Distance selling: how must you inform about the right of withdrawal?

In distance selling, you must inform the consumer clearly, comprehensibly, and on a durable medium about the right of withdrawal before the purchase. State at a minimum that the right exists, the fourteen-day cooling-off period, how and within what period the customer can withdraw, who bears the return costs, and any exceptions. Also make the model withdrawal form available. Merely mentioning the right in your general terms and conditions is not sufficient. If you fail to provide this information, the cooling-off period can be extended by up to twelve months, and you risk a fine from the ACM.

What is the right of withdrawal for distance selling?

The right of withdrawal is the statutory right of a consumer to cancel a distance purchase without giving a reason. Distance selling is any sale where the entrepreneur and the consumer do not meet physically, such as a webshop, a telephone order, or an order via a brochure with an order form.

In principle, the consumer has a fourteen-day cooling-off period. For a product, this period usually starts from the moment the customer receives the product, not from the order. This distinction is crucial: it is one of the most common mistakes in webshop copy. Within this cooling-off period, the customer may revoke the agreement, and subsequently has some time to actually return the product.

What information are you required to provide?

As an entrepreneur, you have a duty to provide information. You must not only inform the customer of the existence of the right of withdrawal, but also of its content. In clear language, at a minimum, state:

• that the consumer has a right of withdrawal;
• the fourteen-day cooling-off period and when that period begins to run;
• the conditions, the time limit and the manner in which the customer can withdraw;
• who bears the costs of return;
• any exceptions for which no right of withdrawal applies;
• the model withdrawal form.

The customer is not obliged to use the model form, but you must always offer the option. After all, the consumer is also entitled to indicate in another unambiguous way that he is withdrawing from the purchase.

Inform clearly and understandably

The law requires two things simultaneously: the information must be clear and understandable. Therefore, avoid legal jargon and choose wording that every consumer understands. Equally important: the information must be accurate. A text that appears complete but misrepresents the time limit fails to comply with the duty to provide information.

A practical example: one sentence that goes wrong

Suppose your webshop sells lighting. The product page clearly states “fourteen-day return policy,” but in the confirmation email, you write that returns are possible “up to fourteen days after your order.” The latter is incorrect: the period only starts from the date of receipt of the product. One careless phrasing in one place makes your information incorrect, even if it is stated correctly elsewhere. It is precisely these kinds of details that determine whether you comply with the duty to provide information.

Why a reference in the general terms and conditions is not sufficient

Merely mentioning the right of withdrawal in your general terms and conditions is insufficient. The Groningen sub-district court already underscored this in a ruling from 2011. The reasoning behind this is logical: general terms and conditions are rarely read, whereas the consumer must be clearly informed precisely at the decisive moment.

Therefore, inform the customer at multiple times and places. In practice, a combination works best:

• a separate, searchable information page on your website;
• visible information during the ordering process, before completing the order;
• a confirmation after the purchase, for example in the confirmation email;
• If desired, a cover letter or package leaflet with the delivery.

What if your communication tool offers very little space?

Not every channel has the same amount of space. On a website, you can easily link to an extensive FAQ, but a paper brochure with an order form offers limited space. The Court of Justice considered this in the Walter Busch case.

The essence of that ruling: when making the assessment, one must take into account the characteristics of the communication medium used. If, objectively speaking, the medium offers only limited space or time, then not all information necessarily needs to be contained on that single medium. The judge then considers, among other things, the dimensions and the minimum font size.

It is important to note, however: if you are exempt from providing part of the information on that one channel, this does not release you from your full obligation to provide information. You must then still provide the missing information to the consumer via another channel, for example by email or post. Moreover, that information must reach the customer in a permanent manner so that he can retrieve it later.

What are the risks if you do not properly arrange the right of withdrawal?

The consequences of an inadequate duty to provide information are far-reaching and affect you on two fronts.

Extension of the cooling-off period

If you do not inform the consumer (correctly) about the right of withdrawal before the agreement, the cooling-off period is extended. This extension can amount to a maximum of twelve months in addition to the original term. In that case, a customer can therefore return a product well after the purchase. If you provide the information within that period, the standard cooling-off period starts running from that moment.

Enforcement and fines by the ACM

The Authority for Consumers and Markets (ACM) supervises the duty to provide information and can impose a fine for a violation. In practice, fines of substantial size have occurred. A telling example: a webshop received a hefty fine because it provided incorrect information. The webshop stated that returns were possible up to fourteen days after the order, whereas the period only runs from the date of receipt. The fact that the general terms and conditions did state this correctly did not outweigh the error in the visible communication.

The lesson is clear: one incorrect sentence in the wrong place can cost you dearly, even if everything else is correct. If you face a dispute with a customer or the ACM, it is wise to seek legal assistance in a timely manner

This is how you comply with the duty to provide information in practice

Do you want control over the right of withdrawal and peace of mind when selling remotely? Then work step by step:

1. Draft clear, legally correct general terms and conditions for your webshop .
2. Create a separate, easy-to-find page about the right of withdrawal with the model form.
3. Also display the key information within the ordering process, before the customer checks out.
4. Repeat the information in the confirmation email and include the model form.
5. Check that the same, correct time limit is stated everywhere: fourteen days after receipt.
6. Have not only your terms and conditions, but all your communication materials legally screened, from webshop copy and order forms to telephone sales scripts.

It is precisely that last point that is often forgotten. Correct general terms and conditions are a good foundation, but the fault usually lies in the separate texts surrounding them.

Frequently asked questions about the right of withdrawal for distance selling

When does the fourteen-day cooling-off period start?

When purchasing a product, the cooling-off period generally begins on the day after the consumer receives the product, not on the order date. For services and digital content, different start dates and exceptions may apply.

Am I required to include the model withdrawal form?

You must offer the consumer the option to use the model form and make it available, for example on your website and with the confirmation. The consumer is not obliged to use the form and may also withdraw in another unambiguous way.

Is including the right of withdrawal in my general terms and conditions sufficient?

No. A reference in the general terms and conditions alone is not sufficient. You must inform the consumer in advance in a clear and understandable manner, at the moment it matters.

What happens if I fail to inform or provide incorrect information about the right of withdrawal?

The cooling-off period can then be extended by a maximum of twelve months, allowing the customer to return the item for much longer. In addition, the ACM can impose a fine for violating the duty to provide information.

Does the right of withdrawal apply to all products and services?

There are statutory exceptions, for example for custom-made products, perishable goods, or certain digital content. Whether an exception applies depends on the situation. If in doubt, it is advisable to have this legally reviewed.

Get your distance selling legally watertight

The right of withdrawal is exactly the kind of rule where a small mistake has major consequences. At MKB Juristen, we help entrepreneurs make their webshop, contracts, and communication watertight. We look not only at your terms and conditions, but at the entire customer journey.

View our expertise in e-commerce and contract law, or have your texts and terms and conditions screened immediately. Schedule a no-obligation intake and discover in a brief conversation where the risks lie in your distance selling.