Exclusion of right of withdrawal for sealed medical devices – Use available chances!

The right of withdrawal under legislation governing distance selling poses an economic risk for many retailers. This in particular applies if a considerable part of the product portfolio is made up of products which after being returned – for hygiene reasons for example –can either not be resold at all or only by incurring considerable financial losses. 

New statutory standards have applied for the right of withdrawal in Germany since 13 June 2014. The evaluations and parameters in this respect have changed considerably. The chances offered by this should be used, for example by distributors of medical devices:

Whilst at the beginning of the year the Cologne Local Court (in its decision of 13 January 2014) essentially questioned in view of the “old” regulation contained in the third possibility listed in the old version of Sec. 312d (4) No. 1 of the German Civil Code (BGB) whether a used medical device can be resold – if necessary after being reconditioned and albeit accepting financial losses, the new legal situation now means that very different criteria will be used to judge this. A right of withdrawal can in accordance with the new legal situation pursuant to the new version of Sec. 312g (2) No. 3 of the German Civil Code (BGB) then be excluded if during the performance of contracts “for the supply of sealed goods which are not suitable for return for health protection or hygiene reasons” the seal is removed after delivery.

Entrepreneurs who sell medical devices online or by other means of distance selling should therefore check in detail with respect to their products whether such an exclusion of the right of withdrawal is possible for their products or whether the appropriate prerequisites can be created, for example by changing the packaging so that it meets the definition of being sealed. If this is the case, any instructions given to customers regarding the fact that a right of withdrawal does not exist should be as precise as possible.

This means there are now new possibilities for excluding withdrawal with respect to such articles, which otherwise could not be resold at all or only by accepting unfavourable conditions.