The Consumer’s Right of Withdrawal at the Sustainability Crossroads: An ‘Ecological Analysis’ of European Consumer Law

1 Consumer’s Withdrawal Right in Distance Contracts and ‘Ecological Analysis’ of Law

The consumer’s right of withdrawal represents the archetype of the ‘visible hand’ of the European legislator, illustrating the European private law regulatory function in steering the conduct of market agents to fulfill heterogeneous and heteronomous policy goals.^[1] Emerging from the breeding ground of door-to-door and distance contracts, the introduction of a tool enabling consumers to quickly and easily exit has posed a challenge to the ongoing legitimacy of the overarching traditional principle pacta sunt servanda, merely echoing a nostalgic bourgeois liberal paradigm in an evolved setting.^[2]

Through a functionalist lens, in the era of the expansion of the European consumer society and the growth of electronic commerce, consumer withdrawal has served two fundamental purposes: on the one hand, it responded primarily to the need for consumer protection, supporting confidence in the conclusion of distance contracts, especially for goods whose quality, convenience, and suitability to one’s own needs or tastes one cannot experience firsthand. On the other hand, it has also481 served the interests of professionals, who have reaped the rewards of the internet for marketing their products, liberated from the constraints of time and space, and capable of reaching vast numbers of potential clients otherwise inaccessible.^[3] Tangible confirmation is the circumstance that – as will be seen in more detail in Section 3 - many online commerce platforms offer a ‘consumer-friendly’ modulation of the deadlines and conditions under which consumers can exercise their right of withdrawal and return purchased goods.

Therefore, in the context of ‘competitive contract law’,^[4] consumer withdrawal has enhanced and continues to enhance the core logic of European consumer law that underlies the prevailing model of linear and exponential economic growth: the more that consumers perceive a legal protective framework, the more they will engage in consumption, resulting in increased production and trade that benefits the market.^[5] Above all, the digital market has thrived and reached full maturity thanks (also) to the withdrawal mechanism that has eased consumers’ natural reluctance to buy ‘search goods’ online, where their will to experience and judge these items before buying them appears reasonable.^[6]

Against this prevailing status quo, the ‘green transition’ established by the 2019 European Green Deal has represented a profound paradigm shift in European market policies.^[7] The Circular Economy Action Plan and the482 New Consumer Agenda^[8] have set the stage for a new chapter in market regulation shaped by environmental sustainability policies. A comprehensive array of regulations and directives, so called ‘Consumer Refit’, has initiated the development of a modernized regulatory framework for sustainable and circular consumption:^[9] among others, the new regulations on the eco-design of products,^[10] the directive regarding empowering consumers for the green transition through better protection against ‘greenwashing’ business practices,^[11] the new rules on the right to repair.^[12]

In the pantheon of values pursued by European regulatory private law, a novel and ‘idiosyncratic’ protagonist has therefore emerged: the environmental sustainability of the production and consumption system, which stands in stark opposition to the classical model of growth tending towards the infinity of the gross domestic product typical of contemporary Western economies.^[13] Ecological policies became a leitmotif that innervates the competitive process regulation towards, in the first-best scenario, a model of economic growth circular and sustainable rather than linear and exponential.

In this changed landscape, it is surprising that the environmental impact of consumers’ rights to withdraw from online distance contracts and the resulting product returns is ignored in the previously mentioned reform policies of European483 and domestic authorities. At first glance, it seems immediately apparent that when a consumer opts to withdraw from an online contract and returns the goods received, those items – after being produced, packaged, and shipped worldwide – will require another transport and repackaging, and will encounter an unpredictable fate, resulting in a substantial rise in the consumption of materials and energy, along with increased emissions and waste.^[14] The magnitude of these effects will be elaborated with analytical empirical evidence (Section 2).

