The ECJ ruled that in case of a withdrawal within the withdrawal period, a general requirement to pay compensation for the value of the use of consumer goods acquired under a distance contract is incompatible with the objectives of the Directive. However, -as concerning the conformity with the European Community Law- this does not prevent the consumer from being required to pay compensation for the use of the goods in the case where he has made use of those goods in a manner incompatible with the principles of civil law, such as those of good faith or unjust enrichment.
The ECJ stated, that the consumer, if he merely was required to pay compensation because he had the possibility to use the good acquired at the distance contract while he was in possession of it, was only able to make use of his right of withdrawal if he paid the compensation for this value of the use. Such a consequence would clearly undermine the wording and purpose of Art. 6 paragraph 1 sentence 2 and paragraph of the Distance Selling Directive. According to these provisions the consumer should only bear the costs which result directly from the return of the good. This ensures that the right of withdrawal, regulated in the Distance Selling Directive, stays more than merely a formal right. If this right would be connected with negative costs, the consumer might be restrained from exercising this right. In particular, the consumer would be deprived of the respite which is granted to him by the Directive and which gives him the opportunity to examine, try out and use the purchased good without any pressure.
Further on the functionality and efficacy of the right of withdrawal would be adversely affected, if the consumer would be required to pay compensation, merely because he has examined and tested the good acquired at the distance contract.
Since the right of withdrawal purposes exactly the above mentioned, the availing of this opportunity may not lead to the consequence that the right can only be exercised in return of the payment of the compensation of the value of use.
Notwithstanding, even though the Distance Selling Directive has to protect the consumer in certain situations, it should not aim to concede rights for the consumer which exceed what is necessary for an expedient exercise of the right of withdrawal.
Therefore provisions of a Member State, which require the consumer’s payment for compensation for the use of goods in the case where he has made use of those goods in a manner incompatible with the principles of civil law, such as those of good faith or unjust enrichment, are not incompatible with the Directive. The last sentence of the 14th recital of the Distance Selling Directive indicates that it is up to the Member State to determine further conditions and details for the exercise of the right of withdrawal. This competence is to be exercised in conformity with the purposes of the Directive and may not adversely affect the functionality and efficacy of the right of withdrawal. This would e.g. be the case, if the amount of the compensation for the value of use would be disproportioned to the purchase price for the good in question or, if the national provisions would impose on the consumer the burden of proof, that he did not use the good during the withdrawal period in a manner, that exceeds what is necessary for an expedient exercise of the right of withdrawal.