slewo - schlafen leben wohnen GmbH v Sascha Ledowski.
Date: 2019-03-27
31


Accordingly, for the purposes of interpreting Article 16(e) of Directive 2011/83, account must be taken not only of the wording of that provision but also its context and the objective pursued by the rules of which it forms part (see, to that effect, judgments of 7 August 2018, Verbraucherzentrale Berlin, C‑485/17, EU:C:2018:642, paragraph 27, and of 13 September 2018, Starman, C‑332/17, EU:C:2018:721, paragraph 23).
32


In that connection, as is clear from Article 1 of Directive 2011/83, read in the light of recitals 3, 4 and 7 thereof, that directive aims to provide a high level of consumer protection. Furthermore, in EU policies, the protection of consumers — who are in a weaker position in relation to sellers or suppliers, inasmuch as they must be deemed to be less informed, economically weaker and legally less experienced than the opposite party — is enshrined in Article 169 TFEU and Article 38 of the Charter of Fundamental Rights of the European Union (see, to that effect, judgments of 2 March 2017, Zentrale zur Bekämpfung unlauteren Wettbewerbs Frankfurt am Main, C‑568/15, EU:C:2017:154, paragraph 28, of 4 October 2018, Kamenova, C‑105/17, EU:C:2018:808, paragraph 34, and of 23 January 2019, Walbusch Walter Busch, C‑430/17, EU:C:2019:47, paragraph 34).
33


The right of withdrawal is designed to protect the consumer in the particular situation of distance sales, in which he is not actually able to see the product or ascertain the nature of the service provided before concluding the contract. The right of withdrawal is therefore 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 (judgment of 23 January 2019, Walbusch Walter Busch, C‑430/17, EU:C:2019:47, paragraph 45).
34


In that connection, Article 16(e) of Directive 2011/83, which constitutes an exception to the right of withdrawal, is, as a provision of EU law which restricts the rights granted for reasons relating to protection, to be interpreted strictly (see, to that effect, judgment of 10 September 2014, Kušionová, C‑34/13, EU:C:2014:2189, paragraph 77).
39


In those circumstances, allowing the right for the consumer to exercise his right of withdrawal by returning such an item, the packaging of which has been unsealed, to the trader would be contrary to the intention of the EU legislature, as expressed in recital 4 of Directive 2011/83, according to which the directive is aimed at striking the right balance between a high level of consumer protection and the competitiveness of enterprises.
47


The fact remains that, in accordance with Article 14(2) of Directive 2011/83, read in the light of recital 47 thereof, the consumer is liable for any diminished value of goods resulting from handling other than that necessary in order to establish the nature, characteristics and functioning of the goods, without the consumer thereby being deprived of his right of withdrawal (see, by analogy, judgment of 3 September 2009, Messner, C‑489/07, EU:C:2009:502, paragraph 29).