agreement.
115 Infra.
116 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, [1993] OJ L
95/0029 -0034.
117 Council Resolution of 14 April 1975 on a preliminary programme of the European Economic
Community for a consumer protection and information policy [1975] OJ C 92/2, paragraph 22.
118 Recital 8 of the Unfair Contract Terms Directive.

21
because of the principle of contractual freedom .119 Which meant that the pre-formulated
contrac ts by one contractual party, in particular by undertakings or their associations, which are
unilaterally imposed on the other party, in particular on consumers, without negotiation,
breaches the principle of contractual freedom120. Indeed, generally consumer s do not have the
bargaining power to enforce its own conditions. Consequently, by adopting the Unfair Contract
Terms Directive, which aims to protect consumers from unfair contract terms, another step in
the right direction of restoring the equality of po wer between contracting parties has been
taken .121
Article 2 (b) of the Directive defines a consumer as “any natural person who in contracts covered
by this Directive, is acting for purposes which are outside his trade, business or profession” .122 It
is interesting to note tha t the European legislator seems to have been aware of the ambiguity of
the word “regarded”. Whereas the initial proposal still referred to purposes as those “which can
be regarded as outside his trade,…”, the Directive that was ado pted revealed a more transparent
approach by having withdrawn the word “regarded” from its consumer definition .123
Article 2(c) of the Directive defines a seller or supplier as “any natural or legal person who, in
contracts covered by this Directive, is acti ng for purposes relating to his trade, business or
profession, whether publicly owned or privately owned.”. Both definitions are very similar to the
majority of definitions presented by the various Directives. Nevertheless, several elements in the
seller o r supplier definition stand out. Firstly, the notion of seller or supplier was used instead of
the more common notion of trader. Secondly, the definition of a seller or supplier expressly
states that it makes no difference whether the seller or supplier is publicly or privately owned .124

119What Micklitz stated is nothing more than the European ratio legis for consum er protection and is
clearly stated in recital 10 of the Directive: H.W. MICKLITZ , N. REICH and P. ROTT, Understanding EU
consumer law , 122.
120 H. W. MICKLITZ , N. REICH and P. ROTT, Understanding EU consumer law , 112.
121 This is especially true since this Directive applies to all contracts, not just contracts in a specific sector,
which is not too uncommon in European consumer law. The annex of the Directive contains an indicative,
yet non -exhaustive list of the terms whi ch may be regarded as unfair.
122It is nearly the exact same definition as the Doorstep Selling Directive, with the exception that on top of
trade and profession the word “business” is added. This, however, does not change the meaning of the
definition. In t he proposal the words “trade” and “business” are considered to be synonyms. Therefore we
can conclude that by adding “business” to the definition, nothing more than a hollow word was added.
COMMISSION, Proposal for a Council Directive on unfair terms in co nsumer Contracts COM (90) 322 final
– SYN 285, [1990] OJ C 243/2.
123 COMMISSION, Proposal for a Council Directive on unfair terms in consumer Contracts COM (90) 322
final – SYN 285, [1990] OJ C 243/2.
124 See case: C -59/12 BKK Mobil Oil Körperschaft des öffentlichen Rechts v Zentrale zur Bekämpfung
unlauteren Wettbewerbs eV . [2013] Not yet published.

22
2.1.4 Distance Selling Directive 97/7 /EC125
The underlying reasons for the necessity of the Distance Selling Directive were principally the
same as for the Doorstep Selling Directive. The fifth recital of the Directive explicit ly refers to
paragraph 18 and 19 of the programme of 1975 expressing the need to protect purchasers of
goods or services from demands of payment for unsolicited goods and from high -pressure
selling methods. The similarities in the underlying reasons betwee n the Doorstep Selling
Directive and the Distance Selling Directive do not come to us as a surprise. Indeed, the high –
pressure selling methods are inherent to doorstep selling and distance selling. It therefore seems
rather straightforward that both Direct ives would share a similar bas e. Evidently, the difference
lies in the scope of those Directives. Where the Doorstep Selling Directive requires a physical
visit of a trader at your door, the Distance Selling Directive can be seen as its counterpart. The
latter exclusively applies to contracts for which distance communication was used, up to and
including the moment at which the distance contract is concluded. A few popular forms of
distance communication to date are: teleshopping, electronic mail and radi o.
Article 2(2) of the Directive defines a consumer as “any natural person who, in contracts covered
by this Directive, is acting for purposes which are outside his trade, business or profession.”.
Article 2(3) provides a definition of supplier “ any natura l or legal person who, in contracts
covered by this Directive, is acting in his commercial or professional capacity.”. These definitions
are very much in line with the majority of definitions. The use of the notion of supplier and a
different wording of th e commercial purpose are the only elements that stand out.
2.1.5 Distance Marketing of Financial Services Directive 2002/65/EC126
Financial services were originally included in the proposal for the Distance Selling Directive, but
due to the complexity and di versity of the European financial sector the European legislator
deemed it desirable to adopt specific rules for those services.127 The underlying reasons and
objective therefore, are similar to those of the Distance Selling Directive. Indeed, one of the mai n
problems in distance sales lies in the anonymity of the contracting parties and the difficulty of
verifying the territorial jurisdiction. The Distance Marketing of Financial Services Directive filled
the gap that was created through the exclusion of fina ncial services from the Distance Selling
Directive.

125 Directive 97/7/EC of the European Parliament and of the Council of 20 M ay 1997 on the protection of
consumers in respect of distance contracts, [1997], OJ L 144/19 -27.
126 Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002
concerning the distance marketing of consumer financial services and amending Council Directive
90/619/EEC and Directives 97/7/EC and 98/27/EC, [2002] OJ L 271/16 -24.
127 COMMISSION , Financial Services: Meeting Consumer's Expectations – Green Paper , COM (96) 209 final,
available at: http://europa.eu/documents/comm/green_papers/pdf/com96_209_en.pdf accessed the 7th
July 2014.

23
Article 2(d) defines a consumer as “any natural person who, in distance contracts covered by
this Directive, is acting for purposes which are outside his trade, business or profession”. Article
2(c) defin es a supplier as “any natural or legal person, public or privat e, who, acting in his
commercial or professional capacity, is the contractual provider of services subject to distance
contracts”.
2.1.6 Consumer Sales Directive 99/4 4/EC128
The European legisla tor deemed it necessary to create a common set of minimum rules of
consumer law in relation to the conformity of goods with the contract. As, according to the
European legislator, this is the area where the consumer mainly experienced difficulties and it
also appeared to be the main source of disputes with the seller.129Consequently, the purpose of
the Consumer Sales Directive is to protect consumers from non -conformity of goods with the
contract, by providing a set of minimum rules that apply in the entire C ommunity.
The second paragraph of Article 1( a) de fines a consumer as “any natural person who, in the
contracts covered by this Directive, is acting for purposes which are not related to his trade,
business or profession”. The initial proposal, however, did state a different definition which was
eventuall y altered. It defined a consumer as “any natural person who, in the contracts covered
by this Directive, is acting for purposes which are not directly related to his trade, business or
profession”.130This definition appears to follow the Commission’s relucta nce to exclude the
professional purpose in its entirety from the consumer definition.131 In the end, it seems that the
European legislator was not convinced that persons who indirectly132 act in pursuit of a trade or
profession should fall under the consumer d efinition .133 This follows from the fact that the word
“directly” had been withdrawn from the definition. However, if the European legislator truly
wanted to exclude even the slightest professional use, it should have opted for a different
wording. As it is not entirely clear whether the wording “not related to his trade,…” has to be
interpreted as “in no way related to his trade,…” or if it should be interpreted in such a manner
that the slightest relation to his trade would suffice.

128 Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain
aspects of the sale of cons umer goods and associated guarantees, [1999], OJ L 171/0012 -0016 .
129 Recital 5 -6 of the Consumer Sales Directive.
130 COMMISSION , Proposal for a European Parliament and Council Directive on the sale of consumer goods and
associated guarantees , COM (95) 520 fi nal, [1996] OJ 307/8.
131 Firstly, the Commission wondered why different legal systems should apply to the same goods
depending on the status of the purchaser: “why should the buyer of a motor car be subject to different
rules as regards the legal guarantee, depending on whether he buys his car for private or for business
purposes?”. Secondly, the Commission pointed out that the guarantee is generally conceived as an
attribute of the product itself: COMMISSION , Green paper on guarantees for consumer goods and after -sales
services , COM (93) 509 final, 83 -95, available at: http://eur -lex.europa.eu/legal –
content/EN/TXT/PDF/?uri=CELEX:51993DC0509&from=EN accessed 8th July 2014.
132 This refers to the exceptional nature of the act.
133 This political decision is in line with the Di Pinto case, infra .

24
The second paragraph of Article 1(c) defines a seller as “any natural or legal person who, under a
contract, sells consumer goods in the course of his trade, business or profession”. This is the
more common definition. The reference to “consumer goods” only serves the purpose of limiting
the scope of the Directive to a certain type of goods.134
2.1.7 Consumer Rights Directive 2011/83/EC135
In 2004 the Commission launched the Review of the Consumer Acquis136 with the objective to
simplify and complete existing and future legislation. In its introduction the Review stressed the
important role the Common Frame of Reference (hereinafter CFR) would play in improving the
coherenc e between existing and future legislation. The Green Paper on the Review of the
Consumer Acquis of 2007137 reviewed eight consumer Directives. This resulted in three main
issues of which the fragmentation of rules is the most important for our research. The
Commission noted that the Consumer Acquis is fragmented in two ways. Firstly, due to the
minimum harmonization approach of the consumer Directives, Member States are allowed to
adopt more stringent rules in their national laws. Secondly, the consumer Direc tives are rather
inconsistent themselves. One of those inconsistencies can be found in the various definitions of a
consumer and a professional.
Shortly after, the Commission adopted a proposal with the aim of replacing four Directives in
one single Direct ive, namely the Doorstep Selling Directive, the Distance Selling Directive, the
Unfair Contract Terms Directive and the Consumer Sales Directive.138Together with the targeted
full harmonisation approach139, the emphasis most certainly lay on simplifying the ta rgeted
Directives, as well as removing the inconsistencies between the latter.140 In the end, the

134 Article 1,§2,b of the Consumer Sales Directive defines consumer goods as “any tangible movable item”
and excludes certain goods.
135 Directive 2011/83/EU Of the European Parliament and of the Council of 25 October 2011 on consumer
rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and
of the Council and repealing Council Directive 85/557/EEC and Directive 97/7/EC of the European
Parliament and of the Council [2011] OJ L 304/64.
136 Commission, Communication from the Commission to the European Parliament and the Council,
European Contract Law and the revision of the acquis: the way for ward , COM (2004) 651 final, [2005] OJ C
14/6.
137 Commission, Green Paper on the Review of the Consumer Acquis , COM (2006) 744 final, available at:
http://ec.europa.eu/consumers/archive/cons_int/safe_shop/acquis/green -paper_cons_acquis_en.pdf
accessed 9th July 2014.
138 Commission, Proposal for a Directive of the European Parliament and of the Council on consumer rights ,
COM (2008) 614 final.
139 Full ha rmonisation, contrary to minimum harmonisation, does not allow Member States to provide
more or less protection than the Directive in question. In other words, the minimum becomes the
maximum level of protection and vice versa. In case of targeted harmonis ation, only certain measures are
fully harmonised. Article 4 of the Consumer Rights Directive comprises the harmonisation clause.
140 Like the Green Paper on the Review of the Consumer Acquis, the proposal, with reference to the Impact
Assessment Report, fav oured a common definition of consumer and trader. However, the Commission
noted that this would have a very limited impact on the contribution to the better functioning of the

25
Consumer Rights Directive only replaced the Doorstep Selling Directive and the Distance selling
Directive.141 The specificities and controversies regarding the fu ll harmonisation approach will
be discussed further.
It is important to note that despite the Commission’s original plans to use the CFR in improving
the existing and future legislation, little use of it has been made by the proposal and only slightly
more by the Directive.142 Which is unfortunate, mainly from a consumer’s point of view, as the
Draft Common Frame of Reference143 provides a higher level of protection than the Directive.
Noteworthy is Article I: 105 that defines a consumer as “any person who is a cting primarily for
purposes which are not related to his or her trade, business or profession”. The original proposal
did not include the primary purpose in the consumer definition.144 Nevertheless, after amending
the seventeenth recital, the Directive adop ted the approach of the primary purpose in dual
purpose transactions, therefore increasing the scope of the Directive significantly.145 However, if
the main objective truly was to simplify the existing and future legislation, the primary purpose
should have been included in the consumer definition, not in a recital.
Article 2(1) of the Directive defines a consumer as “any natural person who, in contracts covered
by this Directive, is acting for purposes which are outside of his trade, business, craft or
profe ssion”. As mentioned above, the consumer definition has to be read as “any natural person
who, in contracts covered by this Directive, is acting for purposes which are primarily outside of
his trade, business, craft or profession. Not only does this incre ase the number of persons that
will benefit from consumer protection provided for by the Directive. It also provides more legal
certainty , as one of the complaints was that the consumer definitions were ambiguous in
relation to dual purpose transactions. However , it should be noted that the term “primarily”
itself is rather ambiguous. Amato proposes to solve the ambiguity by giving an express

internal market. The main reason for a common definition of consumer and trader was to increase the
quality of the legislation and thus the legal certainty.
141 For completeness sake, the Consumer Rights Directive also slightly amended the Unfair Contract Terms
Directive and the Consumer Sales Directive.
142M.W . HESSELINK , “The Consumer R ights Directive and the CFR: two worlds apart?”, ERCL 2009, Vol. 5, No.
3, 290 -303; LILLEHOLT , K., “Notes on the Proposal for a New Directive on Consumer Rights”, ERPL 2009,
Vol. 17, No. 3, 335 -343.
143C. VON BAR, E. CLIVE and H. SCHULTE NÖLKE (eds.), Principles, Definitions and Model Rules of European
Private Law. Draft Common Frame of Reference (DCFR), Munich, Sellier 2009, available at
http://ec.europa.eu/justice/c ontract/files/european -private -law_en.pdf , accessed 13th August 2014.
144 For more examples I refer to: M. W. HESSELINK , “The Consumer Rights Directive and the CFR: two
worlds apart?”, ERCL 2009, Vol. 5, No. 3, 300.
145 Recital 17 of the Consumer Rights Directive states that “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 i n the overall context of the contract, that person should
also be considered as a consumer”.

26
indication on the basis of the competence and of the distinction between “acts of the profession”
and “acts relative to the profession” .146
Article 2(2) of the Directive defines a trader as “any natural person or any legal person,
irrespective of whether privately or publicly owned, who is acting, including through any other
person acting in his name or on his behalf, for purposes relating to his trade, business, craft or
profession in relation to contracts covered by this Directive”. Note that the European legislator
adopted a single notion, the trader, to cover the various notions of the Directives it replaced.147In
additi on, the trader definition makes it clear that not only private ly owned, but also publicly
owned persons can be qualified as a trader.148
I already stated that the Directive is based on a full harmonisation approach. Nevertheless,
Member States remain compet ent to maintain or introduce national legislation corresponding to
the provisions of the Directive, or certain of its provisions, in relation to contracts that fall
outside the scope of the Directive. The Thirteenth recital of the Directive expressly state s that
“Member States may decide to extend the application of the rules of this Directive to legal
persons or to natural persons who are not consumers within the meaning of this Directive, such
as non -governmental organisations, start -ups or small and medi um-sized enterprises”. In other
words, the Member States are allowed to adopt a consumer definition which differs from the
consumer definition provided by the Directive. This is only logical since the consumer definition
limits the personal scope of the Di rective. Furthermore, since the legislative instrument is a
Directive, Member States do not have to implement the Directive verbatim , nor is it required to
implement the Directive in one single legal measure.149 Consequently, Member States may not
only adopt a consumer definition that is wider than the Directive, the consumer definition may
deviate in relation to the particular measures provided by one single Directive.150 As a result the
consumer definitions will still differ between Member States.

146 J. DEVENNEY and M. Kenny, The Transformation of European Private Law: Harmonisation, Consolidation,
Codification or Chaos? , Cambridge, Cambridge University Press , 2013, 53.
147 The Doorstep Selling Directive referred to a person acting in pursuit of his trade as a trader, whereas
the Distance Selling Directive referred to a supplier.
148 The Unfair Contract Terms Directive was the first Directive to expressly include “private or publicly
owned” to its seller definition. It would appear that the European legislator reviewed the various trader
definitions existent among the Consumer Directives and summarised all of it in one single definition.
149 Christian Twigg -Flesner and Daniel Metcalfe briefly examined whether the use of a Regulation may
have been more opportune: C. TWIGG -FLESNER AND D. METCALFE , “The proposed Consumer Rights Directive –
less haste, more thought?”, ERCL 2009, Vol. 5, No. 3, 368 -391.
150 The Directive re placed the Doorstep and Distance Selling Directive with the aim of creating coherent
legislation. Nonetheless, some Articles respectively refer exclusively to doorstep selling and distance
selling. However unlikely, Member States may opt to adopt a wider d efinition in relation to doorstep
selling without doing the same for measures concerning distance selling.

27
2.2 PRODU CT LIABILITY , GENERAL PRODUCT SAFETY AND MISLEADING ADVERTISING
2.2.1 Product Liability Directive 85/374/EEC151 and General Product Safety
Directive 2001/95/EC152
The Product Liability Directive aims to protect every consumer from defective products by
holding producers liable for damage caused by a defect in their product s, irrespective of fault on
the part of the producer . It was considered that the introduction of liability without fault on the
part of the producer was the favoured approach to spread the risk inherent in modern
technological production.
Interestingly enough, only the notion “producer” is defined in the Directive .153 Article 3 defined a
producer as “ the manufacturer of a finished product, the producer of any raw material or the
manufacturer of a component part and any person who, by putting his name, trade mark or
other distinguishing feature on the product presents himself as its producer.” . The second
paragraph of Article 3 adds that “any person who imports into the Community a product for sale,
hire, lease or any form of distribution in the course of his business shall be deemed to be a
producer within the meaning of the Directive…” . This definition includes all manufacturers , even
those acting in pursuit of t heir private pur poses. That is why the Directive provides producers of
certain products the right to prove that their product belongs to any of the six categories
mentioned in Article 7 . In which case the manufacturer of such a product shall not be held liable .
For instan ce, a product that was neither manufactured by him for sale or any form of
distribution for economic purpose nor manufactured or distributed by him in the course of his
business.154 The definition of Article 3 is very broad i ndeed , as it refers to the economic
producer155, and thus covers more than the common trader definition . Nevertheless , if we take
Article 7 into account “private producers”156 will fall outside the scope of the Directive on the
condition that product was not manufactured for sale. Even though this proves the European
legislator’s intent to target commercial traders, rather than every sale, and is therefore in line
with the intent of consumer acquis . It does not change the fact that the producer definition as
such, is very different from the common trader definition.

