The risk of returning the goods when the consumer withdraws from the contract is determined by national laws of the consumer’s place of delivery and the CRD is silent on that matter.
National laws may for example, provide that the risk during the return of the goods lies with the consumer once it is transferred to him upon delivery in accordance with Article 20. Therefore the consumer ought to take reasonable care when returning the goods by choosing the right transport or postal service provider so that the burden of proof does not lie on the consumer. In the event that the consumer withdraws from the contract without having taken physical possession of the goods for example by refusing to take delivery the trader is bound to continue to bear the risk for any loss or damage done to the goods since no transfer of risk on the consumer would have taken place as per article 20 of the CRD.
However, Member States may not make it difficult excessively difficult for the consumer to exercise his rights in the event that they want to withdraw from the contract, for example making them liable to compensate the seller when goods are lost in transport. Transport is inherent and a part and parcel of distance selling and therefore there seems to be little reason to why the consumer should bear the cost for damage occurred to the goods outside of their own home when they have not even gotten physical possession of the goods. Article 3 of Directive 1999/44/EC on sale of consumer goods and associated guarantees states that the
“1. The seller shall be liable to the consumer for any lack of conformity which exists at the time the goods were delivered.
3. A remedy shall be deemed to be disproportionate if it imposes costs on the seller which, in comparison with the alternative remedy, are unreasonable“
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