Art. 52 of the Legislative Decree No. 206/2005 (Consumer Code) governs the so called right of withdrawal from the contract or reconsideration in favor of the consumers, i.e. the natural persons acting for purposes unrelated to business or a professional activity.
This withdrawal - to which follows the restitution of the amount paid for the purchase of goods - can be exercised in distance and off-premises contracts and can be done without any penalty and without specifying the reason, but necessarily within the term of fourteen days starting, in contracts of sale of goods, from the date of material delivery to the consumer.
The ratio of the European origin discipline of the right of withdrawal is to protect the consumer who has carried out a purchase to distance (for example online) and has not been able to view the product before the conclusion of the contract. To use the words of the Court of Justice of the European Union (Sent. no. 430/17 of January, 23 2019) "it is considered that the right of withdrawal compensates for the disadvantage that results for the consumer from a distance contract, granting him an appropriate period of reflection during which he has the opportunity to examine and test the goods purchased".
However, such right is not always and indistinctly guaranteed because art. 59 of the Consumer Code lists the cases valued by the law in which it is a priori excluded. Among the exclusions provided for by the rule is not however contemplated the different case in which the packaging and the packing of the product are materially opened and this omission has created in the course of the time a so-called interpretative grey zone not resulting clear if, in such case, it was still possible for the consumer to withdraw legitimately from the contract and to demand the restitution of the paid consideration.
After several contrasts and differing interpretations, the Court of Justice of the European Union has, however, intervened on the point by specifying that the withdrawal is allowed even after having used the object and opened the packaging (Court of Justice of the European Union, Sentence no. 681/17 of March, 27 2019). The Court has in fact held that the exercise of the right of withdrawal from the contract cannot be made conditional on the integrity of the product: apart from specific exceptions, even those who materially remove the entire packaging or the simple protective film must always be able to return the goods after use, provided that the aforementioned legal deadline of fourteen days is respected and the goods have not been otherwise damaged by the buyer.
In light of the exponential increase of the purchases online of the last years, the situation here discussed is verified by now in a growing number of cases, placing the sellers (that are not always platforms of sale in a dominant position on the market) in a complicated and problematic management of the sale process.
The product subject to return and deprived of its original packaging is in fact, in the majority of cases, not considered as new and therefore cannot be sold at the original conditions with consequent reduction of the price of the subsequent sale.
When this occurs, the exercise of a so-called right of the consumer turns symmetrically into an evident prejudice for the seller who finds himself, despite his will, having to suffer an unavoidable damage connected to the mere reconsideration of the purchase.
The latter, in order to eliminate or at least mitigate the negative effects of the right of reconsideration, could ultimately evaluate to put in place autonomously actions of "self-protection" of its contractual position (for example preparing, where feasible, a new packaging and putting on sale as new goods that in reality are not) with prejudice, ultimately, of the consumer that the EU legislator intended to protect at all costs.