Judges A Rosas, M Safjan (Rapporteur)
Advocate General H Saugmandsgaard Øe
The consumer ordered a mattress from the trader’s website. The General Terms and Conditions of Sale were printed on the invoice and contained, inter alia, a notice of withdrawal which stated that the consumer’s right of withdrawal ceased in the case of contracts for the supply of sealed goods which were not suitable for return due to health protection or hygiene reasons, if they were unsealed after delivery. When it was supplied, the mattress was covered with a protective film, which the consumer removed. The consumer returned the mattress and brought an action for reimbursement of the purchase price and the transport costs of returning the mattress, which was allowed. Article 16(e) of Parliament and Council Directive 2011/83/EU provided that member states should not provide for the right of withdrawal from a distance or off-premises contract in relation to the supply of “sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery”. On appeal by the trader, the Federal Court of Justice, Germany stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling the question, in essence, whether goods such as a mattress, from which the protective film had been removed by the consumer after delivery, came within the scope of article 16(e) of the Directive.
On the reference—
Held, 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 him an appropriate period for reflection during which he could examine and test the goods acquired. It was the nature of the goods which 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 his 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, as expressed in recital (4) of Directive 2011/83, according to which the Directive 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 has 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. It followed 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) of Directive 2011/83 (judgment, paras 33, 37–41, 48, operative part, para 1).
F Buchmann for the trader.
HG Klink for the consumer.
P Cottin and J Van Holm, agents, for the Belgian Government.
P Garofoli and G Palmieri, agent, for the Italian Government.
M Kellerbauer and N Ruiz García, agents, for the European Commission.