As is known, in the case of withdrawal from a purchase contract by a consumer without stating a reason, this contract ceases to exist and the consumer becomes obliged to return the purchased goods to the trader, whilst the trader becomes obliged to return the financial means paid to the consumer. We have already addressed in previous legal circulars the questions of what changes regarding the trader’s obligation to return financial means were brought by Directive 2011/83/EU on consumer rights (hereinafter the “Directive”) and how this obligation is implemented in the new Civil Code (Act No. 89/2012 Coll.). In this legal circular, we shall therefore conversely address in more detail the consumer’s obligation to return the goods to the seller, specifically the legal questions relating to the condition of the returned goods (in what manner the consumer may handle the goods before withdrawal from the contract, etc.).

For the exclusion of all obligations, we mention that the information set out below does not apply to those cases where the trader does not duly fulfil its information obligations towards the consumer, in particular the information obligations anticipated in the provision of Section 1820(1)(f) of the new Civil Code. The trader’s failure to fulfil these information obligations has a significant impact on the rights and obligations of the parties.

The issue of the actual condition of returned goods is expressly addressed by the first sentence of Section 1833 of the new Civil Code. It provides that in the case of withdrawal from the contract by the consumer, “the consumer is only liable to the trader for a reduction in the value of the goods which arose as a result of handling such goods otherwise than is necessary to handle them with regard to their nature and properties.” This provision therefore not only differs substantially from the existing regulation, where it was inferred that the consumer is obliged to return the goods to the trader unused (taking into account that the consumer should have the possibility to test the goods), but moreover, in our opinion, it constitutes an incorrect implementation of the Directive by the Czech Republic to the detriment of the trader.

Article 14(2) of the Directive provides that “the consumer shall only be liable for any diminished value of the goods resulting from the handling of the goods other than what is necessary to establish the nature, characteristics and functioning of the goods.” The Directive therefore, unlike the Czech regulation, does not anticipate that the consumer could use the goods before withdrawal from the contract whilst not bearing the economic consequences of the depreciation of the goods. This question is further elaborated in recital 47 of the preamble to the Directive: “Some consumers exercise their right of withdrawal after having used the goods to an extent more than necessary to establish the nature, characteristics and functioning of the goods. In this case the consumer should not lose his right of withdrawal but should be liable for any diminished value of the goods. In order for the consumer to establish the nature, characteristics and functioning of the goods, he should only handle and inspect them in the same manner as he would be allowed to do in a shop. For example, a consumer should only try on a garment and should not wear it. During the withdrawal period, the consumer should therefore handle and inspect the goods with due care.” The Directive therefore anticipates that, without the consumer bearing the economic consequences of depreciation of the goods as a result of their use, the consumer may only test the goods before withdrawal from the contract (approximately to the same extent as in a physical establishment).

The Directive is based on the principle of full harmonisation, with only expressly specified cases permitting a Member State to adopt different regulation. This is expressly provided in Article 4 of the Directive: “Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions to ensure a different level of consumer protection, unless otherwise provided for in this Directive.” The wording of the first sentence of Section 1833 of the new Civil Code is therefore, in our opinion, an incorrect implementation of Article 14(2) of the Directive by the Czech Republic. For the exclusion of all doubt, we conclude by recalling that any depreciation of the goods by the consumer has no effect on his right to withdraw from the contract without stating reasons (whether under the current regulation or under the new Civil Code).

Josef Aujezdský

Law Firm Mašek, Kočí, Aujezdský www.e-Advokacie.cz – on-line legal consultancy

This text was originally prepared by the law firm Mašek, Kočí, Aujezdský in cooperation with the Association for Electronic Commerce (APEK) as legal circular No. 10/2013 intended for members of this association.

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