The consumer's right of withdrawal in the case of an online purchase applies to a mattress whose protective film has been removed after delivery. As with an item of clothing, it can be assumed that the trader is able to make the mattress marketable again by means of cleaning or disinfection without failing to meet the requirements of health protection or hygiene.
Mr Sascha Ledowski bought a mattress via the website of the German online retailer slewo. After receiving the goods, he removed the protective film with which the mattress was covered. He then returned the mattress to slewo and claimed a refund of the purchase price of 1,094.52 euros and the costs of returning the goods.
According to slewo, Mr Ledowski was unable to exercise the right of withdrawal that consumers normally have for 14 days in the case of an online purchase. This is because the Consumer Protection Directive excludes the right of withdrawal for "sealed goods ... which are not suitable for return for reasons of health protection or hygiene and whose seal has been removed after delivery".
The Bundesgerichtshof (Federal Court of Justice) (Germany), before which the case was brought, asks the Court of Justice for an interpretation of the Directive. In particular, it seeks to know whether a product such as a mattress, whose protective film was removed by the removed by the consumer after delivery falls within the scope of the of the Directive exclusion provided for in the Directive.
In its judgment of 27 March 2019, the Court of Justice answered this question in the negative. Consequently, the consumer is not prevented from exercising his right of withdrawal because he has removed the protective film from a mattress purchased on the internet.
The Court points out that the right of withdrawal is intended to protect the consumer in the particular situation of a distance sale, where he has no opportunity to see the goods before concluding the contract. It is thus intended to compensate for the disadvantage suffered by a consumer in a distance contract by granting him a reasonable reflection period during which he has the opportunity to examine and try out the goods purchased, to the extent necessary to determine their nature, characteristics and functioning.
As regards the exclusion at issue here, it is the nature of a good that may justify the sealing of its packaging for health protection or hygiene reasons. The removal of the seal from the packaging of such a good therefore invalidates the guarantee in respect of health protection or hygiene. If such a good has had the seal of its packaging removed by the consumer and therefore its health or hygiene guarantee has lapsed, it may no longer be used by a third party and consequently may not be put back on the market.
A mattress such as the one at issue here, the protective film of which was removed by the consumer after delivery, does not, according to the Court, fall within the exception to the right of withdrawal in question.
On the one hand, it is not evident that such a mattress, even though it may have been used, cannot be definitively reused or not reused by a third party for the sole reused by a third party or placed on the market again. In this respect, it is sufficient to point out that one and the same mattress is used by successive hotel guests, a market for for there is a market for used mattresses, and used mattresses can be subjected to a thorough can be subjected to thorough cleaning.
On the other hand, a mattress may be assimilated, for the purposes of the right of withdrawal, to an item of clothing, that is to say, to a category of goods for which the directive expressly provides for the possibility of return after trying on. Such an assimilation is possible in so far as, even in the event of direct contact between those goods and the human body, it may be assumed that the trader is able, after the consumer has returned them, to make them suitable for re-use by a third party, and thus for placing on the market again, by means of a treatment such as cleaning or disinfection, without failing to satisfy the requirements of health protection or hygiene.
However, the Court emphasised that, under the Directive, the consumer is liable for any loss of value of a good resulting from handling which is not necessary to verify the nature, characteristics and functioning of the good, without therefore losing his right of withdrawal.
Source: Press release No. 42/19 of the Court of Justice of the European Union of 27.03.2019
GoldbergUllrich Attorneys at Law 2019
Lawyer Michael Ullrich, LL.M. (Information Law), Specialist Lawyer for Information Technology Law
