C-361/89
ECLI:EU:C:1990:462
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DI PINTO
O P I N I O N OF MR ADVOCATE GENERAL M I S C H O delivered o n 12 December 1990 *
Mr President, for reflection, and it prohibits the canvasser Members of the Court, from taking any consideration whatever, whether directly or indirectly, before the period for reflection has expired.
1. Mr Di Pinto, the accused in the main proceedings before the Cour d'Appel de Paris (Court of Appeal, Paris), is the 4. Mr Di Pinto, whom the Cour d'Appel de manager of the private limited liability Paris found guilty by default of having company Groupement de l'Immobilier et du contravened those provisions, appealed Fonds de Commerce ('GNDIIC') which against the enforcement of that judgment, publishes a periodical in which businesses and it was in the course of that appeal that are advertised for sale. Following an initial the Cour d'Appel referred the two questions approach by telephone, the company sends which I am now going to examine. a representative to visit traders intending to sell their business. Orders for publication' in the periodical, which are collected in circumstances to which I shall have cause to return, are accompanied by immediate The first question payment of the price of the service, which varies between FF 3 000 and FF 30 000 depending on the format of the adver- tisement. 5. The first question is worded as follows:
2. The proceedings brought against Mr Di Pinto are based on French Law No 72-1137 'Is a trader canvassed at home in connection of 22 December 1972 on the protection of with the sale of his business entitled to the consumers with regard to canvassing and protection accorded to consumers by the door-to-door selling (Official Journal of the Directive of the Council of the European French Republic of 23 December 1972, Communities of 20 December 1985?' p. 13348, which I shall refer to as 'the French Law on canvassing').
6. The directive to which the Cour d'Appel refers is Directive 85/577/EEC 'to protect 3. This Law provides inter alia that the consumer in respect of contracts nego- contracts concluded as a result of tiated away from business premises' canvassing must refer to the customer's right (Official Journal L 372, p. 31, 'the of cancellation within a seven-day period directive').
* Original language: French
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7. The French Government pointed out in — during an excursion organized by the its observations that the question 'refers trader away from his business premises, only to canvassing in connection with a sale or and does not specify the exact nature of the proposed contract'. This statement led me to examine the documentation made available to the Court and I have come to the conclusion that it is more likely than not — during a visit by a trader that the French court had very good reasons, to do with the way in which GNDIIC operates, to draft its question in very wide terms, i.e. without referring to canvassing for the sole purpose of collecting (i) to the consumer's home or to that of advertisements. One might also envisage another consumer; situations in which estate agents attempt to secure the right, whether exclusive or non-exclusive, to sell a business or to assess its worth in return for valuable consideration. (ii) to the consumer's place of work;
8. It is also apparent from the documents where the visit does not take place at the before the Court that the expression 'at express request of the consumer'. home' contained in the question must be given a wide meaning which includes the place in which the trader carries on his trade or profession. 11. It follows from this provision that it is immaterial whether the canvassing takes place at the private home or at the place of work of the person concerned. 9. Now that the exact scope of the first question has been settled, it remains for me to determine which provisions of the directive need to be considered for the purpose of answering that question. 12. The condition that the visit does not take place at the express request of the consumer is satisfied in the main proceedings in the present case, since it is not disputed that it was the representatives 10. According to Article 1(1), the directive of Mr Di Pinto's company who took the shall initiative on each occasion. They contacted traders by telephone to ask whether they were intending to sell their business and to seek permission to visit them. The fact that traders agreed to such visits does not, in my 'apply to contracts under which a trader view, justify the conclusion that such visits supplies goods or services to a consumer were made 'at the express request of the and which are concluded: consumer'.
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13. According to Article 2 of the directive; (first paragraph of Article 2) or whether, on the contrary, he 'acts in his commercial or professional capacity' (second paragraph of Article 2).
' "consumer" means a natural person who, in transactions covered by this directive, is acting for purposes which can be regarded as outside his trade or profession; 17. Mr Di Pinto and the United Kingdom take the view that a trader in such a case is not acting 'for purposes which can be regarded as outside his trade or profession'.
"trader" means a natural or legal person who, for the transaction in question, acts in his commercial or professional capacity, and 18. According to Mr Di Pinto, the trade or anyone acting in the name or on behalf of a profession of a trader must be considered as trader'. a whole, with the result that it is not permissible to draw distinctions according to the ways in which it is exercised.
