The right to free termination or right of withdrawal allows the consumer to annul the purchase without having to provide a reason and to recover the amounts paid without incurring any costs within 15 days of purchase. Should the consumer exercise the right to free termination, the seller must reimburse all amounts paid by the consumer, including delivery costs.

Before Portugal joined the EU, consumer rights were limited. If you bought something that was faulty, once you were out of the shop door they washed their hands of any problems. You would be told you would have to contact the manufacturer with any complaints. EU consumer law established that the entity that you purchased from and paid was responsible. They must refund or replace the product and it was their problem to then reclaim it from the manufacturer.

In fairness, the vast majority of retail companies in Portugal offer what the law specifies and frequently go way beyond the EU limits. Many will offer 30 days to return an item, and the two-year guarantee period is very well respected. Recent dealing with JOM in Portimão made me aware that some companies take their own interpretation of the law, and mainly they get away with it.

I purchased a Molaflex mattress from JOM. The mattress was delivered on a Friday by the manufacturer. It was immediately evident that this mattress was not suitable for us. I went to JOM on the next day. The staff member in that department responded immediately, “then you will have to buy another one”. Discussions about consumer law fell on deaf ears. "It's not our problem, you took the plastic sheet off the mattress when it was delivered. Therefore, no consumer law protection". In fact, the delivery driver took the plastic cover off and took it away. There is a provision in consumer law, Article 16 of that directive, entitled ‘Exceptions from the right of withdrawal’, which is worded as follows: ‘Member States shall not provide for the right of withdrawal set out in Articles 9 to 15 in respect of distance … contracts as regards the following: the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery’.

After some ‘conversations’ the manager was called and he said they would have to contact the manufacturer. Wrong, it’s the responsibility of the store. They were adamant that consumer law didn’t apply. That made me curious. JOM were adamant that a mattress is not covered by consumer law regarding the 15-day no-quibble return or a replacement for hygiene reasons.


What’s not covered by the consumer law?

After a little research, I found the items that the law does not cover or does not allow a return. They are straightforward and understandable.

  • Plane and train tickets, as well as concert tickets, hotel bookings, car rental reservations, and catering services for specific dates
  • Goods and drinks delivered to you by regular delivery – for example, a milk delivery
  • Goods made to order or clearly personalised – such as a tailor-made suit
  • Sealed audio, video, or computer software, such as DVDs, that you have unsealed
  • Online digital content, if you have already started downloading or streaming it and you agreed that you would lose your right of withdrawal by starting the performance
  • Goods bought from a private individual rather than a company/trader
  • Urgent repairs and maintenance contracts – if you call a plumber to repair a leaking shower, you can't cancel the work once you have agreed on the price of the service

No mention of a mattress. That would be a challenge! A Mr Ledowski took a mattress supplier to court in Germany in 2014 as the supplier had, apparently refused to accept the return or replacement of the mattress within the 15 day period specified by EU law. They argued that it was unhygienic once the mattress had been slept on. The case drew a lot of attention, you can read the full judgement here if you are reading online. This case gained international attention and was attended by the Belgian and Italian government representatives as well as the EU.

The essence of the case was that the suppliers argued that they couldn’t accept a return as it was ‘unhygienic’. They argued that the right of withdrawal shall cease prematurely in the following case: in the case of contracts for the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons if they were unsealed after delivery. That’s the same argument that JOM used. The court disagreed. They said, “although it may potentially have been used, such a mattress does not appear, by that fact alone, to be definitively unsuitable for being used again by a third party or for being sold again. It suffices, in that regard, to recall in particular that one and the same mattress is used by successive guests at a hotel, that there is a market for second-hand mattresses and that used mattresses can be deep-cleaned”.

The suppliers appealed the courts decision to higher courts, but they ruled that “Article 16(e) of Directive 2011/83 must be interpreted as meaning that goods such as a mattress, from which the protective film has been removed by the consumer after delivery, do not come within the scope of the concept of ‘sealed goods which are not suitable for return due to health protection or hygiene reasons and which have been unsealed by the consumer after delivery’ within the meaning of that provision.


Will this make any difference?

The simple answer to that is of course not. Unless you want to go to court and make a claim under consumer law, both lengthy and expensive, some suppliers know they can ‘get away’ with an excuse. The point of this article is to encourage you not to take excuses from a shop or outlet. Be insistent, and stand up for your consumer rights. This article is not aimed at JOM, though I would not go back there. Their views on customer service don’t match my expectations. The mattress manufacturers Molaflex took the same attitude.

It has to be repeated that most retailers, online or in shops in Portugal, are very good at upholding consumer rights, and even going beyond their legal obligations. If, and it’s a big if, you are refused your consumer rights, don’t take no for an answer. Check the facts, fill in the complaints book, and email DECO or the government consumer law departments.

Author

Resident in Portugal for 50 years, publishing and writing about Portugal since 1977. Privileged to have seen, firsthand, Portugal progress from a dictatorship (1974) into a stable democracy. 

Paul Luckman