Consumer Rights vs Vendor T & C’s

unholyangel

Manxman_in_exile said:

unholyangel said:

No, they are an authority - higher than the national courts. Which is why the german court referred the matter to them. Remember, the primary legislation is the EU directive. ...

I think you misunderstand.  I'm saying that that decision does not appear to me to be an authority for your proposition that that the reason for sealing must be related to health or hygiene.  You yourself said it was about the type of goods - not about why they were sealed:

unholyangel said:

No, the decision is about the interpretation of article 16(e) and whether it applies to goods like mattresses. The decision itself was that the article does not apply, because the goods are not of a type that may justify being sealed for hygiene or health reasons - as per paragraph 37. ...

unholyangel said:
...
Again, how do you claim the goods aren't suitable for return due to health or hygiene when they weren't protected against it? How does it only suddenly become a risk when in the hands of the consumer and not the manufacturer, supplier, retailer (and their employees/agents such as the delivery company)?  As the judgement says, the goods by their nature may justify sealing for those reasons and that, accordingly (ie due to the nature of the goods requiring sealing for those reasons) unsealing deprives the goods of the protection against those risks. 

You keep answering my question with a question of your own that has no relevance to the question I am asking!  I'm not interested in how anybody claims whether a health and hygiene exception applies.

All I would like to know is: where does it state in the following regulation that the goods must be sealed for reasons of health and hygiene?

(3) The rights conferred by this Part cease to be available in the following circumstances—

(a)in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;

The answer is it doesn't say that anywhere.  The qualifier "not suitable for return due to health protection or hygiene reasons" relates to the goods themselves (which is what I think that european decision you cite is saying), and not to the reason why they are sealed.

Having to resort to guidance to explain what the wording of the exception means (or was intended to mean) tends to confirm to me that the wording does not actually say what the explanation says it was intended to mean - otherwise it would not need explaining.

Yes the judgement does provide authority on that, via paragraph 37! I even paraphrased several times to try and have it's meaning understood. That the type of goods justify them being sealed for hygiene & health reasons and that accordingly (because it justifies it) the breaking of that seal removes that protection.

If having to resort to guidance to explain it means it doesn't say what the explanation says, then what does it mean if it needs a court to explain it (as has been the case here or with any other point of law considered by any court in history)? 

I have provided multiple sources supporting what I've said. I've yet to be offered one that supports the opposing view - as is often the case online. As an alternative, I posed the question as I believe none of you have an answer for it and haven't actually tried applying your principles to practice - a belief only reaffirmed by two of you (so far) electing not to answer it.

Okay so goods sealed not to guarantee the integrity of the hygiene, but for posting. You break the seal on that packaging, you're saying you wouldn't be able to return the item because you broke a seal, despite that seal not being intended to protect the hygiene of the item and the item not actually being protected for hygiene in any way? 

What about those little wire twisty things on electrical cables? Would that count as a seal if the retailer later tried to claim "health reasons" for not accepting "unsealed" goods posing a "health protection" concern? 

Are you starting to see how ridiculous things get, if the items aren't sealed for hygiene or health purposes? At least the AG agrees with me. 

unholyangel

Manxman_in_exile said:

unholyangel said:

I forgot the CJEU do theirs a little differently. That's the AG's take on it. 

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.

Am I right to take it that that means that the reason for sealing the goods has to be implied into ("it is strictly necessary to take account of the purpose... ") the wording of the article/statute/regulation because the actual wording itself does not, on the face of it, explicitly require it?

Are european court decisions still binding or merely persuasive or indicative?

The AG has basically said almost exactly what I've said (I do sometimes know what I'm talking about). That the seal needs to actually offer protection against hygiene to come within the scope of the article/that the goods need to be sealed for hygiene/health purposes. The AG does not make the decisions, they are supposed to consider opposing arguments and give their opinion on how the court should rule. So while his opinion is not binding, it does carry extreme weight on the matter. 

I'm sure my last reading of the details is that in matters of EU law, the EU has the say on interpretation under the terms of the withdrawal agreement. I'd need to check the final draft to be sure though. I just went by parliament page earlier as I far too interested in the hygiene aspect to wade through that polished turd. 

Also why I've kept responding/debating the point much longer than I normally would. It's a new point that hasn't been discussed before and I did say I was broaching it because I thought it might be of interest/shock a few.

zzyzx1221

unholyangel said:

The AG has basically said almost exactly what I've said (I do sometimes know what I'm talking about). That the seal needs to actually offer protection against hygiene to come within the scope of the article/that the goods need to be sealed for hygiene/health purposes. The AG does not make the decisions, they are supposed to consider opposing arguments and give their opinion on how the court should rule. So while his opinion is not binding, it does carry extreme weight on the matter. 

I'm sure my last reading of the details is that in matters of EU law, the EU has the say on interpretation under the terms of the withdrawal agreement. I'd need to check the final draft to be sure though. I just went by parliament page earlier as I far too interested in the hygiene aspect to wade through that polished turd. 

Also why I've kept responding/debating the point much longer than I normally would. It's a new point that hasn't been discussed before and I did say I was broaching it because I thought it might be of interest/shock a few.

Nobody I can see has said that the seal doesn't actually have to be useful as a seal. What we have said is that the intention of the person or entity who sealed it in the first place is irrelevant.

What you're basically arguing is that if a retailer sold two identical pairs of knickers (for the purposes of the argument we'll assume kickers are definitely something that can't be returned for hygiene reasons), one in a sealed polythene bag, sealed by the manufacturer to stop them getting soiled in transit to the retailer, and the other was in an identical polyethene bag sealed by the retailer for "hygiene reasons" that the retailer could not refuse the return of the pair sealed by the manufacturer because they didn't seal it for "hygiene reasons."  And that is clearly insane.  It's the same product, with an identical seal.

Parking_Eyerate

unholyangel said:

Manxman_in_exile said:

unholyangel said:

No, they are an authority - higher than the national courts. Which is why the german court referred the matter to them. Remember, the primary legislation is the EU directive. ...

I think you misunderstand.  I'm saying that that decision does not appear to me to be an authority for your proposition that that the reason for sealing must be related to health or hygiene.  You yourself said it was about the type of goods - not about why they were sealed:

unholyangel said:

No, the decision is about the interpretation of article 16(e) and whether it applies to goods like mattresses. The decision itself was that the article does not apply, because the goods are not of a type that may justify being sealed for hygiene or health reasons - as per paragraph 37. ...

unholyangel said:
...
Again, how do you claim the goods aren't suitable for return due to health or hygiene when they weren't protected against it? How does it only suddenly become a risk when in the hands of the consumer and not the manufacturer, supplier, retailer (and their employees/agents such as the delivery company)?  As the judgement says, the goods by their nature may justify sealing for those reasons and that, accordingly (ie due to the nature of the goods requiring sealing for those reasons) unsealing deprives the goods of the protection against those risks. 