14. Articles 4 and 5 of the directive provide in substance that the trader is required to inform the consumer in writing of his right 19. Against this, however, it must be to rescind the contract within a period of pointed out that the persons referred to in not less than seven days. Article 2 of the directive are not defined in abstracto, but rather according to what they do in concreto. The same person may be sometimes a trader and sometimes a consumer. 15. Article 7 provides that 'if the consumer exercises his right of renunciation, the legal effects of such renunciation shall be governed by national laws, particularly 20. The United Kingdom, for its part, regarding the reimbursement of payments considers that for goods or services provided and the return of goods received'.
'it would . . . unnecessarily narrow the defi- nition of "consumer" 1 [to equate] the acti- 16. The first question thus seeks to vities of a trade or profession only to the ascertain whether a trader canvassed at his usual or necessary "day-to-day" activities of home or at his place of work and who that particular trade or profession; more concludes on that occasion any transaction unusual or less "day-to-day", or less whatever connected with the sale of his directly associated, activities such as the business 'is acting for purposes which can be regarded as outside his trade or profession' 1 — It would appear that 'trader' is meant
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placing of advertisements, the re-arranging is possible to find traders who own several of finance or the sale or purchase of grocery stores or a number of cafés and premises are activities which in commercial who have therefore purchased businesses on and everyday terms are considered as several occasions, whereby they have gained undertaken for the purposes of a trade or a certain degree of experience. Such people, profession. It is difficult to see how, however, are more likely to decide to sell although it is not a "day-to-day" activity of their business following an adequate period a business or one associated particularly of consideration and are likely themselves to with any one business rather than another, take the initiative to approach an estate the sale of a business can be seen as agency or a specialized periodical. anything other than the activity undertaken for the purposes of a trade or profession. Whilst it may be an activity common to all businesses rather than to a particular business it is certainly not an activity common to all consumers' (paragraph 14 of 23. The directive is obviously intended to the observations). protect the average consumer, and conse- quently also the trader who unexpectedly finds himself in the position of a consumer in so far as he is required to perform an act in which, in the majority of cases, he will be involved only once in his life. 2 1 . 1 believe however that the interpretation given by Mr Di Pinto and the United Kingdom unduly neglects the word 'his' [trade or profession] which features both in the first and second paragraphs of Article 2. Thus, it is in my view significant that at the 24. Such a person may be 'unprepared', in end of the passage cited above the United the words of the fourth recital in the Kingdom refers to an 'activity undertaken preamble to the directive, because he has for the purposes of a 2trade or profession'. not had the time to prepare himself for such It is in fact impossible to argue that when a negotiations in sufficient detail. He is often trader engages in certain preparatory steps also unable 'to compare the quality and which will lead to the sale of his business, price of the offer with other offers'. Even if he remains within the framework of his a trader occasionally places advertisements trade or profession as a butcher, baker or for his business in a local paper or in a hotelier. It is nonetheless the possessive publicity brochure edited by a local asso- pronoun which is used. ciation, he will not necessarily be familiar with the proper price which may be required for the insertion of an announcement concerning the sale of a business in a peri- odical distributed nationally.
22. The essential element in my view is the fact that the various decisions which precede the sale of a business are not acts with regard to which the average trader has any experience or know-how which distin- 25. He may in particular regret having guishes him from non-traders. Admittedly, it agreed even to place an advertisement because, having considered the matter in 2 — Not underlined in the original. depth, he no longer wishes to sell. If the
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advertisement none the less appears, it may 29. The only difference would be that the create the impression that the business is no companies in question would be required in longer in a healthy condition and this may future to await the expiry of the seven-day in turn give rise to suspicion on the part of period within which the contract may be suppliers. It is also possible that the trader cancelled before contacting potential may come to the conclusion that the price purchasers or placing an advertisement in advertised is too low. Finally, there may their windows, if those companies are acting have been an element of uncertainty as to as estate agents, or to send the adver- the exact nature of the canvasser's invol- tisement for printing, if they are editing a vement or the trader may have been periodical. mistaken as to the purpose of the contract which he signed. 30. For all the above reasons, and in accordance with the arguments presented by the French Government and by the Commission, which I have not mentioned 26. With regard to the United Kingdom's here but with which I agree, I would argument that the sale of a business 'is suggest that the Court reply to the first certainly not an activity common to all question as follows: consumers', I would like to point out that the joint purchase of a holiday apartment is also not an activity common to all consumers, but that that does not prevent 'A trader canvassed at his home or his place the consumer from being entitled to the of work in connection with the sale of his protection afforded by the directive when he business is entitled to the protection is subjected to canvassing in this regard. accorded to consumers by Council Directive 85/577/EEC of 20 December 1985.'
