Mattress unpacked: can an online shop refuse withdrawal on hygiene grounds?

The case: protective film removed, return requested

A consumer ordered a mattress online for €1,094.52. After unpacking it, he wanted to return it. The dispute reached the CJEU through the German courts. The court held that a mattress of this kind does not fall within the hygiene exception merely because its protective film has been removed (CJEU, C-681/17, paragraphs 11 to 19 and 48).

The CJEU interpreted EU law following a referral by Germany’s Federal Court of Justice. It did not itself decide the entire payment claim against the trader. That distinction prevents the judgment from being read as a promise of an automatic refund for every purchase (paragraphs 1, 25 and 50).

Opening a seal does not always end the right of withdrawal

Section 312g(2), no. 3 of the German Civil Code requires more than opened packaging: the sealed goods must be unsuitable for return for health or hygiene reasons. The CJEU requires a narrow interpretation. The issue is whether, because of the goods’ nature, removing the seal makes them permanently unmarketable because safe treatment would be impossible or excessively difficult (paragraphs 34 and 40).

For the mattress, the court pointed to the possibility of cleaning and reuse. Contact with the body alone therefore does not justify the exception. This does not establish a general return rule for all hygiene products. The nature of the particular product remains decisive (paragraphs 41 to 46).

Inspection does not mean unlimited free use

The continuing right to withdraw and a possible deduction are separate issues. Under section 357a(1) of the German Civil Code, compensation may be due if a loss in value results from handling beyond what was necessary to inspect the goods and the trader supplied the legally required withdrawal information. The CJEU expressly distinguishes these two issues (paragraph 47).

Our assessment: the judgment does not specify a fixed number of free trial nights. If the trader makes a deduction, the nature of the use, the actual loss in value and the withdrawal information should be examined. Any voluntary extended sleep trial must also be assessed under its own terms. It is not the same as the statutory withdrawal period.

Withdraw in time and clarify return transport

The statutory withdrawal period is generally 14 days. For an ordinary online purchase of a single mattress, it starts on receipt of the goods, but not before the required withdrawal information has been supplied. Without that information, an outer limit of twelve months and 14 days applies to such purchases. The relevant provisions are sections 355(2) and 356(2), no. 1(a), (3) and (4) of the German Civil Code. You should therefore not wait for the shop’s agreement.

Clearly tell the trader that you are withdrawing from the contract and keep evidence that you sent the declaration. Section 355(1) of the German Civil Code does not require a reason. Returning the goods is generally also subject to a 14-day period, which starts for the consumer when the withdrawal declaration is made (sections 355(3) and 357(1) of the German Civil Code). Return transport needs to be arranged separately. The consumer may have to pay the direct return costs if the statutory information requirements were met and the trader has not agreed to bear them (section 357(5)). For a bulky mattress in particular, clarify transport arrangements promptly.

What to keep if the shop refuses

Our recommendation: separate the claimed hygiene exception from the deadline, return costs and compensation for diminished value. This makes clear what is actually disputed. A custom-made mattress may also require a different exception to be examined: section 312g(2), no. 1 of the German Civil Code covers certain non-prefabricated or personalised goods. The mattress case does not remove that separate exception.

• Keep the order confirmation, invoice and delivery date.
• Save the withdrawal information and any sleep-trial offer.
• Document the packaging, condition and actual use.
• Gather the withdrawal declaration, proof of dispatch and the shop’s refusal.
• If a deduction is made, request its calculation and justification.