EU Court: Removing the product's protective wrapping does not prevent the buyer from exercising his right of withdrawal

With its decision published on 27-03-2019, the Court of Justice of the European Union rules that the right of withdrawal of consumers in the case of an online purchase applies to a mattress whose protective wrapping was removed after delivery.

In addition, the CJEU points out that, as in the case of a garment, it can be presumed that the trader is able to make the mattress, by cleaning or disinfection, suitable for re-marketing, without prejudice to the protection requirements of health or ensuring hygiene.

Case history

Sascha Ledowski bought a mattress from the website of the German online sales company slewo. When receiving the goods, please remove the protective wrapping of the mattress. He then returned the mattress to slewo requesting a refund of the purchase price of 1,094.52 euros and the return costs.

slewo is of the opinion that S. Ledowski could not exercise the right of withdrawal normally available to the consumer for 14 days in the case of an online purchase.

In particular, according to this company, the Consumer Rights Directive excludes the right of withdrawal in respect of "sealed goods which are not suitable for return, for health protection or hygiene reasons, and which have been unsealed after tradition".

The Bundesgerichtshof (Federal Court of Cassation, Germany), which has heard the dispute, is asking the Court to interpret the directive.

It wishes, inter alia, to clarify whether a good such as a mattress, the protective wrapping of which has been removed by the consumer after delivery, falls under the exception provided for in the directive.

Decision of the Court of Justice of the European Union

With this decision, the Court gives a negative answer to the above question.

Consequently, the consumer's removal of the protective mattress cover purchased over the Internet does not prevent him from exercising his right of withdrawal.

The Court recalls that the right of withdrawal aims to protect the consumer in the special case of distance selling, in which the consumer does not have the opportunity to actually see the product or learn about the characteristics of the service before concluding the contract. This right therefore aims at compensating the disadvantage that the distance contract entails for the consumer, by providing him with a reasonable period in order to examine and test the acquired good, to the extent that this is necessary to determine the nature, characteristics and the good operation of the good.

With regard to the exception at issue, the nature of a good is that which can justify sealing its packaging for reasons of health protection or for reasons of hygiene. Therefore, the unsealing of the packaging of such a good implies that the protection of health or hygiene ceases to be ensured. Once the packaging of such a good is unsealed by the consumer and ceases to ensure health protection or hygiene, there is a risk that the good can no longer be reused by a third party and, therefore, can no longer be made available. back on the market.

According to the Court, a mattress, such as the one at issue, the protective wrapping of which was removed by the consumer after delivery does not fall within the contested exception to the right of withdrawal.

In fact, on the one hand, although this mattress may have been used, it does not appear that it becomes, from this fact alone, definitively unsuitable for re-use by a third party or for re-sale on the market. In this regard, it is sufficient to recall, inter alia, that one and the same mattress serves successive customers of a hotel, that there is a market for second-hand mattresses and that used mattresses can be thoroughly cleaned.

On the other hand, in relation to the right of withdrawal, a mattress can be compared to clothing, a category of goods for which the directive expressly provides for the possibility of return after testing. Such an analogy is possible, insofar as, even in the case of direct contact of the goods in question with the human body, it may be presumed that the trader, after their return by the consumer, is able, through work such as is cleaning or disinfection, to make them suitable for re-use by a third party and, therefore, for re-marketing, without prejudice to health protection or hygiene requirements

However, the Court recalls that, according to the directive, the consumer is responsible for any impairment of the value of the goods that may result from manipulations that were not necessary in order to determine the nature, characteristics and proper functioning of the good, without however being deprived of his right of withdrawal.

It is recalled that the preliminary reference gives the courts of the Member States the possibility, in the context of the legal dispute in which they are involved, to submit to the Court a question related to the interpretation of Union law or to the validity of an act of an institution of the Union. The Court does not rule on the dispute pending before the national court. It is for the national court to resolve the dispute in accordance with the Court's decision. This decision binds, in the same way, the other national courts that deal with a similar problem.

Source: lawspot.gr