The right of withdrawal entails that the consumer may withdraw from a concluded contract with a trader within the time-span of 14 days, which is termed as the “cooling-off period” and is now enshrined in article 9 paragraph 1 of the CRD. The right of withdrawal from a contract previously existed in the Distance selling directive which is now replaced by the CRD. In the event that the consumer wishes to exercise his right to withdrawal electronically, the trader is obliged to provide the consumer with a model withdrawal form on his website where after the trader must immediately send a receipt confirmation of the withdrawal to the consumer via a durable medium, which usually takes the form of an email confirmation. Pursuant to article 2 paragraph 10 of the CRD, a durable medium is defined as “… any instrument which enables the consumer or the trader to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored.”
The trader must provide the consumer with a confirmation of the contract as per article 6 paragraph 1 and all of the information stated therein. The trader has to provide the information under article 6 paragraph 1 as stated under article 7 paragraph 1 to paragraph 2 or article 8 paragraph 7 unless already provided for before on a durable medium. The definition of a 'durable medium' was examined by the Court of Justice in case CJEU case Content Services Ltd concerning the Distance Selling Directive 97/7/EC, which also required confirmation of a distance contract on a durable medium in Article 5(1). It was held by the court that a mere provision of information on a website does not constitute durable medium: “Article 5(1) of Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts must be interpreted as meaning that a business practice consisting of making the information referred to in that provision accessible to the consumer only via a hyperlink on a website of the undertaking concerned does not meet the requirements of that provision, since that information is neither ‘given’ by that undertaking nor ‘received’ by the consumer, within the meaning of that provision, and a website such as that at issue in the main proceedings cannot be regarded as a ‘durable medium’ within the meaning of Article 5(1).” There is nothing in the file to indicate that the seller’s website, to which the link sent to the consumer connects, allows that consumer to store information which is personally addressed to him in such a way that he can access it and reproduce it unchanged during an adequate period without the seller being able to amend the content unilaterally."
Thus, a customer may have a personalised account on a retailer’s website where the consumer may not unilaterally change the information that the retailer stores, and that would still suffice as a durable medium under the directive. The trader should remain subject to the obligation under Article 8(7) to provide the confirmation of the contract on a durable medium albeit pre-contractual information was provided to the consumer in accordance with Article 8(4). As regards the timing of the confirmation Article 8(7) requires it to be sent 'within a reasonable time after the conclusion of the distance contract'. The confirmation must be provided at the time of the delivery of the goods or before the performance of the service begins, at the latest.
The receipt of withdrawal acts as another layer of protection to the consumer and allows them to prove that they withdrew from the contact within the cooling-off period. It is when the consumer sends their notice of withdrawal which determines the termination of contract and not when the trader receives it.The consequence of exercising the right of withdrawal is termination of contract between trader and consumer. Any other ancillary contract, for example is also extinguished and the rights deriving therein. The trader is obliged to reimburse the consumer within 14 days of the receipt of termination of the contract. In the Heine case it was concluded that the trader is obliged to reimburse the customer with the cheapest standard form of delivery costs, yet this does not include any supplementary costs of delivery for example 24 hour express delivery. The consumer has the right reimbursement in the same form that they paid for the goods, for example online bank transfer unless the consumer expressly agrees to another method of reimbursement. It was concluded in the case that even where the consumer is “informed of the amount of the delivery costs prior to concluding the contract cannot neutralise the dissuasive effect which the charging of those costs to the consumer would have on his exercise of his right of withdrawal.” Also, national legislation which allows for the supplier under a distance contract to charge the costs of delivering the goods to the consumer where the latter exercises his right of withdrawal.”
The consumer is obliged to return the goods to the trader within 14 days of withdrawing from the contract where the costs of return have to be covered by the consumer, unless the trader agrees to bear the costs or, prior to the contract was formed fails to inform the consumer of this. The trader does not need to reimburse the consumer until he has received the goods and, or where he has received a confirmation of the postal receipt of goods. Where it becomes too cumbersome for the consumer to return the goods, for example if they are too big in size or too heavy, the trader must arrange for their pick-up at his own expense.
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