§5.5.4 Consumer’s liability for mishandling of the goods

Article 14 2. The 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. The consumer shall in any event not be liable for diminished value of the goods where the trader has failed to provide notice of the right of withdrawal in accordance with point (h) of Article 6(1).[…] 5. Except as provided for in Article 13(2) and in this Article, the consumer shall not incur any liability as a consequence of the exercise of the right of withdrawal. As explained in Recital 47, the consumers can withdraw from the contract regardless of how the goods have been handled during the withdrawal period: ‘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. […]’. However, in these cases Article 14(2) makes the consumer 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’. Recital 47 further explains this obligation: ‘[…]. 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 diminished value of the goods can consist, in particular, of the cleaning and repairs cost and, if the goods can no longer be sold as new, the objectively justified loss of income for the trader when disposing of the returned good as second-hand good. Whether the consumer’s testing of the goods went beyond what was necessary to establish their nature, characteristics and functioning will have to be assessed on a case-by-case basis in the event of a dispute. The comparison with what the consumer can normally do in a brick- and-mortar shop serves as a good point of reference, for example: — Before purchasing audio/video and recording equipment, the consumer would normally be able to test the image or sound quality; — Trying on a garment in a shop would not involve the removal of the manufacturer’s tags; — The consumer would not normally be able to practically test household appliances, such as kitchen appliances, the actual use of which unavoidably leaves traces; — The consumer would not be able configure software on a computer; hence reasonable costs for any resetting of such equipment would also constitute diminished value. — The consumer could test perfumes and similar cosmetic products, which can be normally tested in shops, by means of a free tester that the trader could include 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 their nature and characteristics (certain cosmetic products may be sealed for health protection or hygiene reasons – see section 5.11.4). It should be kept in mind that ‘establishing the functioning’ of the goods in this context is different from checking that they are fault-free in every respect. If the goods turn out to be faulty in later use, the consumer is protected by the Sale of Goods Directive (EU) 2019/771. In principle, the consumer should be able to open the packaging to access the content(s) inside if similar goods are normally displayed in shops in unpacked condition. Hence, damage caused to the packaging by merely opening it is not a cause for compensation. However, any protective films applied to the item should only be removed where strictly necessary to test it. Returning the goods without the original packaging (126) (e.g. the box containing an electronic device), or with abnormal depreciation of the packaging, could be considered as a depreciation of the goods. In case C-681/17 slewo, the CJEU decided that mattresses covered with protective film do not fall under the exception of the right of withdrawal provided in Article 16(e) regarding goods that have been sealed for health protection or hygiene reasons and unsealed by the consumer. The Court considered that mattresses may be equated with garments for which the right to try them on is expressly authorised. Therefore, mattresses with their protective film removed and potentially used by the consumer were deemed suitable for being sold again and used by a new buyer in so far as the trader is in a position to make mattresses (or garments) suitable for new use by a third party, without prejudice to the requirements of health protection or hygiene, by means of a treatment such as cleaning or disinfection (127). At the same time, the Court specifically referred to the existence of a market for second-hand mattresses (128). Even more importantly, the Court also referred to the consumer’s liability for any diminished value of the goods resulting from handling other than that necessary in order to establish their nature, characteristics and functioning in accordance with Article 14(2). In light of these findings, such liability can accordingly arise if it is necessary, for the sake of health protection or hygiene, to clean the mattress (or garment and comparable goods) in order to sell it again to a new buyer. It can also arise where such cleaned goods cannot be sold as new goods but only as second hand goods at a (significantly) lower price. In this respect, the trader must not mislead the new buyer of the cleaned goods as to their specification (new or ‘used’), as this is important part of the products characteristics, also in the context of the UCPD. In relation to the right of withdrawal under the replaced Distance Selling Directive 97/7/EC the Court ruled in case C-489/07 Pia Messner (129) that a national rule placing on the consumer the onus of proving that they did not use those goods during the period for withdrawal in a manner which went beyond what was necessary to permit them to make effective use of his right of withdrawal would adversely affect the efficiency and effectiveness of the right of withdrawal. According to Article 14(5), the consumer does not incur any liability as a consequence of the exercise of the right of withdrawal, except as provided in the Directive. In this respect, the judgement in the Messner case also confirmed that a seller may not claim compensation for the value of the use derived by the consumer from the goods in the interim period before their return to the trader (130). The CRD does not regulate the enforcement of the consumer’s liability for the diminished value of the goods. In particular, it does not say whether this liability merely implies that the trader may bring legal proceedings against the consumer or that the trader may unilaterally charge the consumer for the damage or reduce the amount of any refund due to the consumer in order to compensate for the purported diminished value of the goods. These issues are therefore subject to the general contract and procedural laws of Member States, as referred to in Article 3(5). For example, Member States may allow traders to reduce the sum refunded for goods returned in order to cover their diminished value due to mishandling during the right of withdrawal period. Under Article 14(2), the ‘consumer is in any event not liable for diminished value of the goods where the trader has failed to provide notice of the right of withdrawal in accordance with point (h) of Article 6(1).’ Another consequence of failing to provide this notice under Article 10 of the Directive is that the withdrawal period is extended by up to 12 months. This means, that a consumer may withdraw from the contract after some considerable time, during which they have been effectively using the goods without bearing any liability for the resulting tear and wear (see also section 5.3 on the consequences of failure to inform consumers on the right of withdrawal). Article 6(1)(h) does not contain any specific requirement to inform the consumer about the liability for diminished value of the goods upon exercising the right of return. However, information about the diminished value of the goods is included in the model instructions on withdrawal set out in Annex I(A). Providing this information could be useful for both consumers and traders even where the trader does not follow these model instructions.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07