OPINION OF ADVOCATE GENERAL

SAUGMANDSGAARD ØE

delivered on 19 December 2018 ( 1 )

Case C‑681/17

slewo — schlafen leben wohnen GmbH

v

Sascha Ledowski

(Request for a preliminary ruling from the Bundesgerichtshof (Federal Court of Justice, Germany))

(Reference for a preliminary ruling — Consumer protection — Directive 2011/83/EU — Article 6(1)(k) and Article 16(e) — Distance contract — Right of withdrawal — Exceptions — Sealed goods which are not suitable for return due to health protection or hygiene reasons — Possible inclusion of a mattress which has been unsealed after delivery — Conditions to be met for goods to be considered sealed — Scope of the obligation to inform the consumer of the loss of his right of withdrawal)

I. Introduction

1. This request for a preliminary ruling brought by the Bundesgerichtshof (Federal Court of Justice, Germany) concerns the interpretation of Article 6(1)(k) and Article 16(e) of Directive 2011/83/EU, ( 2 ) relating to the limitation of the right of withdrawal of consumers, a right to which they are entitled, in principle, when concluding a distance contract.

2. The request has been made in proceedings concerning the exercise of the right of withdrawal of a consumer who purchased a mattress online and wanted to return it after removing the protective film provided with the mattress at the time of delivery.

3. The Court is asked to rule on whether Article 16(e) of Directive 2011/83 must be interpreted as meaning that the exception from the right of withdrawal provided for in that provision, relating to ‘sealed goods which are not suitable for return due to health protection or hygiene reasons’, covers goods such as mattresses which may come into direct contact with the human body during use, but which can nevertheless be made saleable again by means of suitable cleaning measures. I take the view that that question should be answered in the negative.

4. If the Court were to decide that the first question referred for a preliminary ruling should be answered in the affirmative, it would then be necessary to determine what requirements the packaging of goods of that type must satisfy for it to be considered a seal the removal of which would result in the loss of the right of withdrawal within the meaning of Article 16(e).

5. In addition, it would then have to decide on the information that the trader has to give to the consumer, pursuant to Article 6(1)(k) of that directive, with regard to the circumstances in which the latter loses the right of withdrawal.

II. Legal context

6. Recitals 34, 37, 47 and 49 of Directive 2011/83 state: ‘(34) The trader should give the consumer clear and comprehensible information before the consumer is bound by a distance … contract … … (37) Since in the case of distance sales, the consumer is not able to see the goods before concluding the contract, he should have a right of withdrawal. For the same reason, the consumer should be allowed to test and inspect the goods he has bought to the extent necessary to establish the nature, characteristics and the functioning of the goods. … … (47) Some consumers exercise their right of withdrawal after having used the goods to an extent more than necessary to establish the nature, characteristics and the functioning of the goods. In this case the consumer should not lose the right to withdraw but should be liable for any diminished value of the goods. In order to establish the nature, characteristics and functioning of the goods, the consumer should only handle and inspect them in the same manner as he would be allowed to do in a shop. For example, the consumer should only try on a garment and should not be allowed to wear it. Consequently, the consumer should handle and inspect the goods with due care during the withdrawal period. The obligations of the consumer in the event of withdrawal should not discourage the consumer from exercising his right of withdrawal. … (49) Certain exceptions from the right of withdrawal should exist, both for distance and off-premises contracts. A right of withdrawal could be inappropriate for example given the nature of particular goods or services. ...’

7. Article 6(1)(k) of that directive, entitled ‘Information requirements for distance and off-premises contracts’, provides that ‘before the consumer is bound by a distance … contract, … the trader shall provide the consumer with … information in a clear and comprehensible manner’, in particular, ‘where a right of withdrawal is not provided for in accordance with Article 16, the information that the consumer will not benefit from a right of withdrawal or, where applicable, the circumstances under which the consumer loses his right of withdrawal’.

8. Article 9 of that directive, entitled ‘Right of withdrawal’, provides, in paragraph 1 thereof, that ‘save where the exceptions provided for in Article 16 apply, the consumer shall have a period of 14 days to withdraw from a distance … contract, without giving any reason, and without incurring any costs other than those provided for in Article 13(2) and Article 14’.

9. Pursuant to Article 16(e) of that directive, entitled ‘Exceptions from the right of withdrawal’, ‘Member States shall not provide for the right of withdrawal set out in Articles 9 to 15 in respect of distance … contracts as regards … the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery’.

III. The dispute in the main proceedings, the questions referred and the procedure before the Court

10. The appellant in the main proceedings, slewo — schlafen leben wohnen GmbH (‘slewo’) is an online trader which sells, inter alia, mattresses.

11. On 25 November 2014, Mr Sascha Ledowski ordered, for private purposes, a mattress from slewo’s website. The General Terms and Conditions of Business were printed on the invoice and contained a ‘notice of withdrawal for consumers’ worded as follows: ‘We will bear the cost of returning the goods. … Your right of withdrawal shall cease prematurely in the following cases: in the case of contracts for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they were unsealed after delivery’. When it was supplied, the mattress had been provided with a protective film, which Mr Ledowski subsequently removed.

12. By email of 9 December 2014, Mr Ledowski informed slewo that he wished to return the mattress in question and asked slewo to arrange the return transportation. As that request was not met, Mr Ledowski assumed the costs for the transportation himself.

13. Mr Ledowski brought an action against slewo for reimbursement of the purchase price and of the transport costs — EUR 1 190.11 in total — plus interest, and for indemnification of pre-litigation legal costs.

14. By judgment of 26 November 2015 of the Amtsgericht Mainz (Local Court, Mainz, Germany), that action was allowed. That judgment was upheld on appeal by the Landgericht Mainz (Regional Court, Mainz, Germany) ( 3 ) on the grounds that a mattress was not a hygiene product ( 4 ) and that the consumer therefore had a right of withdrawal even after the protective film had been removed.

