What is it, How long can it be exercised?
The European Union's right of withdrawal in distance selling to the consumer is an obligation of result, it is 14 days (from delivery, or from the contract in the case of a service , or from the time it was brought to the attention of the consumer). It is extended for 12 months as long as it has not been brought to the attention of the consumer. It allows the contract to be canceled according to its own regime.
Countdown:
The countdown of the 14-day period begins the day after the conclusion of the contract or the delivery of the goods. If this period expires on a Saturday, Sunday or public holiday, it is extended until the first following working day.
On consumer information and the insufficiency of a simple hypertext link:
Why a right of withdrawal?
The right of withdrawal applies in contracts concluded "at a distance", involving an order taking outside the establishment.
It can be compared to a kind of “fitting room”.
Thus, the taking of an order made partially in establishment, may have the effect of excluding the right of withdrawal, especially if this is agreed in the sales contract concluded (CJEU 5 July 2012, Directive 2011/83 articles 9 and following, article 20, articles L221-18 and following of the consumer code). A simple preliminary visit does not however exclude the application of article L221-1 of the consumer code.
Do we enjoy it systematically?
Thus, the right of withdrawal is excluded with regard to certain products which do not lend themselves to fitting: quickly perishable, or which do not have a fixed price, or which are not essentially standard, or which are under seal for reasons of hygiene and health, or which are consumed or are estimated to be consumed on first use, online software, etc. To be checked on a case-by-case basis.
Can we give it up?
The right of withdrawal cannot be waived. As soon as one declares exercising his right of withdrawal and the product is returned, it must be refunded.
The return clauses provided by the seller that would be too complicated will most often be declared null or abusive. Return costs are the responsibility of the consumer, unless he has not been informed of the right of withdrawal by the seller.
And what about services?
Services (L221-25):
With regard to the services, the trader will begin his service after the expiry of a period of 14 days, or before if the consumer requests it (for this purpose he will often be asked to pay in advance), and by Consequently, the price corresponding to the part of the service that has been performed will be due, as soon as the professional indicates that he has performed the service, or part of it.
Texts:
Directive 2011/83 articles 9 and following, article 20
Articles L221-18 and following of the Consumer Code
Update April 2022
Decree No. 2022-424 of March 25, 2022 relating to the pre-contractual and contractual information obligations of consumers and the right of withdrawal: Public concerned: professionals and consumers. Subject: information provided by the professional to the consumer prior to the conclusion of a contract using a remote communication technique or outside a commercial establishment, and modification, for these same contracts, of the model withdrawal form and the standard information notice concerning the exercise of the right of withdrawal.
Note: the decree is linked to the exercise of transposition into domestic law of Directive 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards better application and modernization of Union rules on consumer protection.
It specifies, on the one hand, the pre-contractual information obligations to which professionals are bound with regard to consumers, pursuant to Article L. 221-5 of the Consumer Code, prior to the conclusion of contracts for distance and off-premises, and, on the other hand, makes the editorial adjustments provided for by Directive 2019/2161, in particular, on the mandatory communication to the consumer of the contact details of the professional.
Consequently, the appendix to article R. 221-1 of the consumer code relating to the standard withdrawal model, article R. 221-2 of the same code, which specifies the pre-contractual information communicated to the consumer in application of 4°, 5° and 6° of Article L. 221-5, Article R. 221-3 and its appendix relating to the information notice concerning the exercise of the right of withdrawal as well as the article R. 221-4 on the information provided in the event of public auctions.
References: the consumer code, in its wording resulting from this decree, can be consulted on the Légifrance website (https://www.legifrance.gouv.fr).
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