Facts and Course of Proceedings:
The defendant is an online retailer who, among other things, sells mattresses. The plaintiff ordered a mattress for private use via the defendant's website at a purchase price of €1,094.52, which was delivered to him with a sealed protective film.
The defendant's invoice dated november 26, 2014, referred to the General Terms and Conditions printed therein, which also included a 'Right of Withdrawal for Consumers' instruction. It stated, among other things, that the right of withdrawal for contracts concerning the supply of sealed goods that are not suitable for return for reasons of health protection or hygiene expires prematurely if their seal has been removed after delivery.
After receiving the mattress, the plaintiff removed the protective film.
By email dated December 9, 2014, the plaintiff requested the defendant to arrange a return transport appointment, as he wished to return the mattress. Since the defendant did not arrange the requested return transport, the plaintiff commissioned the transport himself at a cost of €95.59.
The lawsuit, seeking reimbursement of the purchase price and transport costs, totaling €1,190.11, plus interest, and indemnification from pre-litigation legal fees, was successful in the lower courts. The appellate court held that a mattress is not a hygiene article within the meaning of § 312g para. 2 no. 3 BGB, and therefore the right of withdrawal was not excluded even after the plaintiff removed the protective film. With the appeal permitted by the appellate court, the defendant continues to pursue its request for dismissal of the claim.
The VIII Civil Senate of the Federal Court of Justice, responsible, among other things, for sales law, referred to the Court of Justice of the European Union (hereinafter: the Court of Justice) for a preliminary ruling, pursuant to Art. 267 para. 3 TFEU, the question of whether Article 16(e) of the Consumer Rights Directive is to be interpreted as meaning that the goods referred to therein, which are not suitable for return for reasons of health protection or hygiene, also include goods (such as mattresses) which, although they come into direct contact with the human body during their intended use, can be made marketable again by appropriate (cleaning) measures taken by the trader (Senate decision of november 15, 2017 – VIII ZR 194/16, NJW 2018, 453). At the same time, the Senate suspended the proceedings analogously to § 148 ZPO until the decision of the Court of Justice.
The decision of the Federal Court of Justice:
The VIII Civil Senate of the Federal Court of Justice has ruled that a purchase contract concluded by a consumer with an online retailer for a mattress delivered sealed with a protective film is not a contract for the supply of sealed goods that are unsuitable for return for reasons of health protection or hygiene if the seal is removed after delivery (§ 312g para. 2 no. 3 BGB). Therefore, the consumer retains the right to withdraw his declaration of intent aimed at concluding the contract pursuant to § 312g para. 1 BGB, even if he has removed the protective film.
This jurisprudence follows, in its outcome and reasoning, the standards set by the Court of Justice in its judgment of March 27, 2019 (C-681/17) in response to the Senate's referral decision of november 15, 2017. This is because the German exception provision of § 312g para. 2 no. 3 BGB is based on the identically worded European legal provision of Article 16(e) of the Consumer Rights Directive, which the German legislator intended to fully transpose into German law.
An exception to the right of withdrawal generally granted to consumers in distance contracts must be denied, particularly in view of its purpose. The right of withdrawal is intended to protect the consumer in the specific situation of distance selling, where they have no opportunity to inspect the product and ascertain its characteristics before concluding the contract. This disadvantage is to be compensated by the right of withdrawal, which grants the consumer a reasonable period of reflection during which they have the opportunity to examine and try out the purchased goods.
In this regard, the exception only applies if, after the removal of the packaging's seal, the goods contained therein are definitively no longer marketable for reasons of health protection or hygiene, because the entrepreneur could not take measures to make them marketable again while ensuring health protection or hygiene, or could only do so with disproportionate difficulties.
Applying this standard, a mattress from which the consumer has removed the protective film does not fall under the exception. A mattress can be equated with an item of clothing in terms of the right of withdrawal, as both can come into direct contact with the human body. It can be assumed that entrepreneurs are capable of making both types of goods suitable for reuse by a third party and thus for re-marketing after return, by means of treatment such as cleaning or disinfection.
Since the appellate court correctly interpreted the announcement of the mattress return and the request for reimbursement of transport costs as a declaration of revocation, the parties were no longer bound by their declarations of intent to conclude the contract, in accordance with Section 355 (1) of the German Civil Code (BGB). Consequently, the defendant online retailer was obliged to refund the purchase price and the incurred transport costs to the plaintiff. The defendant's appeal was therefore unsuccessful.
Judgment of the Federal Court of Justice of July 3, 2019 – VIII ZR 194/16
Lower Courts:
Mainz Local Court – Judgment of november 26, 2015 – 86 C 234/15
Mainz Regional Court – Judgment of august 10, 2016 – 3 S 191/15