15. Following an appeal on a point of law brought by slewo, the Bundesgerichtshof (Federal Court of Justice) considered that the outcome of the dispute in the main proceedings depended on the interpretation of the provisions laid down in Article 6(1)(k) and Article 16(e) of Directive 2011/83. By decision of 15 November 2017, received at the Court on 6 December 2017, that court therefore decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Should Article 16(e) of Directive 2011/83 be interpreted as meaning that the goods referred to there which are not suitable for return due to health protection or hygiene reasons include goods (such as, for example, mattresses) which, although when used as intended may come into direct contact with the human body, can nevertheless be made saleable again by means of suitable (cleaning) measures by the trader? (2) If Question 1 is answered in the affirmative: (a) What requirements must the packaging of goods satisfy for it to be considered that sealing within the meaning of Article 16(e) of Directive 2011/83 exists? and (b) Does the information that the trader has to give pursuant to Article 6(1)(k) of Directive 2011/83 before the contract becomes binding have to be provided in such a way that the consumer is informed, with specific reference to the article to be purchased (here a mattress) and the seal that is applied, that he will lose the right of withdrawal if he removes the seal?’

16. Written observations were submitted by Mr Ledowski, the Belgian and Italian Governments, and by the European Commission. No hearing has taken place.

IV. Analysis

17. I note at the outset that the second question referred for a preliminary ruling, which is divided into two parts, is submitted only in the event that the Court answers the first question referred in the affirmative. In so far as it is my opinion that that question should be answered in the negative, I take the view that there is no need for the Court to rule on the second question. However, for the sake of completeness and given the unprecedented nature of the issues raised by that question, I will also present observations in that regard.

A. The concept of goods ‘which are not suitable for return due to health protection or hygiene reasons’ within the meaning of Article 16(e) of Directive 2011/83 (first question)

18. Before analysing the first question referred, I consider it appropriate to highlight several points which concern the present reference for a preliminary ruling as a whole.

19. In the first place, I note that this request concerns a very specific area, both from a legal and practical point of view, of consumer protection, namely distance contracts governed by specific provisions of Directive 2011/83, ( 5 ) even though those contracts are also subject to general rules laid down in that directive.

20. In particular, it is provided in Article 9 that in contracts of that type, consumers have a right of withdrawal, ( 6 ) including the right to a full refund except in cases where the goods have been misused, which is justified by the specific difficulties experienced by any purchaser concluding a distance contract. As stated in recitals 37 and 47 of that directive, the consumer is not able to see or test the goods in question before placing the order or receiving those goods, which is why the consumer is given time for reflection and has the right to withdraw from the contract following inspection of the goods delivered, even though traders are also protected against possible abuse of that right. ( 7 ) In accordance with those recitals, the consumer is therefore allowed to test and inspect the goods he has bought, but only to the extent necessary to establish the nature, characteristics and the functioning of the goods. ( 8 )

21. However, specific exceptions from the right of withdrawal are set out in Article 16 of that directive, paragraph (e) of which excludes the supply of ‘sealed goods which are not suitable for return due to health protection or hygiene reasons’, ( 9 ) if they have been ‘unsealed after delivery’. I would point out at this stage that it seems undeniable that they are distinct concepts that are nevertheless closely related and that those conditions apply cumulatively for the purposes of that provision. Article 6(1)(k) of that directive requires the trader to provide the consumer with information, before the distance contract is concluded, in particular with regard to the exception from the right of withdrawal provided for in Article 16(e) thereof.

22. In the second place, I will recall certain general principles of interpretation of EU law which apply to all of the questions referred for a preliminary ruling by the national court.

23. On the one hand, it is apparent from the settled case-law of the Court that it is necessary, in interpreting a provision of EU law which makes no reference to the law of the Member States, as is the case of the provisions at issue in the present case, to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part. ( 10 )

24. On the other, so far as concerns, more specifically, the provisions of EU law which, in accordance with Article 169 TFEU, are intended to contribute to the proper functioning of the internal market through the achievement of a high level of consumer protection, such as the provisions at issue in the present case, ( 11 ) it is necessary to adopt an interpretation which, as far as is possible, ( 12 ) does not risk undermining those objectives ( 13 ) and takes account of the fact that, in relation to a trader, the consumer is deemed to be in a weaker position. ( 14 )

25. Lastly, it is apparent from the Court’s case-law that derogating provisions of EU law, in particular those limiting the rights granted for protection, cannot give rise to an interpretation going beyond the cases expressly envisaged by the regulation in question, ( 15 ) without, however, such a strict interpretation undermining the effectiveness of the limitation thereby established and disregarding its purpose. ( 16 ) Like the referring court, I take the view that the provisions of Directive 2011/83 concerned by the present reference for a preliminary ruling must be interpreted strictly, in so far as they constitute an exception from the general rule that consumers should, in principle, have a right of withdrawal when concluding a distance contract. I note that that approach has also been adopted in the Guidance Document concerning that directive published by the Directorate-General for Justice and Consumers of the European Commission. ( 17 )

26. The present reference for a preliminary ruling must be examined in the light of all of the foregoing considerations.

27. By its first question, the referring court asks, in essence, whether the concept of goods ‘which are not suitable for return due to health protection or hygiene reasons’ referred to in Article 16(e) of Directive 2011/83 should be interpreted as including goods such as, for example, mattresses which, although when used as intended may come into direct contact with the human body, can nevertheless be made saleable again by means of suitable cleaning measures by the trader.

28. Two conflicting arguments emerge in that regard. According to the first, put forward by slewo and the Belgian Government, the consumer should not have a right of withdrawal in the circumstances referred to in that question. On the contrary, according to the second argument, advocated by the referring court, Mr Ledowski, the Italian Government and the Commission, the consumer should not lose the right to withdraw in such circumstances. I support that view for the following reasons.

