In this legal bulletin, we will examine in greater detail a recent judgment of the Court of Justice of the EU, which addressed the issue of withdrawal from a purchase contract by a consumer (without stating reasons), which is very popular also in the Czech environment. In this case, it specifically concerned the interpretation of the provision of Article 16(e) of the Directive on Consumer Rights, which stipulates that “Member States shall not provide for the right to withdraw from a contract … in the case of distance contracts …, in respect of the supply of goods sealed in packaging which is not suitable for return due to health protection or hygiene reasons and which was unsealed by the consumer after delivery …” A not entirely faithful transposition of the Directive in the Czech Republic is the provision of Section 1837(g) of the Civil Code. This stipulates that: “the consumer cannot withdraw from a contract … for the supply of goods in sealed packaging which the consumer has removed from the packaging and which cannot be returned for hygienic reasons …”

What was this case about? Mr Sascha Ledowski as a purchaser ordered a mattress for private purposes on the website of the company slewo//schlafen leben wohnen GmbH. Upon delivery, the mattress was covered with protective film, which the purchaser subsequently removed. Subsequently, by electronic mail, Mr Ledowski withdrew from the contract and requested the seller to arrange return transport of the goods and to pay for it. As the seller did not comply with this request and did not return the purchase price of the goods to the purchaser, Mr Ledowski filed an action before the District Court in Mainz. In proceedings concerning an appeal brought by the company slewo//schlafen leben wohnen GmbH, the German appellate court took the view that the resolution of this dispute depended, inter alia, on the interpretation of the provision in Article 16(e) of the Directive on Consumer Rights. Specifically, the German court referred to the CJEU the question whether goods which are not suitable for return due to health protection or hygiene reasons also include goods which, although they may come into direct contact with the human body during their intended use, can be put back on sale after appropriate cleaning by the trader (such as a mattress, for example).

In the judgment in question, the CJEU took the position that the right to withdraw from a contract by a consumer may be excluded “only when the goods, after unpacking, are definitively in such a state that they can no longer be placed on the market, for genuine health protection or hygiene reasons, because, owing to the nature of the goods concerned, it is impossible for the trader to take measures enabling the goods to be resold without impairing either of those requirements.” The Court was led to this conclusion, inter alia, by the fact that “a mattress returned by the consumer after it has been unpacked, and therefore potentially used, is in no way definitively deprived of its capacity to be the subject of trade, as is demonstrated by the use of hotel beds by different guests, the existence of a market in used mattresses, and the possibility of having used mattresses cleaned.” In the Court’s view, mattresses can “be compared with clothing, the return of which to the trader is expressly provided for, including after any trying on, which involves direct contact of the clothing with the body, since it can be assumed that such goods may subsequently be put back on sale without endangering health or hygiene.”

Within the framework of the judgment in question, the CJEU also addressed some other interesting legal questions related to this case, including the interpretation of the concept of goods “in sealed packaging” and so forth. These conclusions of the Court may have certain impacts also on the practice of those traders who are engaged in the sale of goods of a similar nature. We will address them in one of the future legal bulletins.

Josef Aujezdský, advocate

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal bulletin No. 4/2019 intended for members of this association.

This text was translated from Czech to English using an AI translator.