Consumer Rights vs Vendor T & C’s

Parking_Eyerate

unholyangel said:

Parking_Eyerate said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

...
There are other circumstances where the right to cancel can be lost. Such as those that I mentioned (goods sealed for hygiene reasons if they become unsealed after delivery). 
...

Just to satisfy my curiosity, do the goods need to be sealed for hygiene reasons, or do they just need to be sealed?  Yes - the goods need to be sealed - but the legislation doesn't say why they need to be sealed, does it?

For the purpose of the regulation, yes they need to be sealed for hygiene reasons otherwise the exemption doesn't apply.

...

But the regulation doesn't say they need to be sealed for hygiene reasons, does it?  It simply says "sealed" and does not mention anything about the reason for being sealed.

The regulation states:

(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 implementing guidance gives:

o Goods received sealed for health protection or hygiene reasons once unsealed 

The guidance from the EU states:

For example, for canned food which is sealed within the meaning of Article 16(e), the trader should inform the consumer of the conditions, time limits, etc. for withdrawal as required under Article 6(1)(h). The trader should also inform the consumer that, for health protection and hygiene reasons, the consumer loses the right of withdrawal if the cans are opened.

And aso (more importantly):

Article 16 
(e) the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;
For an item to be exempt under point (e), there should be genuine health protection or hygiene reasons for using a seal, which may consist of protective wrapping or film

But the absolute cincher? A court judgement regarding a mattress (heard in germany but under the same primary EU legislation) gives us:

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.

And just because my post isn't long enough yet (sarcasm) and because I think it may come as a shock to a few people/be of interest:

40      Accordingly, it must be found that, as the Advocate General points out in point 33 of his Opinion, the exception to the right of withdrawal under Article 16(e) of Directive 2011/83 applies only if, after the packaging has been unsealed, the goods contained therein are definitively no longer in a saleable condition due to genuine health protection or hygiene reasons, because the very nature of the goods makes it impossible or excessively difficult, for the trader to take the necessary measures allowing for resale without affecting either of those requirements.
41      It follows that, in the present case, a mattress, such as that at issue in the main proceedings, from which the protective film has been removed by the consumer after delivery cannot come within the scope of the exception to the right of withdrawal provided for in Article 16(e) of Directive 2011/83.
42      First, although it may potentially have been used, such a mattress does not appear, by that fact alone, to be definitively unsuitable for being used again by a third party or for being sold again. It suffices, in that regard, to recall in particular that one and the same mattress is used by successive guests at a hotel, that there is a market for second-hand mattresses and that used mattresses can be deep-cleaned.
46      Such an equation between those two categories of goods — namely garments and mattresses — may, as the Advocate General notes in point 34 of his Opinion, be envisaged, in so far as, even in the case of direct contact of those goods with the human body, it may be presumed that the trader is in a position to make those goods, after they have been returned by the consumer, by means of a treatment such as cleaning or disinfection, suitable for new use by a third party and, accordingly, for a new sale, without prejudice to the requirements of health protection or hygiene.

So there you have it. The exception (to the right to cancel) doesn't even apply to a mattress.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

You don't think it addresses the "sealed for hygiene reasons" when it specifically states:

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.

My point from the start is that a retailer can't just claim that because goods are sealed, it's a hygiene seal. It's determined by the nature of the goods, not the whims of the retailer. It would conflict with consumer protection if a retailer could bypass that protection by deciding to class goods as sealed for hygiene reasons. The courts have repeatedly proven they will interpret the restrictions on the right to cancel very narrowly, because the aim of the legislation is to protect the consumer.

But that's not the point we've been arguing against.  In fact, I've repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and that they would have to be able to justify that (so no TV's "sealed for hygiene reasons.")

But to repeat my point again. I don't see why a retailer can't take an already sealed product, regardless of why that product was initially sealed, and say "this is now a hygiene seal" as long as there is justification for said product being sealed for hygiene reasons.

Because of the judgement I just linked. Did you not read it?

Mattresses are often sold sealed, with retailers stating you can't return due to hygiene reasons. Would you say that's a justified hygiene/health concern? I would. But as that judgement has just explained, the mattress could be cleaned, it is possible to restore the "guarantee" of hygiene offered by the seal. Therefore, exemption (to the right to cancel) does not apply. 

Now compare that to the example given (by the EU guidance) of canned food. Sure you might be able to restore the seal, but does it restore the "guarantee" offered by the seal? No. The food could have been replaced or tampered with and short of scientific analysis of the composition of the contents, there is no way to know it's safe. 

So it doesn't matter what the retailer says is the reason for the seal. It's the nature of the goods (and whether the "guarantee" offered by the seal is extremely difficult or impossible to restore) that do. 

You're still not reading what I wrote.  I have repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and refuse to refund.

My point is that a product that is "sealed for hygiene reasons" means that when it was sealed, it was sealed specifically for hygiene reasons.  My argument (and Manxman's) is that it does not have to have been specifically sealed for hygiene reasons, it just needs to be sealed.  Many products will have been sealed for entirely different reasons by the manufacturer (most often to stop damage in transit) and the retailers have left them in this packaging but claimed it was now a "hygiene seal".  As long as the product is something that can legitimately be sealed for hygiene reasons there seems to be nothing wrong with this practice. The completely daft alternative would be that they'd need to remove the product from the sealed plastic bag the manufacturer put it in, and then reseal it themselves so that it was now "sealed for hygiene reasons."

There is an entirely separate issue of whether there is a legitimate hygiene issue with people handling the product and then sending it back and again, or if the retailer is just trying it on.

And you're still not reading (or at least not understanding) what I wrote. 

