The right of withdrawal remains applicable after removal of the protective film

Yes, the right of withdrawal remains applicable even after a consumer has removed the protective film or seal from a product such as a mattress. Therefore, a provision in your general terms and conditions that invalidates the right of withdrawal as soon as the film is removed is not automatically valid. The Court of Justice of the European Union confirmed this on 27 March 2019 in the case of Slewo v. Ledowski (C-681/17): you may only exclude a product from the right of withdrawal if it permanently unsaleable for hygiene or health reasons after the seal has been broken. This is not the case with a mattress.

What is the right of withdrawal for online sales to consumers?

When consumers make an online purchase, they rely on a number of legal rights. One of the most important is the right of withdrawal: the right to cancel a distance purchase free of charge and without giving a reason. The European regulator believes that consumers deserve extra protection in distance selling and enshrined this in the Consumer Rights Directive (Directive 2011/83/EU), which has been incorporated into the Dutch Civil Code.

Based on this, a consumer generally has a fourteen-day cooling-off period after receiving the product. Within that period, he can dissolve the agreement and return the product. The right of withdrawal applies to most distance consumer purchases, including sales via your webshop, telephone, or email.

What may the consumer do during the cooling-off period?

During the cooling-off period, the customer may try out the product, but only to the extent strictly necessary to assess its nature, characteristics, and functioning. An example makes this concrete:

• Consumers may try on clothing, just as would be possible in a physical store.
• Actually wearing a trendy dress to a wedding goes too far. That is more than judging.
• A book may be looked at, but not read completely or damaged.

If the consumer goes beyond this assessment, he retains his right of withdrawal but may be liable for the decrease in value of the product. It is wise to clearly inform your customers about this in advance.

Which products are excluded from the right of withdrawal?

The right of withdrawal is strong, but not absolute. The law provides for a number of exceptions: products to which the right of withdrawal does not apply. It is wise to mention these in your general terms and conditions to prevent disputes afterwards. Consider, for example:

• Custom-made or personalized products, such as a photo album or an engraved piece of jewelry.
• Products that spoil quickly, such as fresh foods.
• Sealed products that cannot be returned for reasons of health protection or hygiene once the seal has been broken.

That last category is central to the mattress business. That is precisely where things often go wrong in practice.

The exception for reasons of health or hygiene

The Consumer Rights Directive provides an exception for sealed goods that cannot be returned for hygienic or health reasons once the seal has been broken. This rule can easily be applied to, for example, opened foodstuffs, even if they have a longer shelf life, or to sealed cosmetics.

The only question is: how far does this exception extend? Are you allowed to exclude any product that comes into contact with the body as soon as the foil is removed? The Court of Justice has provided a clear answer to this, and that answer often turns out differently for webshops than they initially expect.

The mattress store: is a consumer allowed to remove the protective film?

A German online retailer refused to accept a returned mattress worth over 1,100 euros. The consumer had removed the protective film, meaning the seller, according to the seller, could no longer guarantee that there had been no human contact. Unhygienic, the seller concluded. The consumer disagreed. Ultimately, the German Bundesgerichtshof a preliminary question to the Court of Justice of the European Union.

In its judgment of 27 March 2019 (Case C-681/17), the Court clarifies that the hygiene exception applies only to cases where health protection or hygiene can no longer be guaranteed. In other words, there must be a real risk that renders the product unusable by a third party and requires the seller to permanently withdraw it from the market.

According to the Court, that is not the case with a mattress. A mattress does not automatically become unsuitable for reuse after the removal of the protective film. The Court points out that:

• people in a hotel also sleep on a used mattress;
• there is a market for second-hand mattresses;
• a mattress can be thoroughly cleaned and disinfected.

The Court equates a mattress with a garment on this point: direct contact with the body is necessary to assess the product, just as a consumer must try on a blouse. The seller must clean or disinfect the mattress afterwards, but can then simply resell it. Therefore, there is no exception to the right of withdrawal.

What does this mean for your webshop and general terms and conditions?