151 Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and
administrative provisions of the Member States conce rning liability for defective products, [1985] OJ L
210/0029 -0033.
152 Directive 2001/95/EC of the European Parliament and of the Council of 3 December 2001 on general
product safety, [2002] OJ L 11/4 -14.
153 Note that the European legislator opted for the use of the term “producer”, contrary to the use of the
term “trader”. We admit that the term “producer” seems logical from a linguistic point of view and given
the definition that followed. However, seeing as the legislator limited the definition in Article 7 of the
Product Liability Directive to de facto that of a trader, the use of the same term “trader” was, would have
been preferred.
154 Article 7(c) of the Product Liability Directive.
155 Which, in this context, roughly translates to a person who sells something to another person.
156 Meaning a person acting outside his trade.

28
The Directive do es refer to injured person or consumer, yet without further defining those
notions. Nebbia and Askham find that this approach can be justified by the awareness that some
measures need to cover wider economic ca tegories and that therefore also consumers who act in
a professional capacity should be included .157 The provisions in th is Directive are such measures,
since it aims to hold producers responsible for their products. Nebbia and Askham further argue
that it w ould be impractical and morally unacceptable to prescribe different degrees of product
safety or liability according to the use the purchaser makes of the product .158 Hence, the lack of
necessity to restrict the obligations of the producer to a certain categ ory of consumers. So in
theory this Directive considered the consumer as the economic counterpart of the producer , as
the buyer versus the seller. Yet, Article 9 of the Product Liability Directive reveals that damage to
property can only be compensated if the product is of the type ordinarily intended for private
use or consumption an d was used by the injured person mainly for his own private use or
consumption. Notwithstanding the intent to cover all users , the provisions in Art icle 9 drastically
limited the implied consumer notion . Nevertheless, this implied consumer notion is still wider
than the definition introduced in most Directives .159
The General Product Safety Directive has been drafted in a similar way , as the intent was also to
protect all of the buyers from unsafe products, not just a certain category .160 Hence, the
introduction of a producer definition161 without a definition of its counterparty. This producer
definition also includes persons acting in pursuit of their priv ate purposes. However, in its
producer definition a reference was made to the notion “product” , which in turn was defined as
“any product which is intended for consumers or likely, under reasonably foreseeable
conditions, to be used by consumers even if not intended for them, and is supplied or made
available, whether for consideration or not, in the course of a commercial activity, and whe ther
new, used or recondition”. As a result , only producers pursuant of their trade or profession are
targeted .162 This definition , as such , is in line with the common core of the trader definition.163

157 A similar reasoning can be found in the General Product Safety Directive and the Misleading
Advertising Directive, infra; P. NEBBIA AND T. ASKHAM , EU Consumer law , 37.
158 Ibid.
159 Damage caused by death or personal injuries is covered irrespective of the use, which means that
consumers acting in pursuit of their trade or profession will be entitled to compensation. Even in case of
damage to property we can see a broader approach, allowing dual purpose transactions, provided that the
private purpose was predominant.
160 It is called the General Product Safety Directive because it does not target a specific product. The
Dire ctive applies to all products to which no provisions apply or complements provisions with a
narrower scope.
161 Article 2e of the General Product Safety Directive.
162 Article 2a of the General Product Safety Directive.
163 Note the contrast between producer de finitions.

29
For completeness sake it should be noted that, c ontrary to certain aspects the Product Liability
Directive , the General Product Safety Directive does not exclude consumers acting in pursuit of
their trade or profession. In other words, all of the users can enjoy the full benefit of the G eneral
Product Safety Directive.
2.2.2 Misleading Advertising Directive 84/450/EEC164 and Unfair Commercial
Practices Directive 2005/29/EC165
The reason why we discuss the Misleading Advertising Directive together with the Product
Liability and General Safety Liability Directive is because all three of those Directives have in
common that their consumer area was co nsidered of such importan ce that they should cover
wider economic categories .166 The aim was to protect every person from misleading advertising
and thus no definition of producer or consumer was drafted . In 2005 , however, the Unfair
Commercial Practices Directive was adopted, replacing the Misleading Advertising Directive
with regard to the business -to-consumer context . The Unfair Commercial Practices Directive
therefo re drafted a limited definition of “consumer” in Article 2(a) “any natural person who, in
commercial practices covered by this Directive, is acting for purposes which are outside his
trade, business, craft or profession. ”. Evidently, Article 2(b) also defi nes “trader” as “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 of or on behalf
of a trader” .
The adoption of the Unfair Commercial Practices Directive was more than a routine update of
the former Misleading Advertising Directive .167 As the title may have implied, the Directive
added consumer protection measures in relation to unfair commercial practices. The Misleadin g
Advertising Directive, however, still plays its part in the business -to-business context .168 Even
though the Misleading Advertising Directive was codified in 2006, it does not offer protection to
persons acting in pursuit of their trader or profession from unfair commercial practices . It is
remarkable that the legislator found it necessary to protect every person from misleading

164 Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws,
regulations and administrative provisions of the Member States concerning misleading advertising,
[1984] OJ L 250/0017 -0020.
165 Directive 2005/29/EC of The European Parliament and of the Council of 11 May 2005 concerning
unfair business -to-consumer commercial practices in the internal market and amending Council Directive
84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the
Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair
Commercial Practices Directive’), [2005] OJ L 149/22.
166 The Unfair Commercial Practices Directive is discussed here because it replaced the Misleadin g
Advertising Directive with regard to the business -to-consumer relation.
167 Contrary to the Directive it replaced, this Directive adopted full harmonisation: recital 14 of the Unfair
Commercial Practices Directive.
168 Codified in Directive 2006/114/EC of the European Parliament and of The Council of 12 December
2006 concerning misleading and comparative advertising (codified version) [2006] OJ L 376/21.

30
advertising, yet “at the same time” only protect persons acting for purposes which are outside
their trade, business, craft or profession from unfair commercial practices. It definite ly seems
odd in light of the EU’s emphasis on the necessity of reducing fragmentation .169
2.3 HOLIDAYS AND TRAVEL
2.3.1 Package Travel Directive 90/ 314/EEC170
The second programme marked the start of the development of Directives concerned with
tourism, such as the Package Travel Directiv e. A strong impetus, however, was given by the
Commission’s communication to the Council entitled “A New Impetus for Consumer Protection
Policy” , which lists among the measures proposed by the Commission, the harmonization of
legislation on packages .171
The aim of this Directive is to pr ovide protection to consumers who entered into a package
contract, i.e., a contract where the “organizer” organised transport and accommodation .172
Article 2 (4) of the Directive defines a consumer as “the person who takes or agrees to take the
package ( “the principal contractor ”), or any person on whose behalf the principal contractor
agrees to purchase the pa ckage (“the other beneficiaries” ) or any person to whom the principal
contractor or any of the other beneficiaries transfers the package ('the transferee').”. This is a
rather unusual definition. Usually the notion of “consumer” is exp ressly limited to a natural
person acting in pursuit of his trade or profession . This wide definition of a consumer does not
exclude any person . Even a person acting in pursuit of his trade or profession will be able to
enjoy the benefits from this Directive.
Article 2(2) defi nes the consumer’s counterparty , the organis er, as “the person who, other than
occasionally, organizes packages and sells or offers them for sale, whether directly or through a
retailer.” . This definition has a wider scope since, contrary to most Directives, it is not limited to
packages offered by a person who is acting in pursuit of his trade or profession. However, only
when a person organi ses package travels on a regular basis will he be considered an organizer .
The Directive is about to underg o a significant change as it will be repealed in the near future, by
the proposal for a revised Package Travel Directive173. Remarkable, other than the full

169 P. SYRPIS , The Judiciary, the legislature and the EU internal ma rket , Cambridge, Cambridge University
Press, 2012, 133.
170 Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours
[1990] OJ L 158/0059 -0064.
171 Commission, Communication from the Commission to the Council. A new i mpetus for consumer protection
policy , COM (85) 314, paragraph 37.
172 For the sake of completeness, a package contract requires a pre -arranged combination of at least two
of the following to be sold or offered for sale: transport, accommodation and other t ourist services if they
account for a significant proportion of the package. Article 2(1) of the Package Travel Directive.

31
harmonisation approach, is that the proposal of the new Directive changed the notion of
consumer into “traveller”. The proposed Article 2(6) defined a traveller as “any person who is
seeking to conclude or is entitled to travel on the basis of a contract concluded within the scope
of this Directive, including business travellers insofar as they do not travel on the basis of a
framework contract with a trader specialising in the arrangement of business travel.” . Clearly,
the definition changed along with the notion. The proposed definition no longer includes all
persons , as it excludes certain business travellers .174 Nevertheless, the scope of the definition is
still wide r than the majority of Directives.
The proposal for a revised Package Travel Directive also altered the definition of an organis er,
mainly by introducing a trader definition to which is referred to in the organiser definition .
Article 3(7) defines a trader as “any person, who is acting for purposes relating to his trade,
business, craft or profession. ”. As a result , a person who regularly offer s packages without
pursuing a commercial activity will no longer be considered an organis er.175 Whereas certain
trader definitions refer to the commercial activity as “acting in his commercial or professional
capacity”, the proposal seems to have opted for a widening approach with regard to the wording
“relating to his trade ”.176 In reality the s cope of both definitions is the same. One thing is certain,
the use of a different wording, does not add to the legal certainty which one should be able to
expect in this day and age.

173 Commission, Proposal for a directive of 9 July 2013 of the European Parliament and of the Council on
package travel and assisted travel arrangements, amending Regulation EC 2006/2004, Directive
2011/83/EU and repealing Council Directive 90/314/EEC , COM (2013) 512 final.

174 The European Consumer Organisation: BEUC agreed that some major businesses could be excluded,
but it believed t hat the exclusion should not apply to NGO’s and small businesses. They argue that such
would be coherent with the Consumer Rights Directive, which allows Member States to apply the
Directive to NGO’s, start -ups or small and medium -sized enterprises;
BEUC , Revision of the Package Travel Directive: Commission proposal COM (2013) 512 (X/2013/082 –
29/11/2013) available at http://www.beuc.org/publications/x2013_082_package_tr avel_directive.pdf
accessed on 17th July 2014 .
175 Under the current Package Travel Directive there is some doubt whether a non -profit or sporting
organisation, acting on a regular basis, should be considered as an organiser: P. NEBBIA and T. ASKHAM , EU
Cons umer law, 276; G. HOWELLS AND T. WILHELMSSON , EC Consumer law in European business law library ,
Aldershot, Alsgate, 1997, 234.
176 The trader definition presented by the proposal for a new Package Travel Directive is not atypical. The
more recent Directives seem to prefer the wording “relating to his trade”.

32
2.3.2 Timeshare Directive 94/47 /EC177 and 2008/122 /EC178
The need for a Timeshare Directive is not spelled out clearly in the Directive itself , but it is
obvious that the great deal of timeshare scandals in the 1 980s and 1990s certainly had its
influence .179 The Directive aim ed to establish a minimum basis of common rules which would
prote ct the consumer’s t imeshare rights, i.e., the annual right to use accommodation during a
certain period of time in a holiday property or several properties.
In the Timeshare Directive the notion of consumer was not used to describe the person
consuming goods or services. Instead the term “purchaser” was used. According to Article 2 of
the Directive a purchaser is “any natural p erson who, acting in transactions covered by this
Directive, for purposes which may be regarded as being outwith his professional capacity, has
the right which is subject of the contract transferred to him or for whom the right which is the
subject of the contract is established .”. Again a different notion is used to refer to the consumer
and even though the wording of the definition itself is different , it is in line with the common
core of consumer definitions.
The consumer’s counterparty in this Directive is called the “vendor” and is defined in Article 2 as
“any natural or legal person who, acting in transactions covered by this Directive and in his
professional capacity, establishes, transfers or undertakes to tr ansfer the right which is the
subject of the contract” . Other than a different notion and the different wording of the definition,
nothing appears to stand out. This definition is in line with the common core of trader
definitions.
The new Timeshare Direct ive of 2008 repealed the former Timeshare Directive and is currently
the governing measure .180 The new Directive adopted and defined the notion of consumer in
Article 2(f) as “a natural person who is acting for purposes which are outside that person’s trade,
business, craft or profession”. The new Directive also introduced and defined the notion of
trader in Article(e) as “ a natural or legal person who is acting for purposes relating to that
person’s trade, business, craft or profession and anyone acting in t he name or on behalf of a
trader”. This removed the differences in the wording of the aforementioned definitions and

177 Directive 94/47/EC of the European Parliament and the Council on the protection of purchasers in
respect of certain aspects of contracts relating to the purchase of the right to use immovable propert ies on
a timeshare basis[1994] OJ L 280/0083 -0087.
178 Directive 2008/122/EC of the European Parliament and the Council on the protection of purchasers in
respect of certain aspects of timeshare, long -term holiday products, resale and exchange contracts [200 9]
OJ L 33/10.
179 P. NEBBIA and T. ASKHAM , EU Consumer law , 279; Howells and Wilhelmsson give several reasons why the
need for consumer protection is dire: G. HOWELLS and T. WILHELMSSON , EC Consumer law , 250.
180 The new Directive is aimed at full harmonisat ion.

33
notions . It demonstrates the legislator’s awareness of the inconsistency of similar notions and
definitions between the various Directives.
2.4 LABELLING
2.4.1 Price Indication Directive 98/ 6/EC181 and its predecessors 79/581/EEC
and 88/314 /EEC182
Before the Price Indication Directive183 came into force, two other Directives were the governing
measure s on price indication , the Foodstuffs Price Indication Directive184 and the Non -food Price
Indication Directive185. The programme of 1975 clearly indicate s that price indication is one of
the priorities in enabling consumers to make informed decisions .186 In order to meet those
objectives the Foodstuffs Price Indication Directive was adopted. Since the latter Directive only
focused on the food sector the natural follow -up was to adopt a similar directive for non -food
products. Both those Directives had the same intent, to cre ate a system that would make it easier
for consumers to compare prices at the place of sale .187
Neither of the Directives that were repealed by the Price Indication Directive , defined the notion
of consumer. The Foodstuffs and Non -food Price Indication Directive, however, did limit the
scope to the common consumer area by referring to the final consumer in the first paragraph of
Article 1 and by expressly excluding “consumer ” 188 purchases for professional or commercial
reas ons in the second paragraph of Article 1 . The notion of seller is mentioned once in both
Directives, but just like the notion of consumer it is not defined. The emphasis lies on the
products that are offered for sale. This will generally be the case for selle rs acting in pursuit of a

181 Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer
protection in the indication of the prices of products offered to consumers [1998] OJ L 80/27.
182 Council Directive 79/581/EEC of 19 June 1979 on consumer protection in the indication of the prices
of foodstuffs [1979] OJ L 158/19 -21; Council Directive 88/314/EEC of 7 June 1988 on consumer
protection in the indication of the prices of non -food product s [1988] OJ L 142/19 -22.
183 Sometimes referred to as the Unit Prices Directive.
184 Council Directive 79/581/EEC of 19 June 1979 on consumer protection in the indication of the prices
of foodstuffs [1979] OJ L 158/19 -21.
185 Council Directive 88/314/EEC of 7 Ju ne 1988 on consumer protection in the indication of the prices of
non-food products [1988] OJ L 142/19 -22.
186 Council Resolution of 14 April 1975 on a preliminary programme of the European Economic
Community for a consumer protection and information policy [1975] OJ C 92/1, paragraph 34 -35.
187 I refer to the preamble of the Foodstuffs and Non -food Price Indication Directive.
188The Foodstuffs Price Indication Directive dates back to 1979, a time before the multiplicity of consumer
Directives and thus a time bef ore the various legal definitions of the notion of consumer. That and its
context made it clear that the latter Directive referred to the economic consumer. Nevertheless, the use of
the notion of buyer, customer or purchaser would have been preferred. The Non -food Price Indication
Directive, about nine years later, excluded the same category of customers but did so without referring to
any person. It simply stated that the Directive would not apply to “products bought for the purpose of a
trade or commercia l activity”.