You keep answering my question with a question of your own that has no relevance to the question I am asking!  I'm not interested in how anybody claims whether a health and hygiene exception applies.

All I would like to know is: where does it state in the following regulation that the goods must be sealed for reasons of health and hygiene?

(3) The rights conferred by this Part cease to be available in the following circumstances—

(a)in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;

The answer is it doesn't say that anywhere.  The qualifier "not suitable for return due to health protection or hygiene reasons" relates to the goods themselves (which is what I think that european decision you cite is saying), and not to the reason why they are sealed.

Having to resort to guidance to explain what the wording of the exception means (or was intended to mean) tends to confirm to me that the wording does not actually say what the explanation says it was intended to mean - otherwise it would not need explaining.

Yes the judgement does provide authority on that, via paragraph 37! I even paraphrased several times to try and have it's meaning understood. That the type of goods justify them being sealed for hygiene & health reasons and that accordingly (because it justifies it) the breaking of that seal removes that protection.

If having to resort to guidance to explain it means it doesn't say what the explanation says, then what does it mean if it needs a court to explain it (as has been the case here or with any other point of law considered by any court in history)? 

I have provided multiple sources supporting what I've said. I've yet to be offered one that supports the opposing view - as is often the case online. As an alternative, I posed the question as I believe none of you have an answer for it and haven't actually tried applying your principles to practice - a belief only reaffirmed by two of you (so far) electing not to answer it.

Okay so goods sealed not to guarantee the integrity of the hygiene, but for posting. You break the seal on that packaging, you're saying you wouldn't be able to return the item because you broke a seal, despite that seal not being intended to protect the hygiene of the item and the item not actually being protected for hygiene in any way? 

What about those little wire twisty things on electrical cables? Would that count as a seal if the retailer later tried to claim "health reasons" for not accepting "unsealed" goods posing a "health protection" concern? 

Are you starting to see how ridiculous things get, if the items aren't sealed for hygiene or health purposes? At least the AG agrees with me. 

I disagree that paragraph 37 provides binding authority on any question regarding the nature of packaging, and I doubt that any legal professional would argue that it does. The referring court raised several queries including
“23      The referring court takes the view that, if Article 16(e) of Directive 2011/83 ought to be interpreted as meaning that goods which can come into direct contact with the human body, such as mattresses, when they are used as intended, even if the trader is able to render them saleable once again by using appropriate cleaning methods, are amongst the goods which cannot be returned for health protection or hygiene reasons referred to by the provision, that raises the question of which conditions the packaging of such goods must fulfil, and whether it must be clear from the specific circumstances, in particular the affixing of the word ‘sealed’ to the packaging, that it is not mere packaging for transportation purposes, but rather that the product has been sealed for health protection or hygiene reasons.”
So the referring court specifically raised questions about the nature of packaging but, as I believe is (now) common ground, the CJEU declined to address such questions because it didn’t think it necessary in view of its finding re the nature of mattresses. So, I really am at a loss as to why you think the CJEU decision can represent any sort of binding precedent as to the nature of hygiene sealing/packaging. There is, in my view, at best an argument that paragraph 37 is citable as obiter but, in my opinion (and I accept my opinions are not necessarily correct), the passage is not considered enough on the question of the nature of hygiene sealing to have any persuasive power.

I’m glad there is no attempt to argue that the Advocate General’s opinion is legally binding in any way. It is the opinion of one person, not a court, and since the UK has now left the EU I doubt if any UK court is obliged to even take it into account.

I’m not sure what ‘opposing view’ you expect to be offered. I’m not going to make up a legal argument for the sake of it, my point is that I simply disagree that the CJEU decision is relevant to the nature of packaging in any way. As far as I know the nature of hygiene sealing is not a question that has been tested at a court level relevant to the UK, and so I think reference to the CJEU decision in such a context is, perhaps unintentionally, misleading.
Further, if a court did try and grapple with the question I don’t think it would necessarily be very straightforward to answer. What would show whether sealing/packaging had the primary purpose of protecting the hygienic nature of a product? Would it have to say ‘hygiene seal’ on it? Would that be ok if it could also function as a security seal? Would it be ok just to say seal, could something then be both a hygiene and another seal? If you wanted to protect something for multiple reasons would you need multiple layered seals differentially labelled to identify their purpose? 

unholyangel

zzyzx1221 said:

unholyangel said:

The AG has basically said almost exactly what I've said (I do sometimes know what I'm talking about). That the seal needs to actually offer protection against hygiene to come within the scope of the article/that the goods need to be sealed for hygiene/health purposes. The AG does not make the decisions, they are supposed to consider opposing arguments and give their opinion on how the court should rule. So while his opinion is not binding, it does carry extreme weight on the matter. 

I'm sure my last reading of the details is that in matters of EU law, the EU has the say on interpretation under the terms of the withdrawal agreement. I'd need to check the final draft to be sure though. I just went by parliament page earlier as I far too interested in the hygiene aspect to wade through that polished turd. 

Also why I've kept responding/debating the point much longer than I normally would. It's a new point that hasn't been discussed before and I did say I was broaching it because I thought it might be of interest/shock a few.

Nobody I can see has said that the seal doesn't actually have to be useful as a seal. What we have said is that the intention of the person or entity who sealed it in the first place is irrelevant.

What you're basically arguing is that if a retailer sold two identical pairs of knickers (for the purposes of the argument we'll assume kickers are definitely something that can't be returned for hygiene reasons), one in a sealed polythene bag, sealed by the manufacturer to stop them getting soiled in transit to the retailer, and the other was in an identical polyethene bag sealed by the retailer for "hygiene reasons" that the retailer could not refuse the return of the pair sealed by the manufacturer because they didn't seal it for "hygiene reasons."  And that is clearly insane.  It's the same product, with an identical seal.

No, what I'm suggesting is that if knickers are a type of good that would be unsuitable for return if deprived of hygiene/health protection, that those goods will have been protected against hygiene/health in the first instance. 

What you're suggesting on the other hand, is that goods have no such protection which it could be deprived of, but yet can still benefit from the exemption, if they have any sort of "seal" present. 

If you're going to keep repeating the same point, so will I. 