29. First of all, even though doubts have been raised in this regard in the observations submitted to the Court, I believe it is necessary to disregard arguments concerning whether or not mattresses are indeed goods ‘which, although when used as intended may come into direct contact with the human body’ as stated in the question referred. Such a qualification is not open to discussion as regards trying on a garment, a type of good referred to by way of illustration in recital 47 of that directive. While it is true that, under normal conditions of use, a mattress is generally covered with at least one sheet, it is nevertheless conceivable that a consumer will briefly test the mattress, having removed the packaging after delivery, by lying down on it without covering it. Moreover, in so far as the referring court relies on that assumption, I take the view that, to the extent it is an assessment of the factual circumstances, it is not for the Court to call it into question. ( 18 )

30. In addition, it is clear from the wording of the question referred that, beyond the specific case of mattresses, such as that at issue in the main proceedings, the Court is asked whether the consumer should lose his right of withdrawal in the event that goods likely to come into direct contact with the body ( 19 ) have been unsealed after delivery, and are therefore presumed to have been used in that way, including where they can nevertheless be made saleable again by means of suitable cleaning measures by the seller with no threat to health or hygiene . ( 20 )

31. The referring court refers to the position taken, in the sense of an answer in the affirmative, by a part of the German doctrine ( 21 ) and observes that the words ‘which are not suitable for return’ could indicate that the decisive factor is the condition of the goods after having been unsealed by the consumer, and not whether they could be made saleable again by means of suitable cleaning measures by the trader. To the same effect, the Belgian Government claims that the possibility of cleaning the goods referred to in Article 16(e) of Directive 2011/83 is a criterion not laid down in that provision which should be interpreted strictly since it contains an exception.

32. However, I consider that, in the absence of clear indications in the wording of Directive 2011/83 or related preparatory documents, ( 22 ) that provision must be interpreted strictly but in accordance with the objective laid down by the legislature, ( 23 ) which is to ensure a high level of consumer protection in respect of distance contracts by allowing the consumer, in principle, to test the goods which he was not able to see before concluding the contract and to return the goods if he is not satisfied after that test. It is therefore necessary, in my view, to uphold the interpretation which limits the scope of the exceptions from the right of withdrawal, according to which a consumer must be able to return goods which can be made saleable again by means of suitable cleaning measures by the trader which do not cause undue hardship, ( 24 ) and not the interpretation to the contrary which limits the possibility of the consumer to withdraw.

33. I therefore agree with the referring court that the right of withdrawal may be excluded under Article 16(e) only if, after having been unsealed, the goods are resolutely no longer in a saleable condition due to genuine health protection or hygiene reasons, because it is impossible, on account of the type of goods in question, for the trader to take the necessary measures allowing for resale without affecting either of those requirements. ( 25 )

34. With regard to the present case, the referring court considers, rightly in my opinion, that a mattress returned by the consumer after having been unsealed, and thus possibly used, does not in any way appear to be precluded from being an object of trade, as demonstrated by the use of hotel beds by successive clients, the existence of a market for second hand mattresses and the possibility of cleaning pre-used mattresses. I take the view, on that basis, that a mattress is similar to a garment, the return of which to the trader is expressly provided for by the legislature, ( 26 ) even after it may have come into direct contact with the body when being tested, because it should be assumed that such goods may be made saleable again by means of suitable cleaning measures without health or hygiene being affected.

35. I would point out that, in the event that excessive use has been made of the goods, in any way whatsoever, when being tested or tried on by the consumer, the possibility that the latter may incur liability is referred to in recital 47 and provided for in Article 14(2) of that directive, thus making it possible to remedy the depreciation of the goods in question. ( 27 ) I take the view that, in so far as Article 14(2) allows the consumer to withdraw and return the goods even after their condition has deteriorated — it being for the consumer to compensate the trader if necessary — supports the argument that Article 16(e) refers only to those situations in which it is absolutely impossible to make the goods saleable again without posing a real risk to health or hygiene.

36. I would add that the teleological and systematic interpretation that I advocate adopting is not likely to undermine the effectiveness of the exception set out in Article 16(e), ( 28 ) since unsealed goods that are tested or tried on by the consumer and which may irretrievably pose a risk to health or hygiene will be excluded from resale, in accordance with the purpose of that provision.

37. The foregoing analysis cannot, in my opinion, be undermined by the fact that, as stated by the referring court, in the aforementioned Guidance Document, ( 29 ) mattresses are cited as examples of goods which might not be returnable due to health protection or hygiene reasons, ( 30 ) within the meaning of Article 16(e), and therefore excluded from the right of withdrawal if they have been unsealed after delivery. I note that that reference is not accompanied by any statement of reasons which would support such an approach. Above all, while that document may shed some light on the wording of that directive, it is, however, in no way binding in terms of the interpretation of that directive, as expressly stated in the preamble. ( 31 ) Lastly, I observe that, in the present case, the Commission has, moreover, taken the opposite view.

38. Consequently, I take the view that Article 16(e) of Directive 2011/83 must be interpreted as precluding from the concept of ‘sealed goods which are not suitable for return due to health protection or hygiene reasons’, set out in that provision, goods — such as mattresses — which may come into direct contact with the human body, but which can nevertheless be made saleable again by means of appropriate cleaning measures by the trader.

B. The concept of ‘sealed’ goods within the meaning of Article 16(e) of Directive 2011/83 (second question, point (a))

39. Since the second question referred for a preliminary ruling, in particular point (a) thereof, is raised only in the event that the Court answers the first question referred in the affirmative, which I do not think should be the case, my observations on that point are made only in the alternative.

40. In point (a) of its second question, the referring court asks, in essence, what characteristics must the packaging of goods have for it to be considered ‘sealed’ within the meaning of Article 16(e) of Directive 2011/83, in the event that the goods in question fall within the category of goods ‘which are not suitable for return due to health protection or hygiene reasons’, on which the exception from the right of withdrawal provided for in that provision is based. ( 32 ) In accordance with the reasons for its decision, that court asks, more specifically, whether goods of that type must be packaged in such a way that ‘not only [is it] necessary to ensure that the unsealing cannot be reversed, but in addition it [is] clear from the circumstances (for example by printing on the word “seal”) that this is not mere transportation packaging, but rather a seal for health protection and hygiene reasons’.