The consumer’s withdrawal exacerbate a serious environmental concern that can no longer be overlooked. To this end, the private lawyer’s methodological toolbox must necessarily be supplemented with a new approach of ‘ecological analysis of law’, focusing on the repercussions on the environmental sustainability level of the behaviour of the market agents ‘regulated’ by European consumer law.^[15]

While some studies have generally considered the link between consumer rights and the green transition,^[16] this paper seeks to determine how the current European regulations regarding the consumer’s right to withdraw from online contracts may be worsening the environmental impact of the fashion industry, especially the ‘fast-fashion’ sector where the situation appears at its worst.^[17] To this end, the current legal framework and case law regarding the exercise of the withdrawal right are investigated through the ecological and behavioural lens484 (Section 3). Therefore, it deals with the issue of the consumer’s abuse of the right of withdrawal (Section 4). De lege ferenda, the paper suggests potential amendments to the EU rules regarding consumer withdrawal (Sections 5 and 5.1). Finally, it expresses some concluding remarks concerning the foundation of a new koinè between consumer protection and eco-friendly policies (Section 6).

2 Some Empirical Insights on the Environmental Impact of Withdrawal Returns in the ‘Fast-Fashion Industry’

The clothing sector operates on a manufacturing system that consumes vast amounts of natural resources, ranking it as one of the most environmentally damaging industries worldwide. According to the European Parliament, producing one cotton shirt requires approximately 2,700 L of fresh water, enough to meet one person’s drinking needs over two and a half years.^[18] Furthermore, estimates suggest that around 20 % of the pollution in global drinking water is linked to textile production due to the chemical processes like dyeing and finishing that garments undergo.^[19]

From 2000 to 2015, global textile manufacturing and usage experienced a doubling effect, and it might expand to three times its size by 2030. On average, European citizens utilize about 26 kg of textiles each year, resulting in roughly 12 kg per person discarded.^[20] This situation is largely driven by the popularity of ‘disposable’ fashion on a global scale, which the recent rise of ‘ultra-fast fashion’ has further magnified485.^[21] online shopping plays a key role, with the digital apparel industry being one of the most advanced e-commerce fields in Europe and around the globe.

Globally, the fashion industry is estimated to be responsible for 10 % of global carbon emissions, which is more than the total of all international flights and shipping combined.^[22] According to the European Environment Agency, the textile purchases made in the EU in 2020 led to the emission of roughly 270 kg of CO₂ for each individual, totalling about 121 million tonnes of greenhouse gases.^[23]

A closer examination of consumer clothing returns reveals a significant increase in the United States, with the total trade value expected to hit $100 billion by 2023, encompassing both online and physical store purchases.^[24] Statistical research conducted in 2024 shows that, in the world of fashion e-commerce, 25–40 % of online apparel purchases are returned, primarily due to issues like incorrect size and fit, which account for 52 % of these returns.^[25] A report from Optoro, a company specializing in returns logistics, revealed that, in 2022, total returns in the United States generated 24 million tons of CO2 emissions, comparable to the emissions produced by five million vehicles operating for a year.^[26]

In the UK, the process of managing returns in the fashion industry led to a total of 750,000 tonnes of CO₂ emissions in 2022. A recent study by the British Fashion Council suggests that 30 % of clothing purchased online is sent back by consumers. In 2022,486 approximately 23 million items of clothing in the UK were either discarded in landfills or incinerated, contributing to increased pollution of the soil, water, and air.^[27]

No comparable official data – crucial for assessing the environmental impact of European consumer law instruments – are available at the EU level.

A Greenpeace Italy investigation offers valuable information about a sample of 24 clothing items purchased from the digital marketplaces of eight leading fast fashion companies. Following their return as per the established return conditions, the study mapped their journey and estimated the distances traveled by various transport methods to analyze the environmental effects of the returns.^[28] The findings of this study are alarming: packages that journey thousands of kilometers, purchased and sent back multiple times without any expense for the remorseful buyers, are minor for businesses but detrimental to the environment. Based on the results of Greenpeace’s research, the shipping of the returned garment would add 1.95 kg of CO₂ equivalent emissions, which accounts for 24 % of the overall carbon footprint.^[29]

A study by the consulting company McKinsey reveals that 10 % of returned fashion items are discarded in landfills.^[30] Additionally, because inventory levels are adjusted according to sales, returns merely contribute to excess production, consequently increasing energy resources, materials, packaging, and emissions.^[31]

This data paints a picture that, even though complex in its interpretation, clearly shows that the process of returning items linked to the withdrawal mechanism – a primary consumer protection measure in European consumer law – significantly contributes to a pressing environmental and climate crisis.487

3 The Unsustainable Behavioural Effects on Consumers of the European Withdrawal Regulation: the Opportunistic Strategy of ‘Return-Alcoholics’

Evidence from ecological studies reveals that the process of returning goods following the exercise of withdrawal rights in distance contracts worsens a scenario that is severely harmful to the ecosystem. This stresses the tension that can arise between the logic of consumer protection and that of environmental sustainability, highlighting the asperities a private law scholar may face in merging these two crucial policies.

