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In a dispute of involving a German consumer and a German online retailer, the ECJ held that, in case of exercise of the right of withdrawal prescribed by the Distance Selling Directive, suppliers can charge consumers for the use of returned goods only in case of unjust enrichment or bad faith by the latter.
Ms. Messner, a German consumer, bought from Stefan Krüger, a company which operates an Internet based mail-order business, a second-hand laptop computer on the Internet. Nine months after the purchase, Ms. Messner informed Stefan Krüger that the screen of the computer was defective and, after the refusal by Stefan Krüger to repair it, decided to withdraw from the contract of sale and offered to return the laptop computer in return for refund of the purchase price. Stefan Krüger argued that Ms. Messner had to pay compensation for the actual use of the lap top which exceeded the purchase price paid by Ms. Messner.
The Distance Selling Directive governs any contract concerning goods or services concluded between a supplier and a consumer which are not in the same place, such as contracts concluded online, via email or phone. The Directive grants to consumers the right to withdraw from the agreement without penalty and without giving any reason, bearing only the direct cost of returning the goods within at least 7 working days. However, Ms. Messner could exercise the right of withdrawal after 9 months since according to German law in case of distance transactions if the consumer is not informed of its right to withdraw, the period for withdrawal shall not commence until such information is provided.
The Court held that the Distance Selling Directive:
“should be interpreted as precluding a provision of national law which provides that, in the case of withdrawal by a consumer within the withdrawal period, a seller may claim compensation for the value of the use of consumer goods acquired under a distance contract”.
Adding also that:
“the functionality and efficacy of the right of withdrawal would be impaired if the consumer were obliged to pay compensation simply as a result of having examined and tested the goods acquired under a distance contract”.
However, the ruling also said that:
However, the ruling also said that:
the provisions of the Directive “do 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, on condition that […] the functionality and efficacy of the right of withdrawal are not adversely affected, this being a matter for the national court to determine”.
Italian law implementing the Distance Selling Directive prescribes the possibility for a supplier to charge a consumer only for the costs of returning the goods and only if this is prescribed by the contract. If the contract is silent on this matter, the supplier shall bear also this cost. Also, the supplier will not be entitled to charge the consumer for the use of the goods, but if the latter did not comply with the principles of diligence in the handing of the goods, it might require him the payment of the damages suffered because of its lack of diligence.
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