Friday, 21 December 2018

If it can be cleaned, it can be returned? - AG Saugmandsgaard Øe in slewo (C-681/17)

Another opinion given this Wednesday was by AG Saugmandsgaard Øe in the case slewo (C-681/17) concerning interpretation of Article 16e) of the Consumer Rights Directive. The question concerned the scope of application of the exception from the right of withdrawal for goods sealed due to health protection or hygiene reasons, when the seal was broken upon delivery and before withdrawal.

In a given case, the trader was selling mattresses, which the consumer purchased online for personal use. The mattress was wrapped in foil, which the consumer removed. The trader claimed that this prevented the consumer from later on withdrawing from the contract.

AG Saugmandsgaard Øe considers that the consumer should have the right of withdrawal in the case of purchasing a mattress, even if it has been 'sealed', which 'seal' (protective foil) has been removed by the consumer. He rightly compares mattresses to clothes - which both can be wrapped in protective foil by traders and may get in direct contact with the human body whilst being tested for their fit (para. 29). Due to the strict application of the exception from the right of withdrawal, it does need to be considered whether the trader could clean the mattress and make it possible to sell as new again upon the use by the consumer of the withdrawal right, similarly as clothes again (para. 32-34). Therefore, the exception from Article 16e) CRD will only apply to goods, which, if unsealed, would prohibit the trader from reselling them, as despite any action he might take they would be compromised as to their hygiene. Moreover, AG Saugmandsgaard Øe correctly draws attention to art. 14 para. 2 CRD, which allows the trader to claim the diminished value of the returned goods from the consumer.

Just in case the Court does not share his view, in the remaining part of the opinion AG Saugmandsgaard Øe elaborates on what it means for the goods to be recognised as sealed goods, and the moment of providing information to consumers about losing their right of withdrawal if they break the seal (for this elaboration we send our readers to the opinion).

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