For the purpose of the regulations, yes the goods need to have been sealed for hygiene/health reasons, in order to benefit from the exemption to the right to cancel. 

I'm not sure why you think they'd have to reseal it as an alternative. No one has even remotely suggested that the retailer needs to be the one to seal the goods. So that you would take that train of thought, is indeed daft. 

On reading the judgement I don’t think it addresses any questions relating to the purpose of sealing goods. A question regarding what requirements the packaging of the goods must satisfy for it to be considered sealing within the meaning of the exclusion was referred by the lower court but the CJEU did not answer that question at all; they didn’t think they needed to because of their finding that there were not sufficient hygiene concerns associated with mattresses to allow them to qualify regardless (“Given the answer to the first question, there is no need to answer the second question.”).

The issue considered in the case was whether or not health/hygiene concerns about mattresses are consequential enough to render an opened (and possibly used) mattress unsellable. Since successive hotel guests use mattresses and (apparently) there is a market for second-hand mattresses and mattresses can be deep cleaned, the Court found that mattresses are not products for which health/hygiene concerns are material enough that they qualify as an exclusion under the relevant provision. The Court also compared mattresses to garments because both may come into contact with the human body (though I’m not convinced that is necessarily a particularly sensible comparison).

To try and align this situation with the CJEU decision it might make sense to check EBay to see if there is a second-hand market in used vape products.

Their finding wasn't that there wasn't enough hygiene concerns. It was that it is not the type of packaging (whether applied by manufacturer, retailer or a magic fairy) which determines the application of the exemption but rather the nature of the goods. 

Again

 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.

 Therefore it wasn't necessary to answer the question on what packaging should look like, because it's not dependent on what type of packaging they used but rather why they are sealed (because of the nature of the goods). If the goods aren't sealed for hygiene/health reasons, then nor (or accordingly if you prefer the court speak) can they be inappropriate for return due to health/hygiene concerns. It can't be deprived of a protection it never had. 

The finding was nothing to do with the type of packaging, it was to do with whether mattresses pose material health/hygiene concerns or not. If the decision wasn’t about whether it’s ok to re-use mattresses or not there is no logical reason why they would discuss points about the same mattress being used by different hotel guests or if they are comparable  to garments or if people buy them second hand....

48      In the light of the foregoing, the answer to the first question is that Article 16(e) of Directive 2011/83 must be interpreted as meaning that goods such as a mattress, from which the protective film has been removed by the consumer after delivery, do not come within the scope of the concept of ‘sealed goods which are not suitable for return due to health protection or hygiene reasons and which have been unsealed by the consumer after delivery’ within the meaning of that provision.

Butter_Crunch

David713 said:

The mattress exemption has never made sense to me.
A pair of earrings for pierced ears can be exempt from the change of mind returns if they are supplied in a sealed package but a mattress can't yet it's far easier, far cheaper and possibly far more effective to sterilise a pair of earrings than a mattress and I'm sure that sterilising jewellery of all types is something that most sensible jewellers would do with anything taken if for repair or adjustment.

Maybe it was an extremely expensive mattress & was worth taking the company to court over. I think a lot depends on the company. Some, I’m sure, will be more sympathetic in letting you return something. 

unholyangel

Parking_Eyerate said:

unholyangel said:

Parking_Eyerate said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

...
There are other circumstances where the right to cancel can be lost. Such as those that I mentioned (goods sealed for hygiene reasons if they become unsealed after delivery). 
...

Just to satisfy my curiosity, do the goods need to be sealed for hygiene reasons, or do they just need to be sealed?  Yes - the goods need to be sealed - but the legislation doesn't say why they need to be sealed, does it?

For the purpose of the regulation, yes they need to be sealed for hygiene reasons otherwise the exemption doesn't apply.

...

But the regulation doesn't say they need to be sealed for hygiene reasons, does it?  It simply says "sealed" and does not mention anything about the reason for being sealed.

The regulation states:

(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 implementing guidance gives:

o Goods received sealed for health protection or hygiene reasons once unsealed 

The guidance from the EU states:

For example, for canned food which is sealed within the meaning of Article 16(e), the trader should inform the consumer of the conditions, time limits, etc. for withdrawal as required under Article 6(1)(h). The trader should also inform the consumer that, for health protection and hygiene reasons, the consumer loses the right of withdrawal if the cans are opened.

And aso (more importantly):

Article 16 
(e) the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;
For an item to be exempt under point (e), there should be genuine health protection or hygiene reasons for using a seal, which may consist of protective wrapping or film

But the absolute cincher? A court judgement regarding a mattress (heard in germany but under the same primary EU legislation) gives us:

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.

And just because my post isn't long enough yet (sarcasm) and because I think it may come as a shock to a few people/be of interest:

40      Accordingly, it must be found that, as the Advocate General points out in point 33 of his Opinion, the exception to the right of withdrawal under Article 16(e) of Directive 2011/83 applies only if, after the packaging has been unsealed, the goods contained therein are definitively no longer in a saleable condition due to genuine health protection or hygiene reasons, because the very nature of the goods makes it impossible or excessively difficult, for the trader to take the necessary measures allowing for resale without affecting either of those requirements.
41      It follows that, in the present case, a mattress, such as that at issue in the main proceedings, from which the protective film has been removed by the consumer after delivery cannot come within the scope of the exception to the right of withdrawal provided for in Article 16(e) of Directive 2011/83.
42      First, although it may potentially have been used, such a mattress does not appear, by that fact alone, to be definitively unsuitable for being used again by a third party or for being sold again. It suffices, in that regard, to recall in particular that one and the same mattress is used by successive guests at a hotel, that there is a market for second-hand mattresses and that used mattresses can be deep-cleaned.
46      Such an equation between those two categories of goods — namely garments and mattresses — may, as the Advocate General notes in point 34 of his Opinion, be envisaged, in so far as, even in the case of direct contact of those goods with the human body, it may be presumed that the trader is in a position to make those goods, after they have been returned by the consumer, by means of a treatment such as cleaning or disinfection, suitable for new use by a third party and, accordingly, for a new sale, without prejudice to the requirements of health protection or hygiene.

