ebay PowerSellers are regularly classified as commercial sellers

The Higher Regional Court of Frankfurt am Main (OLG Frankfurt a.M.) decided in its order of 21.03.2007, ref.: 11 O 65/05, under which conditions a seller on the internet platform eBay is to be classified as an entrepreneur.

This classification as an entrepreneur is very important, as the instruction and information obligations for sales via the eBay trading platform only apply to entrepreneurs. Furthermore, it is not possible for an entrepreneur to agree on an exclusion of warranty rights. In the case of private sales, on the other hand, it is generally possible to exclude warranty rights altogether. The classification of a seller as an entrepreneur therefore has far-reaching consequences.

According to § 14 BGB (German Civil Code), an entrepreneur is a natural or legal person or a partnership with legal capacity that acts in the exercise of its commercial activity when concluding a legal transaction. A commercial activity presupposes a planned, independent and economic activity of a certain duration, which appears to the outside world (Federal Supreme Court (BGH), judgement of 29.03.2006, file no. VIII ZR 173/05). This also includes activities that are only part-time (1). The intention to make a profit and the extent of the activity are not decisive. Rather, any conduct that can be attributed in any way to entrepreneurial activity is sufficient. (2)

In its judgement of 6 July 2005, file no. 3 O 184/04 (not yet final), the Regional Court of Mainz states that the regular offering of goods via an internet platform does not necessarily also indicate a permanent planned action within the meaning of § 14 BGB. In the opinion of the Regional Court of Mainz, it is common, especially in circles of the younger population, to conduct private transactions via the internet. However, the Regional Court of Mainz lays down some criteria which indicate that a seller on eBay is an entrepreneur.

In the opinion of the Regional Court of Mainz, the following points suffice as prima facie evidence of the seller's entrepreneurial status:

1. a high number of sales with a high total value in a relatively short period of time (in the case of the Regional Court of Mainz, there were 252 registrations in a period of 2 years and 7 months).
2. the voluntary registration at eBay as PowerSeller.
3. a high number of ratings.

In this respect, it is interesting to see what function the chamber of the Regional Court of Mainz attributes to the PowerSeller characteristic. The Regional Court of Mainz was of the opinion that the suitability as a PowerSeller speaks for a commercial activity, that a seller may only call himself a PowerSeller if he continuously sells a particularly large number of items and can demonstrate a ?high? trading volume. can demonstrate a ?high? trading volume. In addition, PowerSellers must receive at least 100 evaluation points, of which at least 98% must be positive. Participation in the PowerSeller programme is voluntary and can be terminated at any time.

The Regional Court of Mainz therefore took the view that the person who voluntarily registers as a PowerSeller is, according to life experience, probably also an entrepreneur.

However, a seller registered as a PowerSeller has the possibility to refute the prima facie evidence of entrepreneurship. However, he must demonstrate this by means of a detailed list of the transactions carried out. Furthermore, he must show by means of this detailed list that the sales were only or predominantly items for personal use. A reference to the fact that a seller has neither registered a trade nor is listed as liable for turnover tax at the tax office responsible for turnover tax is not sufficient in this respect. The Regional Court of Mainz justified this legal opinion by stating that it was solely up to the seller to register with the authorities or not. It could therefore not be concluded that the seller was an entrepreneur because he had not registered his business.

This opinion of the Regional Court of Mainz has now also been adopted by the Higher Regional Court of Frankfurt am Main in its decision of 21 March 2007, file number: 11 O 65/06.

The OLG Frankfurt a.M. stated that a sales activity via the electronic trading platform of eBay was regularly to be classified as commercial if the seller was registered as a "PowerSeller".

The Frankfurt Higher Regional Court also based its decision on the fact that registration as a "PowerSeller" is voluntary. However, the Frankfurt Higher Regional Court clarified that the classification of a seller as an entrepreneur could also result from other circumstances.

The question of whether the classification of a seller on the eBay internet platform as a PowerSeller indicates that the seller identified as a PowerSeller is also an entrepreneur within the meaning of § 14 of the German Civil Code (BGB) has not yet been decided uniformly. Increasingly, however, the courts are deciding as in the decisions of the Regional Court of Mainz, judgement of 06.07.2005, file number 3 O 184/04 and the Higher Regional Court of Frankfurt am Main, decision of 21.03.2007, file number 11 O 65/06. It therefore remains to be seen whether a uniform case law will now develop.

Every seller registered as a PowerSeller on eBay or other auction platforms can only be advised to properly fulfil the prescribed instruction and information obligations. Otherwise, there is a risk of numerous legal disadvantages and cost-intensive warnings from competitors.

Of course, you can also contact us by e-mail info@goldberg.de for further information and advice.

Attorney at Law Michael Ullrich, LL.M.
(Information Law)

(1) cf. Palandt/Heinrichs § 14 BGB Rdnr. 1.
(2) cf. Bamberger/Roth, BGB, § 14 BGB Rdnr. 6