Case law

  • Case Details
    • National ID: 12–pk
    • Member State: Latvia
    • Common Name:link
    • Decision type: Administrative decision, first degree
    • Decision date: 06/03/2017
    • Court: Consumer Rights Protection Centre
    • Subject:
    • Plaintiff: unknown plaintiff
    • Defendant: SIA „TVshopEXTRA.lv”
    • Keywords: price reductions, refund, right of withdrawal
  • Directive Articles
    Consumer Rights Directive, Chapter 1, Article 3, 6. Consumer Rights Directive, Chapter 3, Article 13, 1. Consumer Rights Directive, Chapter 3, Article 14, 2.
  • Headnote
    (1) A trader cannot refuse or restrict the right of withdrawal in distance contracts on the basis that the goods are returned without the original packaging, in damaged packaging or with a diminished value.
    (2) A distance contract cannot pre-determine liability for the diminished value of returnable goods - instead, such liability should be determined through negotiation or court action.
  • Facts
    The defendant operated an online store. The court performed an inspection and found that the defendant’s distance contracts contained a contractual term entitling the defendant to refuse to rescind a contract if the same set of goods has not been returned exactly as delivered. The same contractual term entitled the defendant to reduce a refund, if the goods had not been returned in the same appearance and quality as delivered, if they were returned in noticeably used condition or, if the packaging of the goods had been damaged. More specifically, the defendant could decrease the refund by 30%, if the packaging of the goods had been damaged or by 50%, if the goods were returned in a noticeably used condition.
    The defendant stated that the purpose of such a contractual term was to govern occasions when a consumer has diminished the value of the goods before exercising the right of withdrawal.
  • Legal issue
    (1) Firstly, the Court examined the wording of the provisions regulating the right of withdrawal under Latvian and EU Law, including Recital 47 of the Directive 2011/83/EU. Based on this examination the Court concluded that the right of withdrawal cannot be forfeited or encumbered, if the purchased goods are returned in damaged packaging, without packaging or in used condition.
    (2) Secondly, the court stated that Article 12(6) of the Consumer Rights Protection Law (CRPL) (which implements Article 13(1) of the Directive 2011/83/EU) does not entitle a trader to unilaterally reduce the repayable price – instead, it provides that the consumer’s liability should be determined through negotiation between the parties or a court action. A situation where a trader confers to itself a right to unilaterally define the liability of a consumer should not be allowed. The court pointed out: although Article 12(11) of the CRPL (which implements Article 14(2) of Directive 2011/83/EU) states that a consumer is liable for diminished value of the goods, the trader has to prove the amount of damages in each separate case.
    Finally, the court stressed that according to Article 2.1 (3) of the CRPL (which implements Article 3(6) of Directive 2011/83/EU) a trader can only provide contractual arrangements which offer greater protection than the ones offered by the CRPL.
  • Decision

    (1) Can a trader refuse or restrict the right of withdrawal in distance contracts on the basis that the goods are returned without the original packaging, in damaged packaging or with a diminished value?
    (2) Can a distance contract pre-determine liability for the diminished value of goods in case and how should such liability be determined?

    URL: http://www.ptac.gov.lv/sites/default/files/lemums_tvshopextra.lv_k-232izraksts.pdf

    Full text: Full text

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  • Result
    The court adopted a decision requiring the defendant to cease the unfair commercial practice, including provision of incorrect information regarding the right of withdrawal from distance contracts.