The growth of e-commerce has fundamentally transformed consumer behaviour. To encourage online purchasing, retailers have progressively introduced customer-friendly policies: free delivery, free returns, extended return periods, and no-questions-asked refunds.
What began as a competitive advantage has become an industry standard.
Yet these policies have also given rise to a phenomenon that increasingly concerns retailers: the emergence of so-called serial returners, i.e., customers who repeatedly purchase and return goods in volumes and frequencies far beyond what could reasonably be expected from ordinary consumers.
The issue is particularly visible in the fashion sector, where practices such as wardrobing (purchasing clothing with the intention of wearing it once or for a specific occasion before returning it for a refund) systematic ordering of multiple sizes or colours with no genuine intention of retaining most items, and excessive return rates have become increasingly commonplace.
The phenomenon must also be viewed against the broader backdrop of the continued expansion of e-commerce. Returns are no longer merely a customer service issue. They have become a significant operational, financial and sustainability challenge for retailers.
While serial returners represent only a relatively small proportion of consumers, the challenges associated with excessive returns tend to be concentrated among a limited category of purchasers. The issue is therefore not one of consumer behaviour generally, but rather of specific purchasing and return practices that may create disproportionate burdens for retailers and supply chains.
The legal question is straightforward: at what point does the legitimate exercise of consumer rights become an abuse of those rights?
1. The right of withdrawal: A fundamental right, but not an unlimited one
European consumer law grants consumers a 14-day right of withdrawal for distance contracts, allowing them to return goods without providing any justification.
This right is one of the cornerstones of consumer protection and cannot be contractually excluded, except in the limited circumstances expressly provided by law.
Under the Consumer Rights Directive, the right of withdrawal serves a specific purpose. It seeks to compensate consumers for the fact that, unlike in a physical shop, they cannot inspect, test or assess goods before concluding a distance contract. It was designed to place online consumers in a position comparable to consumers purchasing in-store.
The European legislator has consistently sought to strengthen the practical effectiveness of that right. This trend is illustrated by the recent introduction of the online withdrawal function, commonly referred to as the "withdrawal button", intended to make the exercise of withdrawal rights as simple as entering the contract itself. The direction of travel is therefore clear: European legislators continue to strengthen the accessibility and effectiveness of withdrawal rights.
As a result, retailers cannot simply suspend or deny the statutory right of withdrawal because a customer returns products frequently.
The legal framework is clear on this point.
What is often overlooked, however, is that the right of withdrawal and the right to continue purchasing from a retailer are two entirely different matters.
The first is a statutory right. The second is not.
The debate is therefore not about limiting the right of withdrawal itself. Rather, it concerns whether the exercise of that right may, in exceptional circumstances, justify consequences outside the withdrawal mechanism, notably a retailer's decision not to enter into future contractual relationships with a particular customer.
2. Retailers are under no obligation to contract with the consumer
While consumer law protects purchasers, it does not generally oblige retailers to enter into contracts with every customer.
Under the principle of freedom of contract, Belgian businesses remain free, subject to specific legal limitations, to determine with whom they wish to do business.
The debate is sometimes presented as a conflict between consumer protection and commercial interests. Such a presentation is overly simplistic. European law protects not only consumers but also contractual autonomy, freedom of enterprise and the proper functioning of markets. The challenge therefore lies in reconciling competing legitimate interests rather than systematically favouring one at the expense of the other.
Provided that they do not engage in unlawful discrimination, abuse a dominant market position, or otherwise act arbitrarily, retailers may legitimately decide to terminate a commercial relationship with customers whose behaviour causes disproportionate harm to their business.
In practice, this means that while a retailer may not remove a consumer's right of withdrawal in respect of an existing purchase, it may decide not to accept future orders from a customer who systematically exploits return policies.
This distinction is crucial.
The debate should not focus on restricting statutory consumer rights but rather on defining the circumstances in which a retailer may legitimately refuse to continue a commercial relationship.
3. Abuse of rights: a notion still largely unexplored
The discussion surrounding serial returners also raises a broader legal principle: the prohibition of abuse of rights.
To date, neither Belgian courts nor the Court of Justice of the European Union appear to have developed a substantial body of case law specifically addressing serial returners. Nevertheless, existing legal principles may provide useful analytical tools for addressing the issue.
Most European legal systems recognise that a legal right may be exercised in an abusive manner when it is used in a way that manifestly exceeds its normal purpose or causes disproportionate harm to others.
Although courts have not yet developed extensive case law specifically addressing serial returners, the principle is highly relevant.
The right of withdrawal was designed to compensate consumers for the inability to inspect products before purchasing them online. It was not intended to facilitate repeated temporary use of products, risk-free wardrobe rentals, or business activities disguised as consumer transactions.