36      In that regard, recital 49 of Directive 2011/83 states that an exception to the right of withdrawal may be justified by the nature of particular goods.
37      It follows that, in the context of Article 16(e) of that directive, it is the nature of the goods which may justify their packaging being sealed for health protection or hygiene reasons and that, accordingly, the unsealing of the packaging deprives the goods inside of the guarantee in terms of health protection or hygiene.
38      Once the packaging is unsealed by the consumer and, consequently, the goods deprived of the guarantee in terms of health protection or hygiene, such goods may no longer be able to be used again by a third party and, as a consequence, may no longer be able to be sold again by the trader.

Please explain to me how, accordingly, your knickers can be deprived of a hygiene/health guarantee by the breaking of a seal which did not offer any guarantee in the first place? You can't. 

Those 3 points above set out basis on which the exemption applies. The judgement then goes on to discuss ifthe goods in question meet that test - the conclusion being they don't because, even if the goods have been sealed for hygiene reasons, it has not been deprived of the protection by the unsealing of the packaging because the protection can be restored. 

You also have the opinion of the AG setting out that it must be sealed for hygiene/health reasons and that the criterion supposes the packaging is strong enough to protect it. Can you present any legally qualified opinions that the goods do not need to be sealed for hygiene/health reasons? Or is it just your own supposition? 

unholyangel

Parking_Eyerate said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

No, they are an authority - higher than the national courts. Which is why the german court referred the matter to them. Remember, the primary legislation is the EU directive. ...

I think you misunderstand.  I'm saying that that decision does not appear to me to be an authority for your proposition that that the reason for sealing must be related to health or hygiene.  You yourself said it was about the type of goods - not about why they were sealed:

unholyangel said:

No, the decision is about the interpretation of article 16(e) and whether it applies to goods like mattresses. The decision itself was that the article does not apply, because the goods are not of a type that may justify being sealed for hygiene or health reasons - as per paragraph 37. ...

unholyangel said:
...
Again, how do you claim the goods aren't suitable for return due to health or hygiene when they weren't protected against it? How does it only suddenly become a risk when in the hands of the consumer and not the manufacturer, supplier, retailer (and their employees/agents such as the delivery company)?  As the judgement says, the goods by their nature may justify sealing for those reasons and that, accordingly (ie due to the nature of the goods requiring sealing for those reasons) unsealing deprives the goods of the protection against those risks. 

You keep answering my question with a question of your own that has no relevance to the question I am asking!  I'm not interested in how anybody claims whether a health and hygiene exception applies.

All I would like to know is: where does it state in the following regulation that the goods must be sealed for reasons of health and hygiene?

(3) The rights conferred by this Part cease to be available in the following circumstances—

(a)in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;

The answer is it doesn't say that anywhere.  The qualifier "not suitable for return due to health protection or hygiene reasons" relates to the goods themselves (which is what I think that european decision you cite is saying), and not to the reason why they are sealed.

Having to resort to guidance to explain what the wording of the exception means (or was intended to mean) tends to confirm to me that the wording does not actually say what the explanation says it was intended to mean - otherwise it would not need explaining.

Yes the judgement does provide authority on that, via paragraph 37! I even paraphrased several times to try and have it's meaning understood. That the type of goods justify them being sealed for hygiene & health reasons and that accordingly (because it justifies it) the breaking of that seal removes that protection.

If having to resort to guidance to explain it means it doesn't say what the explanation says, then what does it mean if it needs a court to explain it (as has been the case here or with any other point of law considered by any court in history)? 

I have provided multiple sources supporting what I've said. I've yet to be offered one that supports the opposing view - as is often the case online. As an alternative, I posed the question as I believe none of you have an answer for it and haven't actually tried applying your principles to practice - a belief only reaffirmed by two of you (so far) electing not to answer it.

Okay so goods sealed not to guarantee the integrity of the hygiene, but for posting. You break the seal on that packaging, you're saying you wouldn't be able to return the item because you broke a seal, despite that seal not being intended to protect the hygiene of the item and the item not actually being protected for hygiene in any way? 

What about those little wire twisty things on electrical cables? Would that count as a seal if the retailer later tried to claim "health reasons" for not accepting "unsealed" goods posing a "health protection" concern? 

Are you starting to see how ridiculous things get, if the items aren't sealed for hygiene or health purposes? At least the AG agrees with me. 

I disagree that paragraph 37 provides binding authority on any question regarding the nature of packaging, and I doubt that any legal professional would argue that it does. The referring court raised several queries including
“23      The referring court takes the view that, if Article 16(e) of Directive 2011/83 ought to be interpreted as meaning that goods which can come into direct contact with the human body, such as mattresses, when they are used as intended, even if the trader is able to render them saleable once again by using appropriate cleaning methods, are amongst the goods which cannot be returned for health protection or hygiene reasons referred to by the provision, that raises the question of which conditions the packaging of such goods must fulfil, and whether it must be clear from the specific circumstances, in particular the affixing of the word ‘sealed’ to the packaging, that it is not mere packaging for transportation purposes, but rather that the product has been sealed for health protection or hygiene reasons.”
So the referring court specifically raised questions about the nature of packaging but, as I believe is (now) common ground, the CJEU declined to address such questions because it didn’t think it necessary in view of its finding re the nature of mattresses. So, I really am at a loss as to why you think the CJEU decision can represent any sort of binding precedent as to the nature of hygiene sealing/packaging. There is, in my view, at best an argument that paragraph 37 is citable as obiter but, in my opinion (and I accept my opinions are not necessarily correct), the passage is not considered enough on the question of the nature of hygiene sealing to have any persuasive power.

I’m glad there is no attempt to argue that the Advocate General’s opinion is legally binding in any way. It is the opinion of one person, not a court, and since the UK has now left the EU I doubt if any UK court is obliged to even take it into account.

I’m not sure what ‘opposing view’ you expect to be offered. I’m not going to make up a legal argument for the sake of it, my point is that I simply disagree that the CJEU decision is relevant to the nature of packaging in any way. As far as I know the nature of hygiene sealing is not a question that has been tested at a court level relevant to the UK, and so I think reference to the CJEU decision in such a context is, perhaps unintentionally, misleading.
Further, if a court did try and grapple with the question I don’t think it would necessarily be very straightforward to answer. What would show whether sealing/packaging had the primary purpose of protecting the hygienic nature of a product? Would it have to say ‘hygiene seal’ on it? Would that be ok if it could also function as a security seal? Would it be ok just to say seal, could something then be both a hygiene and another seal? If you wanted to protect something for multiple reasons would you need multiple layered seals differentially labelled to identify their purpose? 