So there you have it. The exception (to the right to cancel) doesn't even apply to a mattress.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

You don't think it addresses the "sealed for hygiene reasons" when it specifically states:

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.

My point from the start is that a retailer can't just claim that because goods are sealed, it's a hygiene seal. It's determined by the nature of the goods, not the whims of the retailer. It would conflict with consumer protection if a retailer could bypass that protection by deciding to class goods as sealed for hygiene reasons. The courts have repeatedly proven they will interpret the restrictions on the right to cancel very narrowly, because the aim of the legislation is to protect the consumer.

But that's not the point we've been arguing against.  In fact, I've repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and that they would have to be able to justify that (so no TV's "sealed for hygiene reasons.")

But to repeat my point again. I don't see why a retailer can't take an already sealed product, regardless of why that product was initially sealed, and say "this is now a hygiene seal" as long as there is justification for said product being sealed for hygiene reasons.

Because of the judgement I just linked. Did you not read it?

Mattresses are often sold sealed, with retailers stating you can't return due to hygiene reasons. Would you say that's a justified hygiene/health concern? I would. But as that judgement has just explained, the mattress could be cleaned, it is possible to restore the "guarantee" of hygiene offered by the seal. Therefore, exemption (to the right to cancel) does not apply. 

Now compare that to the example given (by the EU guidance) of canned food. Sure you might be able to restore the seal, but does it restore the "guarantee" offered by the seal? No. The food could have been replaced or tampered with and short of scientific analysis of the composition of the contents, there is no way to know it's safe. 

So it doesn't matter what the retailer says is the reason for the seal. It's the nature of the goods (and whether the "guarantee" offered by the seal is extremely difficult or impossible to restore) that do. 

You're still not reading what I wrote.  I have repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and refuse to refund.

My point is that a product that is "sealed for hygiene reasons" means that when it was sealed, it was sealed specifically for hygiene reasons.  My argument (and Manxman's) is that it does not have to have been specifically sealed for hygiene reasons, it just needs to be sealed.  Many products will have been sealed for entirely different reasons by the manufacturer (most often to stop damage in transit) and the retailers have left them in this packaging but claimed it was now a "hygiene seal".  As long as the product is something that can legitimately be sealed for hygiene reasons there seems to be nothing wrong with this practice. The completely daft alternative would be that they'd need to remove the product from the sealed plastic bag the manufacturer put it in, and then reseal it themselves so that it was now "sealed for hygiene reasons."

There is an entirely separate issue of whether there is a legitimate hygiene issue with people handling the product and then sending it back and again, or if the retailer is just trying it on.

And you're still not reading (or at least not understanding) what I wrote. 

For the purpose of the regulations, yes the goods need to have been sealed for hygiene/health reasons, in order to benefit from the exemption to the right to cancel. 

I'm not sure why you think they'd have to reseal it as an alternative. No one has even remotely suggested that the retailer needs to be the one to seal the goods. So that you would take that train of thought, is indeed daft. 

On reading the judgement I don’t think it addresses any questions relating to the purpose of sealing goods. A question regarding what requirements the packaging of the goods must satisfy for it to be considered sealing within the meaning of the exclusion was referred by the lower court but the CJEU did not answer that question at all; they didn’t think they needed to because of their finding that there were not sufficient hygiene concerns associated with mattresses to allow them to qualify regardless (“Given the answer to the first question, there is no need to answer the second question.”).

The issue considered in the case was whether or not health/hygiene concerns about mattresses are consequential enough to render an opened (and possibly used) mattress unsellable. Since successive hotel guests use mattresses and (apparently) there is a market for second-hand mattresses and mattresses can be deep cleaned, the Court found that mattresses are not products for which health/hygiene concerns are material enough that they qualify as an exclusion under the relevant provision. The Court also compared mattresses to garments because both may come into contact with the human body (though I’m not convinced that is necessarily a particularly sensible comparison).

To try and align this situation with the CJEU decision it might make sense to check EBay to see if there is a second-hand market in used vape products.

Their finding wasn't that there wasn't enough hygiene concerns. It was that it is not the type of packaging (whether applied by manufacturer, retailer or a magic fairy) which determines the application of the exemption but rather the nature of the goods. 

Again

 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.

 Therefore it wasn't necessary to answer the question on what packaging should look like, because it's not dependent on what type of packaging they used but rather why they are sealed (because of the nature of the goods). If the goods aren't sealed for hygiene/health reasons, then nor (or accordingly if you prefer the court speak) can they be inappropriate for return due to health/hygiene concerns. It can't be deprived of a protection it never had. 

The finding was nothing to do with the type of packaging, it was to do with whether mattresses pose material health/hygiene concerns or not. If the decision wasn’t about whether it’s ok to re-use mattresses or not there is no logical reason why they would discuss points about the same mattress being used by different hotel guests or if they are comparable  to garments or if people buy them second hand....

48      In the light of the foregoing, the answer to the first question is that Article 16(e) of Directive 2011/83 must be interpreted as meaning that goods such as a mattress, from which the protective film has been removed by the consumer after delivery, do not come within the scope of the concept of ‘sealed goods which are not suitable for return due to health protection or hygiene reasons and which have been unsealed by the consumer after delivery’ within the meaning of that provision.