34
commercial activity .189 Even more so, since t he second paragraph of Article 1 of the Non -food
Price Indication Directive exempts, inter alia , private sales .190
The Price Indication Directive repealed the Foodstuffs Price Indication Directive and the Non –
food Price Indication Directive. The intent was to reform the rather complex system of price
indication established by the latter two Directives191. In other words, the goal was to create a
new and simplified system. This new system sho uld substantially improve consumer
information and subsequently enable consumers to evaluate and compare the price of products
in an optimum manner .192 As a result consumers should be able to make informed decisions on
the basis of simple comparisons .193
The Price Indication Directive did adopt a definition of consumer and trader .194 Article 2(e) of
the Directive defined a consumer as “any natural person who buys a product for purposes that
do not fall within the sphere of his commercial or professional activity”. The wording in that
Article does not provide a clear definitio n, as it is unclear what exactly the “sphere of his
commercial or professional activity” entails .195 Article 2(d) of the Directive defined the trader as
“any natural or legal person who sells or offers for sale products which fall within his
commercial or professional activity.” . Even though the trader definition does not contain the
word “sphere” it reflects the same ambiguity as the consumer definition.
2.5 ELECTRONIC COMMERCE
2.5.1 E-Commerce Directive 2000/31 /EC196
Whereas the majority of consumer Directives strongly focus on the consumer, the main objective
in the E -Commerce Directive is to set up a common legal framework for the provision of
information society servic es.197 The Directive established harmonised rules on issues such as the
transparency and information requirements for online service providers, commercial

189The second paragraph of Article 1 of the Foodstuffs Price Indication D irective does, however, exempt
certain commercial sellers.
190 The Foodstuffs Price Indication does not exempt private sales, but expressly leaves it up to the Member
States to do so.
191 Recital 5 of the Price Indication Directive.
192 Recital 5 -6 of the Price Indication Directive.
193 Recital 6 of the Price Indication directive.
194 However, the original proposal, like the older the Directives, did not provide a definition of consum er
or trader : COMMISSION , Proposal for a European Parliament and Council Directive on Consumer Protection in
the Indication of the Prices of Products offered to Consumers , COM (95) 276 final.
195 The French and Dutch translations use a similar ambiguous wor ding.
196 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal
aspects of information society services, in particular electronic commerce, in the Internal Market
('Directive on electronic commerce'), [2000] OJ L 178/0001 -0016.
197 Meaning, any service normally provided for remuneration, at a distance, by electronic means and at the
individual request of a recipient of services: Directive 98/34/EC of the European Parliament and of the
Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical
standards and regulations and of rules on Information Society services, [1998] OJ L 204/37.

35
communications, electronic contracts and limitations of liability of intermediary service
providers.198 Although the main priority is to improve the internal market by facilitating the
provision of information society services across borders , the legal framework adds to the legal
certainty and consumer confidence . Furthermore, some of the provisions are dire ctly beneficial
to the consumer , which is why it deserves a place among the consumer Directives.199
The initial proposal did not include a consumer definition.200 Which is understandable, as the
initial proposal made no distinction between recipients of servic es acting in- or outside their
commercial capacity . The Directive , however, does contain a consumer definition . Article 2(e)
defines a consumer “any natural person who is acting for purposes outside of his or her trade,
business or profession”. Nevertheless, it is of little significance as the provisions apply to all
recipients of services.201Which is rather remarkable, since Consumer Directive s that included a
consumer definition normally use that definition t o limit the scope of the Directive.
The consumer’s counterparty is referred to as the “service provider” and is defined in Article
2(b) as “any natural or legal person providing an information society service”. This definition is
in accordance with the common core, since the reference to an information society service
implies the commercial activity.
2. 6 JURISDICTION AND CONF LICT OF LAW RULES202
The Brussels Convention of 1968203 provided a set of ru les regulating which courts had
jurisdiction in legal disputes of a ci vil or commercial nature between individuals , resident in
different member states of the Community.204 However, it was not until 1978 that consumer
contracts were introduced in the Brussels Convention.205 The scope of section 4 was expanded to
include such consumer contracts. From then on , section 4 specifically focused on consumer

198 X, “E -Commerce Directive”, available at http://ec.europa.eu/internal_market/e –
commerce/directive/index_en.htm , accessed the 16th August 2014.
199 E.g. : Article 5 of the E -commerce Directive requires that the service provider renders information to
the reci pients of the service.
200 Commission, Proposal for a European Parliament and Council Directive on Directive on certain legal
aspects of electronic commerce in the internal market , COM (1998) 586 final, [1999] OJ C 30/4.
201 The recipients mainly benefit from the information requirements which the service supplier is obliged
to fulfil. The only difference is that certain information requirements shall not apply to a recipient acting
in pursuit of a commercial activity, on the condition that the parties agreed o therwise.
202 When I refer to “the Regulations” I am referring to the Brussels I and I a Regulation and the Rome I
Regulation.
203 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters,
[1968] OJ L 299/0032 -0042.
204 U. MAGNUS and P. MANKOWSKI , (eds.), Brussels I Regulation , München, European Law Publishers, 2012,
xxvii + 972 p.
205 Council convention 78/884/EEC on the accession of the Kingdom of Denmark, Ireland and the United
Kingdom of Great Britain and Northern Irel and to the Convention on jurisdiction and the enforcement of
judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice,
[1978] OJ L 304 ; Infra: C-150/77 Bertrand v Paul Ott KG [1978] ECR -01431 (hereinafter Bertrand case).

36
contracts as opposed to the initial section 4, which only included sales of goods on instalment
credit terms and loans repayable by instalments.206 Evidently , a definition of a consumer was
added in Article 13, which defined a consumer as “a person [that concluded a contract] for a
purpose which can be regarded as being outside his trade or profession”. However, the revised
section 4 did not provide a trader definition.207
Several years later the Rome Convention of 1980208 was adopted.209 A Convention that would
govern the choice of law in relation to contractual obligations in the Community until 2009. With
regard to the consumer contracts the Rome Convention was very much in line with the Brussels
Convention , in the sense that it only applied to certain types of consumer contracts. Article 13
defines a consumer as “ a person [that concluded a contract] for a purpose which can be
regarded as being o utside his trade or profession,…” , which is essentially the same definition as
provided for by the Brussels Convention.210 Not only that, both Conventions share a great
number of correlations. Consequently, the case law of the Brussels Convention can be used to
interpret certain provisions of the Rome Convention.211Note that the Rome Convention also did
not provide a trader definition.
In 2002 the Brussels I Regulation212, which replaced the Brussels Convention, came into force .
The Regulation increased the scope of the consumer contracts provisions to cover not just
certain, but all contracts concluded between a consumer and a professional.213 The Rome I
Regulation214, which came into force in 2009 and replaced the R ome Convention, also revised

206 The initial section 4 of the Brussels Convention, however, did not expressly limit the personal scope to
persons acting in pursuit of a private purpose. It only referred to a buyer and borrower respectively,
without defining either.
207 Apparently it appeared obvious that the counterparty of a consumer in relation to consumer contracts
had to be a professional. On a side note, the initial section 4 did refer to a seller or lender, without defining
either of those notions.
208 Rome Convention on the law applicable to contractual obligations, [1980] OJ C 078/0034 -0048.
209 For the historical development I refer to: A. J. BĚLOHLÁVEK , Rome Convention -Rome I Regulation
: commentary : new EU conflict -of-laws rules for contractual obligatio ns, Huntington, Juris 2010, 2 v.,
clxxiii+ 2908 p.
210 Which can be explained easily, as the substance of the definition of a consumer contract was taken
from Article 5 of the then preliminary draft convention on the law applicable to contractual and non –
contractual obligations, later to become – with reference to contractual obligations only – the Rome
Convention. Referred to in the Schlosser Report: Report on the Convention on the Association of the
Kingdom of Denmark, Ireland and the United Kingdom of Grea t Britain and Northern Ireland to the
Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the
Protocol on its interpretation by the Court of Justice, signed at Luxembourg, 9 October 1978. [1979]OJ C 59.
211 J. BĚLOHLÁVEK , Rome Convention -Rome I Regulation : commentary : new EU conflict -of-laws rules for
contractual obligations , 35, No. 113.
212 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and
enforcement of judgments in civil and commercial matters (Brussels I) [2001] OJ L12/1.
213 All contracts minus the exception mentioned in the third paragraph. Article 15, first paragraph, (c) of
the Brussels I Regulation.
214 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the
law applicable to contractual obligations (Rome I)[2008] OJ L 177/6.

37
the scope of the consumer contracts. Since that date , all contracts concluded between a
consumer and a professional fall under the scope of the consumer contracts provisions.215 As a
result, the revised versions of the Convention s (the Brussels I and Rome I Regulation) were in
line once more . The consumer definitions are nearly exactly the same as those provided for by
their predecessors (the Conventions). All of the consumer defi nitions define a consumer as “a
person [that concluded a contract] for a purpose which can be regarded as being outside his
trade or profession ”, whereas the Rome I Regulation defines a consumer as “ a natural person
[that concluded a contract] for a purpose which can be regarded as being outside his trade or
profession”. The introduction of the word “natural” in the consumer definition of the Rome I
Regulation adds to the legal quality and clarity of the provision. However, it should not be seen
as a reduction of the scope of the consumer definition, since the consumer definition s of the
Conventions have always implied to only apply to natural persons .216
Contrary to the Conventions, these Regulations do define a trader, namely as “a person who
pursues commercial or professional activities”.217
Those Regulations were built on the principles of the Conventions in the majority of regulated
points.218 The adequate protection for so -called weaker parties to contractual obligation s, such
as the consumer, is such an underlying principle which we find in both Conventions and
Regulations.219 Due to the similar principles and strong correlations , it is possible to use the case
law of the Conventions to interpret certain provisions of the Regulations .220
For the sake of completeness, it should be noted that the Brussels Regulation has been revised in
2012.221 With the exception of two provisions which already apply today222, the new Brussels I a
Regulation will apply as of 10th January 2015 .223 However, the new Brussels I a Regulation does

215 Article 6, fourth paragraph of the Rome I Regulation provides several exceptions.
216 The Brussels I Regulation continues the tendency of limiting the consumer definition to natural
persons.
217 The Brussels I Regulation merely defines the trader without expressly referring to such a notion;
Article 6,§1 Rome I and Article 15,§1,c Brussels I.
218J. BĚLOHLÁVEK , Rome Convention -Rome I Regulation : commentary : new EU conflict -of-laws rules for
contractual obligations , 21.
219 Indeed, the initial text of the Brussels Convention did not expressly provide additional protection to
weaker parties to the ext ent as it does now (Brussels I and I a Regulation). Yet, the initial section 4 shows
awareness of such weaker parties and did provide additional protection in two specific cases (contracts).
220 It should, for instance, be possible to make use of the case la w of the Brussels Convention to interpret
certain provisions of the Rome I Regulation. With regard to the Rome Convention and the Rome I
Regulation: J. BĚLOHLÁVEK , Rome Convention -Rome I Regulation : commentary : new EU conflict -of-laws rules
for contractual obligations , 32.
221 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on
jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ
L 351.
222 Article 75 and 76 of the Brussels I a Regulation.
223 Article 81 of the Brussels I a Regulation of 2012.

38
not introduce any key change s in the consumer area , nor does it alter the consumer and trader
definition provided for by its predecessor .
It is important to make two remarks concerning the relation between other acts of Community
legislation (consumer Directives) and the Regulations. Firstly, the consumer definition provided
for by the Regulations is sufficient to conclude whether th e Regulations are applicable,
regardless of whether the case is cov ered by a particular consumer Directive. In other words, the
consumer definition cannot (at least not without reservations) be associated with consumer
definitions under any other consumer Directive.224 Secondly, under the Regulations the
consumer (protectio n) is treated as an exception, whereas consumer protection is the general
rule under the various consumer Directives . For instance, Article 3 of the Rome I Regulation
comprises the general rule, the freedom of choice, after which several exceptions are sum med up
in the following articles. It is inherent to exceptions to interpret such provisions restrictively.
Consequently, we should be cautious when comparing case law based on consumer Directives,
as they are not necessarily bound by the same restrictive interpretation.
3 EVALUATION OF THE VAR IOUS CONSUMER AND TRADER DEFINITIONS
3.1 INCONSISTENT WORDING
If the review of the many consumer and trader definitions has shown us one thing, it is that the
wording could not be any more diverse. For i nstance, the Doorstep Selling Directive define s a
consumer as “a natural person who, in transactions covered by this Directive, is acting for
purposes which can be regarded as outside his trade or profession” , whereas the former
Timeshare Directive define s a purchaser225 as “any natural person who, acting in transactions
covered by this Directive, for purposes which may be regarded as being outwith his professional
capacity, has the right which is subject of the contract transferred to him or for whom the rig ht
which is the subject of the contract is established”.
Martin Ebers correctly stated that the differentiation in wording also occurs in other language
versions of the consumer Directives and thus is not limited to the English version of the

224 J. BĚLOHLÁVEK , Rome Convention -Rome I Regulation : commentary : new EU conflict -of-laws rules for
contractual obligations , 1142, No. 06.205
225 Note that not even the notion of consumer is used to refer to a natural person acting in pursuit of
private purposes. This, however, is one of the few Directives where the notion of consumer is not u sed.

39
Directives.226 Nevertheless, it should be noted that the German definitions appear to be more
consistent in their wording.227
Originally the older consumer definitions only referred to a person’s trade or profession.228 In
more recent consumer and trader definitions the European legislator appears to feel pressured,
by the need for legal certainty, to stress that such a person should also respectively act outside
or in his business or craft .229 The introduction of these two terms, however, added little to t he
existing consumer definition and did not create a more narrow definition. The intent was simply
to make sure that only persons acting in pursuit of private purposes would benefit from the
consumer protection rules. In a similar fashion but with regard t o the trader definition it should
be noted that the wording “acting in the name of or on behalf of” was merely meant to stress the
fact that the extension of the trader would also be considered as a trader. In other words, trader
definitions that do not me ntion the wording “acting in the name of or on behalf of”, also cover
those persons. The same, however slightly more controversial, can be said about the wording
“irrespective of whether publicly or privately owned”.230
It is noteworthy that the European le gislator has many different ways of referring to the purpose
of a consumer or trader. In general, we can see two trends in the consumer definition. A
consumer is a person who can either be acting for purposes which “ can be regarded as outside”
or which “are outside” of his trade or profession. From a legal -linguistic point of view one could
easily argue that the first trend provides more wiggle room than the second. The trader
definitions are chara cterised by similar inconsistencies. In certain trader definitions the purpose
is often referred to as “in the course of his trade ”, “relating to his trade”, “is acting in his
commercial activity” or “pursues commercial activities”.231 Even though the inten t and scope of
the consumer and trader definitions is the same in the majority of definitions, it is poorly
reflected by the inconsistency towards their wording.

226 H. SCHULTE -NÖLKE , C. TWIGG -FLESNER , and M. EBERS , (eds.), EC Consumer Law Compendium –Comparative
Analysis – Annotated Compendium including a comparative analysis of the Community consumer acquis, 715.
227 For instance, the English wording in the Doors tep Selling, the Distance Selling and the Consumer Sales
Directive differs slightly with regard to the purpose of the contract ( infra table 2). Whereas the German
wording always refers to “zu einem Zweck, handelt der nicht ihrer beruflichen oder gewerblich en
Tätigkeit zugerechnet werden kann”.
228 The Brussels I and Rome I Regulation are an exception in that respect, as they still only refer to a
person’s trade or profession.
229 Sometimes neither of those four terms are used. Instead, as is the case in the Pr ice Indication Directive,
the consumer definition may refer to a commercial or professional activity. The same is true for the trader
definition where a trader’s purpose is sometimes referred to as “commercial or professional activity [or
capacity]”.
230 C-59/12 BKK Mobil Oil Körperschaft des öffentlichen Rechts v Zentrale zur Bekämpfung unlauteren
Wettbewerbs eV . [2013], not yet published.
231 This enumeration is not exhaustive.

40
It is rather unfortunate that the wording in the definitions of the se two significant notions is not
more consistent. Nevertheless , within the category of the consumer contracts there appears to
be a n almost uniform consumer definition. Norbert Reich states that the notion of the term
“consumer” is most unambiguous in contract law.232 Reich refers to a consumer in contract law
as “any natural person who upon the conclusion of a contract is acting for purposes which are
outside of his trade , business or profession”. Thus, omitting at least one ambiguous aspect of
certain consumer definit ions in this category, namely the word “regarded”. Aside from his
distilled consumer definition in contract law , which omits the word “regarded ”, I find it hard to
fully agree with his statement. Primarily , due to the fact that the second part of the definition
does not consider the dual purpose issue. Regardless , what remains true is that out of all
consumer areas, contract law provides one of the most consistent consumer definition s.233 The
same, however, cannot be said about th e trader definition in contract law. The wording of the
trader definition is generally more diverse than that of the consumer definition .234 This is,
regrettably, no different in the contract law area .235
3.2 TENDENCY TOWARDS CONS ISTENCY
It is indeed most unfortunate that notions , which are that important to limit the personal scope
of the majority of the consumer acquis , were defined with little regard to its consistency .
Fortunately, the European legislator became aware of this issue and granted a certain priority to
take measures in that respect.236
A tendency towards a more consistent consumer and trader definition can now be seen in the
more recent consumer Directives. They are proof of the European legislator’s intent to simplify
and co mplete existing and future legislation , as well as to reduce the fragmentation of rules .237
For instance, the new Timeshare Directive did away with the purchaser definition and
introduced the more common consume r definition, namely “a natural person who is acting for
purposes which are outside that person’s trade, business, craft or profession” . Said Directive also
turned away from the vendor definition and introduced the more common trader definition,

232 H. W. MICKLITZ , N. REICH and P. ROTT, Understanding EU consumer law , 47, 1.37.
233 Aside from the package travel directive (and timeshare directive)….niet onder dezelfde categorie
The only reviewed category with a better track record, when it comes down to consistency, can be found
in the procedural law and rules on the c onflict of laws category. However, one should be aware that this
category only contains two legal acts with a different scope.
234 Not only the wording of the trader definition, but even the term “trader” strongly differs between the
various consumer Directi ves.
235 Note the use of the different trader terms: creditor, seller and supplier.
236Commission, Communication from the Commission to the European Parliament, the Council, the Economic
and Social Committee and the Committee of the Regions . Consumer policy st rategy . COM (2002) 208 final,
[2002] OJ C 137/2.
237 Commission, Green Paper on the Review of the Consumer Acquis , COM (2006) 744 final.