Again, the CCRs primary legislation is the EU directive. CJEU are the authority on EU law and continue to be so despite our leaving, as per the withdrawal agreement. Even if the WA didn't say that, the judgement was before we left, so would have been incoprorated into UK law by proxy. And the CJEU did indeed say (as I've repeated so often I'm now a broken record) in paragraph 37, that in the context of the article, the nature of the goods may justify them being sealed for hygiene or health reasons and that accordingly, the removal of the seal deprives the goods of the protection. Conversely, the nature of the goods may not justify them being sealed for hygiene or health reasons and, accordingly, the removal of a seal does not deprive them of the protection. 

As for the AG's opinion, it's a legally qualified opinion of someone in an substantial position of authority, not just a back office solicitor freshly qualified or a self proclaimed internet expert with no legal training or qualifications whatsoever. It is certainly the most qualified opinion presented thus far. I highlighted his opinions aren't binding on the court because I'm not in the habit of misrepresenting information or facts to better suit my argument. But I also highlighted that his opinion has considerable weight behind it, because it does. 

So instead of just sitting there trying to discredit legally qualified opinions with nothing more than your anonymous say so, how about you offer up some evidence of your own? 

Parking_Eyerate

unholyangel said:

Parking_Eyerate said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

No, they are an authority - higher than the national courts. Which is why the german court referred the matter to them. Remember, the primary legislation is the EU directive. ...

I think you misunderstand.  I'm saying that that decision does not appear to me to be an authority for your proposition that that the reason for sealing must be related to health or hygiene.  You yourself said it was about the type of goods - not about why they were sealed:

unholyangel said:

No, the decision is about the interpretation of article 16(e) and whether it applies to goods like mattresses. The decision itself was that the article does not apply, because the goods are not of a type that may justify being sealed for hygiene or health reasons - as per paragraph 37. ...

unholyangel said:
...
Again, how do you claim the goods aren't suitable for return due to health or hygiene when they weren't protected against it? How does it only suddenly become a risk when in the hands of the consumer and not the manufacturer, supplier, retailer (and their employees/agents such as the delivery company)?  As the judgement says, the goods by their nature may justify sealing for those reasons and that, accordingly (ie due to the nature of the goods requiring sealing for those reasons) unsealing deprives the goods of the protection against those risks. 

You keep answering my question with a question of your own that has no relevance to the question I am asking!  I'm not interested in how anybody claims whether a health and hygiene exception applies.

All I would like to know is: where does it state in the following regulation that the goods must be sealed for reasons of health and hygiene?

(3) The rights conferred by this Part cease to be available in the following circumstances—

(a)in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;

The answer is it doesn't say that anywhere.  The qualifier "not suitable for return due to health protection or hygiene reasons" relates to the goods themselves (which is what I think that european decision you cite is saying), and not to the reason why they are sealed.

Having to resort to guidance to explain what the wording of the exception means (or was intended to mean) tends to confirm to me that the wording does not actually say what the explanation says it was intended to mean - otherwise it would not need explaining.

Yes the judgement does provide authority on that, via paragraph 37! I even paraphrased several times to try and have it's meaning understood. That the type of goods justify them being sealed for hygiene & health reasons and that accordingly (because it justifies it) the breaking of that seal removes that protection.

If having to resort to guidance to explain it means it doesn't say what the explanation says, then what does it mean if it needs a court to explain it (as has been the case here or with any other point of law considered by any court in history)? 

I have provided multiple sources supporting what I've said. I've yet to be offered one that supports the opposing view - as is often the case online. As an alternative, I posed the question as I believe none of you have an answer for it and haven't actually tried applying your principles to practice - a belief only reaffirmed by two of you (so far) electing not to answer it.

Okay so goods sealed not to guarantee the integrity of the hygiene, but for posting. You break the seal on that packaging, you're saying you wouldn't be able to return the item because you broke a seal, despite that seal not being intended to protect the hygiene of the item and the item not actually being protected for hygiene in any way? 

What about those little wire twisty things on electrical cables? Would that count as a seal if the retailer later tried to claim "health reasons" for not accepting "unsealed" goods posing a "health protection" concern? 

Are you starting to see how ridiculous things get, if the items aren't sealed for hygiene or health purposes? At least the AG agrees with me. 

I disagree that paragraph 37 provides binding authority on any question regarding the nature of packaging, and I doubt that any legal professional would argue that it does. The referring court raised several queries including
“23      The referring court takes the view that, if Article 16(e) of Directive 2011/83 ought to be interpreted as meaning that goods which can come into direct contact with the human body, such as mattresses, when they are used as intended, even if the trader is able to render them saleable once again by using appropriate cleaning methods, are amongst the goods which cannot be returned for health protection or hygiene reasons referred to by the provision, that raises the question of which conditions the packaging of such goods must fulfil, and whether it must be clear from the specific circumstances, in particular the affixing of the word ‘sealed’ to the packaging, that it is not mere packaging for transportation purposes, but rather that the product has been sealed for health protection or hygiene reasons.”
So the referring court specifically raised questions about the nature of packaging but, as I believe is (now) common ground, the CJEU declined to address such questions because it didn’t think it necessary in view of its finding re the nature of mattresses. So, I really am at a loss as to why you think the CJEU decision can represent any sort of binding precedent as to the nature of hygiene sealing/packaging. There is, in my view, at best an argument that paragraph 37 is citable as obiter but, in my opinion (and I accept my opinions are not necessarily correct), the passage is not considered enough on the question of the nature of hygiene sealing to have any persuasive power.

I’m glad there is no attempt to argue that the Advocate General’s opinion is legally binding in any way. It is the opinion of one person, not a court, and since the UK has now left the EU I doubt if any UK court is obliged to even take it into account.

I’m not sure what ‘opposing view’ you expect to be offered. I’m not going to make up a legal argument for the sake of it, my point is that I simply disagree that the CJEU decision is relevant to the nature of packaging in any way. As far as I know the nature of hygiene sealing is not a question that has been tested at a court level relevant to the UK, and so I think reference to the CJEU decision in such a context is, perhaps unintentionally, misleading.
Further, if a court did try and grapple with the question I don’t think it would necessarily be very straightforward to answer. What would show whether sealing/packaging had the primary purpose of protecting the hygienic nature of a product? Would it have to say ‘hygiene seal’ on it? Would that be ok if it could also function as a security seal? Would it be ok just to say seal, could something then be both a hygiene and another seal? If you wanted to protect something for multiple reasons would you need multiple layered seals differentially labelled to identify their purpose? 