So they didn't state that they don't need to consider the issue of packaging because the exemption relies on the nature of the goods? Or that it's the nature of the goods which determine whether the unsealing of the packaging deprives health/hygiene protections?

I don't think any of you are understanding what I'm saying. Let me pose a question. If the goods (for the benefit of the exemption) are not sealed for hygiene & health reasons, how would you structure an argument to a court in explanation of why they're unsuitable for return due to hygiene & health reasons, when they were not guarded against those risk in the first place? 

Manxman_in_exile

unholyangel said:

The regulation states:

(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;

But the regulation that you've quoted does not say that the reason for sealing must be for health protection or hygiene reasons.  It simply says that there is no right to return if (1) the goods are sealed and (2) they aren't suitable for return due to health protection or hygiene reasons.  It says nothing about the reason for them being sealed in the first place.

I'm sure various bits of guidance may suggest that that the goods must be sealed for health and hygiene reasons - but lots of government guidance in respect of legislation is inaccurate and unreliable and does not necessarily reflect the law.  If the Act doesn't say that the goods must be sealed for a specific purpose then the guidance can't change that - whatever it says.  Can it?

I haven't yet looked at the european case you cite but I presume you are saying that the decision hinges on the meaning of Article 16(e) of Directive 2011/83?  I don't know what the content of that Article is but I presume it forms the basis of the corresponding part of the UK legislation that is being discussed.  Is the wording of the two identical, or does Article 16(e) go further than the UK provision and refer to the reason for sealing?  If it does, does it take precedence over the subsequent UK wording, and if it doesn't, is the authority you cite just an example of creative european legislative interpretation?  (Assuming it is an authority for what you say it is - which at least one poster seems to be doubtful about)

unholyangel

Manxman_in_exile said:

unholyangel said:

The regulation states:

(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;

But the regulation that you've quoted does not say that the reason for sealing must be for health protection or hygiene reasons.  It simply says that there is no right to return if (1) the goods are sealed and (2) they aren't suitable for return due to health protection or hygiene reasons.  It says nothing about the reason for them being sealed in the first place.

I'm sure various bits of guidance may suggest that that the goods must be sealed for health and hygiene reasons - but lots of government guidance in respect of legislation is inaccurate and unreliable and does not necessarily reflect the law.  If the Act doesn't say that the goods must be sealed for a specific purpose then the guidance can't change that - whatever it says.  Can it?

I haven't yet looked at the european case you cite but I presume you are saying that the decision hinges on the meaning of Article 16(e) of Directive 2011/83?  I don't know what the content of that Article is but I presume it forms the basis of the corresponding part of the UK legislation that is being discussed.  Is the wording of the two identical, or does Article 16(e) go further than the UK provision and refer to the reason for sealing?  If it does, does it take precedence over the subsequent UK wording, and if it doesn't, is the authority you cite just an example of creative european legislative interpretation?

Article 16 is the limitations to the right to cancel. (e) is sealed goods that become unsealed after delivery blah blah you know the rest. 

Same question to you also. If the goods do not need to be sealed for hygiene/health reasons, how can you justify the position that they're unsuitable for return on health/hygiene grounds? 

To give a "daft" comaprison...what about wrapping a ribbon around something. Could you then claim it's unsuitable for return due to health/hygiene concerns despite the "seal" clearly not being for hygiene/health reasons? Where was the concern when you sold it with no hygiene/health seal? 

Parking_Eyerate

unholyangel said:

Parking_Eyerate said:

unholyangel said:

Parking_Eyerate said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

...
There are other circumstances where the right to cancel can be lost. Such as those that I mentioned (goods sealed for hygiene reasons if they become unsealed after delivery). 
...

Just to satisfy my curiosity, do the goods need to be sealed for hygiene reasons, or do they just need to be sealed?  Yes - the goods need to be sealed - but the legislation doesn't say why they need to be sealed, does it?

For the purpose of the regulation, yes they need to be sealed for hygiene reasons otherwise the exemption doesn't apply.

...

But the regulation doesn't say they need to be sealed for hygiene reasons, does it?  It simply says "sealed" and does not mention anything about the reason for being sealed.

The regulation states:

(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 implementing guidance gives:

o Goods received sealed for health protection or hygiene reasons once unsealed 

The guidance from the EU states:

For example, for canned food which is sealed within the meaning of Article 16(e), the trader should inform the consumer of the conditions, time limits, etc. for withdrawal as required under Article 6(1)(h). The trader should also inform the consumer that, for health protection and hygiene reasons, the consumer loses the right of withdrawal if the cans are opened.

And aso (more importantly):

Article 16 
(e) the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;
For an item to be exempt under point (e), there should be genuine health protection or hygiene reasons for using a seal, which may consist of protective wrapping or film

But the absolute cincher? A court judgement regarding a mattress (heard in germany but under the same primary EU legislation) gives us:

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.

