Michael Flaherty, Senior Solicitor at Churchers, reports on an interesting judgement from the Court of Justice of the European Union. It was recently ruled that a mattress can be returned to the supplier even after removal of the protective film. More technically, a mattress, from which protective film has been removed by the consumer after delivery from an online trader, does not come within the scope of the concept “sealed goods not suitable for return due to health protection or hygiene reasons” in article 16(e) of Directive 2011/83/EU on consumer rights and the consumer who returned the goods was accordingly entitled to a full refund.
The issue in question related to consumer rights to withdraw from a distance or ‘off-premises’ contract; that is, in this case buying online. Article 16 says that a consumer has the right to withdraw from a distance contract within 14 days without giving any reason and goes on to give a list of exceptions including the sealed goods exception mentioned above.
The right of withdrawal was designed to protect the consumer in the particular situation of distance sales, in which he was not actually able to see the product or ascertain the nature of the service provided before concluding the contract. The right of withdrawal was therefore intended to offset the disadvantage for the consumer resulting from a distance contract by granting them an appropriate period for reflection during which they could examine and test the goods acquired.
It was the nature of the goods that justified their packaging being sealed for health protection or hygiene reasons and the unsealing of the packaging depriving the goods inside of the guarantee in terms of health protection or hygiene. Once the packaging was unsealed by the consumer and, consequently, the goods deprived of the guarantee in terms of health protection or hygiene, such goods could no longer be able to be used again by a third party and, as a consequence, might no longer be able to be sold again by the trader.
In those circumstances, allowing the right for the consumer to exercise their right of withdrawal by returning such an item, the packaging of which had been unsealed, to the trader would be contrary to the intention of the European Union legislature which was aimed at striking the right balance between a high level of consumer protection and the competitiveness of enterprises.
Accordingly, the exception to the right of withdrawal under article 16(e) applied only if, after the packaging had been unsealed, the goods contained therein were definitively no longer in a saleable condition due to genuine health protection or hygiene reasons, because the very nature of the goods made it impossible or excessively difficult for the trader to take the necessary measures allowing for resale without affecting either of those requirements.
Although the mattress might potentially have been used, that fact alone did not, in the view of the court, make it definitively unsuitable for being used again by a third party or sold again. For the judges, it sufficed to recall that the same mattress was used by successive guests at a hotel, that there was a market for second-hand mattresses and that used mattresses could be deep-cleaned.
It followed in the logic of the court that a mattress, from which the protective film had been removed by the consumer after delivery, did not come within the scope of the exception to the right of withdrawal in article 16(e).
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