This case involved a mattress costing over 1,100 euros. No small amount. Nevertheless, the seller assumed that the right of withdrawal did not apply. An incorrect assumption can have significant consequences for your market strategy, pricing, and inventory management. Following this ruling, the seller had to find a solution for returned mattresses from which the protective film had been removed.

The practical lesson for entrepreneurs is clear:

• Exclude a product from the right of withdrawal only if it genuinely no longer saleable for health or hygiene reasons after the seal has been broken.
• A product that you can clean, disinfect, or repackage probably does not fall under the exception.
• Check your general terms and conditions for your webshop against this case law before refusing a return.
• Inform your customers clearly in advance about which products may and may not be returned and about the consequences of excessive use during the cooling-off period.

Drafting watertight terms and conditions for sales to consumers is no easy task. An unjustified exclusion can actually have the opposite effect: the provision becomes invalid, and you are in a weaker position in the event of a dispute. Good terms and conditions prevent unpleasant surprises afterwards.

Impairment and duty to disclose: two common mistakes

In addition to the unjustified exclusion of the right of withdrawal, we see two other mistakes in practice that cost webshops money. Both revolve around the same core: your rights as a seller stand or fall with the information you provide to the consumer in advance.

Recovering impairment is allowed, but not without conditions

If a product is returned showing signs of use that went beyond mere assessment, you may, in principle, offset the depreciation in value against the amount to be refunded. However, this right is not a free pass. You must be able to substantiate that the consumer used the product more than was necessary to assess its nature, characteristics, and functioning, and you must make the extent of the depreciation plausible. Withholding a standard percentage on every return usually does not hold up in a dispute.

Incorrect information significantly extends the cooling-off period

If you have not informed the consumer, or have not fully informed them, about the right of withdrawal, the cooling-off period does not start at the usual time. As a result, the term can be significantly extended. A correct explanation of the right of withdrawal provided in advance and the model withdrawal form is therefore not a formality, but protects your own position. Are you unsure whether your terms and conditions and the information on your webshop meet the requirements? Our legal support team for entrepreneurs would be happy to review this with you.

Frequently asked questions about the right of withdrawal and protective film

May I exclude the right of withdrawal as soon as the protective film has been removed?

Not automatically. You may only exclude a product if it becomes permanently unsaleable for health or hygiene reasons due to the breaking of the seal. According to the Court of Justice, this does not apply to a mattress, because it can be cleaned and resold.

For which products does the hygiene exception apply, then?

The exception is intended for sealed products that can no longer be used safely or hygienically by another person after opening. Examples include certain cosmetics, personal care products, or opened food products. Whether the exception applies in a specific case depends on whether the product can still be resold after cleaning.

How long is the cooling-off period for an online purchase?

In principle, the consumer has a fourteen-day cooling-off period after receiving the product. If you have not correctly informed him about the right of withdrawal, this period can become considerably longer. Providing correct information is therefore in your own interest.

What if the consumer has used the product more than necessary?

The right of withdrawal remains in effect, but the consumer may be liable for the decrease in value resulting from that excessive use. However, a condition is that you have clearly informed him of the right of withdrawal in advance.

Does this ruling also apply to products other than mattresses?

Yes. The Court interprets the hygiene exception generally and not only for mattresses. The core question is always the same: can the product be cleaned, disinfected, or repackaged and then resold after the seal has been broken? If the answer is yes, the right of withdrawal generally remains applicable.

What risks do I run if my general terms and conditions contain an invalid exclusion?

An invalid clause offers no protection: you cannot refuse a legitimate return and are in a weaker position in the event of a dispute. Moreover, an incorrect exclusion may be deemed unfair. It is therefore worthwhile to have your terms and conditions legally reviewed.

Have your terms and conditions checked by a lawyer

Do you also include an exclusion of the right of withdrawal for products whose packaging has been opened or whose protective film has been removed? Then it is wise to review your terms and conditions. Our legal experts specialize in contract law and assist you in drafting or reviewing your general terms and conditions for your webshop, ensuring they hold up legally and align with current case law.

Do you want clarity on this quickly? Schedule a no-obligation intake and discuss your situation with one of our legal experts.