Again, the CCRs primary legislation is the EU directive. CJEU are the authority on EU law and continue to be so despite our leaving, as per the withdrawal agreement. And the CJEU did indeed say (as I've repeated so often I'm now a broken record) in paragraph 37, that in the context of the article, the nature of the goods may justify them being sealed for hygiene or health reasons and that accordingly, the removal of the seal deprives the goods of the protection. Conversely, the nature of the goods may not justify them being sealed for hygiene or health reasons and, accordingly, the removal of a seal does not deprive them of the protection. 

As for the AG's opinion, it's a legally qualified opinion of someone in an substantial position of authority, not just a back office solicitor freshly qualified or a self proclaimed internet expert with no legal training or qualifications whatsoever. It is certainly the most qualified opinion presented thus far. I highlighted his opinions aren't binding on the court because I'm not in the habit of misrepresenting information or facts to better suit my argument. But I also highlighted that his opinion has considerable weight behind it, because it does. 

So instead of just sitting there trying to discredit legally qualified opinions with nothing more than your anonymous say so, how about you offer up some evidence of your own? 

I am well aware of the existence of the EU directive and the withdrawal agreement etc but nothing of what you have said alters the fact that the decision did not concern the nature of packaging and was not about the nature of packaging. You seem intent to latch onto an incidental clause in paragraph 37 when the CJEU itself said “ 49      Given the answer to the first question, there is no need to answer the second question.”
Paragraph 37 essentially says it is the nature of goods which is the primary issue and I can’t see that anyone has said they disagree with that. It says nothing of substance about the nature of packaging and my view hence remains that a competent legal advocate would be very unlikely to try and isolate paragraph 37 as the basis for an argument regarding the CJEU’s opinion on the nature of packaging. It appears, however, that you disagree, so I think we will just need to agree to do just that.

Regarding the Advocate General, I made no comment on his qualifications or otherwise, I have no doubt he is very highly qualified and competent in certain legal fields. His opinion holds considerable weight for the CJEU, certainly, but, as you note, they aren’t obliged to follow it and I remain doubtful that UK courts are even obliged to take it into account.

I am not sure why you think I am trying to discredit legally qualified opinions. Not that I am trying to discredit anyone at all, I think the only point I have said I disagree with is your view on the relevance of the CJEU decision to the nature of packaging. I do not know if you are legally qualified or not but I don’t think it leads to a high level of debate when you try and undermine someone for disagreeing with you. That said, neither do I think that the AG and the CJEU are infallible anyway and I have already given some reasons why I do not think it would be straightforward for a court to try and define issues regarding the intended purpose of packaging.

unholyangel

Parking_Eyerate said:

unholyangel said:

Parking_Eyerate said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

No, they are an authority - higher than the national courts. Which is why the german court referred the matter to them. Remember, the primary legislation is the EU directive. ...

I think you misunderstand.  I'm saying that that decision does not appear to me to be an authority for your proposition that that the reason for sealing must be related to health or hygiene.  You yourself said it was about the type of goods - not about why they were sealed:

unholyangel said:

No, the decision is about the interpretation of article 16(e) and whether it applies to goods like mattresses. The decision itself was that the article does not apply, because the goods are not of a type that may justify being sealed for hygiene or health reasons - as per paragraph 37. ...

unholyangel said:
...
Again, how do you claim the goods aren't suitable for return due to health or hygiene when they weren't protected against it? How does it only suddenly become a risk when in the hands of the consumer and not the manufacturer, supplier, retailer (and their employees/agents such as the delivery company)?  As the judgement says, the goods by their nature may justify sealing for those reasons and that, accordingly (ie due to the nature of the goods requiring sealing for those reasons) unsealing deprives the goods of the protection against those risks. 

You keep answering my question with a question of your own that has no relevance to the question I am asking!  I'm not interested in how anybody claims whether a health and hygiene exception applies.

All I would like to know is: where does it state in the following regulation that the goods must be sealed for reasons of health and hygiene?

(3) The rights conferred by this Part cease to be available in the following circumstances—

(a)in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;

The answer is it doesn't say that anywhere.  The qualifier "not suitable for return due to health protection or hygiene reasons" relates to the goods themselves (which is what I think that european decision you cite is saying), and not to the reason why they are sealed.

Having to resort to guidance to explain what the wording of the exception means (or was intended to mean) tends to confirm to me that the wording does not actually say what the explanation says it was intended to mean - otherwise it would not need explaining.

Yes the judgement does provide authority on that, via paragraph 37! I even paraphrased several times to try and have it's meaning understood. That the type of goods justify them being sealed for hygiene & health reasons and that accordingly (because it justifies it) the breaking of that seal removes that protection.

If having to resort to guidance to explain it means it doesn't say what the explanation says, then what does it mean if it needs a court to explain it (as has been the case here or with any other point of law considered by any court in history)? 

I have provided multiple sources supporting what I've said. I've yet to be offered one that supports the opposing view - as is often the case online. As an alternative, I posed the question as I believe none of you have an answer for it and haven't actually tried applying your principles to practice - a belief only reaffirmed by two of you (so far) electing not to answer it.

Okay so goods sealed not to guarantee the integrity of the hygiene, but for posting. You break the seal on that packaging, you're saying you wouldn't be able to return the item because you broke a seal, despite that seal not being intended to protect the hygiene of the item and the item not actually being protected for hygiene in any way? 

What about those little wire twisty things on electrical cables? Would that count as a seal if the retailer later tried to claim "health reasons" for not accepting "unsealed" goods posing a "health protection" concern? 

Are you starting to see how ridiculous things get, if the items aren't sealed for hygiene or health purposes? At least the AG agrees with me. 

I disagree that paragraph 37 provides binding authority on any question regarding the nature of packaging, and I doubt that any legal professional would argue that it does. The referring court raised several queries including
“23      The referring court takes the view that, if Article 16(e) of Directive 2011/83 ought to be interpreted as meaning that goods which can come into direct contact with the human body, such as mattresses, when they are used as intended, even if the trader is able to render them saleable once again by using appropriate cleaning methods, are amongst the goods which cannot be returned for health protection or hygiene reasons referred to by the provision, that raises the question of which conditions the packaging of such goods must fulfil, and whether it must be clear from the specific circumstances, in particular the affixing of the word ‘sealed’ to the packaging, that it is not mere packaging for transportation purposes, but rather that the product has been sealed for health protection or hygiene reasons.”
So the referring court specifically raised questions about the nature of packaging but, as I believe is (now) common ground, the CJEU declined to address such questions because it didn’t think it necessary in view of its finding re the nature of mattresses. So, I really am at a loss as to why you think the CJEU decision can represent any sort of binding precedent as to the nature of hygiene sealing/packaging. There is, in my view, at best an argument that paragraph 37 is citable as obiter but, in my opinion (and I accept my opinions are not necessarily correct), the passage is not considered enough on the question of the nature of hygiene sealing to have any persuasive power.

