6 Next to the administrative liability resulting in fines and sanctions by states authorities, new rules for online markets have imposed duty to Member States to introduce measures and remedies for consumers applicable in private law relations. Consumers harmed by unfair commercial practices, shall have access to proportionate and effective remedies, including compensation for damage suffered and, where relevant, a price reduction or the termination of the contract (Article 11a of Unfair Commercial Practices Directive as amended). In contract law, it is presumed that you are a party to the contract you engage in, unless it is very clear that you are not. The platform to avoid being considered the main contracting party is obliged to clearly present itself as merely an intermediary when the provider and customer engage into a contract through the platform. 17 Example (Terms and condition on portal mytrip.com) Scope of services: Mediation of Travel Services 1. For the flight, hotel, insurance, train and car rental services offered on the Portal (collectively referred to as "Travel Services"), We exclusively act within our capacity as an intermediary. To that end, our role and obligations are limited to mediating Travel Services that will be rendered by third parties such as airlines, travel operators, hotels, insurers, car rental companies or other service providers (hereinafter in each case "Service Provider"). 2. Consequently, the agreement for the actual provision of Travel Services (e.g. transport contract, insurance contract, rental agreement) comes into effect directly between You and the relevant Service Provider. We are not a co-vendor of the Travel Services and We are not a party to the contractual relationship between You and the Service Provider. The CJ EC case Wathelet from 9 November 2016 has been crucial for situations when platform gives an impression being actually the provider of the intermediated services and the direct contractual partner of the customer. In this case the CJ EC interpreted the concept of ’seller’ under the Sales Directive 1999. „The concept of ‘seller’, .... must be interpreted as covering also a trader acting as 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 17 Sorensen, 2018, p. 75. 18 Case C-149/15 Sabrina Wathelet v Garage Bietheres & Fils SPR. 19 Ibid, point 44.
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