The second question 27. Of course, I agree with the Commission that a trader whose business is to sell busi- nesses, and who is canvassed for the purpose of selling his own business, cannot 31. The second question in the preliminary be regarded as a consumer within the reference is worded as follows: meaning of the directive. That is, however, so unlikely an occurrence that I do not believe it necessary to include a reservation in this regard in my suggested reply. 'Is Article 8(I)(e) of the Law of 22 December 1972 compatible with the aforementioned directive and the other provisions of Community law protecting consumers in cases of doorstep canvassing?'
28. Finally, we ought to note that an affirmative answer by the Court to the first question would in no way make it Article 8(I)(e) of the French Law on impossible to carry on activities such as canvassing provides that Articles 1 to 5 of those of Mr Di Pinto. Contracts could that Law, which define the protection given continue to be signed immediately. to consumers, are not to apply to
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'the sale, hire or hire-purchase of goods or or as a consumer, if the case-law of the objects or the provision of services offered Member State in question interprets that for the requirements of an agricultural, concept in the manner referred to above. industrial or commercial undertaking or a professional activity'.
34. My view is that Article 8 of the French Law, which excludes from the protection accorded to consumers the 'provision of 32. It should be noted that the Criminal services offered for the requirements Chamber of the French Cour de Cassation o f . . . [a] commercial undertaking', covers ruled in separate criminal proceedings substantially the same ground as Article 2 of brought against Mr Di Pinto that the directive, which treats as a trader, and not as a consumer, any person who 'acts in his commercial or professional capacity'.
'the services provided by GNDIIC were those of an intermediary between owners and potential purchasers of commercial 35. Furthermore, even if it is admitted, as it businesses, transactions which by their very has been by the representative of the French nature fall outside the requirements of such Government, that Article 8(I)(e) of the businesses' (judgment of 4 December 1989). French Law accords consumers wider protection than the directive, it is also necessary to conclude, as he has done, that the two texts are not incompatible, since Article 8 of the directive provides that 33. Apart from Directive 85/577, I am unaware of any other Community legis- lation which protects consumers canvassed at their home or at their place of work. The 'this directive shall not prevent Member question referred must therefore be States from adopting or maintaining more answered solely in the light of that directive. favourable provisions to protect consumers Reworded in such a way as to take account in the field which it covers'. of the fact that the Court may not, in proceedings for a preliminary ruling, give a formal ruling on the compatibility of national legislation with Community law, 3 36. In those circumstances, I may therefore the second question thus seeks in substance conclude that Directive 85/577 must be to ascertain whether Directive 85/577 must interpreted as meaning that it does not be interpreted as precluding a Member State preclude the use of the criterion referred to from using the concept of 'provision of above. services offered for the requirements of a commercial undertaking' as a criterion where it is necessary to decide whether a trader enters into an obligation as a trader 37. The Commission also correctly pointed 3 — See most recently the decision in Case C-196/89 Criminal out that Member States were not obliged to Proceedings against Nespoli and Cripa [1990] ECR 1-3647,comply with Directive 85/577 until at paragraph 8. 23 December 1987 and that the facts of
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which Mr Di Pinto stands accused occurred light of the directive, even though in July 1985 and during 1986 and 1987. I compliance with that directive had not yet share the Commission's view that for that become mandatory at the material time, it reason the directive cannot be relied on in has become clear that, in the present case, the main proceedings. While national courts the directive is of no assistance to the are free to interpret domestic law in the defendant in the main proceedings.
Conclusion
38. I would for those reasons suggest that the Court reply as follows to the questions referred by the Cour d'Appel de Paris:
' 1 . A trader canvassed at his home or at his place of work in connection with the sale of his business is entitled t o the protection accorded to consumers by Council Directive 8 5 / 5 7 7 / E E C of 20 December 1985;
2. T h e provisions of that directive must be interpreted as meaning that they do not preclude national legislation which confers the protection accorded to consumers on traders canvassed at their home or at their place of w o r k , where the services offered them are not " f o r the requirements" of the commercial undertaking in question.'
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