It constitutes a misleading commercial practice to limit, in applicable contractual terms and conditions, consumer rights attributed by mandatory provisions of law which the trader cannot exclude or limit by means of contractual clauses.

The defendant, an e-commerce merchant, stated in its website terms and conditions that consumers, in case they withdrew from the distance contract concluded with the trader, could only return a product when it was in the original and undamaged package.

Does it constitute a misleading commercial practice to limit, in applicable contractual terms and conditions, consumer rights attributed by mandatory provisions of law which the trader cannot exclude or limit by means of contractual clauses?

The administrative body held that a producer, trader, importer or supplier may not deceive the consumer; in particular, these persons may not state untrue, undocumented, incomplete, inaccurate, obscure or ambiguous information or withhold information concerning the characteristics of a product or service or concerning terms and conditions.

The administrative body reminded that unfair commercial practices are prohibited. A commercial practice is unfair if it is contrary to the requirements of professional diligence and if it materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer to whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers. A commercial practice shall be considered as misleading if it causes or is likely to cause the consumer to enter into transaction that he or she would not have entered otherwise, because it contains false information and is therefore untruthful or in any way deceives or is likely to deceive the average consumer, even if the information is factually correct.

Based on these general principles, the administrative body ruled that the defendant had breached said ruled.

The defendant had already admitted to refrain from the unlawful conduct before the administrative body granted its decision. However, according to the administrative body, this did not relieve the defendant of liability for breaching the law. The administrative body ordered the defendant to pay a fine.
 

The administrative body imposed a fine of € 500.