Consumers' right of withdrawal in the event of online purchase applies to a mattress whose protective film has been removed after delivery, the Court of Justice of the European Union ruled on Wednesday 27 March (Case C-681/17).
The German online sales company slewo is of the opinion that Mr Ledowski could not exercise the 14-day right of withdrawal normally available to a consumer because he had removed the protective film covering a mattress, which was acquired online, after delivery.
When the German Federal Court of Justice referred the matter to it, the Court ruled in favour of the consumer, holding that the case in question did not constitute an exception to Directive 2011/83, which excludes from the right of withdrawal “a sealed good which cannot be returned for health protection or hygiene reasons and which has been unsealed by the consumer after delivery”.
The Court points out that the right of withdrawal, by granting it an appropriate grace period, is intended to protect the consumer who has not been able to see the product acquired remotely at the time the contract was concluded. This period allows him to examine and test the acquired property to establish its proper functioning.
As regards the exception provided for in the Directive, it is the nature of the goods that may justify sealing their packaging for health or hygiene reasons. Because, once unsealed, such a property may no longer be sold.
But, according to the Court, a mattress does not fall within this exception. Although it has been potentially used, this object does not appear, for this reason alone, to be definitively unsuitable for further use by a third party. A single mattress is used by several successive customers, and there is a second-hand market, it notes.
In addition, the EU judge is of the opinion that a mattress can be equated to a garment, a category for which the Directive expressly provides for the possibility of return after testing. Even in the event of contact with the human body, a mattress can be cleaned and disinfected in order to allow further use by a third party and, consequently, a new sale. (Original version in French by Mathieu Bion)