Blog » MATTRESSES MATTER TO THE CJEU - CAN YOU RETURN UNSEALED PRODUCT TO THE WEBSHOP ?
MATTRESSES MATTER TO THE CJEU - CAN YOU RETURN UNSEALED PRODUCT TO THE WEBSHOP ?
03 April 2019
If you believe that the highest judicial forum of the EU only deals with matters that are far from everyday life, you have missed the recent decisions of the Court of Justice of the EU. Last year, the Court has drawn significant conclusions on copyright in a case concerning the taste of a cheese product, and now, in a legal dispute surrounding a returned mattress, the Court gave important guidance on online purchases. The decision concerns both consumers and sellers, so our short article is worth reading for everyone.
The mattress that matters
Having adequate sleep was certainly a key issue for the German plaintiff since the lawsuit brought by him relating to a mattress has reached the German Federal Supreme Court, from which the case has been referred to the CJEU for preliminary ruling.
Herr Sascha bought the mattress in a web shop and returned it after delivery and asked for a refund of the purchase price. However, according to the web shop, Herr Sascha was not entitled to exercise the Consumers’ right of withdrawal from online purchases, as he removed the protective film covering the product.
The right of withdrawal
The purpose of the right of withdrawal is to offset the disadvantage arising from the fact that in case of online shopping, you cannot see or try the product before buying it. Thanks to the right of withdrawal, you can do the same things with the product after delivery, which you could otherwise do before you pay in case of a “real life” shopping. If you change your mind when having the products in your hands, you can "undo" the purchase by returning the product as if you were putting it back on the shelf in a store.
Can I withdraw in case of any products?
In principle, yes, but the directive does contain exceptions. The right of withdrawal may not be exercised, for example, in case of personalised goods, goods that expire rapidly, newspapers, goods for which the price is dependent on fluctuations in the financial market or in case of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery.
The Court had to interpret the latter exception, since the seller claimed that the unsealed mattress could not be returned due to hygiene reasons, so that the general right of withdrawal may not be exercised.
The Court’s ruling in the “mattress case”
Since the Directive does not provide a clear answer to the question, the Court sought the interpretation most in line with the objective of the directive, which is to strike a balance between ensuring a high level of consumer protection and maintaining the competitiveness of businesses.
On the basis of the above, the Court took the view that the right of withdrawal may be excluded only in cases in which the goods may no longer be able to be sold again once the packaging is unsealed by the consumer. Such goods are, for example, cosmetics, sanitary products, toothbrushes etc....
The Court pointed out that the reuse or resell of a mattress does not become impossible due to the removal of the protective film, since:
- the same mattress is used by successive guests at a hotel, furthermore, there is a market for second-hand mattresses and used mattresses can be deep-cleaned
- 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.
Considering the above, the Court has found that a mattress, such as that at issue, from which the protective film has been removed by the consumer after delivery is not within the scope of the exception to the right of withdrawal in question.
The extent of testing
Alongside is decision favourable for the consumers, the Court also emphasized that pursuant to the Directive, consumers are only entitled to use the products to the extent that is necessary to examine its characteristics and to try its functioning.
So, while you can try on the ordered clothes, it is hardly legitimate to send back the shoes you ordered from a web shop after dancing through a whole night in it and then wearing them for a football match with your friends.
The ruling is another example of the practice that exceptions to rights granted by EU legislation, such as the right of withdrawal in the present case, shall be narrowly interpreted. According to the Court of Justice, withdrawal may be refused on grounds of hygiene only if the resale/reuse of the product is impossible after it has been unsealed. The decision therefore significantly reduces the number of cases where the seller may rely on hygiene reasons, thus, the exclusion of the right of withdrawal becomes questionable in several areas, for example, in the case of underwear.
CAN A JUDICIAL ERROR CREATE HUNGARIAN JURISDICTION DESPITE A PLACE OF PERFORMANCE ABROAD?
Can a defendant, domiciled abroad, be sued in Hungary under the Brussels I Regulation in the event of defective performance of an international sales contract if the place of performance is abroad? Can the jurisdiction of a Hungarian court be established based on the fact that the lower court expressly established its jurisdiction at the beginning of the litigation? How is the EXW clause to be interpreted within the meaning of the Brussels I Regulation? In our article, we analyse the recent decision of the Supreme Court of Hungary.Read more »
CAN YOU REQUEST ‘COVID-19 VACCINATED’ CERTIFICATION FROM YOUR EMPLOYEE IN HUNGARY?
In the recent weeks, a number of questions have been arisen whether the employer may know the data contained by the „immunity card”, which aim is to certify immunity to coronavirus. Is the employer entitled to request information from the employee regarding the immunity card or store the information concerning its employee? In this article we answer the above questions on the basis of the information („Information”) of Hungarian National Authority for Data Protection and Freedom of Information.Read more »
DO YOU HAVE TO TERMINATE THE REPLACEMENT EMPLOYEES’ CONTRACT IN HUNGARY?
In the event of a longer leave of a worker, it is common for employers to hire a replacement worker with fixed term contract to make up for the missing workforce. When the replaced worker returns, a labour dispute may arise. In the legal case presented in our article, the Supreme Court examined how the employment relationship of the replacement employee terminates at the end of the replacement. From our article you can learn about the decision of the Supreme Court and what to look for as an employer to make the closing of the replacement smooth. (In our article, we examine the court decision published under No. BH 2021.2.51)Read more »