LIABILITY OF ONLINE PLATFORMS IN TOURISM SECTOR intermediary on behalf of a private individual who has not duly informed the consumer of the fact that the owner of the goods sold is a private individual, which it is for the referring court to determine, taking into account all the circumstances of the case. The above interpretation does not depend on whether the intermediary is remunerated for acting as intermediary. ‘18 The CJ EC leaves it up to Member States to decide, when an intermediary gives the impression of a seller CJ EC provides some guidelines: The intermediary can be regarded as the seller if: “He fails to duly inform the consumer that he was not the owner of the goods in question, which involves, on the part of that court, taking into consideration all of the circumstances of the case... The degree of participation and the amount of effort employed by the intermediary in the sale, the circumstances in which the goods were presented to the consumer and the latter’s behaviour may, in particular, be relevant in that regard in order to determine whether the consumer could have understood that the intermediary was acting on behalf of a private individual.” 19 Even though the platform in giving information uses the correct legal terms, case law indicates that additional information and matching behaviour also is necessary in order to ensure that the consumer understands that the platform is not the main contracting party.20 Under Article 3 (5) of Regulation (EU) 2019/1150, providers of online intermediation services are obliged to ensure that the identity of the business user providing the goods or services on the online intermediation services is clearly visible. Recital 27 of Omnibus Directive spell out main features of information duties for providers of online marketplaces: • They should inform consumers whether the third party offering goods, services or digital content is a trader or non-trader, based on the declaration made to them by the third party. • When the third party offering the goods, services or digital content declares its status to be that of a non-trader, providers of online marketplaces should provide a short statement to the effect that the consumer rights stemming from Union consumer protection law do not apply to the contract concluded. 18 Case C-149/15 Sabrina Wathelet v Garage Bietheres & Fils SPR. 19 Ibid, point 44. 20 Sorensen, 2018, p.77.
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