41. In my opinion, the question referred and the reasons therefor raise two different issues, as reflected in the observations submitted to the Court. ( 33 ) The referring court raises the question, on the one hand, of the physical properties required for packaging to be considered ‘sealed’ within the meaning of Article 16(e) of Directive 2011/83 and, on the other, the possible need to include on that packaging a distinctive sign drawing the consumer’s attention to the fact that such a seal exists.

42. In the first place, with regard to the physical properties of packaging which may be classified as ‘sealed’, I note that the concept of ‘sealed’ set out in Article 16(e) of that directive is not defined therein. ( 34 ) There is no further guidance given in the preparatory documents, in my opinion, on what is to be understood by that concept. ( 35 )

43. The aforementioned Guidance Document refers to goods which must have ‘genuine health protection or hygiene reasons for using a seal, which may consist of protective wrapping or film’. ( 36 ) The beginning of that phrase precludes, rightly in my opinion, the possibility that traders may freely invoke the exceptions from the right of withdrawal by affixing seals which are not justified by the type of goods in the light of those reasons, ( 37 ) considering that the exceptions from that right, to which consumers are, in principle, entitled, should absolutely remain exceptional. ( 38 ) By contrast, that document provides no answer to the question relating to the material qualities that the protective wrapping or film referred to must have to satisfy the requirements laid down in Article 16(e).

44. In that regard, I consider, as put forward, in essence, by slewo, ( 39 ) the Belgian Government ( 40 ) and the Commission, that it is strictly necessary to take account of the purpose that the ‘seals’ may be expected to serve within the meaning of Article 16(e). The aim of that provision is, in my opinion, to exclude from the right of withdrawal all goods which must be sealed due to health protection and hygiene reasons, and thus to prevent the consumer from returning such goods to the trader, because once those goods have been removed from their protective packaging, they suffer irremediable loss of value in terms of guaranteeing health or hygiene, with the result that they cannot be resold. ( 41 )

45. I therefore take the view that for a protective coating to be considered ‘sealed’ within the meaning of the provision, it must reliably guarantee the cleanliness of the product it contains. That criterion presupposes that the packaging is strong enough to protect it and that it cannot be opened without visibly damaging it, so that it is evident if the article in question has been tested or tried on by the consumer. By way of an example, a sealed plastic or foil film which would thus be impossible to return in its original condition if opened voluntarily would satisfy those conditions.

46. By contrast, I take the view that it is unreasonable to require, as seems to have been proposed by the Italian Government, that for packaging to be considered sealed, it must guarantee ‘the asepsis of the goods, as is the case with sterilised devices’. ( 42 ) Admittedly, Article 16(e) of Directive 2011/83 refers to ‘health protection … reasons’, but it also refers to straightforward ‘hygiene reasons’ which do not, in my opinion, justify such a high degree of economic investment on the part of traders as that required by the obligation to ensure that all goods likely to be covered by that provision are packed in aseptic, indeed sterilised, packaging.

47. In the second place, as regards any specific markings, as envisaged by the referring court, which must appear on packaging in order to be considered ‘sealed’ within the meaning of Article 16(e), ( 43 ) I share the view taken by slewo and the Commission according to which there is no indication that such a visual condition must be met, for the application of that provision, in addition to the physical properties described above that I believe such packaging should have.

48. It is not apparent from the wording of Article 16(e), the surrounding provisions, or the preparatory documents, ( 44 ) that the authors of Directive 2011/83 intended to impose post-contractual information requirements on traders in that regard concerning the right of withdrawal. ( 45 ) If the EU legislature had deemed it necessary for the consumer to be informed at the time of delivery by means of information on the packaging of the product sold, it probably would have imposed such a requirement, as has been provided for in other instruments relating to consumer protection. ( 46 )

49. Therefore, in the event that the Court rules on point (a) of the second question referred for a preliminary ruling, I believe that the answer should be that goods packed in packaging that cannot be resealed so that there is no doubt that the goods in question could have been tested or tried on by the purchaser, without, however, a requirement that the packaging contains specific information expressly indicating that there is a seal which, if broken, will affect the consumers right of withdrawal, constitutes ‘sealed’ goods within the meaning of Article 16(e) of Directive 2011/83. In my opinion, such an express indication should, by contrast, be given in the context of the pre-contractual information provided for in Article 6(1) of that directive which I shall now consider.

C. The obligation to inform the consumer of the circumstances under which he loses his right of withdrawal in the light of Article 6(1)(k) of Directive 2011/83 (second question, point (b))

50. In so far as the second question referred for a preliminary ruling, including point (b) thereof, is asked only in the event that the Court answers the first question in the affirmative, which is not what I am advocating, my observations in that regard are made only in the alternative.

51. That question is based on the premiss that goods offered for sale by means of a distance contract are effectively sealed and cannot be returned to the seller due to health protection and hygiene reasons within the meaning of Article 16(e) of Directive 2011/83 and are not, therefore, subject to the right of withdrawal to which the consumer is, in principle, entitled.

52. The referring court asks, in essence, whether, in such a situation, the trader must, pursuant to Article 6(1)(k) of that directive, attract the consumer’s attention, prior to the conclusion of the contract, in concrete terms, to the fact that he will lose his right of withdrawal if he removes the seal, by referring specifically to the goods purchased and to the fact that they are sealed, or whether he can inform the consumer only in abstract terms, simply by citing the wording of that directive in the general conditions of sale. ( 47 )

53. In support of the latter approach, slewo claims that, in its current state, the wording of Article 6 requires that the consumer be informed ‘before’ he places an order, meaning that the trader meets the requirements of Directive 2011/83 by providing general pre-contractual information on the right of withdrawal, including the possible exceptions set out by the legislature. It adds that giving concrete details concerning that right for each product sold online would not be consistent with the objective of consumer protection ( 48 ) and that it would be sufficient to provide specific information after the conclusion of the contract. Mr Ledowski does not take a position in that regard, relying on his answer in the negative to the first question referred. The Belgian and Italian Governments, and the Commission, claim, in the alternative, that Article 6(1)(k) of that directive should be interpreted as meaning that the trader is required to expressly inform the consumer of the fact that he will lose his right of withdrawal if he removes the seal. I share the latter point of view, for the following reasons.