The phenomenon may also involve individuals who formally present themselves as consumers while purchasing goods with a view to resale or other professional activities. In such circumstances, the individual may not qualify as a consumer within the meaning of European and Belgian consumer legislation, with the consequence that consumer protection rules, including the right of withdrawal, may not apply.
Not all serial returners are fraudsters. The distinction is important. Fraudulent conduct, such as returning counterfeit goods, substituted products, intentionally damaged goods or false claims, is already addressed through ordinary contractual, civil and, where appropriate, criminal remedies. The more difficult legal question concerns consumers who formally comply with the legal conditions of withdrawal while nevertheless using return mechanisms in a manner that may appear contrary to their underlying purpose.
Serial return behaviour is frequently associated with convenience-oriented purchasing patterns, including impulse purchases and the deliberate postponement of purchasing decisions on the assumption that unwanted goods can simply be returned later. Such behaviour may lend support to the argument that certain return practices depart from the original rationale underlying the right of withdrawal. Where purchasing decisions are systematically made without any genuine intention to retain the goods, one may legitimately question whether the original purpose of the right is still being respected.
Belgian private law is founded on principles such as good faith, reasonableness and the prohibition of abuse of rights. These principles have been reaffirmed and further articulated through the reform of the Belgian Civil Code, including the entry into force of Book 5 on obligations. Rights are not exercised in isolation but within a broader legal framework that requires parties to act in a manner consistent with loyalty, proportionality and the legitimate expectations arising from their contractual relationship. While consumer protection pursues important public policy objectives, it does not necessarily follow that every exercise of a consumer right should be regarded as immune from scrutiny where it manifestly departs from the purpose for which that right was granted.
4. Sustainability adds a new dimension
The serial returner phenomenon is no longer merely an economic concern. It has become an environmental issue.
Every return generates additional transportation, packaging waste, handling costs, and carbon emissions.
Returns may at least double the transport-related environmental impact of an online purchase and significantly reduce the likelihood that returned goods can be resold under their original commercial conditions.
Returned products frequently require discounting, refurbishment, or even destruction.
Policymakers are increasingly aware of this reality.
The issue is particularly relevant in Belgium, where growing attention has been paid to the environmental impact of e-commerce returns, both by policymakers and by stakeholders within the retail and logistics sectors. This reflects a broader debate on how consumer protection objectives can be reconciled with sustainability and circular economy goals.
At the same time, Belgian businesses face growing obligations relating to sustainability, waste reduction, circular economy objectives and ESG compliance. Retailers are therefore confronted with an increasingly complex reality: while consumer rights are strengthened and made easier to exercise, companies themselves are expected to reduce waste and improve the environmental performance of their operations and supply chains.
The emerging idea is simple: consumer rights should continue to be protected, but they should also be exercised responsibly and in good faith.
Whether this principle will eventually find explicit recognition in European consumer legislation remains to be seen.
5. What can Retailers do today?
While retailers cannot remove statutory withdrawal rights, they are far from powerless.
Several legally defensible measures may be considered:
- Clearly distinguish statutory rights from commercial return policies offered on a voluntary basis;
- Introduce fair shopping or fair use provisions in terms and conditions;
- Monitor return patterns using objective and proportionate criteria;
- Require additional verification in cases of suspected abuse or fraud;
- Suspend or terminate customer accounts where abusive behaviour is established;
- Refuse future transactions with customers whose conduct demonstrates systematic exploitation of return policies;
- Pursue contractual or tort remedies where fraudulent conduct is identified;
- Ensure that any decision to suspend an account or refuse future transactions is based on objective criteria, assessed on a case-by-case basis and implemented through a transparent process allowing the customer to understand the reasons for the measure.
Any such measures should be transparent, proportionate, evidence-based, and compliant with applicable data protection laws, particularly where behavioural monitoring or profiling is involved.
The existence of a statutory right of withdrawal does not prevent retailers from relying on other legal mechanisms where appropriate, including contractual remedies, claims based on abuse of rights, actions relating to fraud, or the exercise of their freedom to decide whether to enter into future contractual relationships.
6. Conclusions
Consumer protection is one of the great achievements of modern European law.
However, rights are intended to protect legitimate interests, not to facilitate their abuse.
As retailers face increasing financial and environmental costs associated with excessive returns, the legal debate is gradually shifting.
The question is no longer whether abusive behaviour exists, but how businesses can address it without undermining the legitimate rights of genuine consumers.
It is no longer merely a question of consumer protection. It is increasingly a question of balancing consumer protection, contractual fairness, freedom of enterprise and sustainability objectives within a coherent legal framework.
The challenge for legislators, regulators and courts will be to preserve the effectiveness of consumer protection while ensuring that the exercise of consumer rights remains consistent with their purpose and with the broader principles of proportionality and good faith that underpin Belgian and European private law.
Authors:
Luca Roscini (Andersen)
