§5.3 Exercise of the right of withdrawal
Article 11 of the Directive provides that the consumer can withdraw from the contract by either using the model withdrawal form or making any other unequivocal statement. The relevant Recital 44 refers to ‘returning the goods with a clear statement’: ‘[…] However, the consumer should remain free to withdraw in his own words, provided that his statement setting out his decision to withdraw from the contract to the trader is unequivocal. A letter, a telephone call or returning the goods with a clear statement could meet this requirement, but the burden of proof of having withdrawn within the time limits fixed in the Directive should be on the consumer. For this reason, it is in the interest of the consumer to make use of a durable medium when communicating his withdrawal to the trader.’ Accordingly, it should not be possible to withdraw from the contract by simply returning the goods without any explicit statement to this effect. Refusing delivery or not picking the goods up at the post office would not as such count as valid expressions of withdrawal. In this way, the Directive ensures that the trader would not wrongly consider the return of a package as withdrawal, when it has not been delivered to the customer for some technical reason. On the other hand, the statement used by the consumer to withdraw from the contract does not necessarily have to refer to the ‘right of withdrawal’ in legal terms: — For example, also a statement of ‘terminating’ or ‘retracting’ from the contract or using similar words should be considered as sufficiently ‘unequivocal’ as long as the consumer and the contract in question are identifiable. Since the consumer bears the burden of proof regarding the exercise of the right of withdrawal, Recital 44 of the CRD highlights the benefits of using a durable medium in case there is any dispute. Furthermore, evidence of having sent the notification would obviously provide an additional safeguard for the consumer to prove his case: — For example, the consumer could keep a copy of the sent email or of the receipt for registered post.
← 5.2 · All articles · 5.4 →
Source: EUR-Lex (Cellar) · retrieved 2026-09-07