54. First of all, I would point out that the wording of Article 6 of Directive 2011/83 contains a number of explicit indications relating to the information requirements on the part of the trader who intends to conclude distance contracts with a consumer. ( 49 )

55. So far as concerns the moment at which all the information referred to in Article 6 ( 50 ) must be given, it is apparent from the first sentence of Article 6(1) that the information given should be comprehensible ‘before the consumer is bound by a … contract’, ( 51 ) and therefore additional information which may be provided at a later stage, in particular at the time of delivery, ( 52 ) does not directly affect whether or not the trader has fulfilled that obligation. In addition, with regard to the ‘form’ ( 53 ) that the information should take, the same paragraph provides that it should be ‘clear and comprehensible’, thus without any ambiguity, in such a way that, in my opinion, an average European consumer who is reasonably well informed and reasonably observant and circumspect, ( 54 ) is able to take the decision to make an informed commitment. ( 55 )

56. Moreover, as regards the subject matter of the pre-contractual information referred to, more specifically, in the present case, Article 6(1)(k), which concerns situations where ‘the right of withdrawal is not provided for [ ( 56 )] under Article 16 [ ( 57 )]’ of that directive, explicitly requires the consumer to be provided with ‘the information that [he] will not be entitled to that right or, if necessary, the circumstances in which [he] loses his right of withdrawal’. ( 58 ) By contrast, that provision does not specify the content of the information that the trader must provide the consumer with, in such circumstances, for the information to be considered sufficiently clear. ( 59 )

57. However, in view of the objectives of the regulatory framework of which Article 6(1)(k) of Directive 2011/83 forms part, I consider that it should be interpreted as meaning that a trader who merely reproduces the wording of Article 16(e) of that directive in his general conditions of sale, as was the case in the present proceedings, does not satisfy the requirements of that provision. ( 60 ) A trader who intends to carry out the distance selling of goods which fall within the scope of the category specifically referred to in Article 16(e) should, in my opinion, as envisaged by the referring court, be required to immediately inform the consumer, expressly and in concrete terms, of the fact that he will lose his right of withdrawal if he performs a specific act that deprives him of that right, namely removing the seal of the goods in question, referring to those goods in concrete terms and specifically stating that they have been sealed. ( 61 )

58. I take the view that that interpretation alone can, on the one hand, ensure the high level of consumer protection envisaged by Directive 2011/83, in respect of which Article 6(1)(k) represents an important vector, and, on the other, guarantee the effectiveness of the information required by that provision ( 62 ) and, moreover, prevent traders from being too easily released from their obligations inherent in the right of withdrawal, which is the principle on which that directive is based and must remain so.

59. In that regard, I note that, in similar circumstances, the Court has already heard that the protection regime provided for under EU law, which includes the requirement for the trader to inform the consumer of all the information necessary for the exercise of his rights — and, in particular, his right of withdrawal — presupposes that the consumer, as the weaker party, is aware of the existence of his rights having been expressly informed in writing. ( 63 ) I would add that the Court has pointed out that the obligation to inform consumers occupies a central role in the general scheme of the legislation adopted in that area, ( 64 ) as an essential safeguard of consumers’ right of withdrawal and, therefore, the effectiveness of consumer protection sought by the legislature. ( 65 ) Accordingly, the considerations which apply to Directives 85/577 and 97/7 are, in my opinion, also relevant in the present case, in so far as Directive 2011/83 repealed and replaced those directives. ( 66 )

60. Consequently, in the event that the Court answers point (b) of the second question referred for a preliminary ruling, I take the view that Article 6(1)(k) of Directive 2011/83 should be interpreted as meaning that where goods are sealed in the circumstances provided for in Article 16(e) of that directive, the trader is required to expressly inform the consumer, prior to the conclusion of the distance contract, of the fact that he will lose his right of withdrawal if he removes the seal, referring to the goods in question in concrete terms and specifically stating that they have been sealed.

V. Conclusion

61. In the light of the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Bundesgerichtshof (Federal Court of Justice, Germany) as follows: Article 16(e) of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council must be interpreted as precluding from the concept of ‘sealed goods which are not suitable for return due to health protection or hygiene reasons’, set out in that provision, goods — such as mattresses — which may come into direct contact with the human body, but which can nevertheless be made saleable again by means of appropriate cleaning measures by the trader.

( 1 ) Original language: French.

( 2 ) Directive of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ 2011 L 304, p. 64). I would point out that Directive 85/577 of 20 December 1985 concerned the protection of the consumer in respect of contracts negotiated away from business premises (OJ 1985 L 372, p. 31), whereas Directive 97/7 of 20 May 1997 concerned the protection of consumers in respect of distance contracts (OJ 1997 L 144, p. 19).

( 3 ) Judgment can be found on the internet at the following address: https://beck-online.beck.de/Dokument?vpath=bibdata%2Fents%2Fbeckrs%2F2016%2Fcont%2Fbeckrs.2016.127864.htm (see, in particular, paragraph 21 et seq.).

( 4 ) Within the meaning of point 3 of the first sentence of Paragraph 312g(2) of the Bürgerliches Gesetzbuch (German Civil Code) (‘the BGB’), the wording of which is equivalent to that of Article 16(e) of Directive 2011/83.

( 5 ) Specific provisions which overlap in part with those applicable to contracts negotiated away from business premises (see, inter alia, Article 6 et seq. of that directive).

( 6 ) Right of withdrawal which may be exercised under the conditions laid down in Articles 9 to 15 of that directive.

