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On March 27, 2019, the Court of Justice of the European Union (“CJEU”) issued a ruling in case C-681/17, in response to a request for a preliminary ruling from the Bundesgerichtshof, the Federal Court of Justice, Germany.

The dispute was between Sasha Ledowski, the consumer, and Slewo, an online trader mainly selling mattresses. The consumer bought a mattress from the online trader’s website, and received it in a protective film. However, after receiving it and removing the protective seal, he decided to return it, and informed the seller. Under the general conditions of sale, the right to withdraw expires if goods that are sealed for health or hygiene reasons have their seal removed.

Directive 2011/83/EU of the European Parliament and of the Council, of October 25, on consumer rights (“Directive 2011/83/EU”) establishes in article 9.1 that “Save where the exceptions provided for in Article 16 apply, the consumer shall have a period of 14 days to withdraw from a distance or off-premises contract […].

That said, “Member States shall not provide for the right of withdrawal in […] the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery” (article16 e) Directive 2011/83/EU).

In consideration of the dispute, the German Federal Court of Justice questioned whether article 16 e) Directive 2011/83/EU should be interpreted in the sense of whether those goods include goods (e.g., mattresses) that, although when used as intended may come into direct contact with the human body, can, however, be made saleable again if the trader applies suitable (cleaning) measures.

The CJEU indicates that the article must be interpreted in the strict sense, because it restricts rights.  As the nature of the good is what justifies its packaging, it will also be what upholds the application of the exception, as the health and hygiene guarantees are lost when the seal is broken.

It understands that the exception will apply in cases in which the product is no longer saleable because of health or hygiene reasons. Conversely, the restriction of the right to withdraw cannot be admitted for products whose nature allows measures to be taken to make them saleable again.

The CJEU based its decision on the opinion of the advocate general, who drew the comparison between mattresses and items of clothing, indicating that mere direct contact with the human body can occur to test a product and does not mean that the item cannot be sold, as it can be cleaned or disinfected.

To maintain a fair balance of consumer protection in remote transaction and business competitiveness, it concludes that, under article 16 e) Directive 2011/83/EU, the right to withdraw cannot be excluded from cases of remote purchases of unsealed mattresses.

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