When it comes to distance contracts involving the sale of tangible goods, the traditional justification for the withdrawal right lies in the ‘upstream’ disparity of information between the professional and the consumer. The latter, unaware of the precise qualities of the goods they are purchasing, cannot effectively judge their value or suitability. By allowing the consumer to examine the product’s search qualities more accurately, the ‘cooling-off period’ will enable them to rethink the convenience of the contract and, possibly, to repent or reconsider.^[32]

With that in mind, when we shift our attention to the ‘downstream’ behavioral analysis concerning specific actions of market players influenced by European and national regulations on consumer withdrawal, we uncover a range of highly significant ecological ‘collateral effects’, that need to be addressed: a first effect inducing individuals to buy excessively, resulting in consequent massive withdrawals by consumers; a488 second, closely linked to the first one, to make opportunistic use of their withdrawal rights.^[33]

To be more specific, it is necessary to clarify the provisions of the Consumer Rights Directive (henceforth CRD) shaping these results: i) Article 9(1) of the CRD stipulates that consumers have 14 days, commencing from when the goods are received, to exercise their withdrawal rights, along with another 14 days to send back the items after informing the seller of their decision to withdraw. Both provisions can be derogated by contract only to the consumer’s advantage (Article 3(6) CRD); ii) Article 4 CRD defines the scope of the withdrawal right, including off-premises contracts and distance contracts and not brick-and-mortar contracts, through a full harmonisation rule; iii) the provision allowing the consumer to withdraw without giving any reason, and without incurring any costs other than those provided for in Article 13(2) and Article 14’ (Article 9 CRD); iv) Article 14(1) of the CRD, where it allows the trader to collect the goods himself from the consumer, without the latter even having to bear the cost of the return; v) Article 14(2) which makes the consumer liable only ‘for any diminished value of the goods resulting from the handling of the goods other than what is necessary to establish the nature, characteristics, and functioning of the goods’.

From the professionals’ point of view, this legislative approach has given plenty of room for contractual autonomy to shape a consumer-friendly regulatory design of withdrawal rights. In other words, in their contractual terms, all major fast fashion brands stretch their return periods significantly beyond the standard 14 days after customers receive their items, aiming to boost sales and maintain customer loyalty. Moreover, they have ensured that returns come at no expense to the consumer, meaning that the companies cover all associated costs, including shipping.^[34]

Looking closely at the contractual term for cancellation and return of purchased goods of the major fashion giants, it should be underscored that, over the course of 2025, several major fast-fashion companies revised their contractual terms on withdrawal and returns – previously particularly generous towards consumers – in a generally more restrictive direction, at times invoking generic sustainability considerations to justify the change. Zara leaves the legal deadline of 14 days from the delivery of the goods unchanged, while it extends the deadline for return to 30 days (starting, however, from the dispatch of the clothes). H&M also confirms the legal deadline of 14 days from the delivery of the goods and extends the deadline for return to 16 days from the notice of withdrawal. Returns can be made either in-store, at pick-up489 points, or by courier. During the drafting and revision of this article, Zara and H&M have modified their returns policy with contractual provisions consonant with part of the reform proposals advanced herein: therefore, they will be addressed in greater detail in Section 5.1. Zalando has reduced that the return window from one hundred to 30 days from receipt of the product within which the consumer can exercise withdrawal by providing for the return; the latter is also offered free of charge by the professional through home collection and transport. Similarly, Shein has shortened its return window from 45 to 30 days, running from delivery of the item. The first ‘return label’ is free of charge for each order; the costs of subsequent shipments are at the consumer’s expense. Asos does not provide any contractual changes to the legal terms for the exercise of the withdrawal and the consequent returns by the consumer, offering instead that the latter will not be required to bear any expenses. Decathlon provides a thirty-day return period, extended to one year for purchase of its loyalty programme’s members. Temu sets a period of 90 days from the date of purchase to provide for any returns; the return shipment is free of charge for the first return of one or more articles per order.

