Summaries of judgments made in collaboration with the Portuguese judge and référendaires of the CJEU (Nuno Piçarra, Mariana Tavares and Sophie Perez)
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Reference for a preliminary ruling — Consumer protection — Directive 2011/83/EU — Article 6(1)(k) and Article 16(e) — Distance contract — Right of withdrawal — Exceptions — Concept 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’ — Mattress whose protective seal has been removed by the consumer after delivery
The dispute in the main proceedings and the questions referred for a preliminary ruling
The request for a preliminary ruling was made in proceedings between slewo — schlafen leben wohnen GmbH (‘slewo’), an online trader which sells, inter alia, mattresses, and Mr Sascha Ledowski, concerning his exercise of his right of withdrawal in relation to a mattress purchased on slewo’s website.
On 25 November 2014 Mr Ledowski ordered, for private purposes, a mattress from slewo’s website, at a price of EUR 1 094.52. The General Terms and Conditions of Sale were printed on the invoice issued by slewo and contained inter alia a ‘notice of withdrawal for consumers’ worded as follows:
‘We will bear the costs of returning the goods. … Your right of withdrawal shall cease prematurely in the following cases: in the case of contracts for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they were unsealed after delivery’.
When it was supplied, the mattress ordered by Mr Ledowski was covered with a protective film, which he subsequently removed.
By email of 9 December 2014, Mr Ledowski informed slewo that he wished to return the mattress and asked slewo to arrange the return transport. Since that return transport was not arranged by slewo, Mr Ledowski assumed the transport costs himself, in the sum of EU 95.59. Mr Ledowski brought an action before the Amtsgericht Mainz (Local Court, Mainz, Germany) seeking reimbursement by slewo of the purchase price and the transport costs of the mattress, in the total amount of EUR 1 190.11 euros, plus interest and legal costs. By judgment of 26 November 2015 of the Amtsgericht Mainz (Local Court, Mainz), that action was allowed.
By judgment of 10 August 2016, the Landgericht Mainz (Regional Court, Mainz, Germany) upheld that decision on appeal. In those circumstances, slewo brought an appeal on a point of law (Revision) before the referring court, the Bundesgerichtshof (Federal Court of Justice, Germany). The referring court asked the Court of Justice to give an interpretation of the directive asking, in particular, whether goods such as mattresses, from which the protection has been removed by the consumer after delivery, come within the scope of the exclusion provided for by the directive.
Analysis of the Court of Justice
The Court of Justice answered that question in the negative and considered that the removal of a protective film, by the consumer, from a mattress purchased online does not prevent that consumer from exercising his right of withdrawal. The Court of Justice recalled that the right of withdrawal is designed to protect the consumer in the particular situation of distance sales, in which he is not actually able to see the product or ascertain the nature of the service provided before concluding the contract. The right of withdrawal is 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 can examine and test the goods acquired. In that connection, Article 16(e) of Directive 2011/83, which constitutes an exception to the right of withdrawal, is, as a provision of EU law which restricts the rights granted for reasons relating to protection, to be interpreted strictly.
Therefore, in the context of Article 16(e) of that directive, it is the nature of the goods which may justify their packaging being sealed for health protection or hygiene reasons and that, accordingly, the unsealing of the packaging deprives the goods inside of the guarantee in terms of health protection or hygiene. Once the packaging is unsealed by the consumer and, consequently, the goods deprived of the guarantee in terms of health protection or hygiene, such goods may no longer be able to be used again by a third party and, as a consequence, may no longer be able to be sold again by the trader.
The Court of Justice considered that the exception to the right of withdrawal under Article 16(e) of Directive 2011/83 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 without affecting either of those requirements. The Court of Justice found that a mattress, such as that at issue in the main proceedings, from which the protective film has been removed by the consumer after delivery cannot come within the scope of the exception to the right of withdrawal provided for in Article 16(e) of Directive 2011/83.
First, although it may potentially have been used, such a mattress does not appear, by that fact alone, to be definitively unsuitable for being used again by a third party or for being sold again. It suffices, in that regard, to recall in particular 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.
Second, with respect to the right of withdrawal, the Court of Justice considered that mattresses may be equated with garments, a category in respect of which the directive expressly provides for the possibility of returning such an item after trying it on, in so far as, even in the case of direct contact of those goods with the human body, it may be presumed that the trader is in a position to make those goods, after they have been returned by the consumer, by means of a treatmnt such as cleaning or disinfection, suitable for new use by a third party and, accordingly, for a new sale, without prejudice to the requirements of health protection or hygiene.
However, the Court pointed out that, according to the directive, the consumer is liable for any diminished value of goods resulting from handling other than that necessary in order to establish the nature, characteristics and functioning of the goods, without the consumer thereby being deprived of his right of withdrawal.
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