I’m glad there is no attempt to argue that the Advocate General’s opinion is legally binding in any way. It is the opinion of one person, not a court, and since the UK has now left the EU I doubt if any UK court is obliged to even take it into account.

I’m not sure what ‘opposing view’ you expect to be offered. I’m not going to make up a legal argument for the sake of it, my point is that I simply disagree that the CJEU decision is relevant to the nature of packaging in any way. As far as I know the nature of hygiene sealing is not a question that has been tested at a court level relevant to the UK, and so I think reference to the CJEU decision in such a context is, perhaps unintentionally, misleading.
Further, if a court did try and grapple with the question I don’t think it would necessarily be very straightforward to answer. What would show whether sealing/packaging had the primary purpose of protecting the hygienic nature of a product? Would it have to say ‘hygiene seal’ on it? Would that be ok if it could also function as a security seal? Would it be ok just to say seal, could something then be both a hygiene and another seal? If you wanted to protect something for multiple reasons would you need multiple layered seals differentially labelled to identify their purpose? 

Again, the CCRs primary legislation is the EU directive. CJEU are the authority on EU law and continue to be so despite our leaving, as per the withdrawal agreement. And the CJEU did indeed say (as I've repeated so often I'm now a broken record) in paragraph 37, that in the context of the article, the nature of the goods may justify them being sealed for hygiene or health reasons and that accordingly, the removal of the seal deprives the goods of the protection. Conversely, the nature of the goods may not justify them being sealed for hygiene or health reasons and, accordingly, the removal of a seal does not deprive them of the protection. 

As for the AG's opinion, it's a legally qualified opinion of someone in an substantial position of authority, not just a back office solicitor freshly qualified or a self proclaimed internet expert with no legal training or qualifications whatsoever. It is certainly the most qualified opinion presented thus far. I highlighted his opinions aren't binding on the court because I'm not in the habit of misrepresenting information or facts to better suit my argument. But I also highlighted that his opinion has considerable weight behind it, because it does. 

So instead of just sitting there trying to discredit legally qualified opinions with nothing more than your anonymous say so, how about you offer up some evidence of your own? 

I am well aware of the existence of the EU directive and the withdrawal agreement etc but nothing of what you have said alters the fact that the decision did not concern the nature of packaging and was not about the nature of packaging. You seem intent to latch onto an incidental clause in paragraph 37 when the CJEU itself said “ 49      Given the answer to the first question, there is no need to answer the second question.”
Paragraph 37 essentially says it is the nature of goods which is the primary issue and I can’t see that anyone has said they disagree with that. It says nothing of substance about the nature of packaging and my view hence remains that a competent legal advocate would be very unlikely to try and isolate paragraph 37 as the basis for an argument regarding the CJEU’s opinion on the nature of packaging. It appears, however, that you disagree, so I think we will just need to agree to do just that.

Regarding the Advocate General, I made no comment on his qualifications or otherwise, I have no doubt he is very highly qualified and competent in certain legal fields. His opinion holds considerable weight for the CJEU, certainly, but, as you note, they aren’t obliged to follow it and I remain doubtful that UK courts are even obliged to take it into account.

I am not sure why you think I am trying to discredit legally qualified opinions. Not that I am trying to discredit anyone at all, I think the only point I have said I disagree with is your view on the relevance of the CJEU decision to the nature of packaging. I do not know if you are legally qualified or not but I don’t think it leads to a high level of debate when you try and undermine someone for disagreeing with you. That said, neither do I think that the AG and the CJEU are infallible anyway and I have already given some reasons why I do not think it would be straightforward for a court to try and define issues regarding the intended purpose of packaging.

The purpose for the seal was covered by paragraph 37. Paragraph 49 was relating to the second question of what the packaging should look like (not the purpose of the packaging), if the exemption was to be interpreted as including goods like mattresses, which are not unsuitable for use by a third party after the seal has been broken because the health & hygiene can be restored. 

I previously assumed I don't need to explain the difference between appearance/characteristics and purpose, but on reading your most recent post....I seem to have been wrong in that assumption. 

You might be aware of the withdrawal agreement but clearly you don't understand the application of it (or of processes in law in general) or you wouldn't be questioning the authority of their judgement. 

And yeah, forgive me but I do get a bit tetchy when I'm challenged to prove my views, provide credible evidence to support my views and then someone decides it's wrong or they obviously don't understand it, but won't subject themselves to the same standard they set for me - of providing evidence for their views - and continue to argue the point despite having nothing to offer other than "well I don't think it's right". More so when they then go on to discredit the opinions of respected legal professionals, like the AG. 

My point with the anonymous bit is that we're all anonymous on here. Even if someone was to claim to be a solicitor, there is no way to verify that user is actually that person (and they have a code of conduct they need to adhere to as well as the terms of their PII). But the AG isn't anonymous and his opinion is one of the highest you can get. 

Even if you refuse to accept the CJEU covered the purpose for which the goods must be sealed, surely you can concede that the AG's opinion provides some reliable evidence on what characteristics packaging should have (if the exemption were to apply to goods that pose hygiene concerns but have not been irrevocably deprived of hygiene protection). 

But I repeat....goods cannot be unsuitable for use by a third party for health/hygiene reasons after they are unsealed, if the seal didn't offer any health/hygiene protection in the first instance. It's like saying you can claim from your home insurers for building damage when you only have cover for contents! Or that a retailer can send you out a bunch of ibuprofen pills loose, only sealed for postage purposes and that you'd lose the right to cancel as soon as you opened the postal packet. They're sold in blister packs to preserve the health protection of the item. Same with the various mechanisms used in the food industry for identifying tampering, it's there to preserve the health protection of the item. Can you give an example of goods that aren't sealed for hygiene/health purposes but that wouldn't be suitable for return due to hygiene/health purposes?

Parking_Eyerate

unholyangel said:

Parking_Eyerate said:

unholyangel said:

Parking_Eyerate said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

No, they are an authority - higher than the national courts. Which is why the german court referred the matter to them. Remember, the primary legislation is the EU directive. ...

I think you misunderstand.  I'm saying that that decision does not appear to me to be an authority for your proposition that that the reason for sealing must be related to health or hygiene.  You yourself said it was about the type of goods - not about why they were sealed:

unholyangel said:

No, the decision is about the interpretation of article 16(e) and whether it applies to goods like mattresses. The decision itself was that the article does not apply, because the goods are not of a type that may justify being sealed for hygiene or health reasons - as per paragraph 37. ...

unholyangel said:
...
Again, how do you claim the goods aren't suitable for return due to health or hygiene when they weren't protected against it? How does it only suddenly become a risk when in the hands of the consumer and not the manufacturer, supplier, retailer (and their employees/agents such as the delivery company)?  As the judgement says, the goods by their nature may justify sealing for those reasons and that, accordingly (ie due to the nature of the goods requiring sealing for those reasons) unsealing deprives the goods of the protection against those risks. 