41
namely “a natural or legal person who is acting for purp oses relating to that person’s trade,
business, craft or profession and anyone acting in the name or on behalf of a trader”.
This tendency is even stronger in the Consumer Rights Directive , which unified the consumer
definitions of the Doorstep Selling an d Distance Selling Directive . What I find most striking is the
importance the European legislator seems to dedicate to the creation of a uniform consumer
definition. This appears from the fact that the European legislator wanted to introduce a dual
purpose approach, yet without directly altering the consumer definition. Thus introducing the
dual purpose approach in a recital.238 Another aspect which shows the Directive’s focus on
consistency is the fact that the new consumer definition no longer mentions “can be regarded as
outside”, but simply states “are outside”. Oddly enough , said Directive was not as consistent in
relation to the trader definition. With regard to the trade r definition the linguistic unification
seemed to have lost the fight from the fragmented legal certainty.239
At first glance the proposal for a new Package Travel Directive seems to break with this
tendency. Instead of referring to a consumer, as the current P ackage Travel Directive does, it
refers to a traveller. In reality, however, this does not appear to be the case at all. The consumer
definition of the current Package Travel Directive strongly deviates from the co mmon consumer
definition. In actuality, t he consumer definition of the latter Directive is the adoption of the
economic consumer in a legal act. Therefore, we can but welcome the use of a different term to
describe the economic consumer. In other words, since the Package Travel Directive does no t
provide protection to a different (wider) category of persons, the use of a different term seems
appropriate . A term such as “traveller” seems to fit nicely, considering the scope of the Directive.
The focus on the consistency of definitions is also appa rent from the trader definition which the
proposal introduced.240

238 Recital 17 of the Consumer Rights Directive.
239 The trader definition in the Consumer Rights Directive unnecessarily emphasises “privately or publicly
owned” and “acting in name or on behalf of”, which are thought to already be comprised by the more basic
trader definition. The wording “relating to hi s trade,…”, however uncommon in the older trader
definitions, appears to be the preferred wording today (the new Timeshare Directive, the Consumer
Rights Directive and the proposal for a new Package Travel Directive use it).
240 As contrary to its predece ssor, which used a different term and wording.

42
The table below shows the European legislator’s preferred wording today .
Formerly frequently used wording
Consumer Current wording
Consumer
“can be regarded as outside ” “are outside”241
“trade or profession” “trade, business, craft or profession”
Formerly frequently used wording
Trader Current wording
Trader
“commercial or professional capacity ” “trade, business, craft or profession”242
Table 1: comparison of formerly and currently used European legislator's wording
3.3 AMBIGUOUS WORDING
The lack of consistency in wording between the various consumer and trader definitions ,
however bothersome, is not the only issue at hand. As I mentioned above, t he various consumer
definition s, aside from several exceptions, do not deal with the dual purpose issue. The majority
of consumer definitions do not expressly include or exclude dual purpose transactions, leaving a
trail of doubt behind. The use of the wording “ outs ide his trade” does not provide an adequate
answer. The use of the wording “can be regarded as outside his trade” only adds to the
confusion. One could of course argue that, had the European legislator intended to protect
persons acting in pursuit of a dua l purpose, he would have done so by expressly including the
dual purpose. This argument, however, stands or falls depending on the European legislator’s
awareness of th e issue and the legislative approach , which is more than likely to be the case.243
The fact that the dual purpose approach of the Consumer Rights Directive is considered to
widen244 the consumer definition , could be attributed to the extent to which it allows dual
purpose contracts to fall under the consumer definition.245 In my opinion , the w idening aspect
of the dual purpose approach of said Directive should also be attributed to the increase in legal
certainty . In any case, the European legislator seems to be increasingly aware of the ambiguity
surrounding the majority of consumer definitions with regard to the dual purpose issue . This
may very well result in a general tendency towards the inclusion of dual purpose contracts in the
consumer definition .

241 The Regulations still hold on to the formerly used wording.
242 The Regulations still hold on to the formerly used wording.
243 H. SCHULTE -NÖLKE , C. TWIGG -FLESNER , and M. EBERS , (eds.), EC Consumer Law Compendi um –Comparative
Analysis – Annotated Compendium including a comparative analysis of the Community consumer acquis, 727.
244 COMMISSION , Green Paper on the Review of the Consumer Acquis , COM (2006) 744 final, 15.
245 Not only contracts that serve a negligible professional or commercial purpose, but every dual purpose
contract as long as the private purpose is predominant.

43
The trader definition is imbued with a similar issue. If we were to interpret the trader definition
literally, transaction s that are not directly linked to a person’s trade would not fall under the
wording “his trade”. The addition of “in the course of his trad e” or “relating to his trade ” are less
ambiguous in that respect.
3.4 MAIN CHARACTERISTICS
Regardless of the diverse wording and ambiguous aspects of the consumer and trader definition ,
it is clear that there are several characteristics that recur in the majority of consumer and trader
definitions. In prin ciple, there are two main characteristics of the consumer and trader
definition.
The consumer definition is generally limited to :
– a natural person
– who is acting outside his trade, business, craft or profession . 246
The trader definition on the other hand is generally limited to:
– a natural or legal person
– who is acting for purposes relating to his trade, business, craft or profession .
These characteristics reveal a mixed approach in defining both notions. By which I m ean that a
consumer or trader is not defined by the type of person alone, but also takes into account for
which purpose the transaction will be used. Thus a personal and functional approach is used to
limit both definitions. Connected: zie case di pinto
CHAPTER 3: THE ECJ’ S INTERPRETATION OF THE CONSUMER AND
TRADER DEFINITION
1 APPROACH
Chapter 2 has revealed that the consumer definition of the consumer acquis shares two main
characteristics, namely a natural person acting in pursuit of a private purpose. In this chapter I
will examine those characteristics by digging through the ECJ case law , based on the consumer
acquis which we discussed in the precedent chapter . The trader will not always be expressly
discussed, since the majority of consequences will clearly follow from the evaluation of the two
main characteristics of the consumer.

246 Hereinafter more commonly referred to as private purpose.

44
I will firstly discuss the natural person because of several reasons. First of all , the characteristic
of the private purpose is so closely connected to that of the natural person , that I find it hard to
discuss the characteristic of the private purpose without the knowledge of the characteristic of
the natural person. Moreover , it seems fitting to work our way up to the more complex issues,
which happen to be related to the characteristic of the private purpose. Finally, if there were to
be one single reason, it would be that there can be no action without an actor.247
The second characteristic to be discussed will therefore, evidently be that of the private purpose.
Specific attention will be given to the dual purpose issue.
The manner in which the various case law will be presented is rather straightforward. In
principle the facts of every case will be stated before its analysis . The se facts will be followed by
the mos t important arguments of the ECJ , during which we will also pay attention to the Opinion
of the Advocate General. Finally, e very case will be concluded with a concise summary of the
case in question, with regard to its relevance of the main characteristics of the consumer
definition.
After the analysis of every case individually, I will evaluate the ECJ’s interpretation of the main
characteristics. Finally, this will be followed by a table that lists the consumer and trader
definitions as adopted by the consumer acquis , the ECJ’s interpretation of those definitions and
the deviation found in certain legal acts of the consumer acquis.
2 MAIN CHARACTERISTICS
2.1 NATURAL PERSON
A lay person in the area of law would most likely find the discussion of the natural person to be
redundant . Why indeed, would a natural person mean anything other than … a natural person.
The discussion is essentially driven by the fact that certain Mem ber States felt the need to
protect legal persons that were not acting in pursuit of their trade.248 Therefore , they wondered
whether a natural person could be interpreted in such a manner that it would include certain
legal persons. It is not uncommon in the area of law to adopt one thing, yet to mean another . It is
not possible for a legislator to cover all possible situations in one static rule. Consequently, the
interpretation of law by the appropriate court is essential to keep l aw up to date and to counter

247 The answer to the question “Which c ame first, the actor or the action?” is simply, the actor.
248 This was the case in the former Belgian Trade Practices Act, which defined a consumer as a natural or
legal person buying products, goods or services exclusively for private purposes. The new con sumer
definition, however, only refers to natural person.
For more examples I refer to H. SCHULTE -NÖLKE , C. TWIGG -FLESNER , and M. EBERS , (eds.), EC Consumer Law
Compendium –Comparative Analysis – Annotated Compendium including a comparative analysis of the
Community consumer acquis, 795 .

45
any accidental omissions. In that respect it would not have come to us as a surprise i f the ECJ had
decided that certain legal persons could , indeed, be considered as natural persons with regard to
the consumer acquis .249 The most important and only case to expressly deal with this issue is the
Idealservice case.250
It is imperative to note that, even though I discuss the main characteristics separately , both are
closely connected. Therefore, it is more than likely that certain cases which were discussed
under one characteristic will also hold information concerning the other characteristic.
2.1.1 Bertrand v Paul Ott Kg [1978]251
Société Bertrand ( hereinafter Bertrand) concluded a contract with Paul Ott KG ( hereinafter
Paul). Bertrand agreed to buy a machine on the basis of a price to be paid by two equal bills of
exchange payable at 60 and 90 days. The question was whether such a contract could be held to
be the sale of goods on instalment credit terms within the meani ng of Article 13 of the Brussels
Convention.
This case dates back to June 1978 when Section 4 of Title II of the Brussels Convention was not
yet restricted to the legal consumer. This was only several months before the Brussels
Convention was amended in O ctober 1978.252 The amendment, inter alia, expressly introduced
the limitation of the personal scope of section 4 by adopting a consumer definition.
What makes this case important is that the ECJ held that the rules in question were to be
interpreted strictly due to its derogation from the general principle and in conformity with the
objectives pursued by Section 4.253 Consequently, the jurisdictional advantage should be
restricted to buyers who are in need of protection because of their weaker economica l position
in comparison with the sellers. The ECJ clarified that a buyer is in an economically weaker
position when he is a private final consumer and is not engaged in trade or professional
activities.254
It was the Government of the United Kingdom that stated that it is illogical to regard all buyers
who arrange for payment on deferred terms as being in need of protection, and that it would be

249 For instance, small and medium -sized enterprises and charitable associations.
250 Joined cases C -541/99 and C -542/99 Cape Snc v Idealservice Srl and Idealservice MN RE Sas v OMAI Srl
[2001], ECR I -9049.
251 C-150/77 Bertrand v Paul Ott KG [1978] ECR -01431 (hereinafter Bertrand case).
252 Council convention 78/884/EEC on the accession of the Kingdom of Denmark, Ireland and the United
Kingdom of Great Britain and Northern Ireland to the Convention on jurisdiction and the enforcement of
judgments in civil and commercial matters and to the Protocol on its interpretation by the Court of Justice,
[1978] OJ L 304.
253 Bertrand case, No. 21.
254 Bertrand case, No. 21.

46
more sensible to speak of consumer protection.255 Since the protection of consumers is a general
problem in Communit y law as well as in many national laws, it seemed evident to target this
category of buyers as they are typically in a position of inferiority.256
Accordingly, the ECJ ruled that due to the fact that both parties were companies, Article 13 of the
Brussels Co nvention could not be applied.
Shortly after, the Brussels Convention was revised. The material scope of section 4 was
expanded to include consumer contracts, and not just sales of goods on instalment credit terms
and loans repayable by instalments. Eviden tly a consumer definition was added and in doing so
the interpretation of Article 13 of the Brussels Convention in the Bertrand case was codified .257
The reference made by the ECJ to the private final consumer seems to imply that a consumer can
only be a natural person. Therefore, we consider this case to be the first in which the ECJ
expressed , however n ot in those exact words, itself to favour a consumer that is a natural person
who is acting outside his trade.
2.1.2 Shearson Lehmann Hutton Inc. v TVB Tr euhandgesellschaft für
Vermögensverwaltung und Beteiligungen mbH [1993 ]258
Following the appearance of an advertisement in the German press, a natural person instructed
an American firm of brokers, Hutton Inc., to carry o ut currency and security future trans actions
under an agency contract. In order to do so he dealt with the American firm’s German subsidiary,
Hutton GmbH.
After investing considerable sums in 1986 and 1987, which were almost entirely consumed by
losses, he assigned his cl aims to a German trus t company, Treuhandgesellschaft für
Vermögensverwaltung und Beteiligu ngen GmbH ( hereinafter TVB) .
TVB brought an action before the Landgericht München for the recovery of the claims against
the American firm of brokers, Hutton, which had in the meantime b een taken over by another
American company, namely Shearson Lehman Hutton Inc. The Landgericht held the action to be
inadmissible, yet on appeal the Oberlandsgericht München overturned that decision and held
that the Landgericht did have jurisdiction. Hutt on Inc., however, appealed on a point of law
against that decision to the Bundesgerichtshof, which in turn referred four questions to the ECJ.

255 Bertrand case, Opinion of the Advocate General, No. 3.
256 Ibid .
257 U. MAGNUS AND P. MANKOWSKI , (eds.), Brussels I Regulation , München, Eur opean Law Publishers, 2012,
304 .
258 C-89/91 Shearson Lehmann Hutton Inc. v TVB Treuhandgesellschaft für Vermögensverwaltung und
Beteiligungen mbH [1993] ECR I -00139 (hereinafter Shea rson Lehmann Hutton case).

47
The questions as such , are not as interesting as what the ECJ decided to examine before
answering those question s. The ECJ found it appropriate to ascertain whether the conditions for
the application of Article 13 of the Brussels Convention were met. To do so, the ECJ needed to
examine whether TVB, the assignee of the claims, was able to claim to have the capacity o f a
consumer solely because the assignor was a consumer.
The ECJ stated that the exceptional protection, worded in Article 13 et seq of the Brussels
convention, offered to consumers is inspired by the concern that the latter needs protection as
this party is deemed to be economically weaker and less experienced in legal matters than the
other party to the contract.259 Therefore it was clear that this sort of protection should not be
extended to a party acting in pursuance of his trade or profession.260
Accordingly, the ECJ ruled that because TVB was acting in pursuance of his trade, it did not have
the right to claim the capacity of a consu mer. Hence, TVB could not benefit from the protection
offered to consumers.
Most i nteresting to note is that in paragraph 22 the ECJ referred to a previous case , namely the
Bertrand Case, to emphasise that only a private final consumer, not engaged in trad e or
professional activities is protected by the said provisions.261 In other words, this case confirmed
the private final consumer approach expressed in the Bertrand case, and with it the implication
that only natural persons can be consumers.
2.1.3 Cape Sn c v Idealservice Srl Case [2001 ]262
Idealservice MN RE Sas and Idealservice Srl ( hereinafter Idealservice) concluded two contracts
with respectively OMAI and Cape on 14 September 1990 and 26 January 1996, for the supply to
the latter two of vending machines. The vending machines were installed on the premises of
those co mpanies and were intended to be used exclusively by their staff.
In relation to those contracts, OMAI and Cape instituted proceedings contesting a payment
order , arguing that the clause granti ng exclusive jurisdiction , included in the contracts , was

259 Shearson Lehman Hutton case, No.18.
260Important to note is that TVB was not acting in the name nor on behalf of the consumer. TVB bought the
claim from the consumer, and thus was merely acting on its own account. This should be clearly
distinguished from the middlemen issue, for which I refer to: H.W. MICKLITZ , J. STUYCK , E. TERRYN , D.
DROSHOUT , J.-S. BROGHETTI , S. CÁMARA LAPUENTE , V.C OLAERT , G. HOWELLS , E. POILLOT , P. ROTT, L. TICHY , C. TWIGG –
FLESNER and T.V AN DYCK, Cases, materials and text on consumer law , Portland, Hart, 2010, 34; Commissio n,
Green Paper on the Review of the Consumer Acquis , COM (2006) 744 final, 16.
261Bertrand case, No. 21.
262Joined cases C -541/99 and C -542/99 Cape Snc v Idealservice Srl and Idealservice MN RE Sas v OMAI Srl
[2001], ECR I -9049 (hereinafter Idealservice case).

48
unfair pursuant to Italian law and could therefore not be enforced against the parties .263 By
doing so OMAI and Cape had hoped to set the payment order aside.
The issue here was that the application of the legislative rules concerning unfair terms depended
on the fact whether OMAI and Cape c ould be considered as consumers. Since the terms “seller or
supplier” and “consumer ” referred to in Italian law264 constitute d the transpositio n of the Unfair
Contract Terms Directive , it was necessary to find the ECJ’s interpretation of those two terms.
In that respect t hree questions were referred to the ECJ :
“(1) Is it possible to regard as a consumer an undertaking which, by a contract with another
undertaking using a form produced by the latter in so far as the contract falls within the scope of its
normal bu siness activity, acquires a serv ice or merchandise for the sole benefit of its employees,
which is wholly unconnected with an d remote f rom its normal trade and business? Can it be said in
such circumstances that that party acted for purposes which do not relate to the undertaking?
(2) If the foregoing question is answered in the affirmative, is it possible to regard any party or
entity as a consumer when it is acting for purposes not relating or conducive to its normal trade or
business, or does the term consumer relate only to natural persons, to the exclusion of any other?
(3) Can a company be regarded as a consumer?”265
The ECJ found it appropriate to consider the second and the third questions first, since the
national court essentially sought to ascertain whether the term “consumer” as defined in Article
2 (b) of the Unfair Contract Terms Directive should be interpreted as referring exclusively to
natural persons.266
Idealservice, the French and Italian governments, the European Commission and the Advocate
General were all of the opinion that the term “consumer ” referred to natural persons exclusively .
The European Commission argued that it is clear that only natural persons fall under the term
“consumer” , as Article 2(b) of said Directive specifically provides that “any natural person” must
be regarded as a consumer. Indeed, a strict literal reading would lead to the conclusion that the
provision only relates to natural persons and thus that legal persons are excluded .267

263 Idealservice case, No. 7.
264 Idealservice case, Opinion of the Advocate General, No. 8.
265 Idealservice case, No.10.
266 Idealservice case, No.12.
267 Idealservice case, Opinion of the Advocate general, No.12.