And just because my post isn't long enough yet (sarcasm) and because I think it may come as a shock to a few people/be of interest:

40      Accordingly, it must be found that, as the Advocate General points out in point 33 of his Opinion, the exception to the right of withdrawal under Article 16(e) of Directive 2011/83 applies only if, after the packaging has been unsealed, the goods contained therein are definitively no longer in a saleable condition due to genuine health protection or hygiene reasons, because the very nature of the goods makes it impossible or excessively difficult, for the trader to take the necessary measures allowing for resale without affecting either of those requirements.
41      It follows that, in the present case, a mattress, such as that at issue in the main proceedings, from which the protective film has been removed by the consumer after delivery cannot come within the scope of the exception to the right of withdrawal provided for in Article 16(e) of Directive 2011/83.
42      First, although it may potentially have been used, such a mattress does not appear, by that fact alone, to be definitively unsuitable for being used again by a third party or for being sold again. It suffices, in that regard, to recall in particular that one and the same mattress is used by successive guests at a hotel, that there is a market for second-hand mattresses and that used mattresses can be deep-cleaned.
46      Such an equation between those two categories of goods — namely garments and mattresses — may, as the Advocate General notes in point 34 of his Opinion, be envisaged, in so far as, even in the case of direct contact of those goods with the human body, it may be presumed that the trader is in a position to make those goods, after they have been returned by the consumer, by means of a treatment such as cleaning or disinfection, suitable for new use by a third party and, accordingly, for a new sale, without prejudice to the requirements of health protection or hygiene.

So there you have it. The exception (to the right to cancel) doesn't even apply to a mattress.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

You don't think it addresses the "sealed for hygiene reasons" when it specifically states:

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.

My point from the start is that a retailer can't just claim that because goods are sealed, it's a hygiene seal. It's determined by the nature of the goods, not the whims of the retailer. It would conflict with consumer protection if a retailer could bypass that protection by deciding to class goods as sealed for hygiene reasons. The courts have repeatedly proven they will interpret the restrictions on the right to cancel very narrowly, because the aim of the legislation is to protect the consumer.

But that's not the point we've been arguing against.  In fact, I've repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and that they would have to be able to justify that (so no TV's "sealed for hygiene reasons.")

But to repeat my point again. I don't see why a retailer can't take an already sealed product, regardless of why that product was initially sealed, and say "this is now a hygiene seal" as long as there is justification for said product being sealed for hygiene reasons.

Because of the judgement I just linked. Did you not read it?

Mattresses are often sold sealed, with retailers stating you can't return due to hygiene reasons. Would you say that's a justified hygiene/health concern? I would. But as that judgement has just explained, the mattress could be cleaned, it is possible to restore the "guarantee" of hygiene offered by the seal. Therefore, exemption (to the right to cancel) does not apply. 

Now compare that to the example given (by the EU guidance) of canned food. Sure you might be able to restore the seal, but does it restore the "guarantee" offered by the seal? No. The food could have been replaced or tampered with and short of scientific analysis of the composition of the contents, there is no way to know it's safe. 

So it doesn't matter what the retailer says is the reason for the seal. It's the nature of the goods (and whether the "guarantee" offered by the seal is extremely difficult or impossible to restore) that do. 

You're still not reading what I wrote.  I have repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and refuse to refund.

My point is that a product that is "sealed for hygiene reasons" means that when it was sealed, it was sealed specifically for hygiene reasons.  My argument (and Manxman's) is that it does not have to have been specifically sealed for hygiene reasons, it just needs to be sealed.  Many products will have been sealed for entirely different reasons by the manufacturer (most often to stop damage in transit) and the retailers have left them in this packaging but claimed it was now a "hygiene seal".  As long as the product is something that can legitimately be sealed for hygiene reasons there seems to be nothing wrong with this practice. The completely daft alternative would be that they'd need to remove the product from the sealed plastic bag the manufacturer put it in, and then reseal it themselves so that it was now "sealed for hygiene reasons."

There is an entirely separate issue of whether there is a legitimate hygiene issue with people handling the product and then sending it back and again, or if the retailer is just trying it on.

And you're still not reading (or at least not understanding) what I wrote. 

For the purpose of the regulations, yes the goods need to have been sealed for hygiene/health reasons, in order to benefit from the exemption to the right to cancel. 

I'm not sure why you think they'd have to reseal it as an alternative. No one has even remotely suggested that the retailer needs to be the one to seal the goods. So that you would take that train of thought, is indeed daft. 

On reading the judgement I don’t think it addresses any questions relating to the purpose of sealing goods. A question regarding what requirements the packaging of the goods must satisfy for it to be considered sealing within the meaning of the exclusion was referred by the lower court but the CJEU did not answer that question at all; they didn’t think they needed to because of their finding that there were not sufficient hygiene concerns associated with mattresses to allow them to qualify regardless (“Given the answer to the first question, there is no need to answer the second question.”).

The issue considered in the case was whether or not health/hygiene concerns about mattresses are consequential enough to render an opened (and possibly used) mattress unsellable. Since successive hotel guests use mattresses and (apparently) there is a market for second-hand mattresses and mattresses can be deep cleaned, the Court found that mattresses are not products for which health/hygiene concerns are material enough that they qualify as an exclusion under the relevant provision. The Court also compared mattresses to garments because both may come into contact with the human body (though I’m not convinced that is necessarily a particularly sensible comparison).

To try and align this situation with the CJEU decision it might make sense to check EBay to see if there is a second-hand market in used vape products.

Their finding wasn't that there wasn't enough hygiene concerns. It was that it is not the type of packaging (whether applied by manufacturer, retailer or a magic fairy) which determines the application of the exemption but rather the nature of the goods. 

Again

 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.

 Therefore it wasn't necessary to answer the question on what packaging should look like, because it's not dependent on what type of packaging they used but rather why they are sealed (because of the nature of the goods). If the goods aren't sealed for hygiene/health reasons, then nor (or accordingly if you prefer the court speak) can they be inappropriate for return due to health/hygiene concerns. It can't be deprived of a protection it never had. 

