One of the key legal concepts underlying e-commerce and distance distribution is the consumer’s right of withdrawal from the contract within a “cooling off” timeframe of 14 days. In Germany on June 13, 2014, a new legislation implementing the European Directive on Consumer Rights (2011/83/EU) became effective.

The new legislation impacts e-commerce significantly:

In the past consumers were entitled to return the goods without any explicit statement. Under the new legislation, consumers have to declare the exercise of their right of withdrawal explicitly to the trader – timely dispatch is sufficient. Consumers do not have to state a reason for withdrawal, or observe specific form requirements; technically, even a withdrawal by phone is possible.

Up to now, consumers only had to bear the costs of returning the goods when the price of the returned goods was less than 40 EUR. Now, consumers have to bear the cost of returning the goods provided that the online trader has informed the consumers about this legal consequence.

Furthermore, new model withdrawal instructions have been introduced. The new rules include requirements in regard to the content on how consumers have to be informed about their right of withdrawal. Traders also have to provide a withdrawal form, which consumers may use for withdrawal. Both, required withdrawal information and withdrawal form have to be provided on a permanent data carrier, e.g. as a file attachment in an order confirmation email.

If traders do not inform consumers in due manor or do not provide the model withdrawal form, the withdrawal period is extended up to 12 months after the regular 14-day right of withdrawal period has expired.

Practical recommendations:

Any trader should be diligent in informing his customers as to their withdrawal right and has to ensure that a model withdrawal form is sent to the customer in acceptable format. The required model instructions on withdrawal (A) and the model withdrawal form (B) are disclosed in ANNEX I of the European Directive on Consumer Rights 2011/83/EU.
The model withdrawal instructions should be adjusted individually depending on the respective business field.

The online trader has the choice to bear the costs voluntarily or, after information of consumers, pass on the costs to them – this is subject to competitive reasons.

By Christiane Micha