49
In addition, the Advocate General pointed out that, the given interpretation appeared to be
confirmed by the objective of the Community legislation at issue.268 He referred to the Océano
case in which the ECJ noted that “the system of protection introduced by the [Unfair Contract
Terms] Directive is based on the idea that the consumer is in a weak position vis -à-vis the seller or
supplier, as regards both his bargaining power and his level of knowledge. This leads to the
consumer agreeing to terms drawn up in advance by the seller or supplier without being able to
influence the content of the terms”269. The Advocate General concluded that companies and legal
persons generally don’t find themselves in a weaker position, and that therefore no reason was
at hand to grant those parties protection .270
The Advocate General’s final argument was based on a reference to the Shearson Lehman Hutton
case and the Benincasa case in which the ECJ interpreted the term consumer respectively as
meaning a private final consumer271 or as referring to an individual272. The Advocate General
found that this could only imply that a natural person is concerned.273
The ECJ share d a similar view and added that while there is no reference to legal persons in the
consumer definition , there is a reference in Article 2(c) of the Directive which defines the term
“supplier or seller”. The supplier definition refers to both natural and legal persons .
Consequently , a consumer can only be a natural person in respect of this Directive, otherwise the
consumer definition would have included legal persons.
In accordance with the foregoing the ECJ ruled that the term “consumer”, as defined in article
2(b) of the Directive, should indeed be interpreted as referring to natural persons exclusively.
Due to the fact that in this case it concerned legal person s (OMAI and Cape) , that entered into a
contract , the ECJ did not find it necessary to answer the first question. Since the national court
should be able to rule over the case in question by virtue of the answers given to the second and
third question.274
The Advocate General did, however, give his view on the first question , yet without actually
answering the question. The Advocate General found it rather difficult to give a straight answer,
regarding the fact that the person acting is a natural person.275 He refer red to the Di Pinto case
where the ECJ had to decide whether a trader canvassed with a view to the conclusion of an

268 Idealservice case, Opinion of the Advocat e general, No.13.
269 Océano case, No. 25
270 Idealservice case, Opinion of the Advocate general, No.16.
271 Shearson case, No. 22.
272 Benincasa case, No. 17.
273 Idealservice case, Opinion of the Advocate general, No.17.
274 Idealservice case, No. 18.
275 Idealservice case, No. 25.

50
advertising contract concerning the sale of his business was to be regarded as a trader or a
consumer within the meaning of the Doorstep Selling Directive. The ECJ r uled that the act s of
selling a business , as mentioned above, are “managerial act s performed for the purpose of
satisfying requirements other than the family or personal requirements of the trader”276.
By referring to the family or personal requirements in the Di Pinto case , the ECJ had shown that
the status of the consumer as a natural person affects the meaning of terms such as “to act for
purposes which a re outside his trade , business or profession” .277 Consequently, the Advocate
General f ound it unnece ssary, even useless , to answer the first question.
It is rather unfortunate, yet understandable, that the first question was not answered. The ECJ
should have taken this opportunity to clarify the ambiguous wording “acting outside his trade”.
In doing so, a clear and complete interpretation of “acting outside his trade” could have lifted the
ambiguity surrounding the dual purpose issue .
It should be noted that limiting the consumer to a natural person has the secondary effect that
one person in relation to a similar transaction will be considered as a consumer or not at all,
depending on whether the purchase was made via a legal person. This will primarily be the case
for the small businessman . A common example is that of a hairdresser who buys chairs for his
private home .278 In principle, the hairdresser will be seen as a consumer in light of the consumer
acquis if the hairdresser was not acting through a legal person . That same person, with the same
lack of bargaining power and experience, will not be considered as a consumer in case he acted
through a legal person.279 At first glance , this may appear to be discriminatory. One should,
however, not forget that the small businessman can always opt not to act through a legal person.
The reason f or using a legal person to enter into contracts that serve the private purpose, is
often motivated by financial benefits.280The option of not acting through a legal person, presents
itself with more practical problems with regard to e.g. charitable associations. Thus, due
attention should still be given to the issue .
In conclusion, pursuant of the Unfair Contract Terms Directive a consumer can only be a natural
person , thereby confirming the narrow scope of the consumer definition . Consequently, lega l
persons entering into contracts which solely serve their private purposes cannot be considered

276 Di Pinto case, No. 16.
277 Idealservice case, Opinion of the Advocate General, No. 28.
278 H.W. MICKLITZ et al ., Cases, materials and text on consumer law , 31.
279 Stuyck correctly assumed that in the approach of the ECJ the information asymmetry does not seem to
play a role: K. Boele -Woelki and W. Grosheide (eds.), The Future of European Contract Law : essays in
honour of Ewoud Hondius to commemorate his retirement as Professor of Civil Law at the University of
Utrecht , Alphen aan den Rijn, Kluwer Law International, 2007, 429
280 Mainly fiscal “benefits”.

51
as consumers with regard to the consumer acquis . However, seeing as the Unfair Contract Terms
Directive is based on minimum harmonisation, Member States are fr ee to introduce a consumer
definition which is wider than its European variant.
2.2 PRIVATE PURPOSE
In the precedent chapter we noted that the functional aspect of the majority of consumer
definitions was very ambiguous, and not only due to the inconsisten cy of the wording. It was
unclear what the extent of the private purpose was. The Dietzinger case revealed that private
purpose can be considered very strictly . Essentially, it was impossible for a person to know
whether he would still be considered as a consumer if a contract also (slightly) served a
professional purpose. The importance lies in the field of the dual purpose contracts. So far, this
issue has only been expressly addressed in the Gruber case in relation to the Brussels
Convention.
Furthermor e, it was unclear whether a natural person acting in pursuit of a future trade could be
considered as a consumer. The ECJ dealt with this issue in the Benincasa case and (indirectly)
the Berliner Kindl Brauerei case . The Benincasa case also provided more insight with regard to
the private purpose.
The trader , on the other hand , faced ambiguity with regard to the functional aspect of the trader
definition. The main question was whether actions which were secondary in relation to his
trade, should still be co nsidered as “acting for the purpose of his trade”.
2.2.1 Criminal proceedings v Patrice Di Pinto [1991]281
Mr. Di Pinto, manager of a private limited liability company “Groupement de l’Immobilier et du
Fond de Commerce ”, publishe d a periodical in which businesses are advertised for sale. In July
1985 and during 1986 and 1987, Mr Di Pinto arranged for the canvassing of traders wishing to
sell their business, for the purpose of persuading them to insert advertisements in the periodical
which he published . The contracts Mr. Di Pinto concluded did not mention the right of
cancellation within a seven -day period for reflection as prescribed by French law.
The Cour d’Appel de Paris found Mr. Di Pinto guilty by default for having violated those
provisions. Mr. Di Pinto appealed against the enforcement of that judgment, and in the course of
that appeal the Cour d’appel de Paris referred two questions for a preliminary ruling on the
interpretation of the Doorstep Selling Directive to the ECJ.
The first question is of great significance:

281 C-361/89 Criminal proceedings v Patrice Di Pinto [1991] ECR I -01189 (hereinafter Di Pinto case).

52
“Is a trader canvassed at home in connection with the sale of his business entitled to the protection
accorded to consumers by the [Doorstep Selling Directiv e]?”
Essentially, t he Cour d’Appel de Paris sought to ascertain whether a tr ader who was canvassed
for the purpose of concluding an advertising contract concerning the sale of his business should
be regarded as a consumer under the Doorstep Selling Directive .
The ECJ stated that , pursuant of Article 2 of said Directive , the criterion for the application of
protection lies in the connection between the transactions which are subject of the canvassing
and the professional activity of the trader wishing to sell his business . This means that the latter
can only claim the app licability of the Directive, if the transaction in respect of which he was
canvassed lies outside his trade or profession. The ECJ continue d by stating that Article 2 of the
Directive , which is drafted in general terms , did not make it possible, with regar d to acts
performed in the context of such a trade or profession, to draw a distinction between normal
acts and those which are exceptional in nature.282
The ECJ c onsidered that a cts which are preparatory to the sale of a business, such as the
conclusion of a contract for the publication of an advertisement in a periodical, are connected
with the professional activity of the trader . Even though such acts would bring the running of the
business to an end, they are “managerial acts performed for the purpose of satisfying
requirements other than the family or personal requirements of the trader ”.283
The Commission , however , did not see it that way. The Commission favoured the application of
the Directive, because it was convinced that the trader was as unprepared a s an ordinary
consumer . The Commission implied the need for a distinction between certain acts, by taking
into account that the abilities and competencies of a person differ depending on the act. In other
words, the Commission favoured a subjective criterion to define a consumer.
The Advocate General’s view is consistent with that of the Commission and the French
governmen t. One of the arguments of the A dvocate General is based on the textual analy sis of
Article 2 of said directive. According to Article 2 a consumer is he who acts outside of his trade or
profession and a trader is he who acts in his commercial or professional capacity. Due to the use
of the possessive pronoun “his”, the Advocate General came to the conclusion that when a trader
engages in certain preparatory steps which would lead to the sale of his business it could not b e
seen as within the framework of his trade or profession .284 His main argument , however , was not

282 Di Pinto case , No. 15.
283 Di Pinto case, No. 16.
284 The Advocate General gave the example of a butchers, baker or hotelier selling his business: Di Pinto
case, Opinion of the Advocate General, No. 21.

53
based on a literal reading of Article 2, but on the key finding that the average trader has little to
no experience or know -how concerning the preparatory steps that will lead to the sale of his
business.285 Meaning , that such traders are as unprepared as consumers.
The ECJ did not follow the reasoning of the European Commission and that of the Advocate
General , since there was every reason to believe that a normally well -informed trader knows the
value of his business and that of every measure required by its sale.286 Consequently, if a trader
enters into an undertaking, it cannot be due to the lack of forethought and solely under the
influence of surprise. 287 Thus the court concluded that a trader canvassed with a view to the
conclusion of an advertising contract concerning the sale of his business is not to be regarded as
a consumer protected by said directive.
In conclusion , the private purpose must be inter preted very strict ly, meaning that only acts
performed for the purpose of satisfying family or personal requirements can be considered to fall
under the consumer definition. The ECJ hereby confirms the objective approach of European
consumer law. As a resu lt, a trader performing acts which do not belong to his area of expertise ,
as well as acts which are only indirectly connected to his trade or profession , cannot fall under
the consumer definition.
2.2.2 Francesco Benincasa v Dentalkit Srl [1997]288
In 1987 Dentalkit developed a chain of franchised shops in Italy specializing in the sale of dental
hygiene products. In 1992 Mr Benincasa concluded a franchising contract with Dentalkit with
the intent of setting up and operating a shop in Munich. In that contract Dentalkit authorized Mr
Benincasa to exploit the exclusive r ight to use the Dentalkit trade mark within a particular
geographical area. Dentalkit further undertook to supply goods bearing that trade mark, to
support him in various spheres, to carry out the requisite training, promotion and advertising
activities , and finally not to open any shop within the geographical area covered by the exclusive
right.
In return, Mr Benincasa undertook to equip business premises at his own cost, to exclusively
stock Dentalkit's products, not to disclose any information or documents concerning Dentalkit
and to pay it a sum of LIT 8 million as payment for the cost of technical and commercial
assistance provided when opening the shop, as well as 3% of his annual turnover. By reference
to Italian law , the parties specifically approved a clause of the contract reading `The courts at

285 Di Pinto case, Opinion of the Advocate General, No.22.
286 Di Pinto c ase, No. 18.
287 Ibid.
288 C-269/95 Francesco Benincasa v Dentalkit Srl . [1997] ECR I -3767 (hereinafter Benincasa case).

54
Florence shall have jurisdiction to entertain any dispute relating to the interpretation,
performance or other aspect s of the present contract' by separately signing it.
Mr Benincasa set up his shop, paid the initial sum of LIT 8 million and made several purchases,
for which he did not pay. In the meantime, however, he had ceased trading altogether.
Subsequently , he brou ght an action against Dentalkit before the Landgericht Munich I, where he
sought to have the franchising contract declared void on the ground that it was void under
German law. He also claimed that the sales contracts concluded subsequently , pursuant to th e
basic franchising contract , were void.
Mr Benincasa argued that the Landgericht München I had jurisdiction as the court of the place of
performance of the obligation in question within the meaning of Article 5(1) of the Brussels
Convention. He argued th at the clause of the franchising contract conferring jurisdiction on the
courts in Florence did not have the effect of derogating from Article 5(1) as regards his action to
avoid the contract . Since that action sought to have the whole franchising agreemen t declared
void and, therefore, also the jurisdiction clause. Mr Benincasa further argued that, since he had
not yet started trading, he should be regarded as a consumer within the meaning of the first
paragraph of Article 13 and the first paragraph of Art icle 14 of the Brussels Convention.
The Landgericht München I declined jurisdiction on the ground that the jurisdiction clause ,
included in the franchising contract , was valid and that the contract was not a contract
concluded by a consumer. The national court found that it was clear from the wording and the
purpose of Article 13 of the Brussels Convention that an agreement intended to establish a trade
or profession must be deemed to have been concluded for the purpose of a trade or profession.
Hence, the contract in question was not deemed a consumer contract under Article 13 of the
Brussels Convention.
Mr Benincasa appealed against that decision to the Oberlandesgericht München, which stayed
proceedings and referred three questions to the Court for a pre liminary ruling, of which we will
only examine the first question as it holds the most significance :
“(1) Is a plaintiff to be regarded as a consumer within the meaning of the first paragraph of Article
13 and the first paragraph of Article 14 of the Conve ntion even if his action relates to a contract
which he concluded not for the purpose of a trade which he was already pursuing but a trade to be
taken up only at a future date (here: a franchising agreement concluded for the purpose of setting
up a busines s)?”

55
The ECJ pointed out that regard should be had to the principle laid down by the case law289,
according to which the concepts used in the Brussels Convention, which may have a different
content depending on the national law of the Contracting States, mus t be interpreted
independently. Principally, by reference to the system and objectives of the Brussels Convention,
in order to ensure that the Brussels Convention is uniformly applied in all the Contracting States.
The ECJ emphasised that this should defin itely apply to the notion of consumer within the
meaning of Article 13 et seq. of the Brussels Convention, in so far as it determines the rules
governing jurisdiction.290
The notion “consumer”, defined in the first paragraph of Article 13 of the Brussels Con vention,
had to be interpreted as a private final consumer not engaged in trade or professional activi ties.
According to settled case law, this follows from the wording and the function of that provision.291
The ECJ is of the same opinion as the Advocate Gen eral when it comes to determining whether a
person has the capacity of a consumer or not. The Advocate General stated that the same natural
person may be a consumer for certain purposes and an entrepreneur for others .292 That is why
the ECJ found it necessary that reference was made to the position of the person concerned in a
particular contract, having regard to the nature and aim of that contract, and not to the
subjective situation of the person concerned.293
Subsequently , the ECJ considered that only contracts concluded for the purpose of satisfying an
individual’s own needs in terms of private consumption come under the provisions designed to
protect the consumer as the party deemed to be the economically weaker party .294 The ECJ
continued statin g that specific protection sought to be afforded by those provisions
was unwarranted in the case of contracts for the purpose of trade or professional
activity, even if that activity was only planned for the future, since the fact that an
activity was in the nature of a future activity does not divest it in any way of its trade
or professional character.295 The ECJ consider ed that such an interpretation is
consistent with the wording, the spirit and the aim of the provisions concerned , to
consider that the sp ecific protective rules enshrined in them apply only to contracts

289 Bertrand case, No. 14 -16 and 19; Shearson Lehman Hutton case, No 13.
290 Benincasa case, No. 12.
291 Benincasa case, No. 15; Shearson Lehman Hutton case, No. 20 and 22.
292 Benincasa case, Opinion of the Advocate General, No. 38.
293 Benincasa case, No. 16; Benincasa case, Opinion of the Advocate General, No. 38.
294 Benincasa case, No. 17.
295 Ibid.

56
concluded outside and independently of any trade or professional activity or purpose,
whether present or future.296
Accordingly, the ECJ interpreted the first paragraph of Article 13 and the f irst
paragraph of Article 14 of the Brussels Convention, in such a manner that it excludes a
person that concluded a contract with a view to pursuing a trade or profession in the
future.297
Some of the arguments definitely appear invalid , in particular the argument of the economically
weaker party. It is hard to imagine that a person who is going to pursue a trade or profession in
the future, but is not acting in his trade or profession at the time of the transaction, is in an
equally strong position as a person who is pursuing a trade or profession. In my opinion such
persons are jus t as weak as the customer who acts outside his present and future trade .
However, it is possible that the ECJ saw the “future trader” as an actual trader because of the
business risk he was willing to take . In other words, he may have appeared to be economically
stronger than a consumer due to the business risk he was willing to take. Indeed, a consumer
does not take such business risks and solely acts in the private sphere .298 The basis for this can
be found , as stated above, in the fact that the ECJ found it necessary that reference wa s made to
the position of the person concerned in a particular contract, having regard to the nature and
aim of that contract, and not to the s ubjective situation of the person concerne d. The Advocate
General emphasis ed that the activity in question, and not the existing personal circumstances,
was the factor taken into account when special rules of jurisdiction in relation to certain
contracts w ere laid down in Article 13 of the Brussels Convention.299If we were to merely
consider the subjective situation of a franchisee with no business experience Mr. Benincasa
would clearly be considered as a consumer.
In conclusion, the ECJ ruled that the object ive situation of a person had to be considered and not
the subjective situation . Which lead to the view that , to be a consumer , a contract should always
be conclude d outside and independently of any trade or professional activity or purpose ,
whether it i s concluded for the present or future. Note that the emphasis in this case does not lie
on contracts that aim on a future trade, but also on the fact that the contract should be concluded

296 Benincasa case, No.18.
297 Benincasa case, No.19.; On a sidenote, the Advocate General referred to Article 1 of the Commission
Regulation (EEC) No 4087/88 of 30 November 1988 on the application of Article 85of the Treaty to
categories of franchise agreements, as it a lso presumes that a franchise agreement is entered into by two
economic entities operating on a commercial basis: Benincasa case, Opinion of the Advocate General, No.
31.
298 A similar reasoning can be found in relation to the Gruber case: H.W. MICKLITZ et al., Cases, materials
and text on consumer law , 53; C -464/01 Johann Gruber v Bay Wa AG [2005] ECR I -00439.
299 Benincasa case, No. 49.