From the consumers’ standpoint, the observed contractual enhancement of the special features of withdrawal – freedom of choice, gratuitousness, and timing – has played a key role in its success. Furthermore, aside from the boundaries set by Article 14(2) CRD, consumers could manipulate the item to understand its qualities, attributes, and functionality, in a way they would not have in a store’s fitting area.^[35]

As mentioned, the interplay of these factors has resulted in a twofold order of behavioural effects on consumers, increasingly accustomed to the withdrawal and return mechanism, which poses serious environmental consequences.^[36] 490

A first kind of effect has a ‘compulsive’ nature: when a consumer recognizes their ability to withdraw without having to give any motivation, to bear any kind of cost, within a large timeframe, they may be encouraged to buy recklessly, hastily, and obsessively. In other words, they succumb to the philosophy of ‘buy first, think later’, which compels them to buy more than they want and far more than they need, aware that they can return items without suffering significant loss.^[37] In terms of ecological sustainability (overlooking the substantial sociological implications), there are serious negative outcomes associated with increased production levels, leading to more pollution from packaging and transport and a rise in waste and refuse, as pointed out in Section 2.^[38]

The second level of consequences can be described as ‘opportunistic’: recognizing their capacity to withdraw freely and without repercussions over an extended timespan, consumers position themselves in a grey area of moral hazard where they feel entitled to speculatively exploit the right provided to them.^[39] The issue of ecological unsustainability emerges prominently with the ‘return-alcoholics’; consumers who manipulate the protective legal tool reliant on the withdrawal-return mechanism.^[40] A common practice among shoppers is the ‘wardrobing’, a typical behavior where individuals purchase items for specific events, like weddings, parties, or social media posts, with the prior intention of returning them immediately after they have been utilized to get their money back.^[41] More questionable is whether it can be called abusive the ‘fitting-rooming’, where individuals deliberately purchase multiple sizes and colors of the same clothing item, planning to return all but one, effectively replicating the experience of trying on clothes in a retail store. Within certain limits, marked by the principle of fairness, compliance with which must be verified on a case-by-case basis, this practice can still be said to be compatible with the rationale of consumer withdrawal. Beyond these limits, even such conduct by the ordinary consumer could constitute an opportunistic and fraudulent exercise of the right of withdrawal.491

Such kinds of predatory behaviours pose in stark contrast to the foundational principle of consumer withdrawal, designed to protect weaker contracting parties and address the fundamental disparities in power and information that consumers face. Rather than reflecting a genuine change of heart or remorse, the approach is a calculated and deliberate consumer tactic that intends to purchase with the premeditated goal of returning the item, taking advantage of the overprotection spread provided by the European legal framework.

4 The Consumer’s Abuse of the Right of Withdrawal and the Fairness Assessment

In this context, one encounters a form of unfair commercial practice à l’envers perpetrated by consumers against professionals, tolerated, if not induced, by the European consumer law. Its implications are systemic: beyond being environmentally unsustainable from a general interest standpoint, it also raises questions about the observance of the fairness principle that all parties in a contract, regardless of their strength, should follow.

The issue of the consumer’s potential abuse of the right to withdraw can be evaluated in two ways: one focuses on examining the reasons behind the consumer’s decision to withdraw, while the other looks at the fairness and good faith of the consumer’s actions during the withdrawal period. This is intended to identify the remedies that professionals can enforce and, especially, any beneficial outcomes that may emerge, even indirectly, regarding the ecological sustainability of consumption practices.

On the one hand, the provisions of European and national law are undeniably designed to shield the reasons behind a consumer’s decision to unilaterally cancel a contract from any form of scrutiny (‘without giving any reason’: Article 9(1) CRD). The clear rationale for the withdrawal seeks to rebalance the contractual dynamics to support the consumer, whose position would be greatly compromised, if not completely erased, if the consumer’s motivations, intended to be safeguarded by the legislator, were later scrutinized based on good faith.^[42] Evidently, such an interpretation implies a certain rate of moral hazard and consumer overprotection. It’s natural for a protective instrument aimed at a diverse group of consumers to be opportunistically misused by some within that group, leading to power abuses against others. Verifying, case by case,492 the reasons behind a consumer’s withdrawal is highly challenging, and questioning it could weaken or even jeopardize the core effectiveness of the measure.

