HM Insights

Wrapped or unwrapped – recent court decision could be a gift for consumers

Consumer sales are regulated to a significant extent within the UK and also within Europe. 

Regulation has principally been established on a Europe-wide basis. As such, decisions in one European member state as to interpretation of the law have a degree of applicability in other member states.


Right to cancel and send back

In this update we look at the interesting recent German case of Slewo - Schlafen Leben Wohnen GmbH v Ledowski, and its referral by the Bundesgerichtshof to the European Court of Justice.

The case concerned the interpretation of Directive 2011/83 on Consumer Rights. This Directive was been implemented in the United Kingdom, principally, via the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013, and the Consumer Rights Act 2015.

A key part of this legislation addressed a 14-day right to withdraw from distance or off-premises contracts. Where the transaction involved "a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery" then the right to cancel was lost. 

The Slewo case examined similar provisions under German law, and their extent. The case found that the exception applied only if the goods once unsealed were definitively non-saleable due to genuine health or hygiene protection reasons, because the particular characteristics of the goods made it impossible or very difficult for the supplier to take steps allowing for resale without having detrimental impact on those considerations. In this case, the good in question was a mattress with a protective film, which had been removed. In this event the exception was found not to apply, and the right to cancel remained.

What does this mean for retailers?

This case provides useful clarification on the extent of this exception, which unsurprisingly has been construed in a limited fashion favouring consumers. 

Traders are recommended to "sense check" their internal policies as regards returns in this respect, to avoid unnecessary disputes and enforcement action from regulators.

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