57
independently of any trade. Which seems to imply that a person can nev er be considered as a
consumer in case of dual purpose contracts.
2.2.3 Bayerische Hypotheken -und Wechselbank AG v Edgard Dietzinger
[1998]300
Mr Dietzinger , son of a trader , had given a written guarantee of up to DM 100.000 of his parents’
obligations to the bank. This occurred during an unsolicited visit of an employee of the bank . Mr
Dietzinger was not informed of his right of cancel lation . About one year after the conclusion of
the agreement , the bank claimed DM 50.000 from Mr Dietzinger under the guara ntee .
Subsequently , Dietzinger sought to renounce the guarantee in accordance with German law .
During the litigation of this case before the Bundesgerichtshof a question was referred to the ECJ
for a preliminary ruling :
“Where a contract of guarantee or suretyship is concluded under German law between a financial
institution and a natural person who is not acting in that connection in the course of his trade or
profession, in order to secure a claim by the financial institution against a third party in re spect of
a loan, is it covered by the words ”contracts under which a trader supplies goods or services to a
consumer”
In essence , the Bundesgerichtshof wanted clarity on whether a contract of guarantee falls under
“contracts under which a trader supplies goods or services to a consumer” as prescribed by the
Doorstep Selling Directive.
Even though there were good arguments as to why a contract of guarantee should not fall under
the scope of said Directive and despite the opposition of sever al countries, inc luding Germany
and the Advocate General , the ECJ concluded otherwise. The ECJ rule d that s uch contracts do fall
under the scope of the Directive . However, o ne must not forget that in order to directly benefit
from a consumer D irective, you have to be a consumer. According to the ECJ this meant that a) a
natural person serving a private purpose had to enter into a contract of guarantee with a
financial institution and that b) the third party which b enefited from this guarantee also had to
be a natural person acting in pursuit of a private p urpose in respect of the principal
agreement.301 The ECJ basically applied the accessorium sequitur principale principle.

300 C-45/96 Bayerische Hypotheken -und Wechselbank AG v Edgard Dietzinger [1998] ECR I -01199
(hereinafter Dietzinger case).
301 Dietzinger case, No. 23.

58
The reason why Mr Dietzinger could not apply the Directive had to do with the fact that the
principal agreement was concluded in pursuit of a trade. Which resulted in Mr Dietzinger not
being able to be considered as a consumer pursuant of the Directive.
In conclusion, the ECJ considered a contract of guarantee to fall under the notion “cont ract” of
the Doorstep Selling Directive . Furthermore, the ECJ stressed that i t is not enough to be a
consumer entering in a contract of guarantee . The third beneficiary party also has to be a
consumer with regard to the principal agreement . In other words, the ECJ retained a strict
interpretation concerning the private purpose, in the sense that both the principal agreement
and the contract of guarantee must be entered into by natural persons who were not acting in
pursuit of a trade .
2.2.4 Berliner Kindl Brauerei AG v Andreas Siepert [2000]302
Mr Diesterbeck was granted a loan of DEM 32.000 and a lease of a property of the value of DEM
58.523 by a firm called “ Berliner Kindl Brauerei ” (hereinafter Brewery) . These loans were
granted with the s ole purpose of enabling the financing of the opening of Mr Diesterbeck’s
restaurant. Another person , Mr Siepert, declared in writing to stand as a guarantee for the
obligations of Diesterbeck to the Brewery , up to an amount of maximum DEM 90.000. The
decla ration of Mr Siepert was not made in connection with any trade or profession engaged in by
the latter . Moreover, Mr Siepert was not informed of his right to cancel the declaration of
guarantee.
Since the principal debtor (Mr Diesterbeck) failed to meet his obligations, the Brewery called in
the loans and obtained, by judgment of the Landgericht Rostock of 25 July 1997, an order
directing Mr Diesterbeck to pay the sum of DEM 28 952.43 together wit h interest. In his capacity
as guarantor, Mr Siepert was ordered to pay the same amount, by judgment in default given on 8
December 1997.
Following the order of payment, Mr Siepert applied to have that judgment set aside. T he
Landegericht Potsdam decided to stay proceedings and to refer the following question to the ECJ
for a preliminary ruling:
“Does a contract of guarantee concluded by a natural person not acting in the course of a trade or
profession fall within the scope of the [Consumer Credit Direct ive], if it serves to secure the
repayment of a debt which the principal debtor did not incur in the course of a trade or profession
already being pursued by him? ”

302 C-208/98 Berliner Kindl Brauerei AG v Andreas Siepert [2000] ECR I -01741 (hereinafter Berliner Kindl
Brauerei case).

59
It was common ground that a contract of guarantee was not a credit agreement in the meaning
of article 1 (2) (c) of the Consumer Credit D irective. Nevertheless, the Commission as well as the
Spanish and French government argue d that a contract of guarantee should fall under the scope
of said Directive becaus e of the link between the contract of guarantee and the credit agreement .
The Commission and the French government agree d that the meaning of the credit agreement
did not include the contract of guarantee. They , howe ver, attribute d the lack thereof to an
unintentional oversight.303 The Commission and the French government did apply the same
conditions as under the Dietzinger case, meaning that it is necessary for both the principal
agreement and the contract of guarantee to be entered into by natural persons who are not
acting in pursuance of a trade or profession.
Due to the fact that a contract of guarantee is not a credit agreement in the meaning of said
Directive, it must be determined whether they fall within its scope by implication, i n the light of
its scheme and aims.304 The ECJ considered the objectives of the Consumer Credit Directive to be
the creation of a common consumer credit market and to inform the principal debtor
(Diesterbeck) regarding the implications of his commitments .305 There are barely any provisions
that may offer safeguard to the guarantor, suggesting the Directive was not designed to apply to
contracts of guarantee.
By virtue of its scheme and aims , the Consumer Credit Directive is to be distinguished from the
Doorstep Selling Directive. Whereas the Consumer Credit Directive is ratione materiae strictly
limited to cred it agreements, the Doorstep Selling Directive has a much broader scope and is
ratio ne materiae only limited to the supply of goods or services that were negotiated away from
business premises . Needless to say , the purpose pursued by a natural person has to outside his
trade in both Directives. The main objective of the Doorstep Selling D irective is to protect
consumers that entered into a contract on the in itiative of a trader , by giving them a general
right to terminate a contract , since the consumers may not have been able to appreciate all the
implications. It was essentially on the basis of that objective that the ECJ ruled that a contract of
guarantee cannot be excluded a priori from the scope of said Directive in the Dietzinger case.306
No support can be found in the wording of the Consumer Credit Directive to wide n the scope to
cover contracts of guarantee , solely based on the fact that such agreements are ancillary to the
principal agreement whose performance they underwrite . Neither was there any support in its

303 Berliner Kindl Brauerei case, No. 15; Berliner Kindl Brauerei case, Opionon of the Advocate General,
No. 44.
304 Berliner Kindl Brauerei case, No. 18.
305 Berliner Kindl Brauerei case, No. 20.
306 Berliner Kindl Brauerei case, No. 24.

60
scheme and aims. Therefore , the ECJ ruled tha t such contracts of guarantee did not fall under the
scope of said Directive.
This mean t that even if both the principal agreement and the contract of guarantee wer e entered
into by natural persons who were not acting in purs uit of a trade , the guarantor would still not
be protected under the Consumer Credit Directive.
What is most interesting about this case is that the principal debtor ( Mr Diesterbeck) was
granted a loan for the sole purpose of enabling him to finance the establishment of a commercial
activit y. Technically, Mr Diesterbeck was not yet exploiting a commercial activity . The Brewery
argue d that in such a case the principal debtor cannot be seen as a consumer under the
Directive , since the latter was acting in pursu it of a (future) trade .307 That way the Brewery
disputed the admissibility of the order for reference . Unfortunately , the ECJ did not pay very
much attention to the consumer aspect. In doing so, the ECJ missed a great opportunity to give a
clear ruling on whether natural persons who are ent ering into contracts for the purpose of
starting up a trade should either be considered as consumer s or trader s in light of the consumer
Directives . Admittedly, we already had the Benincasa case in which the ECJ ruled that a person
entering into contract f or the purpose of a future trade cannot be considered as a consumer. The
Benincasa case, however, was based on the strict interpretation of Section 4 of the Brussels
Convention, due to its derogation from the general principle worded in Article 2 of the Brussels
Convention. Therefore, it was not entirely clear whether the interpretation in the Benincasa case
should apply to the consumer Directives.
Nevertheless, the ECJ implied that such a person cannot be considered as a cons umer under the
Directive .308 Since, the ECJ considered the transposition of the Directive in German law to have
provided for a wider consumer definition. Under German law the principal debtor was
considered as a consumer when granted credit to set up a comme rcial activity.
In conclusion, a contract of guarantee does not fall under the former Consumer Credit Directive.
Furthermore, the fact that the ECJ considered the German transposition of the consumer
definition to be wider than that of the Directive , makes it apparent that a natural per son who
was granted credit to commence a commercial activity cannot be considered as a consumer
under the scope of the Directive. This leads us to conclude that a natural person does not already
have to act in pursuit o f an existing trade or profession , at the time of the transaction, in order to

307 Berliner Kindl Brauerei case, Opinion of the Advocate General, No. 21.
308The ECJ referred to the minimum harmonisation clause of Arti cle 15 of the Directive, followed by the
German rule: Berliner Kindl Brauerei case, No. 7 -8.

61
fall outside of the scope of the consumer definition. In that respect, this case is in line with the
Benincasa case.
2.3 DUAL PURPOSE TRANSACTIONS
Dual purpose transactions (also known as “mixed situations”) are transactions that do not
exclusively serve a private or business purpose. As seen above, one of the main characteristics of
a consumer is that he acts outside his trade , and thus a consumer must act within the frame o f
the private purposes. The Di Pinto case revealed that one is not acting for private purposes when
the act is a “managerial act performed for the purpose of satisfying requirements other than the
family or pers onal requirements of the trader”.309 In other w ords, when one acts for the purpose
of satisfying family or personal requirements one acts for a private purpose.
In the Benincasa case the ECJ ruled that consumer contracts should always be concluded outside
and independently of any trade or professional activity or purpose, which appears to imply that
only pure private purpose contracts can be considered to fall under the consumer definition. As
mentioned above, we do have our reservations concerning the transposition of the
interpretation of this case to the consumer Directives.
The dilemma here is what should be done with a person that acts for both private and business
purposes. Should the slightest display of a business related purpose rule him out as a consumer?
Should we only let those persons whose business related purpose is so marginal in co mparison
with their private purpose enjoy the benefits of a consumer? Or should we resort to a
mathematical measure, accepting only those persons whose private purpose is predominan t. In
case the ECJ would opt for the latter option, another question arises, namely what standards
should be used to measure whether the private or professional use of goods or services is
predominant ? 310
Those questions have been expressly addressed in the Gruber case in relation to the Brussels
Convention , which will be discussed below.
2.3.1 Gruber v Bay Wa AG [2005]311
Mr Gruber, a farmer, owned a farm building constructed around a square (“Vierkanthof”) ,
situated in Aust ria, close to the German border, o f which a dozen rooms were used as a dwelling
for himself and his family. In addition over 200 pigs were kept there , as well as fodder silos and a
large machine room. Between 10 and 15 per cent of the total fodder necessary f or the farm was

309 Di Pinto case, No. 16; Di Pinto case, Opinion of the Advocate General No. 26.
310 In case of doubt: C-464/01 Johann Gruber v Bay Wa AG [2005] ECR I -00439 , Opinion of the Advocate
General, No. 30 -31.
311 C-464/01 Johann Gruber v Bay Wa AG [2005] ECR I -00439 (hereinafter Gruber case).

62
also stored ther e. The area of the farm building used for residential purposes was slightly more
than 60 per cent of the total floor area of the building.
With the desire to replace the roof tiles of his farm building, Mr Gruber contacted Bay Wa , a
German firm that also p ublished and distr ibuted brochures in Austria. Mr Gruber made several
telephone enquiries to an employee of Bay Wa concerning the different types of tiles and the
prices , stating his name and his address without mentioning the fact that he was a farmer. Th e
employee made him an offer by telephone, yet Mr Gruber wished to inspect the tiles on site. On
his visit to Bay Wa’s premises , he was given a written quotation . During that meeting Mr Gruber
told Bay Wa’s employee that he had a farm and wished to tile the roof of the far m building. He
stated that he also owned ancillary buildings that were used principally for the farm, but he did
not expressly state whether the building to be tiled was used mainly for business or private
purposes. The following day a c ontract was concluded by correspondence.
When the tiles were delivered by Bay Wa, Mr Gruber determined that the tiles showed
significant variations in colour , despite the warranty that the colour would be uniform. As a
result the roof would have to be re -tiled. He therefore decided to bring proceedings on the basis
of the warranty together with a claim for damages, seeking reimbursement of the cost of the tiles
(ATS 258 123) and of the expense of removing them and re -tiling the roof (ATS 141 877) and a
declaration of liability for any future expenses.
Mr Gruber instituted proceedings before the Landesgericht Steyr (Austria). Bay wa, however,
contested the court’s competence under Article 13 of the Brussels Convention . The
Landesgericht S teyr dismissed Bay W a’s objection of lack of jurisdiction and ruled that it was
competent to hear the dispute. According to the Landesgericht Steyr , the conditions for the
application of Article 13 (3) of the Brussels Convention were satisfied. The Landesgericht Steyr
stated that where a contract has a dual purpose, the predominant purpose, whether business or
private , must be ascertained.312
Bay Wa’s appeal before the Oberlandesgericht (Higher Regional Court) Linz was upheld and Mr
Gruber’s claim was dismissed on the ground that Austrian courts did not have jurisdiction to
hear the dispute. Subsequently, Mr Gruber brought an appeal before the Obster Gerichtshof
(Supreme Court) against the judgment of the Oberlandesgericht Linz. The Obster Gerichts hof
referred several questions to the ECJ of which the two most relevant question s were :
“1. Where the purposes of a contract are partly private, does the status of “consumer” for the
purposes of Article 13 of the Convention depend on which of the private and the trade or

312 Gruber case, No. 19.

63
professional purposes is predominant, and what criteria are to be applied in determining which of
the private and the trade or professional purposes predominate s?
3. In case of doubt, is a contract which may be attributed both to private and to trade or
professional activity to be re garded as a consumer contract?”
First of all, the ECJ looked at the scheme of the Brussels Convention in order to determine how
the term “consumer” was to be interpreted. The general principle , mentioned in Article 2, is that
the courts of the Contracting State in which the defendant is domiciled have jurisdiction. Thus,
the provisions that derogate from this general principle are to be strictly interpreted. This
means that the term “consumer” cannot be interpre ted in such a fashion that it would give rise
to cases not envisaged by the Brussels Convention.313
The ECJ went on stating that the rules of special jurisdiction for consumer contracts “serve to
ensure adequate protection for the consumer as the party deemed to be economically weaker and
less experienced in legal matters than the other, commercial, party to the contract, who must not
therefore be discouraged from suing by being compelled to bring his action before the courts in the
Contracting State in which the other party to the contract is domici led”.314
Based on the scheme of the rules of jurisdiction put in place by the Brussels Convention, as well
as the rationale of the special rules concerning consumer contracts, the ECJ concluded “that
those provisions only cover private final consumers, not engaged in trade or professional activities,
as the benefit of those provisions must not be extended to persons for whom special protection is
not justifie d”.315
The ECJ expressly referred to paragraphs 16 to 18 of th e judgment in the Benincasa case. In this
case the ECJ stated that the concept of “consumer” for the purposes of the special rules
concerning consumer contracts316must be strictly construed, reference being made to the
position of the person concerned in a p articular contract, having regard to the nature and aim of
that contract and not to the subjective situation of the person concerned . Due to the fact that one
person may be regarded as a consumer in relation to certain supplies and as an economic
operator in relation to others. The ECJ held that only contracts concluded outside and
independently of any trade or professional activity or purpose, solely for the p urpose of
satisfying an individual’s own needs in terms of private consumption, are covered by the special
rules laid down by the Convention to protect the consumer as the party deemed to be the

313 Gruber case, No. 32.
314 Gruber case, No. 34.
315 Gruber case, No. 35.
316 First paragraph of Article 13 and the first paragraph of Article 14 of the Brussels Convention.

64
weaker party. Such protection is unwarranted in the case of c ontracts for the purpose of a trade
or professional activity.317
The ECJ referred to the paragraphs 40 and 41 of the Opinion of the Advocate General. In essence,
the Advocate General stated that even though it may be possible to determine the proportion of
a dual purpose contract that serves, respectively, a private or professional purpose, it is not
possible to deem the customer to be both in a weaker position than the supplier and on equal
footing with the supplier in relation to one and the same contract. According to the Advocate
General this means that a dual purpose customer can never rely on the exceptional protection,
afforded by Article 13 et seq of the Brussels Convention, provided that the trade or professional
purpose is significant.
The ECJ found support for this interpretation in the fact that the definition of the notion of
consumer in the first paragraph of Article 13 of the Brussels Convention is worded in clearly
restrictive terms , using a negative turn of phrase ( “contract concluded … for a purpose … outside
[the] trade or profession ”).318 Furthermore, as mentioned above, the specific consumer rules are
a derogat ion from the general principle , the consumer definition must , therefore, be strictly
interpreted .319 According to the ECJ the interpretation is also dictated by the fact that
classification of a contract can only be based on an overall assessment of it, since it serves one of
the main objectives of the Brussels Convention, namely the avoidance of multipl ication of bases
of jurisdiction as regards the same legal relationship .320 As the A dvocate General correctly stated
“It would be absurd and contrary to the very purpose of the Convention , if one court were to
have jurisdiction over a dispute concerning part of the value of a contract, while another court
has jurisdiction as to the remainder” .321
The last argument that supports this interpretation is based on legal certainty. Denying the
capacity of consumer, within the meaning of the first paragraph of Articl e 13 of the Brussels
Conventio n, when the professional use of goods or services is not negligible is most consistent
with the requirements of legal certainty, as well as the requirement that a defendant should be
able to know in advance the court which he may be sued . These requirements constitute the
foundation of the Brussels Convention .322 Note that only in case it is not possible to demonstrate

317 Gruber case, No. 36.
318 Gruber case, No. 43.
319 Gruber case, No. 43
320 Gruber case, No. 44; Gruber case, Opinion of the Advocate General, No. 35.
321 Gruber case, Opinion of the Advocate General, No. 3 5.
322 Gruber case, No. 45.

