This definition covers not only traders who act on their own account but also intermediaries acting on behalf of the trader. For example, agents paid by the trader to market or advertise their products will be traders in the understanding of the Directive.
Since the Directive regulates commercial practices in a broad sense and covers the particular situation of "hidden" traders (see below), it is important that national enforcers assess on a case-by-case basis which persons can be defined as traders in given circumstances.
For example, there may be situations where individuals who appear to be consumers selling products to other consumers could be in fact traders ("hidden B2C" sales). National enforcers should make an assessment taking the following into account: whether the seller has a profit-seeking motive; the number, amount and frequency of transactions; the seller's sales turnover; whether the seller purchases products in order to re-sell them. Persons whose main activity is to sell products from their homes on the internet using auction websites on a very frequent basis, seeking profit and/or purchasing products with the aim of reselling them at a higher price, could for example fall within the definition of trader.
Organisations which pursue charitable or other ethical goals will qualify as traders under the Directive depending on whether they engage in commercial activities (e.g. the sale of ethical products). When they act as traders they should thus comply with the provisions of the Directive as far as their commercial activities are concerned (for instance, information about the origin of the product or its ethical aspects should not be misleading). Several Member States have reported the case of a disabled painters' association offering postcards made by its members for free, but inviting people to make a contribution. National enforcers have considered that the association was acting as a trader and have assessed the practice under the provisions of the Directive.
The fact that an organisation is structured as "non-profit" or "not-for-profit" is immaterial to the assessment of whether such an organisation is a trader or not under the Directive. For example, if a private health insurance company describes itself as a "not-for-profit" organisation on the grounds that it has no shareholders and reinvests its trading surplus in the business this does not put in doubt that such a company is a trader under the Directive.
Public authorities can also be traders when carrying out commercial activities. For example, a municipality marketing discounted prices for tickets to an art exhibition which they organize will fall under the definition of trader for the purposes of the Directive.
Finally, the Directive tackles the particular situation of "hidden" traders or traders representing themselves as consumers. Under Annex I of the Directive (the "black list") n. 22, the following practice is prohibited in all circumstances:
Falsely claiming or creating the impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely representing oneself as a consumer.
For example, "hidden" traders may be: