Amazon Marketplace seller ignores Distance Selling Regulations & Amazon supports them

[nigelbb]

To cut a longish story short I bought an item on Amazon for £144.44 that turned out not to do what I thought it would. When I came to return it I realised that I hadn't actually bought from Amazon (who in my experience have an impeccable returns procedure) but from a 3rd party called "Express Processing" even though the payment was to "AMAZON *MKTPLCE EU". Their T&Cs ignore the Distance Selling Regulations insisting on items being unopened etc. I did however go through their returns procedure via a website & returned the item in perfect condition by Special Delivery at a cost of £7. I quickly had a notification of a refund but this turned out to be for only £118.95 i.e. I am now out of pocket by £25.49 + £7 return postage.

 

Express Processing have ignored my requests to be refunded fully so I complained to Amazon who also ignore my complaint so I claimed under their A-Z Marketplace Guarantee & again this was refused as according to the email I got "your seller can charge a restocking fee and is not responsible for the shipping". I have spoken on the phone to Amazon customer services who apologised said that they would escalate my complaint but nothing has happened.

 

It appears that Express Processing are working the system by giving a partial refund as they know that Amazon will back them up. Presumably the Amazon off-shored customer service people are unaware of UK law.

 

After a l lot of insistence on the phone I managed to get a postal address for Amazon UK but it does seem extremely shifty that neither Amazon UK's postal address nor telephone number can be found anywhere on their website (I think that this is contrary to the DSRs too).

 

I realise that I can probably do a chargeback with my bank but really I want to put a stop to this illegal behaviour & force Amazon to police their Marketplace sellers properly. I welcome suggestions as to my next step. Trading Standards should be interested & I am quite prepared to go to the Small Claims Court.

[Conniff]

If the selling company said in their terms and conditions that returns had to be paid for by the purchaser, then that is legal.

If it was returned because it didn't work, or not as described etc, then the seller pays the return postage.

The remaining looks like a restocking fee and that is illegal under the dsr's.

 

A chargeback is not an automatic thing and does not guarantee you will get back any money, it is investigated first.

 

DSR is an eu directive and not applicable to any country outside selling to the UK.

[rebel11]

Hi Nigel

 

You could consider doing a Chargeback if you paid by Credit Card or Visa Debit. http://www.which.co.uk/consumer-rights/sale-of-goods/your-rights-when-paying-by-credit-card/chargeback-on-credit-and-debit-cards

[nigelbb]

According to the OFT booklet on the DSRs the seller should have sent me a copy of their T&Cs (they did not). It is not sufficient to have them on a web page they must be sent by email or letter & as you will see below it was quite a struggle to even find the T&Cs

 

Their T&Cs in any case are contrary to the DSRs as for example they state that they "only accept the return of opened items if they are faulty". I only found this by following a link in the email from Amazon confirming my order

 

There is a link buried on that Amazon page to their returns website (not on the Amazon site) where their full T&Cs are listed but again as per the OFT I am supposed to be sent a copy of these when I order not by ferreting about the WWW

Incidentally at the foot of that last page that I linked to is an address in Stockton on Tees for "accounts and Admin only, not returns or service". Otherwise the only means of contacting them is an 0845 phone number or a web page but not an email address. So it does at least appear to be a UK company serving UK customers via the Amazon UK website & thus very much subject to UK law. I realise that traders may dislike the rights that consumers have under the DSRs but abiding by those rules is the price they pay for selling online & saving on retail premises & losses due to shoplifting.

 

I am reluctant to immediately go the chargeback route as really to aid other consumers this ignoring the DSRs needs to be stopped. It's bad enough that this outfit should do it but to have their stance backed up by Amazon who do know better is outrageous.

 

BTW because I have not made 20 posts on this forum evidently I am not permitted to provide the URLs to back up my story but if anyone wants to see them then please PM me

[nigelbb]

Here are edited versions of the links that I tried to provide in my previous post hopefully this will be permitted by the forum software. Replace *** with www

OFT booklet on DSRs

***.oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf

Express Processing page on Amazon website with brief returns policy

***.amazon.co.uk/gp/help/seller/home.html?ie=UTF8&isAmazonFulfilled=&marketplaceID=A1F83G8C2ARO7P&isCBA=&orderID=&asin=&marketplaceSeller=0&seller=A15TW43BF9Y9WW

Express Processing T&Cs on their own website

***.expressprocessing.co.uk/amazon/return/terms/terms.html

[Conniff]

I see nohing about returning them unopened.

 

"By law, customers located in the United Kingdom have the right to withdraw from the purchase of an item within seven working days of the day after the date the item is delivered. For more information see Your Statutory Rights online.

Where you are choosing to withdraw from your purchase within the seven working day cooling-off period following receipt of your order, and there has been no error on our part, we will refund the cost of the item only and the cost of sending the item to you as follows if applicable. When returning an order within the seven working day cooling-off period you are obligated under the DSR regulations to return the order (items) exactly as supplied, complete with all accessories and seals / shrink wrap where applicable intact. Items must not have been used and must be returned in a saleable condition."

 

http://www.expressprocessing.co.uk/amazon/

 

 

 

But irrespective of what they say or don't say, if you notified them within the 7 working days then you are entitled to a full refund less the return postage.

 

Write to them recorded delivery and give 7 days to reimburse you the shortfall and tell them that failure to do so will result in action in the small claims court.

Edited July 31, 2011 by Conniff

[rebel11]

Hi Nigel

 

Go straight to the top, let us know how you get on and what he has to say:-

 

Brian McBride, Chief Executive

bmcbride@amazon.com

'I am reluctant to immediately go the chargeback route as really to aid other consumers this ignoring the DSRs needs to be stopped. It's bad enough that this outfit should do it but to have their stance backed up by Amazon who do know better is outrageous.'

[perplexity]

DSR is an eu directive and not applicable to any country outside selling to the UK.

 

That is correct, in a sense, but horribly misleading.

 

The Directive applies to a distance contract, not to a country, and

 

A consumer may bring proceedings against the other party to a contract either in the courts of the Member State in which that party is domiciled or in the courts for the place where the consumer is domiciled.

[Article 16.1 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters]

 

 

N.B. also, Subsection (5) of section 210 of the Enterprise Act:

 

For the purposes of a domestic infringement it is immaterial whether a person supplying goods or services has a place of business in the United Kingdom.

 

This from Amazon is of course wrong, a strict liability criminal offence. because it misleads about the consumer’s rights or the risks he may face:

 

When returning an order within the seven working day cooling-off period you are obligated under the DSR regulations to return the order (items) exactly as supplied, complete with all accessories and seals / shrink wrap where applicable intact. Items must not have been used and must be returned in a saleable condition.

Section 17(4) of the DSRs define the truth of it:

 

The consumer shall not be under any duty to deliver the goods except at his own premises and in pursuance of a request in writing, or in another durable medium available and accessible to the consumer, from the supplier and given to the consumer either before, or at the time when, the goods are collected from those premises.

A supplier may request that the consumer returns the goods. What the supplier is not entitled to do is lie about the Regulations, to pretend that some sort of duty exists to return the goods to a seller, in order to solicit a refund, in the face of a Regulation to the opposite effect.

 

To put a stop to this, I suggest to identify the person responsible for the illegitimate term, in order to lay the information before a Magistrate, ... send them a summons.

 

The Consumer Protection from Unfair Trading Regulations provide the ammunition.

[jturpin]

If the selling company said in their terms and conditions that returns had to be paid for by the purchaser, then that is legal.

If it was returned because it didn't work, or not as described etc, then the seller pays the return postage.

The remaining looks like a restocking fee and that is illegal under the dsr's.

 

A chargeback is not an automatic thing and does not guarantee you will get back any money, it is investigated first.

 

DSR is an eu directive and not applicable to any country outside selling to the UK.

 

It is not possible for a company to restrict your rights in their terms and conditions, so even if their terms and conditions state that they will charge you for shipping, they cannot legally do so. However the only recourse is through the courts. Complaints to the OFT or Trading Standards will be registered but not necessarily acted upon and will probably not get you your money back.

[Conniff]

It is not possible for a company to restrict your rights in their terms and conditions, so even if their terms and conditions state that they will charge you for shipping, they cannot legally do so. However the only recourse is through the courts. Complaints to the OFT or Trading Standards will be registered but not necessarily acted upon and will probably not get you your money back.

 

If you are refering to the part where you have to pay the return postage, I'm afraid they can as long as they state that in their terms and conditions. They are not restricting your rights, the regulations allow them to do so.

It also means that if they didn't say that in their terms and conditions, they cannot ask you to do so later.

[perplexity]

This is horribly wrong:

 

Complaints to the OFT or Trading Standards will be registered but not necessarily acted upon and will probably not get you your money back.

 

Section 19 of The Consumer Protection from Unfair Trading Regulations establishes that

 

It shall be the duty of every enforcement authority to enforce these Regulations.

and Part 8 of the Enterprise Act (by way of which the Regulations are enforced) binds the crown.

 

This means that only do they have to enforce; if they fail to enforce you are entitled to act against the OFT or Trading Standards. There is no immunity or discretion, for most of the offences defined by the Regulations are strict liability.

 

The days when Trading Standards owned a right, in effect, to act as their own judge and jury are long gone.

Edited August 2, 2011 by perplexity
trivial

[jturpin]

If the selling company said in their terms and conditions that returns had to be paid for by the purchaser, then that is legal.

If it was returned because it didn't work, or not as described etc, then the seller pays the return postage.

The remaining looks like a restocking fee and that is illegal under the dsr's.

 

A chargeback is not an automatic thing and does not guarantee you will get back any money, it is investigated first.

 

DSR is an eu directive and not applicable to any country outside selling to the UK.

 

Sorry, my mistake, I misread the post. he DSR's place no obligation on the seeler to pay return postage. However, irrespective of their terms and conditions they must adhere to the DSRs. This company has a set of T & Cs that try and force the purchaser to pay for initial postage and distribuion (min £1.49 I think), this is not allowed. Sorry about the confusion.

[perplexity]

A chargeback is not an automatic thing and does not guarantee you will get back any money, it is investigated first.

 

That is misleading.

 

The supplier's duty to reimburse is unconditional, so the only thing to investigate is whether or not the contract is cancelled, as per s10 of the DSRs. If the supplier and the credit card company are both informed that the contract is cancelled and the buyer proceeded to a county court to enforce the duty to reimburse, they would not have a leg to stand on.

 

Sorry, my mistake, I misread the post. he DSR's place no obligation on the seeler to pay return postage.

 

The buyer is therefore a fool to return the goods.

 

The net effect of the Regulations is that a buyer is entitled to refuse to return the goods before he is granted the refund he wants. Conversely, the seller is not entitled to hold the buyer to ransom, to refuse to refund before the goods are returned. That would be the strict liability offence because "it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise".

 

P.S.

 

This could also be pointed out, section 36, Sale of Goods Act:

 

Buyer not bound to return rejected goods.

 

Unless otherwise agreed, where goods are delivered to the buyer, and he refuses to accept them, having the right to do so, he is not bound to return them to the seller, but it is sufficient if he intimates to the seller that he refuses to accept them.

Edited August 2, 2011 by perplexity
PS

[nigelbb]

I had a very long discussion with someone in Amazon's Dublin call centre then a couple of days later received an email from 'Laura' that stated

In this case the seller sold a "new" item that was not found to be listed incorrectly and it was returned as unwanted so they deducted a restocking fee, which is acceptable under our Marketplace return page if the item is opened.

 

However 'Laura' also wrote

Since there seems to be some confusion with the refund the seller issued and what was expected I have made a onetime exception and issued you a refund for the remaining amount.

