Consumers can exercise their right to withdraw from the online purchase of a mattress, even when the mattress’ protective covering is removed after delivery, the Court of Justice of the European Union (CJEU) has recently affirmed.
EU law provides consumers with the right to withdraw from distance and off-premises contracts within 14 days from the delivery of the purchased goods or conclusion of the service contract, without any explanation or cost. If the consumer is not made aware of these rights by the trader, the withdrawal period is extended by 12 months. Exemptions from the applicability of this right apply for rapidly perishable goods, sealed goods opened by the consumer which cannot be returned for health or hygiene reasons, and hotel reservations or car rentals which are tied to specific dates.
The facts of this case were briefly as follows. A consumer purchased a mattress from the website of a German online retailer. Once the mattress was delivered, he removed the protective film covering it. He then returned the mattress to the company, requesting reimbursement of the price and the return transport costs. The company argued that the consumer could not exercise the right of withdrawal in this case since the law excludes such right for sealed goods which have been unsealed by the consumer after delivery, hence making them unsuitable for return due to health protection or hygiene reasons. The national appellate court seized of the case filed a preliminary reference before the CJEU requesting guidance as to whether goods such as mattresses, which have been unsealed by the consumer after delivery, come within the scope of the exclusion provided for by the law. The CJEU observed that the right of withdrawal is designed to protect the consumer in the case of distance sales, when he/she is not able to view the product before purchasing same. Such a right is intended to offset this disadvantage since it provides the consumer with a period for reflection after purchasing the good. During such period, the consumer can examine and test the goods acquired in order to establish the nature, characteristics and functioning of the goods.
The Court went on to note that the exclusions from the right of withdrawal contemplated by law are intended to cater for goods, the nature of which may justify a sealed packaging for health protection or hygiene reason. The unsealing of the packaging of such goods would deprive them of the guarantee in terms of health protection or hygiene. Hence, it may not be possible for third parties to use them again and consequently, for the trader to resell them.
Provides consumer with period of reflection
The Court affirmed that a mattress from which the protective film has been removed by the consumer after delivery, does not fall within the scope of such exclusions. Even though the mattress may have been used, the latter fact does not make it definitively unsuitable to be used again by a third party or to be sold again. The Court highlighted the fact that it is the norm for the same mattress to be used by successive guests at a hotel. There is also a market for second-hand mattresses and used mattresses can be deep-cleaned.
The CJEU equated mattresses to garments – goods for which the law specifically endows consumers with the right to return same after trying them on. In such cases, it can be presumed that the trader can make the returned goods, by means of a treatment such as cleaning or disinfection, suitable for new use by a third party and resale, and this without prejudice to the requirements of health protection or hygiene.
The Court went on to clarify that the consumer can be held responsible for any diminished value of the goods resulting from handling, other than that which is necessary in order to establish the nature, characteristics and functioning of the goods. However, such liability does in no way detract from the consumer’s right of withdrawal.
The EU’s consumer acquis has the primary objective of balancing out the relationship between trader and consumer, the latter always considered as being the weaker party in the relationship. By means of this ruling, the CJEU has made it clear, that in the case of distance contracts, where the consumer is at his/her most vulnerable, the interpretation given by the Court to the law will always be such as to provide the utmost protection to the consumer.
Mariosa Vella Cardona M’Jur, LL.D, is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law. She is also a visiting examiner at the University of Malta.
mariosa@vellacardona.com