The finding was nothing to do with the type of packaging, it was to do with whether mattresses pose material health/hygiene concerns or not. If the decision wasn’t about whether it’s ok to re-use mattresses or not there is no logical reason why they would discuss points about the same mattress being used by different hotel guests or if they are comparable  to garments or if people buy them second hand....

48      In the light of the foregoing, the answer to the first question is that Article 16(e) of Directive 2011/83 must be interpreted as meaning that goods such as a mattress, from which the protective film has been removed by the consumer after delivery, do not come within the scope of the concept of ‘sealed goods which are not suitable for return due to health protection or hygiene reasons and which have been unsealed by the consumer after delivery’ within the meaning of that provision.

So they didn't state that they don't need to consider the issue of packaging because the exemption relies on the nature of the goods? Or that it's the nature of the goods which determine whether the unsealing of the packaging deprives health/hygiene protections?

I don't think any of you are understanding what I'm saying. Let me pose a question. If the goods (for the benefit of the exemption) are not sealed for hygiene & health reasons, how would you structure an argument to a court in explanation of why they're unsuitable for return due to hygiene & health reasons, when they were not guarded against those risk in the first place? 

The only question posed by the lower court which was addressed in the decision is quoted below:

“(1)      Should Article 16(e) of the [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?”

I can’t see any reference to sealing or packaging anywhere in that question and so it does not follow that the decision answering the question relates to the packaging of goods. The CJEU only answered the question above and explicitly said they didn’t need to answer any further questions. In terms of case law the decision is relevant to the question asked and answered, not a question not answered (I don’t even think that there is enough discussion on any other point such that it could be usefully citable as obiter).

Manxman_in_exile

unholyangel said:

Parking_Eyerate said:

unholyangel said:

Parking_Eyerate said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

zzyzx1221 said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

Manxman_in_exile said:

unholyangel said:

...
There are other circumstances where the right to cancel can be lost. Such as those that I mentioned (goods sealed for hygiene reasons if they become unsealed after delivery). 
...

Just to satisfy my curiosity, do the goods need to be sealed for hygiene reasons, or do they just need to be sealed?  Yes - the goods need to be sealed - but the legislation doesn't say why they need to be sealed, does it?

For the purpose of the regulation, yes they need to be sealed for hygiene reasons otherwise the exemption doesn't apply.

...

But the regulation doesn't say they need to be sealed for hygiene reasons, does it?  It simply says "sealed" and does not mention anything about the reason for being sealed.

The regulation states:

(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 implementing guidance gives:

o Goods received sealed for health protection or hygiene reasons once unsealed 

The guidance from the EU states:

For example, for canned food which is sealed within the meaning of Article 16(e), the trader should inform the consumer of the conditions, time limits, etc. for withdrawal as required under Article 6(1)(h). The trader should also inform the consumer that, for health protection and hygiene reasons, the consumer loses the right of withdrawal if the cans are opened.

And aso (more importantly):

Article 16 
(e) the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;
For an item to be exempt under point (e), there should be genuine health protection or hygiene reasons for using a seal, which may consist of protective wrapping or film

But the absolute cincher? A court judgement regarding a mattress (heard in germany but under the same primary EU legislation) gives us:

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.

And just because my post isn't long enough yet (sarcasm) and because I think it may come as a shock to a few people/be of interest:

40      Accordingly, it must be found that, as the Advocate General points out in point 33 of his Opinion, the exception to the right of withdrawal under Article 16(e) of Directive 2011/83 applies only if, after the packaging has been unsealed, the goods contained therein are definitively no longer in a saleable condition due to genuine health protection or hygiene reasons, because the very nature of the goods makes it impossible or excessively difficult, for the trader to take the necessary measures allowing for resale without affecting either of those requirements.
41      It follows that, in the present case, a mattress, such as that at issue in the main proceedings, from which the protective film has been removed by the consumer after delivery cannot come within the scope of the exception to the right of withdrawal provided for in Article 16(e) of Directive 2011/83.
42      First, although it may potentially have been used, such a mattress does not appear, by that fact alone, to be definitively unsuitable for being used again by a third party or for being sold again. It suffices, in that regard, to recall in particular that one and the same mattress is used by successive guests at a hotel, that there is a market for second-hand mattresses and that used mattresses can be deep-cleaned.
46      Such an equation between those two categories of goods — namely garments and mattresses — may, as the Advocate General notes in point 34 of his Opinion, be envisaged, in so far as, even in the case of direct contact of those goods with the human body, it may be presumed that the trader is in a position to make those goods, after they have been returned by the consumer, by means of a treatment such as cleaning or disinfection, suitable for new use by a third party and, accordingly, for a new sale, without prejudice to the requirements of health protection or hygiene.

So there you have it. The exception (to the right to cancel) doesn't even apply to a mattress.

Those don't really address the "sealed for hygiene reasons" element of this discussion though.

What's the difference between a pair of knickers in a plastic bag and a t-shirt in a basically identical plastic bag?  The retailer will likely claim the knickers were "sealed for hygiene reasons" (and the t-shirt is just a t-shirt in a plastic bag) but they almost certainly were not, they were sealed to stop them from getting damaged/dirty in transit from the manufacturer to retailer.  But there appears to be nothing to stop the retailer then saying that the same bag is a "hygiene seal" and I don't see why they can't say that. The point being that the initial reason they were sealed seems to be irrelevant, if someone (the retailer) later wishes to repurpose that as a hygiene seal, that's fine.

That seems to be part of the OP's argument against the retailer (although I think it's a non-starter.)  That the seal isn't a hygiene seal, it's just a piece of cellophane the manufacture wrapped it in to keep it in one piece or dry or whatever.  That may be the case but I don't see why the retailer can't then simply say "well now it's a hygiene seal."  Obviously, the caveat being that it's something that could reasonably be claimed needs such a seal (so no saying TV's are "sealed for hygiene reasons" for example.)