65
the negligible character of the professional purpose, based on objective evidence in the file , the
contract should be considered to fall under Article 13 et seq of the Brussels Convention.323
Quite remarkable is that the ECJ did not exclude all dual purpose contracts, and therefore left
room for an exception. The exception is that in case the link b etween the contract and the trade
or profession of the person concerned is so slight as to be marginal and, therefore, plays only a
negligible role in the context of the supply in respect of which the contract was concluded,
considered in its entirety, the person can be considered as a consumer.324Consequently, it does
not matter whether the private use of the goods or services is predominant, provided that the
proportion of the professional usage is not negligible .325
It is imperative to stress that since one of the key arguments of the ECJ is based on the strict
interpretation of Article 13 of the Brussels Convention, due to its derogation from the general
princ iple worded in Article 2 , it remains to be seen whether the narrow interp retation , that de
facto excludes consumer protection in the so -called “mixed situations”, will also apply to the
consumer directives .326
Similarly to what I noted in relation to the Benincasa case, the ECJ seemed to see the consumer
as the weaker party on the basis of the risk he is taki ng rather than on the basis of information
asymmetry .327 The person taking a professional risk can therefore not be assimilated to a person
needing protection because he is not taking any business risk and is acting entirely in the private
sphere.328 If the ECJ saw the consumer as the weaker party on the basis of bargaining power
(information asymmetry) o ne could undoubtedly argue that a farmer does not know more about
tiles than an ordinary consume r.
In conclusion, the ECJ exp licitly opened the door to dual purpose contracts, allowing customers
to benefit from the exceptional protection on the condition that the proportion of the contract
that is linked to the customer’s trade is negligible. However, this interpretation remains very
strict making it highly unlikely that it would affect many customers positively, since the link to a
customer’s trade can easily be considered as significant.

323 Gruber case, No. 50; The Advocate General presented two views, of which the more protective view
towards the consumer seemed to have been maintained. However, due to restrictive criteria set forward
with regard to dual purpose c ontracts, both views would lead to the same result in practice: Gruber case,
Opinion of the Advocate General, No. 30 -31.
324 Gruber case, No. 39.
325 Gruber case, No. 42.
326 H.W. MICKLITZ et al ., Cases, materials and text on consumer law , 53.
327 K. BOELE -WOELKI and W. GROSHEIDE (eds.), The Future of European Contract Law, 432
328 H.W. MICKLITZ et al ., Cases, materials and text on consumer law , 53.

66
2.4RECOGNITION AS A CONS UMER
In the wake of the private purpose the question arises wheth er the trader should be made aware
that he is entering into a contract with a natural person who is acting in pursuit of a private
purpose. In other words, is the consumer obligated to inform the trader of his capacity of a
consumer, in order for the consu mer to lawfully invoke his consumer rights ?
This question has been addressed by the Gruber case. I discuss this issue separately to make
clear that it needs to be distinguished , though closely linked, from the dual purpose issue.
2.4.1 Gruber v Bay Wa AG [2005]
The Obster Gerichtshof referred five questions to the ECJ for a preliminary ruling . The second
question is the only one that I will discuss here:
“Does the determination of the purpose depend on the circumstances which could be objectively
ascertai ned by the other party to the contract with the consumer?”
Firstly, the ECJ stated that the need to determine whether the customer’s counterparty to the
contract could have been aware of the professional purpose only presents itself in case Article
13 et seq of the Brussels Convention can be applied. If the contract served a professional purpose
to a non -negligible extent, those special rules cannot be applied and therefore the issue does not
present itself. 329
In case Article 13 et seq of the Brussels Conv ention should be applied, the question arises
whether the consumer’s counterparty was reasonably aware of the private purpose . In principle,
the trader is aware of the private purpose of a customer. It is only when a consumer, by his own
conduct with respe ct to the trader , gave the latter the impression that he was acting for
professional purposes, that the awareness or lack thereof has significant consequences.330 If the
consumer, indeed, gave the impression that he was acting for professional purposes and b ecause
of it lead to the reasonable unawareness of the trader, the special consumer rules of the Brussels
Convention will not be applicable , even if the contract did not serve a non -negligible professional
purpose. The ECJ considered that by acting in such a fashion the consumer renounced the
protection afforded by the special consumer rules of the Brussels Convention.331
The ECJ summed up several examples of situations which could lead to giving the trader the
impression that one is acting for professional p urpos es. He referred to individual orders,

329 Gruber case, No. 49.
330 Gruber case, No. 51.
331 Gruber case, No. 53; The Guiliano -Lagarde Report suggeste d such an approach: Report on the
Convention on the law applicable to contractual obligations by Mario Giuliano, Professor, University of
Milan, and Paul Lagarde, Professor, University of Paris I, [1980]OJ 282/1.

67
without giving further information, that could be used for a business, the use of business
stationery, the deliverance to a business address or mentioning the possibility of recovering
value added tax.332
In conclu sion, the issue of the recognition as a consumer only presents itself when a person has
the capacity of a consumer, yet gives th e impression by his own conduct, of acting for
professional purposes. If, in that case, a trader was then reasonably unaware of the private
purpose, a consumer will not be entitled to apply the special consumer rules of the Brussels
Convention. Whether t he consumer in light of the consumer Directives should be interpreted in
a similar fashion is not entirely certain. As mentioned m any times above, the consumer
Directives are not bound by the same restrictions as the Brussels Convention.
3 EVALUATION OF THE ECJ CASE LAW
3.1 GENERAL REMARK
A common thread appears to run throughout the ECJ case law that is concerned with the
personal scope of the rules protecting consumers. In all of the cases discussed abov e, the ECJ
used a rather literal and restrictive approach towards the interpretation.333 Nebbia and Askham
correctly stated that , in contrast with cases that concern the personal sco pe, when dealing with
cases that concern the consumers, the ECJ adopts the interpretation which is most favourable to
them.334
3.2 MAIN CHARACTERISTICS : INTERPRETED
3.2.1 Natural Person
There was some doubt whether the term “natural person” could be interpreted in such a manner
that certain legal persons were included. The Bertrand case already seemed to imply in an early
stage that a consumer could only be a natural person, by referring to the “private final
consumer”. The Shearson Lehman Hutton case confirmed those implications by referring to the
“individual”. Nevertheless, it was the Idealservice case that explicitly dealt with this issue. The
ECJ ruled that the term “consumer” solely referred to natural persons.
3.2.2 Private Purpose
The first iss ue we discussed was the ambiguity of the functional aspect of the trader definition.
Regardless of the dual purpose issue, I found it rather impossible to conclude whether a contract
had to be directly linked to a person’s trade in order to fall under the trader definition. The ECJ

332 Gruber case, No. 52.
333 M. HESSELINK , “Tow ards a Sharp Distinction between B2B and B2C? On Consumer, Commercial and
General Contract Law after the Consumer Rights Directive”, ERPL (2010) Vol. 18, No. 1, 71
334 P. NEBBIA and T. ASKHAM , EU Consumer law , 39.

68
clarified this issue in the Di Pinto case. The ECJ held that acts of selling a business, are
“managerial acts performed for the purpose of satisfying requirements other than the family or
personal requirements of the trader ”.335 Consequently, an act which is indirectly connected to a
person’s trade will be considered as an act performed for the purpose of satisfying requirements
other than family or personal requirements of the trader. Therefore, a person indirectly acting in
his tr ade cannot be considered as a consumer.
Subsequently, I addressed the issue of the future trader. In the Benincasa case the ECJ came to
the conclusion that the fact that an activity was in the nature of a future activity does not
divest it in any way of it s trade or professional character.336 The Berliner Kindl
Brauerei case implicitly confirmed the Benincasa case. It should be noted that t he view
that transactions which serve the founding of a business are principally not to be regarded as
consumer contracts has also been confirmed by the Distance Marketing of Financial Services
Directive.337
Another issue I addressed was the accessorium sequitur principale principle in relation to
ancillary contracts, in particular the contract of guarantee. In the Dietzinger case the ECJ ruled
that not only should a contract of guarantee be entered into for a private purpose, the principal
agreement should also be entered into for a private purpose. In other words, the decisive factor
is not only whether the guarantor is a con sumer, but whether the guarantor and the principal
contractor are consumers. The ECJ clearly opted for a narrow interpretation of the consumer
definition with regard to the ancillary contracts.
From a consumer’s point of view the most important issue, howe ver, is that of the dual purpose.
A decision in either way can drastically alter the scope of the notion of consumer. Regrettably, I
am not able to give a straight answer. So far, there has only been one case, the Gruber case, that
expressly addressed the issue of dual purpose contracts . That judgement, however, cannot be
used to interpret the entire consumer acquis without any reservations, as the decision was taken
in respect of the Brussels Convention. The special consumer rules in the Brussels Conventio n are
a derogation from the general principle and should therefore be interpreted restrictively.338 The
consumer Directives on the other hand are not faced by such a restrictive approach. Thus, it is
not certain to what extent the judgement of the Gruber cas e can be used to interpret the
consumer definitions found in the consumer Directives.

335 Di Pinto case, No 16.
336 Benincasa case, No. 17.
337 Recital 29 of the Distance Marketing of Financial Services Directive.
338 I refer to the Benincasa case and the Gruber case for a more detailed explanation.

69
Nevertheless, in relation to the current Brussels I Regulation and Rome I Regulation we now
have certainty that a natural person can only be considered as a consumer if, in case of a dual
purpose contract, the professional purpose is so slight as to be marginal. Only when the
professional purpose plays a negligible role in the context of the contract considered in its
entirety, can a natural person be considered as a consu mer. The narrow approach used in the
Gruber case is very much in line with the Benincasa case, which implied a narrow approach
towards the dual purpose issue. It appeared to imply that an act which served even the slightest,
insignificant professional purp ose should be considered as outside the scope of the notion of
consumer.339
In light of recent legislative developments it appears that the consumer definition in (certain)
consumer Directives has a wider scope than the consumer definition in the Regulations . The
Green Paper on the Review of the Consumer Acquis proposed two consumer definitions that
should eliminate the current inconsistencies. In one of those consumer definition s the consumer
is defined as “a natural persons acting for purposes which primarily fall outside their trade,
business or professions”. An approach which the most recent consumer Directive, the Consumer
Rights Directive, followed. Time will tell whether we should interpret all of the existing
consumer Directives, or consumer Dir ectives in a certain area such as contract law340, in a
similar manner.
For completeness sake, it should be noted that even a person acting in pursuit of a purely private
purpose can still be excluded from the application of certain consumer rules in case th e person
in question gave its counterparty the impression that he was acting in pursuit of a trade.

339 Benincasa case, No. 18.
340 For which I refer to the DCFR which also inclu des the primary purpose in its consumer definition.

70
Legal Act341 Consumer Definition Trader Definition ECJ Interpretation Deviation from the
common core 342
Consumer Contracts
Doorstep Selling
Directive
Article 2 A consumer is a natural person
who, in transactions covered by
this Directive, is acting for
purposes which can be regarded as
outside his trade or profession. A trader is a natural or legal person
who, for the transaction in question,
acts in his commercial or professional
capacity, and anyone acting in the
name or on behalf of a trader. Case: Di Pinto
The commercial activity of a
secondary343 nature does not grant
a person the status of a consumer.
Case: Dietzinger
When entering into a con tract of
guarantee, the principal agreement
must also have been entered into
for a private purpose in order to
fall under the consumer definition. /

Consumer Credit
Directive 87/102
Article 2(a)
Article 2(b) A co nsumer is a natural person
who, in transactions covered by
this Directive, is acting for
purposes which can be regarded as
outside his trade or profession. A creditor is a natural or legal person
who grants credit in the course of his
trade, business or profession, or a
group of such persons Case: Berliner Kindl Brauerei
Implicitly: Consumer credit should
be acquired outside of any trade or
professional activity or purpose,
whether present or future . /

341 For the creation of such a table I was inspired by: H. SCHULTE -NÖLKE , C. TWIGG -FLESNER , and M. EBERS , (eds.) in cooperation with Twigg -Flesner C and Ebers M, EC
Consumer Law Compendium –Comparative Analysis – Annotated Compendium including a comparative analysis of the Community consumer acquis, s.l., Universität
Bielefeld, 2007, 170. Available at http://ec.europa.eu/consumers/cons_int/safe_shop/acquis/comp_analysis_en.pdf accessed on 10th July 2014.
342 The deviation from the common core does not only take into accou nt the definitions as such, but looks at the entire context which helps define the consumer or
trader.
343 By which I mean: acts that are not directly connected to a person’s trade or profession. In other words, the ECJ opted for an objective, rather than a subjective
approach.

71
New Consumer
Credit Directive
2008/48
Article 3(a)
Article 3(b) A consumer is a natural person
who, in transactions covered by
this Directive, is acting for
purposes which are outside his
trade, business or profession. A creditor is a natural or legal person
who grants or promises to grant credit
in the co urse of his trade, business or
profession. /
Unfair Contract
Terms Directive
Article 2(b)
Article 2(c) A consumer is any natural person
who in contracts covered by this
Directive, is acting for purposes
which are outside his trade,
business or profession . A seller or supplier is 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 owned or
privately owned. Case: Idealservice
Only natural persons fall under the
scope of the consumer definition. /
Distance Selling
Directive
Article 2(2)
Article 2(3) A consumer is any natural person
who, in contracts covered by this
Directive, is acting for purposes
which are outside his trade,
business or profession. A supplier is any natural or legal
person who, in contracts covered by
this Directive, is acting in his
commercial or professional capacity. /
Distance Marketing
of Financial
Services Directive
Article 2(d)
Article 2(c) A consumer is any natural person
who, in distance contracts covered
by this Directive, is acting for
purposes which are outside his
trade, business or profession. A supplier is any natural or legal
person, public or private, who, acting
in his commercial or professional
capacity, is the co ntractual provider of
services subject to distance contracts. /
Consumer Sales
Directive
Article 1(2)(a)
Article 1(2)(c) A consumer is any natural person
who, in the contracts covered by
this Directive, is acting for
purposes which are not related to A seller is any natural or legal person
who, under a contract, sells consumer
goods in the course of his trade,
business or profession”. /

72
his trade, business or profession.
Consumer Rights
Directive
Article 2(1)
Article 2(2) A consumer is any natural person
who, in contracts covered by this
Directive, is acting for purposes
which are [primarily]344 outside of
his trade, business, craft or
profession. A trader is any natural person or any
legal person, irrespective of whether
privately or publicly owned, who is
acting, including through any other
person acting in his name or on his
behalf, for purposes relating to his
trade, business, craft or profession in
relation to contracts covered by this
Directive. Explicit approval of dual
purpose transactions:
predominant private
purpose
Product Liability, General Product Safety and Misleading Advertising
Product Liability
Directive
Article 3 Undefined.
The ratio legis and a textual
analysi s revealed two definitions:
1. The (economic) consumer is a
(natural) person who is acting for
purposes which may lie in – or
outside his trade or profession.345
2. The consumer is a natural
person who is acting for purposes A producer is the manufacturer of a
finished product, the producer of any
raw material or the manufacturer of a
component part and any person who,
by putting his name, trade mark or
other distinguishing feature on the
product presents himself as its
producer.347Furthe rmore, any person
who imports into the Community a Consumer:
1. The economic consumer .
2. Explicit approval of dual
purpose transac tions:
predominant private
purpose
Trader:
The economic producer.348

344 Recital 17 of the Consumer Rights Directive states that, in the case of dual purpose contracts, a person should be considered as a consumer as long as the trade
purpose is not predominant. In other words, a person should be considere d as a consumer as long the transaction primarily servers a private purpose.
345 Article 9(a) of the Product Liability Directive does not limit the producer’s liability for damage caused by death or by pers onal injuries to persons acting outside
of their tr ade or profession. As a result a professional can be entitled to compensation. Whether a legal person can be compensated, for instance, in cases where
compensation was paid by the legal person to an injured employee is rather controversial.

73
which are primarily outside his
trade or profession.346 product for sale, hire, leasing or any
form of distribution in the course of
his business shall be deemed to be a
producer.
General Product
Safety Directive
Article 2(e) Undefined.
Implicitly: a (economic) consumer
is a person who is acting for
purposes which may lie in – or
outside his trade or profession. A producer is the manufacturer of the
product, when he is established in the
Community, and any other person
presenting himself as the
manufacturer by affixing to the
product his name, trade mark or other
distinctive mark, or the person who
reconditions the product acting in
pursuit of a commercial activity.349 The economic consumer.
Misleading
Advertising
Directive Undefined
Implicitly: a consumer is a person
who is acting for purposes which
are outside his trade or
profession.350 Undefined
Implicitly: a trader is a person carrying
on a trade, business, craft or
profession.351 /

347 Even though this definition includes persons acting outside of their trade or profession, they will not necessarily be held liable under the Product Liability
Directive. Since, Arti cle 7 provides certain exceptions, e.g. Article 7(c) provides that a producer shall not be held liable if he can prove that t he product was neither
manufactured by him for sale or any form of distribution for economic purpose nor manufactured or distribute d by him in the course of his business.
348 Meaning, a person who “sells” something to a person.
346 In relation t o damage to property: Article 9(b) of the Product Liability Directive.
349 Article 2(a) of the General Product Safety Directive defines “product” and in so doing it limited the producer definition to persons acting in pursuit of a
com mercial activity.
350 The protection is not limited to the consumer who is acting for purposes which are outside his trade or profession, on the co ntrary, the Misleading Advertising
Directive protects every person. The narrow definition which appears to be implied stems from Article 1, which puts the consumer vis-à-vis the producer.

