On 13 June 2024, Advocate General Pikamäe has delivered his Opinion in Case C-379/23, Guldbrev AB v Consumer Ombudsman, a case referred to the Court of Justice of the European Union from the Patent and Market Court of Appeal of Sweden (Patent- och marknadsöverdomstolen, Svea hovrätt) on the valuation and purchase of gold by a company from individual consumers.
The case concerned whether the valuation and purchase of gold from consumers amounts to a ‘combined product’ within the meaning of Directive 2005/29 (Unfair Business-to-Consumer Commercial Practices). In the case, the Consumer Ombudsman claims that Guldbrev offers a ‘bundled’ or ‘combined’ product, in that it values gold owned by consumers (provision of a service), and then can purchase such gold from consumers (purchase of a good/product).
The practice of Guldbrev, in the facts of the case, the Consumer Ombudsman argues, is contrary to Directive (2005/29) on Unfair Commercial Practices). The Consumer Ombudsman is trying to prevent Guldbrev, in its view, from engaging in unfair commercial practices relating to the valuation of gold and the purchase of that gold from consumers. Guldbrev is an online-only business, and does not have physical stores.
The Advocate General distilled the case as being about the following question: is Directive 2005/29/EC concerning unfair business-to-consumer commercial practices (applicable to a situation in which a trader purchases a product (in this case gold) from a consumer, where that purchase entails a preliminary valuation of the product by the same trader, who thus determines the purchase price?
The novelty in the case arises in that Directive 2005/29 typically concerns business to consumer transactions. However, when it comes to Guldbrev, their business model is slightly different, in that they typically engage in consumer to business transaction (the reverse situation).
The case was referred to the CJEU at second instance by the Patent and Market Court of Appeal. At first instance, previously, by the Patent and Market Court (Patent- och marknadsdomstolen), it held that the practices used by Guldbrev in connection with its activity constituted commercial practices falling within the scope of Directive 2005/29, and that the Consumer Ombudsman was within that office’s was correct as seeing it fall within the scope of the Directive. But on appeal, taken by Guldbrev, the referring Patent and Market Court of Appeal is seeking the interpretation of the CJEU.
The Opinion of Advocate General Pikamäe ultimately finds in favour of the Consumer Ombudsman. But seeing how he got there is essential. Advocate General Pikamäe is of the view that,
‘the gold valuation service that the trader provides to the consumer constitutes a ‘product’ within the meaning of Article 2(c) of Directive 2005/29, which, by definition, includes ‘any service’. Accordingly, business-to-consumer commercial practices relating to such a product within the meaning of Article 2(d) of Directive 2005/29 clearly come within the scope of that directive.’ (para. 29).
And further,
‘because of the combined and indissociable nature of the two commercial acts in question,…, the commercial act consisting of the purchase of gold by the trader from the consumer and the ‘product’ at issue as defined in Article 2(c) of Directive 2005/29 – namely the gold valuation service provided by the trader to the consumer – must, in my view, be considered as ‘directly connected’ in the present case.’ (para. 31).
And to ensure there was no doubt, he was of the view that the Directive did indeed apply in the reverse situation (consumer-to-business commercial transaction). As put,
‘seeking to exclude the applicability of Directive 2005/29, would leave the economic interests of the consumers in question unprotected by keeping outside the scope of this directive commercial practices that are directly related to influencing consumers’ decisions, which would be manifestly contrary to the objectives of the directive‘. (para. 33).
The Consumer Ombudsman should be satisfied with this interpretation of EU secondary law. With the Opinion of the Advocate General now to hand, the Court’s judgment will be delivered later in 2024.
The Opinion of Advocate General Pikamäe in Case C-379/23, Guldbrev AB v Consumer Ombudsman was delivered on 13 June 2024, and is available here.