The alternative would appear to be that retailer. unless the manufacturer specifically seals its products for "hygiene", must unseal them, throw the plastic in the bin and rewrap them with plastic themselves, with the intention of it being a "hygiene seal." And I find it hard to believe that the legislation intends that to happen, or that anyone actually does it.

You don't think it addresses the "sealed for hygiene reasons" when it specifically states:

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.

My point from the start is that a retailer can't just claim that because goods are sealed, it's a hygiene seal. It's determined by the nature of the goods, not the whims of the retailer. It would conflict with consumer protection if a retailer could bypass that protection by deciding to class goods as sealed for hygiene reasons. The courts have repeatedly proven they will interpret the restrictions on the right to cancel very narrowly, because the aim of the legislation is to protect the consumer.

But that's not the point we've been arguing against.  In fact, I've repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and that they would have to be able to justify that (so no TV's "sealed for hygiene reasons.")

But to repeat my point again. I don't see why a retailer can't take an already sealed product, regardless of why that product was initially sealed, and say "this is now a hygiene seal" as long as there is justification for said product being sealed for hygiene reasons.

Because of the judgement I just linked. Did you not read it?

Mattresses are often sold sealed, with retailers stating you can't return due to hygiene reasons. Would you say that's a justified hygiene/health concern? I would. But as that judgement has just explained, the mattress could be cleaned, it is possible to restore the "guarantee" of hygiene offered by the seal. Therefore, exemption (to the right to cancel) does not apply. 

Now compare that to the example given (by the EU guidance) of canned food. Sure you might be able to restore the seal, but does it restore the "guarantee" offered by the seal? No. The food could have been replaced or tampered with and short of scientific analysis of the composition of the contents, there is no way to know it's safe. 

So it doesn't matter what the retailer says is the reason for the seal. It's the nature of the goods (and whether the "guarantee" offered by the seal is extremely difficult or impossible to restore) that do. 

You're still not reading what I wrote.  I have repeatedly said that they can't just claim any sealed product is "sealed for hygiene reasons" and refuse to refund.

My point is that a product that is "sealed for hygiene reasons" means that when it was sealed, it was sealed specifically for hygiene reasons.  My argument (and Manxman's) is that it does not have to have been specifically sealed for hygiene reasons, it just needs to be sealed.  Many products will have been sealed for entirely different reasons by the manufacturer (most often to stop damage in transit) and the retailers have left them in this packaging but claimed it was now a "hygiene seal".  As long as the product is something that can legitimately be sealed for hygiene reasons there seems to be nothing wrong with this practice. The completely daft alternative would be that they'd need to remove the product from the sealed plastic bag the manufacturer put it in, and then reseal it themselves so that it was now "sealed for hygiene reasons."

There is an entirely separate issue of whether there is a legitimate hygiene issue with people handling the product and then sending it back and again, or if the retailer is just trying it on.

And you're still not reading (or at least not understanding) what I wrote. 

For the purpose of the regulations, yes the goods need to have been sealed for hygiene/health reasons, in order to benefit from the exemption to the right to cancel. 

I'm not sure why you think they'd have to reseal it as an alternative. No one has even remotely suggested that the retailer needs to be the one to seal the goods. So that you would take that train of thought, is indeed daft. 

On reading the judgement I don’t think it addresses any questions relating to the purpose of sealing goods. A question regarding what requirements the packaging of the goods must satisfy for it to be considered sealing within the meaning of the exclusion was referred by the lower court but the CJEU did not answer that question at all; they didn’t think they needed to because of their finding that there were not sufficient hygiene concerns associated with mattresses to allow them to qualify regardless (“Given the answer to the first question, there is no need to answer the second question.”).

The issue considered in the case was whether or not health/hygiene concerns about mattresses are consequential enough to render an opened (and possibly used) mattress unsellable. Since successive hotel guests use mattresses and (apparently) there is a market for second-hand mattresses and mattresses can be deep cleaned, the Court found that mattresses are not products for which health/hygiene concerns are material enough that they qualify as an exclusion under the relevant provision. The Court also compared mattresses to garments because both may come into contact with the human body (though I’m not convinced that is necessarily a particularly sensible comparison).

To try and align this situation with the CJEU decision it might make sense to check EBay to see if there is a second-hand market in used vape products.

Their finding wasn't that there wasn't enough hygiene concerns. It was that it is not the type of packaging (whether applied by manufacturer, retailer or a magic fairy) which determines the application of the exemption but rather the nature of the goods. 

Again

 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.

 Therefore it wasn't necessary to answer the question on what packaging should look like, because it's not dependent on what type of packaging they used but rather why they are sealed (because of the nature of the goods). If the goods aren't sealed for hygiene/health reasons, then nor (or accordingly if you prefer the court speak) can they be inappropriate for return due to health/hygiene concerns. It can't be deprived of a protection it never had. 

The finding was nothing to do with the type of packaging, it was to do with whether mattresses pose material health/hygiene concerns or not. If the decision wasn’t about whether it’s ok to re-use mattresses or not there is no logical reason why they would discuss points about the same mattress being used by different hotel guests or if they are comparable  to garments or if people buy them second hand....

48      In the light of the foregoing, the answer to the first question is that Article 16(e) of Directive 2011/83 must be interpreted as meaning that goods such as a mattress, from which the protective film has been removed by the consumer after delivery, do not come within the scope of the concept of ‘sealed goods which are not suitable for return due to health protection or hygiene reasons and which have been unsealed by the consumer after delivery’ within the meaning of that provision.

