In a judgment of 21 October 2020 (C-529/19, Möbel Kraft), the ECJ has ruled that the withdrawal right foreseen for consumers in respect of a sale concluded on distance or "off premises" of the seller, does not apply when the goods are made to the consumer's specifications or are clearly personalized, even if the seller has not yet started to manufacture these goods.
When shopping on distance, including when shopping online, European consumers have the right to "renounce" their purchase, without need for giving any reason, for a period of 14 days, (Directive 2011/83 on consumer's rights).
Exceptions (13) to that withdrawal right however exist, among which for the "the supply of goods made to the consumer's specifications or clearly personalized".
The question asked to the ECJ is whether that exception applies as soon as the agreement is concluded, or whether the consumer can apply the withdrawal right if the seller has not started manufacturing the goods (or sourcing the materials for such goods). In that last case, the fact that the goods are "made to the customer's specifications" would indeed not be relevant and one could say that the right of withdrawal could apply, as for any other good or product.
To decide the case and to reject the application of the right of withdrawal if the goods are not yet in production, the Court relies on three arguments.
First, a text argument: it is apparent from the wording of Article 16 of Directive 2011/83 that, for some exceptions, the consumer cannot rely on his or her right of withdrawal where certain events have occurred after the conclusion of the contract. Those include circumstances such as when the performance has begun with the consumer's prior express consent before the lapse of the withdrawal period of 14 days, or when the consumer has unsealed the package (when it is then impossible to resale the good for sanitary reasons, or when it is possible to make a copy of the good and still enjoy the copy after having returned the original).
However, for the exception for "personalized goods", there is nothing in the wording, that would indicate that the exception is dependent on the occurrence of any event subsequent to the conclusion of the contract. The Court notes, on the contrary, that it is expressly apparent from the wording that that exception is inherent to the very subject matter of such a contract, namely the production of goods manufactured to the consumer's specifications.
The ECJ concludes as a result that the exception applies from the outset to that consumer, without being conditional on the occurrence of any further event and irrespective of whether that contract has been performed or whether it is being performed by the trader.
Second argument, the ECJ also reminds that the seller must inform the consumer, before he or she is bound by a distance or off-premises contract, of the existence or, as in the present case, of the absence of the right of withdrawal. For the Court, a situation where the existence of the consumer's right of withdrawal would be conditional on a future event, the occurrence of which depends on a decision by the trader (not by the consumer, as it is the case in other exception), would not be reconcilable with that obligation to provide pre-contractual information.
Finally, the Court states that allowing the right of withdrawal as long as the manufacture of the goods has not started would also be contrary to the objective of enhancing the legal certainty of transactions between a trader and a consumer, which is one of the objectives of the Directive 2011/83, especially since the consumer usually does not know when the manufacture will start.
MVVP regularly advises on e-commerce transactions and B2C terms and conditions.
Originally published 23, October 2020
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