On the other hand, just because the reasons for withdrawal remain fully incontestable doesn’t mean that consumers can act in violation of the general principle of fairness in their relationship with professionals. In other words, if the legislative shield prohibits questioning the rationale behind a consumer’s choice, it permits a good faith assessment of how they exercise their rights, especially regarding the (ab)use of goods from the contract’s conclusion to the withdrawal phase. This is what Article 14(2) of the CRD implies when it makes the consumer liable for any diminution in the value of the goods to be returned resulting from any handling other than that necessary to establish their nature, characteristics, and functioning. The relevance of this issue is underscored by the consistent emergence of cases that prompt the CJEU to consider the abusive nature of how consumers exercise their withdrawal rights.^[43] Still, here, the Court tends to embrace an ‘ultra-paternalistic’ approach that further stretches the margin of consumer protection. On the contrary, it should be explicitly emphasised that, in this respect too, consumer behaviour must be viewed through the lens of the principle of good faith.

Therefore, the consumer who has used the goods in such a way as to cause a reduction in their value or excessive deterioration and has then returned them must be called upon to compensate for the damage caused to the professional. However, the logic of damages does not seem to offer an adequate remedy to professionals for the mentioned cases of wardrobing, which do not necessarily postulate some form of deterioration of the items purchased and subsequently returned. The focus should be on the refund owed to the professional for the loss incurred due to the consumer’s493 misuse of the product, which has led to unjust enrichment beyond the intended use outlined in the relevant article 14 CRD. Nonetheless, it is important to identify the advantages that consumers properly derive from the abuse of the right of withdrawal, distinguishing them from those that occur only occasionally. For instance, one might consider the benefits gained by an influencer who showcases clothing bought (and subsequently returned) for a post on their social media account, which are primarily due to his popularity (the number of followers and views) and cannot be regarded as enrichment causally derived from the exploitation of the online purchase-withdrawal-restitution mechanism.^[44]

All things considered, Article 14(2) of the CRD epitomises the principle of contractual fairness, operationalising and specifying it with regard to the scrutiny of consumer conduct throughout the performance of a contract which is per se precarious for being overshadowed by the sword of Damocles represented by the exercise of the right of withdrawal. In this specific provision, emerges an effective form of professionals’ protection, designed to avert abusive practices by consumers. Nevertheless, the proper punctum dolens of this remedy lies in the absence of incentives for professionals to react to systematic instances of exploitation by consumers. This is due, on the one hand, to litigation costs which frequently exceed the economic value of the returned goods in dispute; and, on the other, to the reputational risks associated with potential ‘mass litigation’ concerning consumer rights, which could critically impair brand perception in highly competitive markets. Many undertakings, as noted, therefore voluntarily provide return policies that are more generous than those required by consumer law, recognising that the value of customer loyalty outweighs the benefits of strict enforcement. Ultimately, professionals prioritize encouraging purchases and consumption, even if it means accepting a more lenient approach to the consumer’s right to withdraw, except for extraordinary situations of abusive consumer conduct.494

5 Proposals for the Revision of the European Regulation of Consumer Withdrawal in online Contracts for the Fast-Fashion Market

Given this context, it is essential to develop a reform proposal for the legal framework of the EU consumer’s right of withdrawal that achieves a new balance among market interests, consumer protection, and urgent climate issues, with a special focus on the fashion sector.

Firstly, it is important to clarify that to achieve the utopian goal of sustainable and circular practices in the fashion industry^[45] a systemic approach is essential: emphasizing eco-friendly production regulations, the use of recycled materials, the growth of second-hand markets and rental models, the fight against greenwashing, sustainable transport solutions for deliveries, and the responsible management of textile waste.^[46]

A series of recommendations have already been advanced by scholars focused on fostering sustainable consumption patterns, including: (a) shortening the timeframe allowed for exercising the withdrawal right and processing returns; (b) introducing a charge when the withdrawal right is exploited;^[47] (c) establishing a list of consumers who misuse the withdrawal right and imposing penalties on them;^[48] (d) implementing ‘pre-cooling off periods’ before a purchase is finalized for habitual returners.^[49]

The solution under (a), which involves shortening the timeframe for utilizing the withdrawal option, seems inadequate for two primary reasons. To begin with, this495 might create a scenario where a well-intentioned consumer is left out because they do not have enough time to appropriately judge the product’s value. Conversely, studies show that consumers are more likely to exercise the right of withdrawal when they have less time to do so, especially those who bought with the deliberate intention of exercising their right of withdrawal and, therefore, returning what they purchased.