So they didn't state that they don't need to consider the issue of packaging because the exemption relies on the nature of the goods? Or that it's the nature of the goods which determine whether the unsealing of the packaging deprives health/hygiene protections?

I don't think any of you are understanding what I'm saying. Let me pose a question. If the goods (for the benefit of the exemption) are not sealed for hygiene & health reasons, how would you structure an argument to a court in explanation of why they're unsuitable for return due to hygiene & health reasons, when they were not guarded against those risk in the first place? 

I think I'd start off with the fact that the legislation doesn't say they have to be in the first place.

Apart from the european case you cited is there any other authority (apart from guidance that may or may not reliably state what the law is) that states that the reason for sealing the goods must be health or hygiene related?  Or are you saying that that is the only way to make sense of what looks (to me) like a badly drafted piece of legislation?

I might very well agree with you that a court would decide that the provision in question makes no sense if the reason for sealing is not to do with health or hygiene.  But has a UK court made that actual decision yet?

My original question and point was that the oft quoted legislation does not say that the reason for sealing must be hygiene or health related - and I still don't think it does.  I don't know what a court would say the wording used actually meant.

Manxman_in_exile

unholyangel said:

Manxman_in_exile said:

unholyangel said:

The regulation states:

(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;

But the regulation that you've quoted does not say that the reason for sealing must be for health protection or hygiene reasons.  It simply says that there is no right to return if (1) the goods are sealed and (2) they aren't suitable for return due to health protection or hygiene reasons.  It says nothing about the reason for them being sealed in the first place.

I'm sure various bits of guidance may suggest that that the goods must be sealed for health and hygiene reasons - but lots of government guidance in respect of legislation is inaccurate and unreliable and does not necessarily reflect the law.  If the Act doesn't say that the goods must be sealed for a specific purpose then the guidance can't change that - whatever it says.  Can it?

I haven't yet looked at the european case you cite but I presume you are saying that the decision hinges on the meaning of Article 16(e) of Directive 2011/83?  I don't know what the content of that Article is but I presume it forms the basis of the corresponding part of the UK legislation that is being discussed.  Is the wording of the two identical, or does Article 16(e) go further than the UK provision and refer to the reason for sealing?  If it does, does it take precedence over the subsequent UK wording, and if it doesn't, is the authority you cite just an example of creative european legislative interpretation?

Article 16 is the limitations to the right to cancel. (e) is sealed goods that become unsealed after delivery blah blah you know the rest.

I don't know the rest.  Is the Article 16(e) wording identical to that in the UK provision?

unholyangel said:

Same question to you also. If the goods do not need to be sealed for hygiene/health reasons, how can you justify the position that they're unsuitable for return on health/hygiene grounds? 

To give a "daft" comaprison...what about wrapping a ribbon around something. Could you then claim it's unsuitable for return due to health/hygiene concerns despite the "seal" clearly not being for hygiene/health reasons? Where was the concern when you sold it with no hygiene/health seal? 

I'm not trying to justify or make sense it.  All I'm saying is that the wording of the UK legislation does not say that the goods must be sealed for health or hygiene purposes.  It simply says that they must be sealed and doesn't mention any specific reason.

It wouldn't be the first statutory provision that ended up being badly drafted and not saying what was intended - or what Parliament thought they intended.

I think the correct answer to my original question should have been along the lines of:  "Yes - you are right. That part of the regulations does not say that the goods must be sealed for health or hygiene purposes, but unless it is interpreted in that way the regulation makes very little sense and obviously does not give the consumer the protection that Parliament must have intended when passing it into law."

unholyangel

Parking_Eyerate said:

The only question posed by the lower court which was addressed in the decision is quoted below:

“(1)      Should Article 16(e) of the [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?”

I can’t see any reference to sealing or packaging anywhere in that question and so it does not follow that the decision answering the question relates to the packaging of goods. The CJEU only answered the question above and explicitly said they didn’t need to answer any further questions. In terms of case law the decision is relevant to the question asked and answered, not a question not answered (I don’t even think that there is enough discussion on any other point such that it could be usefully citable as obiter).

Well no, it won't be in that question - because it had it's own question.

(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 in answer of that question, the court said:

49      Given the answer to the first question, there is no need to answer the second question.

So as I said several posts ago, that it's not necessary to answer what the packaging should look like because the exemption doesn't rely on a particular type of packaging but rather a particular type of goods. 

But in order to claim the goods have been deprived of the protection of H&H by the breaking of the seal, it first must offer protection against the H&H. You can't lose what you never had. 

Parking_Eyerate

unholyangel said:

Parking_Eyerate said:

The only question posed by the lower court which was addressed in the decision is quoted below:

“(1)      Should Article 16(e) of the [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?”

I can’t see any reference to sealing or packaging anywhere in that question and so it does not follow that the decision answering the question relates to the packaging of goods. The CJEU only answered the question above and explicitly said they didn’t need to answer any further questions. In terms of case law the decision is relevant to the question asked and answered, not a question not answered (I don’t even think that there is enough discussion on any other point such that it could be usefully citable as obiter).

Well no, it won't be in that question - because it had it's own question.

(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 in answer of that question, the court said:

49      Given the answer to the first question, there is no need to answer the second question.

So as I said several posts ago, that it's not necessary to answer what the packaging should look like because the exemption doesn't rely on a particular type of packaging but rather a particular type of goods. 

But in order to claim the goods have been deprived of the protection of H&H by the breaking of the seal, it first must offer protection against the H&H. You can't lose what you never had. 

So the decision is about mattresses, not about how they are packaged.