 

So after a couple of phone conversations & about ten emails I finally got my money refunded.

 

However on checking the Amazon Marketplace UK policy on refunds they do indeed state that If a new unwanted item is returned opened, the seller may deduct a reasonable restocking fee from your refund. which as far as I am aware is entirely contrary to the Distance Selling Regulations

w*w.amazon.co.uk/gp/help/customer/display.html/203-7438992-9845524?ie=UTF8&nodeId=1161010&qid=1191174001&sr=1-2

[perplexity]

However on checking the Amazon Marketplace UK policy on refunds they do indeed state that If a new unwanted item is returned opened, the seller may deduct a reasonable restocking fee from your refund. which as far as I am aware is entirely contrary to the Distance Selling Regulations

 

It is not quite so clear cut.

 

According the The Regulations, s17(5)

 

... the supplier may make a charge, not exceeding the direct costs of recovering any goods supplied under the contract, ...

"direct costs" is open to interpretation.

[Conniff]

You have the right of examination which may mean that you have to open a packet or wrapping. So now you have your refund, you should write back to this Laura and show here the relevent bit of the regulation.

 

We have a subscriber on these forums who mis-interprets things, but this cannot have happened at Amazon as it says:

 

You are not allowed to make any further charges, such as a restocking charge or an administration charge.

 

You can't get any plainer than that.

[perplexity]

It misrepresents, to present this as if it were the law:

 

You are not allowed to make any further charges, such as a restocking charge or an administration charge.

 

This the law:

 

http://www.legislation.gov.uk/uksi/2000/2334/regulation/14/made

 

The OFT is bound by the law, and the government is bound by the EU Directive.

 

If you want to have a go at online suppliers like Amazon, the better bet would be to challenge the way they lead the buyers to believe that they have to return the goods in order to achieve a refund.

 

Were the buyers to refuse to return the goods before they get the money; were they to proceed to act as soon as the seller refuses to refund, that would change, soon enough.

 

If you prefer to believe in advice from the OFT, lodge a compliant about Amazon, see how far you get with that.

 

P.S.

 

I have challenged the OFT on previous occasions to justify particular parts of the advice they give, with a reference to a statute or precedent .

 

Go on; try it and see what you get for that. I dare you.

 

Actions speak louder than words.

Edited August 4, 2011 by perplexity
PS

[nigelbb]

I have already replied with the relevant information from the OFT's excellent booklet oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf directed at businesses which states that However, the DSRs do not link cancellation rights with a supplier’s ability to resell items as new.

 

However, if the consumer has done no more than examine the goods as they would have in a shop and if that requires opening the packaging and trying out the goods then they would not have breached their duty to take reasonable care of the goods.

 

What is particularly irritating is that Amazon UK are perfectly well aware of the DSRs & their own sales comply to the letter but they seem perfectly happy to take commission from sellers who flaunt the law. I had imagined at one time that their policing of their marketplace sellers would be at least as strict as eBay on their site but it is a lot less than that. One amazing thing I dug up is that you have a lifetime limit of just five claims under the Amazon Marketplace A-to-Z Guarantee. So it's just tough if throughout the course of your life you encounter more than your fair share of crooks on Amazon. I could perhaps accept a limited number of claims per year but a lifetime limit of just five claims is just nuts.

 

Perhaps I should send an email to :-

 

Brian McBride, Chief Executive

bmcbride.at.amazon.com

 

I have also managed to obtain the postal address of Amazon UK that is impossible to find on their website so can now send a registered letter to Mr McBride & his legal department asking why they are conspiring with their Marketplace sellers to deny consumers their rights under the DSRs

 

Patriot court

1-9 The Grove

Slough

Berkshire

SL1 1QP

United Kingdom

Edited August 6, 2011 by nigelbb

[perplexity]

I have already replied with the relevant information from the OFT's excellent booklet oft.gov.uk/shared_oft/business_leaflets/general/oft698.pdf directed at businesses which states that ....

