Case law

  • Case Details
    • National ID: link
    • Member State: Belgium
    • Common Name:P. Bakker Hillegom / Ets. Gonthier
    • Decision type: Other
    • Decision date: 21/01/1999
    • Court: Hof van Beroep (NL)/Cour d'appel (FR) (Appellate court, Brussel)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Distance Selling Directive, Article 5, 1. Distance Selling Directive, Article 6, 1. Distance Selling Directive, Article 6, 1.
  • Headnote
    Plants, flowers, fruit trees and similar products cannot be considered products that age or deteriorate easily. Consequently, the withdrawal period provided for by the Act of 14 July 1991 (TPA) applies to these products.
    A brochure that only refers to the name of a seller, without indicating his registered office or the trade register number in which he is registered infringes Article 79 TPA.
  • Facts
    P. Bakker Hillegom is a mail-order company selling horticultural products. Its catalogue states that consumers do not enjoy a withdrawal period.

    The seller is identified in the catalogue by the name “Bakker Hollande”, accompanied by a mailbox address in Belgium.
  • Legal issue
    Article 80 para 1 of the Act of 14 July 1991 states that the consumer has a seven day withdrawal period in the event of a distance sale.

    The court finds that P. Bakker Hillegom concludes distance selling contracts.

    The Royal Decree of 6/9/1993 (and now also Article 80, para 4, No 2 of the Act of 14 July 1991) states that the right of withdrawal does not apply for sales of products that deteriorate rapidly, or for sales of products that are by their nature not suitable for being returned.

    The court underlines first the seller has to prove that his goods deteriorate rapidly or are not suitable for being returned. P. Bakker Hillegom claims that living products such as trees, plants and flowers deteriorate rapidly because they are sensitive to light, temperature and humidity. The court however rejects this reasoning as being too general. It does not prove that all products sold by P. Bakker deteriorate rapidly. The general deprivation of the withdrawal period is therefore a violation of article 80 para 1 of the Act of 14 July 1991.

    Article 79 of the Act of 14 July 1991 states that the consumer should be informed, in a clear and unequivocal way, about the identity of the seller. Since the information in the brochure does not allow the consumer to identify the seller, and gives no specific information about the registered office in the Netherlands, nor a TVA number or the registration number in the Dutch trade register, the mail-order company infringes the TPA.
  • Decision

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