You keep answering my question with a question of your own that has no relevance to the question I am asking!  I'm not interested in how anybody claims whether a health and hygiene exception applies.

All I would like to know is: where does it state in the following regulation that the goods must be sealed for reasons of health and hygiene?

(3) The rights conferred by this Part cease to be available in the following circumstances—

(a)in the case of a contract for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons, if they become unsealed after delivery;

The answer is it doesn't say that anywhere.  The qualifier "not suitable for return due to health protection or hygiene reasons" relates to the goods themselves (which is what I think that european decision you cite is saying), and not to the reason why they are sealed.

Having to resort to guidance to explain what the wording of the exception means (or was intended to mean) tends to confirm to me that the wording does not actually say what the explanation says it was intended to mean - otherwise it would not need explaining.

Yes the judgement does provide authority on that, via paragraph 37! I even paraphrased several times to try and have it's meaning understood. That the type of goods justify them being sealed for hygiene & health reasons and that accordingly (because it justifies it) the breaking of that seal removes that protection.

If having to resort to guidance to explain it means it doesn't say what the explanation says, then what does it mean if it needs a court to explain it (as has been the case here or with any other point of law considered by any court in history)? 

I have provided multiple sources supporting what I've said. I've yet to be offered one that supports the opposing view - as is often the case online. As an alternative, I posed the question as I believe none of you have an answer for it and haven't actually tried applying your principles to practice - a belief only reaffirmed by two of you (so far) electing not to answer it.

Okay so goods sealed not to guarantee the integrity of the hygiene, but for posting. You break the seal on that packaging, you're saying you wouldn't be able to return the item because you broke a seal, despite that seal not being intended to protect the hygiene of the item and the item not actually being protected for hygiene in any way? 

What about those little wire twisty things on electrical cables? Would that count as a seal if the retailer later tried to claim "health reasons" for not accepting "unsealed" goods posing a "health protection" concern? 

Are you starting to see how ridiculous things get, if the items aren't sealed for hygiene or health purposes? At least the AG agrees with me. 

I disagree that paragraph 37 provides binding authority on any question regarding the nature of packaging, and I doubt that any legal professional would argue that it does. The referring court raised several queries including
“23      The referring court takes the view that, if Article 16(e) of Directive 2011/83 ought to be interpreted as meaning that goods which can come into direct contact with the human body, such as mattresses, when they are used as intended, even if the trader is able to render them saleable once again by using appropriate cleaning methods, are amongst the goods which cannot be returned for health protection or hygiene reasons referred to by the provision, that raises the question of which conditions the packaging of such goods must fulfil, and whether it must be clear from the specific circumstances, in particular the affixing of the word ‘sealed’ to the packaging, that it is not mere packaging for transportation purposes, but rather that the product has been sealed for health protection or hygiene reasons.”
So the referring court specifically raised questions about the nature of packaging but, as I believe is (now) common ground, the CJEU declined to address such questions because it didn’t think it necessary in view of its finding re the nature of mattresses. So, I really am at a loss as to why you think the CJEU decision can represent any sort of binding precedent as to the nature of hygiene sealing/packaging. There is, in my view, at best an argument that paragraph 37 is citable as obiter but, in my opinion (and I accept my opinions are not necessarily correct), the passage is not considered enough on the question of the nature of hygiene sealing to have any persuasive power.

I’m glad there is no attempt to argue that the Advocate General’s opinion is legally binding in any way. It is the opinion of one person, not a court, and since the UK has now left the EU I doubt if any UK court is obliged to even take it into account.

I’m not sure what ‘opposing view’ you expect to be offered. I’m not going to make up a legal argument for the sake of it, my point is that I simply disagree that the CJEU decision is relevant to the nature of packaging in any way. As far as I know the nature of hygiene sealing is not a question that has been tested at a court level relevant to the UK, and so I think reference to the CJEU decision in such a context is, perhaps unintentionally, misleading.
Further, if a court did try and grapple with the question I don’t think it would necessarily be very straightforward to answer. What would show whether sealing/packaging had the primary purpose of protecting the hygienic nature of a product? Would it have to say ‘hygiene seal’ on it? Would that be ok if it could also function as a security seal? Would it be ok just to say seal, could something then be both a hygiene and another seal? If you wanted to protect something for multiple reasons would you need multiple layered seals differentially labelled to identify their purpose? 

Again, the CCRs primary legislation is the EU directive. CJEU are the authority on EU law and continue to be so despite our leaving, as per the withdrawal agreement. And the CJEU did indeed say (as I've repeated so often I'm now a broken record) in paragraph 37, that in the context of the article, the nature of the goods may justify them being sealed for hygiene or health reasons and that accordingly, the removal of the seal deprives the goods of the protection. Conversely, the nature of the goods may not justify them being sealed for hygiene or health reasons and, accordingly, the removal of a seal does not deprive them of the protection. 

As for the AG's opinion, it's a legally qualified opinion of someone in an substantial position of authority, not just a back office solicitor freshly qualified or a self proclaimed internet expert with no legal training or qualifications whatsoever. It is certainly the most qualified opinion presented thus far. I highlighted his opinions aren't binding on the court because I'm not in the habit of misrepresenting information or facts to better suit my argument. But I also highlighted that his opinion has considerable weight behind it, because it does. 

So instead of just sitting there trying to discredit legally qualified opinions with nothing more than your anonymous say so, how about you offer up some evidence of your own? 

I am well aware of the existence of the EU directive and the withdrawal agreement etc but nothing of what you have said alters the fact that the decision did not concern the nature of packaging and was not about the nature of packaging. You seem intent to latch onto an incidental clause in paragraph 37 when the CJEU itself said “ 49      Given the answer to the first question, there is no need to answer the second question.”
Paragraph 37 essentially says it is the nature of goods which is the primary issue and I can’t see that anyone has said they disagree with that. It says nothing of substance about the nature of packaging and my view hence remains that a competent legal advocate would be very unlikely to try and isolate paragraph 37 as the basis for an argument regarding the CJEU’s opinion on the nature of packaging. It appears, however, that you disagree, so I think we will just need to agree to do just that.