 

and

 

This leaflet is only a simple guide and should not be

relied on as a complete statement of the law.

To understand your rights and obligations fully,

study the relevant law or consult a solicitor.

http://www.oft.gov.uk/shared_oft/business_leaflets/general/oft913.pdf

 

I disagree, that Amazon is worse than eBay.

 

P,S.

 

What sort of an item was it?

 

The Regulations except contracts for the supply of audio or video recordings or computer software if they are unsealed by the consumer.

 

re.

 

After a l lot of insistence on the phone I managed to get a postal address for Amazon UK but it does seem extremely shifty that neither Amazon UK's postal address nor telephone number can be found anywhere on their website (I think that this is contrary to the DSRs too).

 

It took me no more than a few minutes to discover several geographical addresses, for different purposes, here:

 

http://www.amazon.co.uk/gp/help/customer/display.html/ref=footer_cou?ie=UTF8&nodeId=1040616

 

27. Our details

Amazon.co.uk is the trading name for Amazon EU SARL, Amazon Services Europe SARL and Amazon Media EU SARL.

This website (excluding "Marketplace") is owned and operated by Amazon EU SàrL. The "Marketplace" parts of the website, together with any other third-party seller programmes operated on the website from time to time are operated by Amazon Services Europe SARL.

 

For the Amazon.co.uk website (excluding "Amazon Music MP3 Service","Marketplace" and other third-party seller programmes on the website):

Amazon EU Sàrl 5 Rue Plaetis L-2338 Luxembourg Registered in Luxembourg No. B-101818 Business License Number: 104408 Luxembourg VAT Reg. No. LU 20260743 You can contact us by visiting www.amazon.co.uk/contactus

For "Marketplace" and other third-party seller programmes on the website:

Amazon Services Europe SARL. 5 Rue Plaetis L-2338 Luxembourg Registered in Luxembourg No. B-93815 Business License Number: 100416 Luxembourg VAT Reg. No. LU 19647148 You can contact us by visiting www.amazon.co.uk/contactus

For the "MP3 Music Service":

Amazon Media EU SARL. 5 Rue Plaetis L-2338 Luxembourg Registered in Luxembourg No. 112767 Business License Number: 110001 Luxembourg VAT Reg. No. LU 20944528

Edited August 6, 2011 by perplexity
PS

[dantheaxeman]

Hi Nigel, interested to read your post, I am in a similar situation at the moment, and I'm having to go the chargeback route as neither Amazon or the supplier will give me the suppliers address.

 

I find it interesting that although Amazon claim to not be the seller, the only option available is to pay amazon in exactly the same way as you do when Amazon is the seller. This must infer some kind of contractual obligation from Amazon whether it is as a service or indeed that Amazon is infact the supplier and effectively sub contracts out to their marketplace members.

 

Anyway, how did you get on?

[nigelbb]

I eventually got an ex gratia refund from Amazon after several long phone calls & threats of Trading Standards & the Small Claims Court. They really are awful. Amazon are doing themselves no favours by supporting these crappy MarketPlace sellers. Presumably for Amazon it's easy money just taking a commission from MarketPlace sellers but eventually they will deter customers from ordering from Amazon at all. Many of these MarketPlace Sellers are breaching the Distance Selling Regulations by not providing a bricks & mortar address or proper Terms & Conditions of sale. It's outrageous that Amazon are colluding in this illegality & profiting from it.

 

Incidentally the Managing Director of Amazon UK was on the Today programme on Radio 4 recently. His name is Christopher North if anyone needs to contact him directly.

[perplexity]

Many of these MarketPlace Sellers are breaching the Distance Selling Regulations by not providing a bricks & mortar address or proper Terms & Conditions of sale. It's outrageous that Amazon are colluding in this illegality & profiting from it.

 

This is not just a breach of the DSRs.

 

Since the The Consumer Protection from Unfair Trading Regulations 2008 [section 6(4)©], it is a strict liability criminal offence.