The European Court of Justice (“CJEU”) recently issued two interesting preliminary rulings on the right of withdrawal under the EU Consumer Rights Directive (Directive 2011/83/EU).
1. In the first case (C-430/17), a trader had inserted an advertising leaflet with a detachable mail order coupon in various newspapers and magazines. The right of withdrawal was referred to on both the front and back of the mail order coupon, which also set out the trader’s contact details and internet address. The instructions on withdrawal and the model withdrawal form could be found on the website mentioned on the coupon. A German consumer association, however, considered that the information on the leaflet did not satisfy the information requirements relating to the right of withdrawal, in so far as the model withdrawal form itself was not attached to the leaflet.
Under the Consumer Rights Directive, before a consumer is bound by a distance or off-premises contract, the trader must provide the consumer with certain information relating to that contract or offer. In particular, where the right of withdrawal exists, the trader must make the consumer aware of the conditions, time limit and procedures for exercising that right, and to provide the consumer with the model withdrawal form set out in Annex I(B) to that directive. However, in the event that the contract is concluded through a means of distance communication which only allows limited space or time to display the information, the trader should comply with only a minimum set of information requirements and refer the consumer to another source of information, for instance by providing a toll free telephone number or a hypertext link to a webpage where the relevant information is available.
The referring court asked the CJEU to clarify (i) which criteria are to be used in order to assess whether a contract is concluded through a means of distance communication which allows limited space or time to display the information, and, (ii) the scope of the obligation to provide information on the right of withdrawal in such cases.
In its judgment of 23 January 2019, the CJEU found that the assessment of whether the means of communication allows limited space or time must be carried out having regard to all of the technical features of the trader’s marketing communication. In that regard, it falls to the national court to ascertain whether all the information set out in the Directive may objectively be displayed within that communication, having regard to the space and time occupied by the communication and the minimum size of the typeface which is appropriate for the average consumer targeted by that communication.
With regard to the information that needs to be provided in the event that the contract is concluded through a means of distance communication which only allows limited space or time, the CJEU pointed out that the pre-contractual information on the right of withdrawal is of fundamental importance for the consumer and enables him to make an informed decision on whether or not to conclude the distance contract with the trader. In order to benefit fully from that information, the consumer must be aware of the conditions, time limit and procedures for exercising the right of withdrawal beforehand.
As a result, a trader is not required to also provide the consumer with the model withdrawal form when using a means of distance communication which allows limited space or time. According to the CJEU, being in possession, through that means of communication, of such a model is not a circumstance that could influence the consumer’s decision on whether or not to conclude a distance contract. Also, an obligation to provide the consumer in all circumstances with that model is liable to impose on the trader a disproportionate burden, and in some cases an unsupportable burden (e.g. when contracts are concluded by telephone). Therefore, the CJEU concluded that the communication of the model by another source, in plain and intelligible language, will suffice.
2. The second case (C-681/17) related to one of the legal exceptions to the right of withdrawal.
A consumer had purchased a mattress on the website of a German online retailer. On taking delivery of the mattress, he removed the protective film covering it. When returning the mattress and requesting reimbursement of the price and return transport costs, the trader refused. According to the trader, the consumer could not exercise the right of withdrawal as Article 16(e) of the Consumer Rights Directive excludes this right for “sealed goods which are not suitable for return due to health protection or hygiene reasons and which have been unsealed by the consumer after delivery”. The referring court asked the CJEU to clarify whether goods such as a mattress, from which the protective film has been removed after delivery, fall within the scope of Article 16(e) of the Directive.
In its judgement of 27 March 2019, the CJEU recalled that the right to withdrawal is intended to offset the disadvantage for the consumer, i.e. not being able to see the product before concluding the contract, by granting him an appropriate period for reflection during which he can examine and test the goods acquired. In that connection, exceptions to the right of withdrawal are to be interpreted strictly.
With respect to the exception to the right of withdrawal under Article 16(e) of the Directive, the CJEU considered that it applies only if, after the packaging has been unsealed, the goods contained therein are definitively no longer in a saleable condition due to genuine health protection or hygiene reasons, because the very nature of the goods makes it impossible or excessively difficult for the trader to take the necessary measures allowing for resale.
In this regard, the CJEU pointed out that one and the same mattress is used by successive guests at a hotel, that there is a market for second-hand mattresses and that used mattresses can be deep-cleaned. As such, a mattress does not appear, by the fact alone that it may potentially have been used, to be definitively unsuitable for being sold again. The CJEU also stated that in the context of the right of withdrawal, a mattress may be equated with a garment. After trying the garment on, the purchaser is allowed to exercise his right of withdrawal even if the garment came into contact with his body. The trader is in a position to make those goods, by means of a treatment such as cleaning or disinfection, suitable for new use and a new sale, without prejudice to the requirements of health protection or hygiene.
On this basis, the CJEU concluded that goods such as a mattress, from which the protective film has been removed by the consumer after delivery, do not come within the scope of the exception of “sealed goods which are not suitable for return due to health protection or hygiene reasons and which have been unsealed by the consumer after delivery”. The CJEU however stressed that, in accordance with the Consumer Rights Directive, consumers remain liable for any diminished value of the goods resulting from handling other than that necessary in order to establish the nature, characteristics and functioning of the goods.
Please contact Karel Janssens for further information on these cases and/or for general legal advice relating to e-commerce and consumer protection.