Regarding the Advocate General, I made no comment on his qualifications or otherwise, I have no doubt he is very highly qualified and competent in certain legal fields. His opinion holds considerable weight for the CJEU, certainly, but, as you note, they aren’t obliged to follow it and I remain doubtful that UK courts are even obliged to take it into account.

I am not sure why you think I am trying to discredit legally qualified opinions. Not that I am trying to discredit anyone at all, I think the only point I have said I disagree with is your view on the relevance of the CJEU decision to the nature of packaging. I do not know if you are legally qualified or not but I don’t think it leads to a high level of debate when you try and undermine someone for disagreeing with you. That said, neither do I think that the AG and the CJEU are infallible anyway and I have already given some reasons why I do not think it would be straightforward for a court to try and define issues regarding the intended purpose of packaging.

The purpose for the seal was covered by paragraph 37. Paragraph 49 was relating to the second question of what the packaging should look like (not the purpose of the packaging), if the exemption was to be interpreted as including goods like mattresses, which are not unsuitable for use by a third party after the seal has been broken because the health & hygiene can be restored. 

I previously assumed I don't need to explain the difference between appearance/characteristics and purpose, but on reading your most recent post....I seem to have been wrong in that assumption. 

You might be aware of the withdrawal agreement but clearly you don't understand the application of it (or of processes in law in general) or you wouldn't be questioning the authority of their judgement. 

And yeah, forgive me but I do get a bit tetchy when I'm challenged to prove my views, provide credible evidence to support my views and then someone decides it's wrong or they obviously don't understand it, but won't subject themselves to the same standard they set for me - of providing evidence for their views - and continue to argue the point despite having nothing to offer other than "well I don't think it's right". More so when they then go on to discredit the opinions of respected legal professionals, like the AG. 

My point with the anonymous bit is that we're all anonymous on here. Even if someone was to claim to be a solicitor, there is no way to verify that user is actually that person (and they have a code of conduct they need to adhere to as well as the terms of their PII). But the AG isn't anonymous and his opinion is one of the highest you can get. 

Even if you refuse to accept the CJEU covered the purpose for which the goods must be sealed, surely you can concede that the AG's opinion provides some reliable evidence on what characteristics packaging should have (if the exemption were to apply to goods that pose hygiene concerns but have not been irrevocably deprived of hygiene protection). 

But I repeat....goods cannot be unsuitable for use by a third party for health/hygiene reasons after they are unsealed, if the seal didn't offer any health/hygiene protection in the first instance. It's like saying you can claim from your home insurers for building damage when you only have cover for contents! Or that a retailer can send you out a bunch of ibuprofen pills loose, only sealed for postage purposes and that you'd lose the right to cancel as soon as you opened the postal packet. They're sold in blister packs to preserve the health protection of the item. Same with the various mechanisms used in the food industry for identifying tampering, it's there to preserve the health protection of the item. Can you give an example of goods that aren't sealed for hygiene/health purposes but that wouldn't be suitable for return due to hygiene/health purposes?

The questions not answered by paragraph 49 were:

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?’

Where is question 2 a limited to the appearance of packaging? It simply says what requirements must be satisfied, it does not ask ‘excluding whether or not the packaging needs to have a specified purpose, what requirements does it need to satisfy’. I previously assumed you weren’t deliberately trying to twist things just to serve your purpose but on reading your most recent post I am not sure if I was right in that assumption.

Please point out to me where I questioned the authority of the CJEU judgement. I haven’t, I have simply questioned your interpretation of it.

I don’t see where I have challenged you to prove your views, I have disagreed with your interpretation of the CJEU judgement and I have provided reasons why I disagree with it.

Yes, the AG is senior, I don’t think we disagree on that but, like everyone else, his views can still be questioned.

I do disagree that the CJEU decision covers the purpose for which goods must be sealed and I hope we can just move on and accept we disagree.

Regarding the AG’s opinion, I actually think that the intended purpose of the packaging is possibly a complete red herring. Looking at the AG’s conclusion on the point in paragraph 49

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. I think the pertinent question would be whether or not the packaging served to prevent the item being resealed without leaving any doubt that they had been tested or tried on. Following on from this, I think it is possible that if the goods were found to be goods for which health/hygiene considerations apply then the primary ‘intent’ of the packaging would not be relevant. Regarding your last question, I refer you back to a previous post. I think seals/packaging can reasonably serve multiple purposes and the primary purpose of packaging may be somewhat subjective and irrelevant. For example, another purpose of blister packs may be dosage monitoring and the primary purpose of the blister pack could be different for different products.

zzyzx1221

unholyangel said:

zzyzx1221 said:

unholyangel said:

The AG has basically said almost exactly what I've said (I do sometimes know what I'm talking about). That the seal needs to actually offer protection against hygiene to come within the scope of the article/that the goods need to be sealed for hygiene/health purposes. The AG does not make the decisions, they are supposed to consider opposing arguments and give their opinion on how the court should rule. So while his opinion is not binding, it does carry extreme weight on the matter. 

I'm sure my last reading of the details is that in matters of EU law, the EU has the say on interpretation under the terms of the withdrawal agreement. I'd need to check the final draft to be sure though. I just went by parliament page earlier as I far too interested in the hygiene aspect to wade through that polished turd. 

Also why I've kept responding/debating the point much longer than I normally would. It's a new point that hasn't been discussed before and I did say I was broaching it because I thought it might be of interest/shock a few.

Nobody I can see has said that the seal doesn't actually have to be useful as a seal. What we have said is that the intention of the person or entity who sealed it in the first place is irrelevant.

What you're basically arguing is that if a retailer sold two identical pairs of knickers (for the purposes of the argument we'll assume kickers are definitely something that can't be returned for hygiene reasons), one in a sealed polythene bag, sealed by the manufacturer to stop them getting soiled in transit to the retailer, and the other was in an identical polyethene bag sealed by the retailer for "hygiene reasons" that the retailer could not refuse the return of the pair sealed by the manufacturer because they didn't seal it for "hygiene reasons."  And that is clearly insane.  It's the same product, with an identical seal.

No, what I'm suggesting is that if knickers are a type of good that would be unsuitable for return if deprived of hygiene/health protection, that those goods will have been protected against hygiene/health in the first instance. 

Why would they be?  If the manufacturer has no interest in hygiene (as they're likely only ever going to have to take back products that are faulty) then there is no reason for them to seal them for that purpose.  That doesn't mean that the thing they're sealed in cannot offer that hygiene protection.

It's very clear though that you've lost.  And as I've got bored or repeating the same thing over and over and you ignoring it, I'll let Parking_Eyerate continue to rip you to shreds.

Toodle pip