The proposal under (b), which envisages the imposition of a fee on the consumer related to the exercise of the right of withdrawal, is not convincing. Granting consumers the option to individually acknowledge this right through an 'opt-in' system, incorporated into the product’s pricing, might theoretically be the most effective approach for enhancing market efficiency and competitiveness. On the other hand, this would require the consumer to determine if the right of withdrawal was worth the extra price they would need to pay to the vendor, resulting in a detrimental effect on the general level of consumer protection.^[50] As a result, such a scenario could have a disparate impact on consumers acting in good faith, who may be unable or unwilling to pay for such rights. Most importantly, this solution is fundamentally undemocratic and not inclusive, as it tends to overlook those consumers who are financially disadvantaged and require the most protection.^[51] This approach could lead to a system following the logic of the ‘price’ of rights, potentially disadvantaging the more vulnerable groups in society and, ultimately, compromising the freedom and authenticity of choices for average consumers who may opt to save money instead of enhancing their rights.

The strategies outlined in (c) and (d), which propose creating ‘proscription’ lists or enforcing early cooling-off periods, appear to lack persuasiveness due to their questionable effectiveness in practice, the limitation of the scope of their effects to single extreme cases of chronic returners and, not least, their significant infringement on consumers’ rights to freedom and privacy, leading to risks of profiling.

6 Concluding Remarks

The research aimed to underline the necessity of reevaluating the European rules governing consumer withdrawal in online contracts, especially within the fashion market, considering its remarkable adverse effects on the environment. De lege lata, the paper highlighted the risks of opportunistic behaviour by consumers in499 exercising their right of withdrawal, induced by the unilaterally mandatory nature of European regulations and by the consequent contractual terms of the main online fashion platforms that are extremely prone to the overexploitation of the withdrawal. A stricter enforcement of Article 14(2) CRD in the light of the principle of fairness and good faith in order to control how consumers behave in their interactions with professionals may concurrently serve as a powerful tool for achieving the policy goal of environmental sustainability of consumption.

Ascertained this remedy as pragmatically insufficient, de lege ferenda, it was formulated a comprehensive proposal for the revision of the withdrawalregulations in online contracts, with specific consideration of the fast fashion sector. These recommendations seek to establish European regulations as completely compulsory, reinforcing the contract’s lieu de loi in its antagonism with the ephimerality correlated with the discretionary nature of consumer withdrawal; while also advocating for more sustainable rules and practices concerning the return of goods. More drastically, in the long term, the abolition of the right of withdrawal for the online purchase of clothing below a certain value has been considered. The reemergence of traditional principles, such as pacta sunt servanda and fairness, would here serve a different purpose than their usual 'relational' one, pursuing the public interest of environmental sustainability.

In a broader sense, investigating the ecological impact of the consumer’s right to withdraw regulatory framework unveils a deeper problem about the foundations of European consumer law and its critical relationship with sustainability policies.

The first 50 years of European consumer law have been the faithful image and longa manus of the twentieth-century mass consumerist society, rooted in a linear economy model that emphasizes perpetual growth, where goods are unendingly produced, used, discarded, and replaced. Compared to this traditional idea of consumer law and consumption, the sustainability principle, advocating for equality and solidarity across generations, appears irreconcilable.

Given the impact of the ‘consumer refit’ initiatives, the consumer protection laws of today and tomorrow cannot mirror the depicted model. In the last five years, European consumer law has systematically pursued the holy grail of greening the production and consumption process. However, the operation of a ‘dogmatic transplant’ of the sustainability values in the private law horizon runs the high risk of a ‘rejection crisis’ as long as they are perceived as inconsistent with its logic. Therefore, this process must be supported by a significant cultural evolution to reimagine political foundations and legal rationale of consumer law, weaving500 environmental sustainability into the core principles and categories of private law.^[58] The study suggests the importance of adding the ecological analysis de iure condito and de iure condendo in a syncretic methodological approach: which emphasises the empowerment of consumers in pursuing their diverse interests, including non-economic ones,^[59] while also highlighting their responsibility for abusive conduct, as in the opportunistic exercise of the withdrawal right.^[60]