The customer's right of withdrawal still applies even if the packaging is broken
An Internet store can not deny customers the opportunity to exercise their statutory right of withdrawal if the customer has broken the packaging of the goods. This has been noted by hvidevarebutikken.dk after the intervention of the Consumer Ombudsman.
The cooling-off period of 14 days always applies to a customer's purchases from Internet stores, as the consumer should be allowed time to examine the purchased goods. Hence, a trader may not make the right of withdrawal conditional on unbroken packaging, since this would prevent the consumer from examining the goods.
The Danish Consumer Ombudsman has called the attention of hvidevarebutikken.dk to this, prompted by the statement in the company's General Conditions of Sale to the effect that the customer's right to return white goods, vacuum cleaners, microwave ovens or espresso machines would lapse if the packaging was broken, since unbroken packaging would always be a considerable part of the value of the goods.
After the notice from the Danish Consumer Ombudsman, hvidevarebutikken.dk amended their General Conditions of Sale in accordance with the law.
Requirement for return in original packaging
Under the Danish Act on Certain Consumer Contracts, based on the EU-directive on protection of consumers in respect of distance contracts, a cooling-off period of 14 days applies to Internet sales. However, the customer may forfeit this right if the goods are not returned in the same condition and quantity as when the consumer received them.
The requirement that it should be possible to return the goods in materially the same condition relates to the goods only, hence, as a rule, not to the packaging.
However, the packaging may represent considerable value for the seller when the seller has no access to repackaging the goods and/or cannot sell the goods as new without the original packaging. The trader should therefore be able to demand that the goods be returned in the original packaging. In the opinion of the Danish Consumer Ombudsman, this would require that the consumer is expressly notified accordingly prior to the conclusion of the contract, by letter, e-mail or another durable medium pursuant to section 12 of the Act on Certain Consumer Contracts.
Where the original packaging is not important to the possibilities of resale – either because the packaging is in any case destroyed when opened to allow the consumer to examine the goods (e.g. welded hard plastic), or where the goods or parts thereof are in neutral plastic bags or envelopes or similar – the Consumer Ombudsman finds that the seller may not reject the consumer's claim of withdrawal if (this part of) the packaging is not returned.
The right of withdrawal is regulated by Part 4 of the Danish Act on Certain Consumer Contracts.