( 7 ) Judgment of 3 September 2009, Messner (C‑489/07, EU:C:2009:502, paragraphs 20 and 25), concerning Directive 97/7 replaced by Directive 2011/83, pointed out that rules relating to the right of withdrawal are ‘intended to offset the disadvantage for the consumer resulting from a distance contract by granting him an appropriate period for reflection during which he can examine and test the goods acquired’, without however ‘grant[ing] him rights going beyond what is necessary to allow him effectively to exercise [that] right’.

( 8 ) See Article 14(2) of Directive 2011/83 and recital 47 thereof, which states that the consumer should handle and inspect the goods with due care, giving the example of a garment which should only be tried on but not worn.

( 9 ) See also recital 49 of that directive which states that ‘[a] right of withdrawal could be inappropriate for example given the nature of [the] goods’.

( 10 ) See, inter alia, judgments of 7 August 2018, Verbraucherzentrale Berlin (C‑485/17, EU:C:2018:642, paragraph 27), and of 17 October 2018, Günter Hartmann Tabakvertrieb (C‑425/17, EU:C:2018:830, paragraph 18).

( 11 ) That objective is apparent from recitals 3, 4 and 65 and Article 1 of Directive 2011/83.

( 12 ) It being specified that the way to interpret various instruments of EU law pursuing that objective may vary in accordance with the fact that they nonetheless pursue that objective by different means (see, inter alia, judgment of 19 September 2018, Bankia, C‑109/17, EU:C:2018:735, paragraph 36 et seq.).

( 13 ) See, inter alia, judgments of 13 September 2018, Starman (C‑332/17, EU:C:2018:721, paragraphs 26 to 30), and of 25 October 2018, Tänzer & Trasper (C‑462/17, EU:C:2018:866, paragraphs 28 and 29).

( 14 ) See, inter alia, judgments of 13 September 2018, Wind Tre and Vodafone Italia (C‑54/17 and C‑55/17, EU:C:2018:710, paragraph 54), and of 4 October 2018, Kamenova (C‑105/17, EU:C:2018:808, paragraph 34), which state that ‘the consumer [is] deemed to be less informed, economically weaker and legally less experienced than the other party to the contract’.

( 15 ) See, inter alia, judgments of 25 January 2018, Schrems (C‑498/16, EU:C:2018:37, paragraph 27), and of 20 September 2018, OTP Bank and OTP Faktoring (C‑51/17, EU:C:2018:750, paragraph 54).

( 16 ) See, inter alia, judgments of 1 March 2012, González Alonso (C‑166/11, EU:C:2012:119, paragraphs 26 and 27), and of 27 September 2017, Nintendo (C‑24/16 and C‑25/16, EU:C:2017:724, paragraphs 73 and 74).

( 17 ) See Section 6.8, pages 54 to 56, of that document of June 2014 which can be found on the internet at the following address: https://ec.europa.eu/info/sites/info/files/crd_guidance_en.pdf

( 18 ) With regard to the division of jurisdiction between the referring court and the Court of Justice, in the light of the factual circumstances of a reference for a preliminary ruling, and its justifications, see, inter alia, judgments of 20 March 1997, Phytheron International (C‑352/95, EU:C:1997:170, paragraphs 12 and 14), and of 13 February 2014, Maks Pen (C‑18/13, EU:C:2014:69, paragraph 30).

( 19 ) For reasons of predictability and legal certainty, also put forward by slewo in opposition to a case-by-case approach, I think it would be appropriate for the Court to adopt an interpretation which is not confined to the specific circumstances of the case, namely the specific category of mattress, but includes similar situations referred to by the referring court.

( 20 ) Although the meaning of the terms ‘health protection’ and ‘hygiene’ within the meaning of Article 16(e) of Directive 2011/83 is not at the heart of the present question referred for a preliminary ruling, I would point out, however, that they reflect different realities and that an interpretation of that provision in line with the first of those grounds for excluding the right of withdrawal would apply a fortiori to the second, in so far as a risk to health is clearly more serious than a risk to hygiene.

( 21 ) To that effect, the referring court cites, inter alia, Wendehorst, C., ‘Article 312 g’, Münchener Kommentar zum Bürgerlichen Gesetzbuch, under the guidance of F.J. Säcker and Others, vol. 2, 7th edition, Beck, Munich, 2016, 24 et seq. To the contrary, see, inter alia, Schirmbacher, M., and Schmidt, S., ‘Verbraucherrecht 2014 — Handlungsbedarf für den E-Commerce’, Computer und Recht, 2014, 112, and Lorenz, S., ‘BGB — Article 312 g’, Beck-online.Grosskommentar, Beck, Munich, 2018, 26 et seq.

( 22 ) See, in particular, the Commission Proposal of 8 October 2008 which led to the adoption of Directive 2011/83 (COM(2008) 614 final, especially, p. 31, Article 19(1) relating to the exceptions from the right of withdrawal in respect of distance contracts which does not provide for the exception at issue); Opinion of the European Economic and Social Committee on that proposal (OJ 2009 C 317, p. 54, especially paragraph 5.5.4 in which the possibility of such an exception is referred to), and the Report of the European Parliament of 22 February 2011 on that proposal (A7-0038-2011, especially p. 74 which contains amendment 130 which led to the insertion of the provision which became Article 16(e) currently in force, without explanation). According to Rott, P., ‘More coherence? A higher level of consumer protection? A review of the new Consumer Rights Directive 2011/83/EU’, Revue européenne de droit de la consommation, 2012, No 3, p. 381, that exception responds to demands from the cosmetics industry.

( 23 ) In accordance with the rules of interpretation set out in point 23 et seq. of this Opinion.

( 24 ) As stated in recital 4, the provisions of Directive 2011/83 relating to distance contracts are intended to facilitate ‘the promotion of a real consumer internal market striking the right balance between a high level of consumer protection and the competitiveness of enterprises’ (the emphasis is mine).