74
Unfair Commercial
Practices Directive
Article 2(a)
Article 2(b) A consumer is any natural person
who, in commercial practices
covered by this Directive, is acting
for purposes whic h are outside his
trade, business, craft or profession. A trader is 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 of or on behalf of a trader. /
Holidays and Travel
Package Travel
Directive 90/314
Article 2(4)
Article 2(2) A consumer is the person who
takes or agrees to take the package
(“the principal contractor”), or any
person on whose behalf the
principal contractor agrees to
purchase the package (“the other
beneficiaries”) or any person to
whom the principal contractor or
any of the other beneficiaries
transfers the package ('the
transferee'). An organiser is a person who, other
than occasionally, organize s packages
and sells or offers them for sale,
whether directly or through a retailer. The economic consumer
Proposal for a
revised Package
Travel Directive A traveller is any person who is
seeking to conclude or is entitled to
travel on the basis of a contract A trader is any person, who is acting
for purposes relating to his trade,
business, craft or profession. The economic consumer352

351 The Misleading Advertising Directive targets every person who deals in misleading advertising, irrespective of its private or professional purpose. Article 1,
however, refers t o a trader (without actually mentioning the notion of trader) as “persons carrying on a trade or business or practising a cra ft or profession”.
352 The traveller definition also includes the business traveller, but it makes an exception in case of framework arrangements. This will apply to large companies. As
a result, the scope of the new “consumer” definition is slightly more limited than its predecessor.

75
Article 3(6)
Article 3(7) concluded within the scope of this
Directive, including business
travellers insofar as they do not
travel on the basis of a framework
contract with a trader specialis ing
in the arrangement of business
travel.
Timeshare Directive
94/47
Article 2 A purchaser is any natural person
who, acting in transactions covered
by this Directive, for purposes
which may be regarded as being
outwith his professional capacity,
has the right which is subject of the
contract transferred to him or for
whom the right which is th e subject
of the contract is established. A vendor is any natural or legal person
who, acting in transactions covered by
this Directive and in his professional
capacity, establishes, transfers or
undertakes to transfer the right which
is the subject of the contract. /
New Timeshare
Directive 2008/122
Article 2(f)
Article 2(e) A consumer is a natural person
who is acting for purposes which
are outside that person’s trade,
business, craft or profession. A trader is a natural or legal person
who is acting for purposes relating to
that person’s trade, business, craft or
profession and anyone acting in the
name or on behalf of a trader. /
Labelling
Foodstuffs Price Undefined . Undefined. The economic trader355

355 Note that the Foodstuffs Price Indication Directive provides several exceptions in Article 1.

76
Indication Directive Implicitly: a consumer is a person
who is acting for purposes which
are outside his trade or
profession.353 Implicitly: a seller is any person who,
sells or offers for sale foodstuffs,
irrespective of the private or
professional purpose.354
Non -food Price
Indication Directive Undefined.
Implicitly: a consumer is a person
who is acting for purposes which
are outside his trade or
profession.356 Undefined.
Implicitly: a seller is any person who,
sells or offers for sale non -food
products, is acting for trade or
professional purposes.357 /
Price Indication
Directive
Article 2(e)
Article 2(d) A consumer is any natural person
who buys a product for purposes
that do not fall within the sphere of
his commercial or professional
activity. A trader is any natural or legal person
who sells or offers for sale products
which fall within his commercial or
professional activity. /
Electronic Commerce
E-Commerce
Directive
Article 2(e)
Article 2(b) A consumer is any natural person
who is acting for purposes outside
of his or her trade, business or
profession. A service provider is any natural or
legal person providing an information
society service. /

353 The second paragraph of Article 1 of the Foodstuffs Price Indication Directive excludes purchases for professional or commercial purposes.
354 The emphasis lies on products that are offered for sale. The Foodstuffs Price Indication Directive does not expressly exempt all private sales, but leaves it up to
the Member States to do so for certain private sales .
356 Similar to the Foodstuffs Price Indication Directive. The first and second paragraph of Article 1 of the Non -food Price Indication Directive implicitly include such
a consumer definition.
357 Article 1 of the Non -foodstuff Price Indication Directive express ly exempts all private sales.

77
Jurisdiction and conflict of law rules
Brussels
Convention358
Article 13 A consumer is a [natural]359 person
[that concluded a contract] for a
purpose which can be regarded as
being outside his trade or
profession. Undefined
Implicitly: A trader is any person who
pursues commercial or professional
activities .360 Case: Bert rand + Shearson Lehman
Hutton
Only the private final consumer
ought to benefit consumer
protection rules , which implies a
natural person.361
Case: Benincasa
Consumer c ontracts should always
be concluded outside and
independently of any trade or
professional activity or purpose,
whether present or future .
Case: Gruber
In case of dual purpose contracts,
one can still be considered as a
consumer on the condition that t he
proportion of the contract that is
linked to the customer’s trade or /

358 After the amendments in 1978: Council convention 78/884/EEC on the accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and
Northern Ireland to the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and to the Protocol on its interpretation by the
Court of Justice, [ 1978] OJ L 304.
359 Though not expressly mentioned in the consumer definition, the Bertrand case and following case law imply as muc h.
360 Apparently it appeared obvious that the counterparty of a consumer in relation to consumer contracts had to be a professional . On a side note, the initial section
4 of the Brussels Convention did refer to a seller or lender, without defining either o f those notions.
361 The findings in the Bertrand case were codified in 1978 by the amended Brussels Convention, which from then on, included a co nsumer definition similar to that
of the Bertrand case.

78
profession is negligible.

Brussels I
Regulation
Article 15(1)
Article 15(1)(c) A consumer is a [natural] person
[that concluded a contract] for a
purpose which can be regarded as
being outside his trade or
profession. A trader is a person who pursues
commercial or professional
activities.362 /
Brussels I a
Regulation
Article 17(1)
Article 17(1)(c) A consumer is a [natural] person
[that concluded a contract] for a
purpose which can be regarded as
being outside his trade or
profession. A trader is a person who pursues
commercial or professional activities. /
Rome Convention
Article 5(1) A consumer is a [natural] person
[that concluded a contract] for a
purpose which can be regarded as
being outside his trade or
profession Undefined
Implicitly: A trader is any person who
pursues commercial or professional
activities. /
Rome I Regulation
Article 6(1) A consumer is a natural person
[that concluded a contract] for a
purpose which can be regarded as
being outside his trade or
profession. A professional is a person acting in the
exercise of his trade or profession . /
Table 2: overview

362 Article 15(1)(c) of the Brussels I Regulation provides a trader definition without referring to the notion of trader.

79
CHAPTER 4: ROAD TO UNIFORMITY
1 INTRODUCTION
Few would dare to question the statement that the consumer and trader definition s are (at least
cosmetically) diverse , following the overview I have presented in the precedent chapters. For
those that still believe that differences between the various definitions are inexistent , I gladly
refer to table 2. Admitt edly, some areas of law provide more consistent definitions than
others.363 Yet, no area of law, was able to provide definitions that were entirely uniform.
The lack of coherence in consumer definitions can be justified in some cases and t o some extent
as due to the need to give account of a pluralistic reality.364 This justification , however, only
applies to the differen ce between the consumer sensu lato and the consumer sensu stricto .365 No
justification can be found for the lack of coherence in wording between the various legal
consumer and trader definitions . However, b efore wanting to change anything, one should
always ask three questions :
Is it necessary to change the current situation ?
Will changing it improve the global situation?
If it is indeed necessary and/or would improve the situation, how can we accomplish our goal in
a manner that is most efficient?
Whether there is a need to create a consumer and trader definition which are uniform in
wording as well as substance depends on several factors. From the point of view of the natural
person who act s outside his trade it is important to know whether he is aware of his position as
a consumer which entitles him to additional protection under various consumer regul ations . Or
if the awareness is being blocked by the variety of consumer definitions , which make s it harder
to comprehend the actual scope of a consumer regulation. I think it is safe to assume that the
diverse consumer definitions do not form a significan t barrier for a consumer to ascertain his
rights. If any, it would be the lack of awareness that a consumer has specific rights in various

363 Such as contract law.
364 P. NEBBIA and T. ASKHAM , EU Consumer law , 38.
365 The consumer sensu lato is to be understood as the economic consumer, whereas the consumer sensu
strict o is the more c ommon and narrower legal consumer.

80
domains.366 A similar trend can be seen from the trader’s point of view , in the sense that he does
not appear to be aware of his obligations to wards consumers.367
Even if only a little, the consumer and the trader will benefit from the unification of the
consumer and trader definition.368 Besides , consistency is never a bad thing. S uch uniform
notions would undoubtedly provide more clarity and reduce the linguistic discussions . The need
for unification of those definitions should , therefore, be seen from the perspective of the quality
of law. The Commission presented t wo possible approaches it could follow in light of t he
revision of the consumer acquis , namely a vertical approach or a more horizontal approach
(mixed approach) .369
2 VERTICAL APPROACH
One of the approaches the European legislator could use to eliminate the inconsistencies
between the various consumer and trader definitions is the vertical approach.370 A vertical
approach means that existing Directives will be amended separately . Principally, the advantage
of the vertical approach is that issues specific to a certain Directive, can easily be addressed.
Howeve r, considering the fact that the consumer and trader definition are common to all the
consumer Directives, this is not so much of an advantage .
This approach is more likely to take much longer than the horizontal approach , since the same
issue will have to be addressed separately with regard to every Directive . Moreover, it is less
likely to achieve the simplifying effect of the horizontal approach , due to the increase in
legislative acts.
The vertical approach has been the preferred approach in the past , as it was less complicated
than the horizontal approach. Especially with regard to a specific issue. With the increased
awareness of the European legislator concerning the fragmented regulatory environment and its
consequences, a slight shift towards the horizontal approach is notable.

366 It shows that even when given a limited number of possibilities, a significant number of people are
convinced that they do not have any or fewer rights: EUROBAROMETER FLASH 358 , Consumer attitudes
towards cross -border t rade and consumer protection , ,available at
http://ec.europa.eu/public_opinion/flash/fl_358_en.pdf , accessed the 5th of July 2014.
367 The statistics show that the majority of traders is not aware of his obligations towards the consumer:
EUROBAROMETER FLASH 359 , Retailers’ attitudes towards cross -border trade and consumer protection ,
available at http://ec.europa.eu/public_opinion/flash/fl_359_en.pdf , accessed the 5th of July 2014.

368 The trader and consumer can already enjoy a decent level of legal certainty since the majority of
consumer definitions share a common core.
369 COMMISSION , Green Paper on the Review of the Consumer Acquis , COM (2006) 744 final,8.
370 Ibid.

81
Nevertheless, I find this approach to be useful in cases where a Directive refers to the consumer
sensu lato , especially when it defines this economic consumer. These are issues that are rather
specific to few Directives. The vertical approach could be used to change the consumer notion to
customer . This would increase the consistency in substance of the consumer notion , since the
economic consumer is much wider than the legal consumer. Therefore, the implementation of a
different notion , such as customer, would be preferred through the use of the vertical approach.
A timely example is the proposal for a new Package Travel Directive371, in which the notion
consumer has been changed to traveller . Even though the intent was good, I sincerely hope that
the proposal will be amended with regard to the notion “traveller” . I consider a less sector –
specific notion to be a better option, since this may otherwise result in the creation of numerous
notions to describe the economic con sumer. In other words, in the worst case scenario it could
result in taking one step forward and steps back in light of consistency.
3 HORIZONTAL APPROACH
Contrary to the vertical approach, the horizontal approach does not address issues specific to a
certain Directive. Instead the horizontal approach focuses on issues which are common to “all”
consumer Directives. The consumer and trader definition are such issues that are of relevance in
the context of the majority of consumer Directives.372 Therefore , the horizontal approach
appears to be the preferred approach in the creation of uniform definitions.
The most recent Directive to have used this approach is the Consumer Rights Directive. Although
the intent was to merge four Directives together , only tw o Directives were merged together.
Even though the Consumer Rights Directive is generally considered as a failure of the
Commission’s original approach373, it does prove that the horizontal approach can be
successful ly used to unify the European consumer and trader definitions of the consumer
Directives.
The principal merit of the horizontal approach is the creation of a simplified regulatory
framework.374 The use of a Directive does limit the potential, because Directives need to be
transposed in to national law and Member States are not required to do this verbatim in one

371 COMMISSION , Proposal for a directive of 9 July 2013 of the European Parliament and of the Council on
package travel and assisted travel arrangements, a mending Regulation EC 2006/2004, Directive
2011/83/EU and repealing Council Directive 90/314/EEC , COM (2013) 512 final.
372 Commission, Green Paper on the Review of the Consumer Acquis , COM (2006) 744 final,8.
373 S. WEATHERILL , “The Consumer Rights Directive: How and why a quest for “coherence” has (largely)
failed”, CMLRev (2012) Vol. 49, No. 4, 1279.
374 Commission, Green Paper on the Review of the Consumer Acquis , COM (2006) 744 final,9.

82
single measure. Consequently, the amount of (national) legislative acts will not necessarily
decrease.375
4 CONCLUSION
Even if the consumer and trader would not benefit tremendousl y from the unification of the
various consumer and trader definitions , the quality of law will have greatly improved. The
preferred method to reach a unified legal consumer and trader definition is that of the
horizontal approach. The speed at which it can accomplish the unification should be far greater
than that of the vertical approach. Furthermore, the horizontal approach has the advantage of
only creating one legislative act, whereas the vertical approach would create several.
It is imperative to note that t he unification of the various consumer and trader definitions will
most likely be limited to the European level. Since, the l egislative act is a Directive, even if the
European legislator succeeded in unifying the consumer an d trader definitions on a European
level, the Member States would still be able to adopt a different (wider) definition, regardless of
full harmonisation.376 This follows from the ruling by the ECJ in the Di Pinto case that revealed
that Member States cannot be precluded from adopting measures in an area with which a
Directive is not concerned.
Nevertheless, the improvement of the quality of law, and with it legal certainty, should always
be heartily welcomed.

375In that respect Twigg -Flesner suggested the use of a Regulation rather than a Directive, which has the
benefit of not having to be transposed into national law. Twigg -Flesner mainly considered a cross -border
–only Regulation: J. DEVENNEY AND M. KENNY (eds.), European consumer protection: theory and practice,
15;C. TWIGG -FLESNER AND D. METCALFE , “The proposed Consumer Rights Directive – less haste, more
thought?”, ERCL 2009, Vol. 5, No. 3, 368 -391; Reich and Micklitz argued that such Regulation proposals
have no chance of being realised at this time: N. REICH , H.W. MICKLITZ , P. ROTT AND K. TONNER , European
Consumer Law , Antwerp, Intersentia 2014, 65.
376 M. HESSELINK , “Towards a Sharp Distinction between B2B and B2C? On Consumer, Commercial and
General Contract Law after the Consumer Rights Directive”, ERPL (2010) Vol. 18, No. 1, 73.

83
CHAPTER 5: GENERAL CONCLUSION
The purpose of m y research is to be able to reply to the question “Who is a consumer?” . The
main purpose was not find out who the economical, social, ethical, etc. consumer is, but to find
out who could be considered as a consumer from a legal perspective. And subsequently, being
able to determine the personal scope of the consumer acquis .
To do so , I first examined the legal history of the consumer , which was a bare necessity to
understand what was to follow, namely the consumer acquis . After the examinatio n of the most
significant legislative acts of the consumer acquis from various areas of law , I examined the ECJ
case law, which was necessary to clarify the ambiguities surrounding the consumer definition.
The main question was whether the consumer acquis contained a uniform consumer definition,
either in wording, substance or both. The examination of the consumer acquis revealed that
there was no such definition. However, with regard to certain areas of law, such as contract law ,
I discovered a more cons istent consumer definition in wording and in substance. It also revealed
a tendency towards more consistency.
The examination of the ECJ case law helped to clear the multiplicity of ambiguities , and provided
a better understanding of the legal consumer.
In light of the foregoing we researched the necessity and possibilities of the creation of a
uniform consumer notion. From the consumer and trader’s point of view a uniform consumer
notion is not absolutely necessary. Although they would clearly benefit fr om more legal clarity
and the quality of law would increase significantly.
In conclusion, it is certain that no uniform consumer definition exists to date. Yet, that the
majority of consumer definitions share a common core, namely a natural person acting outside
his trade. The European legislator is aware of the inconsistencies and is trying reduce the
fragmentation. The European legislator recently used the, in my opinion preferred technique in
today’s legal system, to create consistent consumer notions , namely the horizontal approac h.

84
NEDERLANDSE S AMENVATTING (SUMMARY IN DUTCH )

Het begrip “consument ” binnen het Europees Privaatrecht is een vrij dubbelzinnig begrip dat
vele ladingen dekt. De doelstelling van d eze Masterproef is dan ook om het begrip, voornamelijk
vanuit een juridisch perspectief, uit te spitten. Op het einde van deze Masterproef willen we
namelijk antwoord kunnen geven op de vraag “Wie is een consument?”.
Deze Masterproef is echter meer dan een loutere opsomming van eigenschappen die aan de
juridische consument kunnen worden toegeschreven. Er wordt immers ook onderzocht of er
zoiets bestaat als een “uniform consumentenbegrip” , en zo niet, of dit wenselijk is.
Dit alles werd onderzocht aan de ha nd van een grote brok wetgeving uit het consumentenacquis
en relevante rechtspraak. Waaruit enerzijds is gebleken dat de verscheidene
consumentenbegrip pen gekenmerkt word en door een aantal eigenschappen die gedeeld worden
door de meerderheid , namelijk een natuurlijk persoon die handelt voor beroepsdoeleinden.
Anderzijd s is het zo dat er geen uniform consumentenbegrip , wat de formulering betreft,
bestaat. Als nuance dien ik mee te geven dat in bepaalde rechtstakken , zoals het contractenrecht,
het consumentenbegrip meer gelijkenissen vertoont.
Erg noodzakelijk lijkt een uniform consumentenbegrip, wat de formulering betreft, niet.
Desalniettemin is het zo dat iedereen baat heeft bij consistent juridisch taalgebruik. De Europese
wetgever is zich bewust van deze inconsistenties en heeft recent een, eveneens door ons
verkozen , horizontale aanpak gebruikt om verscheidene consumentenbegrippen beter op elkaar
af te stemmen. Naar de toekomst toe zullen we dus hopelijk nog meer consistentie mogen
verwac hten wat betreft het consumentenbegrip.

85
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91
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93
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