Consumer Rights Directive, Chapter 3, Article 9, 1.

The consumer had the right to return goods purchased through distance sales when the product packaging had been opened but the goods had not been taken into use.

The plaintiff bought a Sony Playstation game console for EUR 407 through means of distance sales. The plaintiff returned the console to the trader before 14 days had expired from its delivery. The dispute was about whether the plaintiff had taken the console into use or not and, consequently, whether the plaintiff had the right to return the console and regain the paid purchase price.

The plaintiff demanded the annulment of the sale and return of the EUR 407 purchase price as well as compensation for the return costs for the amount of EUR 12,65. The plaintiff invoked the 14 day right of withdrawal provided by the Consumer Protection Act. The plaintiff admitted that he had opened the package but denied using the console. The defendant considered that the plaintiff had no right to return the console as the plaintiff had taken the console into use before returning it. According to the defendant, the seal of the console has been broken and this supports forfeiting the right of withdrawal.

Does opening the unsealed package of a consumer good bought by means of distance sales without taking the product itself into use result in the forfeit of the right of withdrawal from contract?

According to chapter 6 section 14 subsection 1 of the Consumer Protection Act, a consumer has the right to withdraw an off-premises or distance sales contract by notifying the trader, by using the withdrawal sheet or in another unequivocal way, at latest after 14 days from the conclusion of such contract or a contract relating to digital content that is delivered electronically.

The Board considered that the plaintiff had returned the product in accordance with the prerequisites set in the Act. According to chapter 6 section 16 subsection 1 point 8 of the Consumer Protection Act, unless agreed otherwise, the consumer does not have the right of withdrawal set in section 14 if a sealed audio record or a visual recording or a computer program has been opened.

The defendant had not indicated that the console packaging was sealed. Therefore, the Board found that the console cannot be considered as a sealed audio record or a visual recording or a computer program. The plaintiff had the right to withdraw from the distance sales contract of the console. According to chapter 6 section 9 subsection 11, before concluding an off-premises or distance sales contract the trader shall provide, when needed, the consumer with information about the fact that if the consumer uses his right to withdraw from the contract, the consumer has to bear the costs of returning the goods. The defendant had not claimed that such information would have been given to the plaintiff. The Board considered that the defendant must reimburse the plaintiff for the returning costs for the amount of EUR 12.65.

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Inga träffar

Inga träffar

The Consumer Disputes Board recommended the defandant to return the console’s purchase price of EUR 407 to the plaintiff as well as to reimburse the plaintiff for the returning costs of the console for the amount of EUR 12.65.