( 25 ) The referring court states, rightly in my opinion, that ‘[t]his may be the case, for instance, if it is from the outset inconceivable in the view of the public for the goods to be used again by third parties due to health protection (drugs that have been opened) or hygiene reasons (toothbrush, lipstick, erotic products), and it is not even possible to establish their re-saleability as used goods, a “return” or the like, by means of measures undertaken by the trader, such as cleaning or disinfection’.

( 26 ) With regard to the provision of compensation for the trader in such circumstances, see, inter alia, judgments of 3 September 2009, Messner (C‑489/07, EU:C:2009:502, paragraph 29), concerning Directive 97/7 replaced by Directive 2011/83, and of 2 March 2017, Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main (C‑568/15, EU:C:2017:154, paragraphs 24 and 26).

( 27 ) According to Article 14(2), ‘[t]he consumer shall only be liable for any diminished value of the goods resulting from the handling of the goods other than what is necessary to establish the nature, characteristics and functioning of the goods’.

( 28 ) In accordance with the case-law cited in footnote 16 of this Opinion.

( 29 ) Document cited in footnote 17 of this Opinion (Section 6.8.2, p. 62).

( 30 ) That document also cites the example of ‘[c]osmetic products such as lipsticks’, with the following precision: ‘[f]or other cosmetic products that cannot be considered as being sealed for health protection or hygiene reasons, the trader may give the consumer another way of testing them as in a shop, for example, by including a free tester with the product. That way, the consumers would not need to open the packaging of the product in order to exercise their right to establish the nature and characteristics of the product’.

( 31 ) As follows: ‘This document is not legally binding and provides only guidance. The authoritative interpretation of EU law remains within the sole remit of the Court of Justice (CJEU). This document is not a formal interpretation of EU law … This guidance is being published under the sole responsibility of Directorate-General for Justice and Consumers [of the European Commission]’.

( 32 ) Claiming that ‘the objective of the preliminary reference procedure is not to provide advisory opinions on general or hypothetical questions, but the requirement inherent in the effective resolution of a dispute’ and citing, inter alia, the judgment of 16 December 1981, Foglia (244/80, EU:C:1981:302, paragraph 18), the Commission recommends that the question should be reworded. However, the proposed reformulation is not necessary in my opinion, in so far as I take the view that the answer to the question as referred by the national court will be of no use to it and will not enable it to determine the case before it (see, inter alia, judgment of 1 February 2017, Município de Palmela, C‑144/16, EU:C:2017:76, paragraph 20).

( 33 ) I would point out that although slewo’s argument is based on both those issues, the Belgian and Italian Governments, and the Commission place greater emphasis on the first issue. As for Mr Ledowski, he has not submitted any observations relating to the second question referred for a preliminary ruling, on the ground that the first question should be answered in the negative.

( 34 ) As maintained by slewo, I consider that the meaning to be given to that concept is not necessarily the same as that which applies to identical words used in a different context, in Article 16(i), which refers to ‘the supply of sealed audio or sealed video recordings or sealed computer software which were unsealed after delivery’. In that case, according to the Guidance Document referred to in footnote 17 of this Opinion, the consumer has no right to ‘test’ the digital content on sealed data hardware devices (CD, DVD, etc.) during the right of withdrawal period (Section 12.2, p. 65). In my opinion, the prohibition on returning the goods after removing the seal is thus linked to grounds (such as the possibility of single use or copying content) other than the possibility of compromising the integrity of the goods themselves (health and hygiene reasons) which justify the exception set out in Article 16(e).

( 35 ) In particular, there are no explanations relating to the meaning of the word ‘sealed’ contained in the Commission Proposal or the Report of the European Parliament referred to in footnote 22 of this Opinion.

( 36 ) See Section 6.8.2, p. 55, of the document referred to in footnote 17.

( 37 ) Accordingly, Karstoft, S., Forbrugeraftaleloven med kommentarer, Jurist- og Økonomforbundets Forlag, Copenhagen, 2018, p. 461, considers that it would be more appropriate to seal, due to health protection or hygiene reasons, intimate goods such as underwear or swimming costumes for example, than mattresses.

( 38 ) See also point 25 of this Opinion.

( 39 ) According to slewo, it is necessary to distinguish between ‘outer packaging’ the purpose of which is to prevent goods from being damaged during storage or transportation, such as the cardboard box containing face cream, and ‘packaging ensuring hygiene protection’, such as the removable foil or plastic film usually found under the lid of the pot of cream. In the specific case of mattresses protected both by a cardboard box and a sealed plastic film, only the latter would guarantee the hygiene of the goods and thus constitute a ‘seal’ within the meaning of Article 16(e).

( 40 ) The Belgian Government considers that ‘the word “sealed” must be understood as meaning that it involves a special packing measure taken by the trader to package the goods in such a way that no one can open them without it being noticed and that opening the sealed goods means that the seller to whom the goods would be returned must take the same special measures in order to reseal the goods’.

( 41 ) To that effect, see Hoeren, T., and Föhlisch, C., ‘Ausgewählte Praxisprobleme des Gesetzes zur Umsetzung der Verbraucherrechterichtlinie’, Computer und Recht, 2014, p. 245.

( 42 ) The Italian Government considers that mattresses would not be classified as such, on the grounds that they are packed for sale in packaging intended only to protect them from dirt or damage during transportation and not to guarantee asepsis, which is not even guaranteed during production, unlike goods which must be sterilised prior to sale, such as medical devices.

( 43 ) Markings which could consist of printing on or a special sticker affixed to the packaging in order to inform the consumer that the goods contained therein have been sealed due to health protection or hygiene reasons and that he will lose his right of withdrawal once that seal is broken.

( 44 ) See, in particular, the documents referred to in footnote 22 of this Opinion.

( 45 ) I would point out that a general obligation to inform the consumer after the conclusion of the distance contract, for the purposes of confirming the agreement, is however provided for in Article 8(7) of that directive with regard to all the information referred to in Article 6(1) unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract. That provision is the subject of point (b) of the second question referred for a preliminary ruling (see point 50 et seq. of this Opinion).

