In its judgment of March 27, 2019 (C-681/17), the ECJ ruled that consumers have the right to return a mattress ordered online to the retailer within the scope of the right of withdrawal, even if the protective film has been removed for trial lying.
Protective Film Removed for Trial Lying
A consumer, Sascha L. from Germany, ordered a mattress online. After delivery, he removed the protective film to try it out. So far, so good.
After the trial lying, Sascha L. decided to exercise his right of withdrawal. The mattress was therefore returned to the retailer, and L. expected to be reimbursed the purchase price of EUR 1,094.52.
No Return without Seal
However, the furniture retailer did not refund the purchase price.
An exception to the right of withdrawal states that there is no right of withdrawal for goods that are delivered sealed and are not suitable for return for reasons of health protection or hygiene, if their seal has been removed after delivery.
The furniture retailer took the view that mattresses fall into this category of goods.
Judgment of the ECJ
The proceedings reached the German Federal Court of Justice, which submitted the question to the ECJ for a preliminary ruling.
The ECJ ruled that mattresses may in principle be tried out and checked for their quality after purchase online. According to the ECJ, mattresses do not belong to those products that can no longer be used by third parties for hygienic or health reasons once the seal has been opened.
Firstly, the ECJ referred to the fact that mattresses in hotels are used by many people in succession. An argument that, in our view, is flawed. Hardly anyone would buy a used hotel mattress.
Secondly, the ECJ compared the testing of mattresses with the trying on of items of clothing. When trying on items of clothing, these would also come into contact with human skin. Nevertheless, there would be no practice of subjecting them to special protection requirements in order to prevent contact with human skin. In our opinion, this argument is comprehensible and also more appropriate. A short test of a new mattress without a protective film is better compared with trying on a new item of clothing than with a hotel mattress in continuous use.
In the worst case, the retailer could clean and disinfect both items of clothing and mattresses before resale. In summary, mattresses do not constitute goods that are delivered sealed and are not suitable for return for reasons of health protection or hygiene, if their seal has been removed after delivery.
Attention
Even if the consumer overstresses the goods during testing, the consumer does not lose the right of withdrawal. However, he is then liable for any loss in value of the goods that is due to handling of the goods that is not necessary to check the condition, properties and functionality of the goods.
Conclusion
With this decision, the ECJ has drawn a red line. Not every product that comes into contact with human skin during testing is automatically unusable.
A thoroughly sensible decision. After all, you don’t dispose of your living room sofa after guests have sat on it.
