If you believe that the highest judicial forum of the EU only deals with matters that are far from everyday life, you have missed the recent decisions of the Court of Justice of the EU. Last year, the Court has drawn significant conclusions on copyright in a case concerning the taste of a cheese product, and now, in a legal dispute surrounding a returned mattress, the Court gave important guidance on online purchases. The decision concerns both consumers and sellers, so our short article is worth reading for everyone.

The mattress that matters

Having adequate sleep was certainly a key issue for the German plaintiff since the lawsuit brought by him relating to a mattress has reached the German Federal Supreme Court, from which the case has been referred to the CJEU for preliminary ruling.

Herr Sascha bought the mattress in a web shop and returned it after delivery and asked for a refund of the purchase price. However, according to the web shop, Herr Sascha was not entitled to exercise the Consumers' right of withdrawal from online purchases, as he removed the protective film covering the product.

The right of withdrawal

The purpose of the right of withdrawal is to offset the disadvantage arising from the fact that in case of online shopping, you cannot see or try the product before buying it. Thanks to the right of withdrawal, you can do the same things with the product after delivery, which you could otherwise do before you pay in case of a "real life" shopping. If you change your mind when having the products in your hands, you can "undo" the purchase by returning the product as if you were putting it back on the shelf in a store.

Can I withdraw in case of any products?

In principle, yes, but the directive does contain exceptions. The right of withdrawal may not be exercised, for example, in case of personalised goods, goods that expire rapidly, newspapers, goods for which the price is dependent on fluctuations in the financial market or in case of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery.

The Court had to interpret the latter exception, since the seller claimed that the unsealed mattress could not be returned due to hygiene reasons, so that the general right of withdrawal may not be exercised.

The Court's ruling in the "mattress case"

Since the Directive does not provide a clear answer to the question, the Court sought the interpretation most in line with the objective of the directive, which is to strike a balance between ensuring a high level of consumer protection and maintaining the competitiveness of businesses.

On the basis of the above, the Court took the view that the right of withdrawal may be excluded only in cases in which the goods may no longer be able to be sold again once the packaging is unsealed by the consumer. Such goods are, for example, cosmetics, sanitary products, toothbrushes etc....

The Court pointed out that the reuse or resell of a mattress does not become impossible due to the removal of the protective film, since:

  • the same mattress is used by successive guests at a hotel, furthermore, there is a market for second-hand mattresses and used mattresses can be deep-cleaned
  • mattresses may be equated with garments, a category in respect of which the directive expressly provides for the possibility of returning such an item after trying it on.

Considering the above, the Court has found that a mattress, such as that at issue, from which the protective film has been removed by the consumer after delivery is not within the scope of the exception to the right of withdrawal in question.

The extent of testing

Alongside is decision favourable for the consumers, the Court also emphasized that pursuant to the Directive, consumers are only entitled to use the products to the extent that is necessary to examine its characteristics and to try its functioning.

So, while you can try on the ordered clothes, it is hardly legitimate to send back the shoes you ordered from a web shop after dancing through a whole night in it and then wearing them for a football match with your friends.


The ruling is another example of the practice that exceptions to rights granted by EU legislation, such as the right of withdrawal in the present case, shall be narrowly interpreted. According to the Court of Justice, withdrawal may be refused on grounds of hygiene only if the resale/reuse of the product is impossible after it has been unsealed. The decision therefore significantly reduces the number of cases where the seller may rely on hygiene reasons, thus, the exclusion of the right of withdrawal becomes questionable in several areas, for example, in the case of underwear.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.