Wednesday, 27 March 2019

Sealed without a reason - CJEU in slewo (C-681/17)

The CJEU upheld today the opinion of AG Saugmandsgaard Øe (If it can be cleaned, it can be returned?...) in the case slewo (C-681/17). Therefore, the CJEU decided that goods such as a mattress, which is covered by a protective film that would be removed by consumers when they try on this mattress upon its delivery, are not exempt from being sold with the right of withdrawal. Article 16(e) Consumer Rights Directive does not apply as these goods cannot be seen as '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'. The CJEU emphasises the need to interpret exceptions to the right of withdrawal in CRD strictly (para 34). Pursuant to the objective of the exception from Art. 16(e) CRD it aims to protect sellers from consumers returning goods that have been compromised by breaking a seal to an extent that it would be unsafe to resell such goods. A mattress does not classify as such a good, as it can be reused or resold, the CJEU gives here an example of a hotel where many people would use the same mattress and of a possibility to deep-clean mattresses (para 42). Just like the AG, the Court compares the mattress to clothing - that may come in contact with human body while being tried on (paras 43-45). Finally, the Court reminds that any unfairness towards traders should be removed by them being able to hold consumers liable for the diminished value of the goods (para 47).

By narrowly interpreting exceptions to the right of withdrawal, the CJEU increases consumer protection with this judgment. However, I could understand the frustration of traders with it. Cleaning of products does not come for free and not all stains are easily removed. The possibility to claim compensation from consumers for the diminished value of the goods is only an option when the consumer went beyond the scope of just testing the goods during the cooling-off period. On more than one occassion I have received clothing ordered online, which had make-up stains on it - clearly from consumers who tried this product on previously (within the scope of testing the product). Of course, similarly stained clothing can be found also in offline stores, as consumers may try clothes on in fitting rooms, whilst wearing make-up, deodorant etc. The difference for traders is that they may prevent consumers from trying on clothes in their stores, e.g. by not providing fitting rooms. When the clothes (or similar goods, like mattresses) are, however, purchased online, their means of protection were to try to seal the goods and thus deny consumers the right of withdrawal. This method is, however, no longer viable.

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