( 46 ) Such as Directive 2000/13/EC of the European Parliament and of the Council of 20 March 2000 on the approximation of the laws of the Member States relating to the labelling, presentation and advertising of foodstuffs (OJ 2000 L 109, p. 29).

( 47 ) The referring court considers that a simple citation may be difficult for a non-lawyer to understand and takes the view that the trader may be regarded as having fulfilled his obligation to inform only if, prior to the conclusion of the contract, he expressly draws the consumer’s attention to the fact that he loses his right of withdrawal if he removes the seal, by referring, in concrete terms, to the subject matter of the contract (in the present case, a mattress), and to the fact that the goods are sealed and to the way in which they have been sealed.

( 48 ) Slewo argues that the consumer would be overwhelmed by a flood of useless information and that, when purchasing several goods, he would have to check for each one whether he may be deprived of his right of withdrawal, in particular by removing the seal, etc.

( 49 ) Having regard to the subject matter of the case in the main proceedings, I would point out that recital 12 and Article 6(8) of Directive 2011/83 state that the information requirements provided for therein complete and, if necessary, take precedence over, the information requirements of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ 2000 L 178, p. 1) which, in my view, provides no useful guidance for answering the present question referred for a preliminary ruling.

( 50 ) Namely the information set out in Article 6(1)(a) to (t).

( 51 ) The comprehensibility of the information to be given is apparent expressly from recital 34 of that directive, as worded, inter alia, in the French-language version thereof (‘informations claires et exhaustives’). I would point out that a different word is used in other language versions, in particular, the English-language version (‘clear and comprehensible information’) and the German-language version (in klarer und verständlicher Weise informieren’). Nonetheless, those differing terms (my emphasis) all highlight, to my mind, that consumers must be fully informed before concluding a contract.

( 52 ) Such as the information found on the product packaging which is addressed in point (a) of the second question referred for a preliminary ruling.

( 53 ) The requirement is linked more to the content of the information than to its form, to be distinguished from the requirements relating to the conditions of form stricto sensu that the distance contract must comply with in accordance with Directive 2011/83, set out in Article 8 thereof. In that regard, see, in particular, with regard to Directive 97/7 replaced by Directive 2011/83, judgment of 5 July 2012, Content Services (C‑49/11, EU:C:2012:419, paragraphs 42 to 51).

( 54 ) In accordance with the evaluation criteria usually used by the Court in its case-law relating to consumer protection (see, in particular, judgments of 7 June 2018, Scotch Whisky Association, C‑44/17, EU:C:2018:415, paragraphs 47 and 52, and of 13 September 2018, Wind Tre and Vodafone Italia, C‑54/17 and C‑55/17, EU:C:2018:710, paragraph 51).

( 55 ) As stated by the Italian Government, ‘the consumer must be able to understand the scope of the product offer and any restrictions to his rights from the first contact with the seller whose offer must satisfy pre-determined standards of clarity and accuracy and therefore contain all the essential elements to enable the average consumer to understand the scope and conditions properly’.

( 56 ) As opposed to Article 6(1)(h) which concerns situations where ‘a right of withdrawal exists’ and requires, for that purpose, that ‘the conditions, time limit and procedures for exercising that right’ be brought to the attention of the consumer. In that regard, see the request for a preliminary ruling made in the pending case Walbusch Walter Busch (C‑430/17).

( 57 ) I would point out that, by that general wording, Article 6(1)(k) of Directive 2011/83 covers all the exceptions from the right of withdrawal provided for in Article 16 and not only the situation provided for in paragraph (e) thereof, which alone is the subject matter of previous questions referred for a preliminary ruling in the present case.

( 58 ) Only this last situation is, in my view, covered by the present question referred for a preliminary ruling.

( 59 ) The preparatory documents for that directive do not, in my view, provide any useful guidance in that regard (see, in particular, the Report of the European Parliament referred to in footnote 22 of this Opinion and, more specifically, the amendment to Article 9(1)(e)a pp. 58 and 59, and the explanatory statement pp. 119 and 120).

( 60 ) See the citation from the general conditions of sale in question set out in point 11 of this Opinion.

( 61 ) According to the Guidance Document referred to in footnote 17 of this Opinion, ‘[f]or example, for canned food which is sealed within the meaning of Article 16(e) [of Directive 2011/83], the trader should [pursuant to Article 6(1)(k)] inform the consumer … that, for health protection and hygiene reasons, the consumer loses the right of withdrawal if the cans are opened’ (see Section 6.2 p. 41).

( 62 ) In practice, it is possible that a consumer decides not to order a good after becoming aware of the fact that the possibility of testing it, after delivery, and returning it will be limited due to the fact that it is sealed.

( 63 ) See judgments of 13 December 2001, Heininger (C‑481/99, EU:C:2001:684, paragraph 45); of 10 April 2008, Hamilton (C‑412/06, EU:C:2008:215, paragraph 33); and of 17 December 2009, Martín Martín (C‑227/08, EU:C:2009:792, paragraph 26), concerning Directive 85/577, and judgment of 5 July 2012, Content Services (C‑49/11, EU:C:2012:419, paragraph 34 et seq.), concerning Directive 97/7.

( 64 ) On the essential character of the requirement to inform the consumer, acknowledged at an early stage by EU institutions, see Aubert de Vincelles, C., ‘Protection des intérêts économiques des consommateurs — Droit des contrats’, JurisClasseur Europe, fascicule 2010, paragraph 19.

( 65 ) See judgment 17 December 2009, Martín Martín (C-227/08, EU:C:2009:792, paragraph 27), concerning the obligation to inform consumers laid down in Article 4 of Directive 85/577.

( 66 ) In the sense of applying the Court’s case-law concerning Directives 85/577 and 97/7 to Directive 2011/83, see, respectively, judgments of 7 August 2018, Verbraucherzentrale Berlin (C-485/17, EU:C:2018:642, paragraph 35 et seq.), and of 2 March 2017, Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main (C-568/15, EU:C:2017:154, paragraph 26).