Activities of Virginie ROZIÈRE related to 2015/0287(COD)
Plenary speeches (1)
Contracts for the supply of digital content and digital services - Contracts for the sale of goods (debate) FR
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content PDF (1 MB) DOC (200 KB)
Amendments (85)
Amendment 79 #
Proposal for a directive
Recital 1 a (new)
Recital 1 a (new)
(1 a) Article 169(1) and point (a) of Article 169(2) of the Treaty on the Functioning of the European Union (TFEU) provide that the Union is to contribute to the attainment of a high level of consumer protection through measures adopted pursuant to Article 114 TFEU.
Amendment 80 #
Proposal for a directive
Recital 1 b (new)
Recital 1 b (new)
(1 b) Article 38 of the Charter of Fundamental Rights of the European Union provides that Union policies are to ensure a high level of consumer protection and Article 47 of the Charter provides that everyone whose rights under Union law are violated shall have the right to an effective remedy. Article 16 of the Charter recognises the freedom to run a business in accordance with Union and national law and practices.
Amendment 107 #
Proposal for a directive
Recital 4
Recital 4
(4) Consumers are not confident when buycontracting cross border and especially online. One of the major factors for this lack of confidence is uncertainty about their key contractual rights and the lack of a clear contractual framework for digital content. Many consumers of digital content or service experience problems related to the quality of, or access to, digital content or service. For instance, they receive wrong or faulty digital content, or they are not able to access thea digital content in questionservice. As a result, consumers may suffer financial and non- financial detriment.
Amendment 116 #
Proposal for a directive
Recital 5
Recital 5
(5) In order to remedy these problems, both businesses and consumers should be able to rely on fully harmonised rules for the supply of digital content or service setting out Union-wide contractual rights which are essential for this type of transactions.
Amendment 125 #
Proposal for a directive
Recital 6
Recital 6
(6) Fully harmonised consumer contract law rules in all Member States will make it easier for businesses to offer digital content or service cross-border. They will have a stable contract law environment when selling online and otherwise at a distance to other Member States. Fully harmonised rules specific for digital content or service throughout the EU will remove the complexity caused by the different national rules that currently apply to contracts for the supply of digital content or service. They will also prevent legal fragmentation that otherwise would arise from new national legislations regulating specifically digital content or service.
Amendment 132 #
Proposal for a directive
Recital 7
Recital 7
(7) Consumers will benefit from fully harmonised rights for digital content or service at a high level of protection. They will have clear rights when they receive or access digital content or service from anywhere in the EU. This will increase their confidence in buyingconcluding contracts for supply of digital content or service. This will also contribute to reducclosing the detriment consumers currently suffer, since there will beexisting legal loophole by creating a set of clear rights that will enable themconsumers to address problems they face with digital content and service.
Amendment 142 #
Proposal for a directive
Recital 8
Recital 8
(8) This Directive should fully harmonise a set of key rules that are so far not regulated at Union level. It should include therefore rules on conformity of the digital content or service, remedies available to consumers in cases of lack of conformity of digital content or service with the contract and certain modalities for the exercise of those remedies. This Directive should also harmonise certain aspects concerning the right to terminate a long term contract, as well as certain aspects concerning the modification of the digital content.
Amendment 149 #
Proposal for a directive
Recital 9
Recital 9
(9) By fully harmonising all requirements related to the topics regulated by this Directive, it precludes Member States, within its scope of application, from providing any further formal or substantive requirements, such as a period during which the lack of conformity has to become apparent, an obligation for the consumer to notify the supplier of a lack of conformity within a specific period or an obligation for the consumer to pay for the use of the digital content or service until the moment of termination because of a lack of conformity with the contract.
Amendment 154 #
Proposal for a directive
Recital 11
Recital 11
(11) The Directive should address problems across different categories of digital content and itsor service and their supply. In order to cater for fast technological developments and to maintain the future-proof nature of the notion of digital content, this notion as used in this Directive should be broader than in Directive 2011/83/EU of the European Parliament and of the Council.30 In particular itensure legal consistency, the notion of digital content should correspond with that used in Directive 2011/83/EU of the European Parliament and of the Council and should cover, for example, video, audio, applications, digital games and any other software. In order to cater for current and future technological developments , this Directive should also cover digital services which allow the creation, processing or storage of data. While there are numerous ways for digital content to be supplied, such as transmission on a durable medium,, for example cloud storage or file hosting services. It should likewise cover digital services allowing sharing and other interaction, for example social media, instant messaging services, video or audio-sharing websites or platforms, provided they fall outside the scope of electronic communication services within the meaning of Directive 2002/21/EC. While there are numerous ways for digital content or digital services to be supplied, such as downloading by consumers on their devices, web- streaming, allowing access to storage capabilities of digital contentservices or access to the use of social media, this Directive should apply to all digital content or digital services independently of the medium used for itstheir transmission. Differentiating between different categories in this technologically fast changing market is not desirable because it would hardly be possible to avoid discriminations between suppliers. A level-playing field between suppliers of different categories of digital content or service should be ensured. However this Directive should not apply to digital content which is embedded in goods in such a way that it operates as an integral part of the goods and its functions are subordinate to the main functionalities of the goods. _________________ 30 OJ L 304, 22.11.2011, p.64.
Amendment 166 #
Proposal for a directive
Recital 12
Recital 12
(12) In order to meet the expectations of consumers and ensure a clear-cut and simpleunambiguous legal framework for suppliers of digital content or service offered on a durablephysical medium, in relation to conformity requirements and remedies available to consumers for non-conformity, this Directive should also apply to goods such as DVDs and CDs,material goods incorporating digital content in such a way that the goods function only as a carrier of theit constitutes an integral part of the material good and cannot easily be uninstalled unless the supplier proves that the defect lies in the hardware of the good in question. This scope is justified by the increasing complexity of goods incorporating digital content. Theis Directive should also apply to the digital content supplied on a durablephysical medium, independently of whether it is sold at a distance or in face-to-face situations, so as to avoid fragmentation between the different distribution channels. The Directive 2011/83 should continue to apply to those goods, including to obligations related to the delivery of goods, remedies in case of the failure to deliver and the nature of the contract under which those goods are supplied. The Directive is also without prejudice to the distribution right applicable to these goods under copyright law.
Amendment 181 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13 a) The protection of natural persons in relation to processing of their personal data is a fundamental right. If a provision of this Directive conflicts with a provision of Regulation (EU) 2016/6791a the provision of that Regulation should take precedence over this Directive. The implementation and application of this Directive should be made in full compliance with the legal framework in the field of personal data and should supplement those rules where necessary in order to ensure a parallel protection of personal privacy and the dignity it seeks to secure through contract law. The exercise of rights granted under Regulation (EU) 2016/679 in a contractual context should not be put at risk by possible claims for damages or unjustified enrichment as a consequence of the exercise of those rights, which would go against the spirit of Recital 42 of Regulation (EU) 2016/679, which states that „(c)onsent should not be regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment." _________________ 1a Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
Amendment 184 #
Proposal for a directive
Recital 13 b (new)
Recital 13 b (new)
(13 b) Terms not individually negotiated and that concern the processing of personal data or any other data provided by the consumer to the supplier in the context of the conclusion or performance of the contract, including data generated by the consumer's use of any digital content or services supplied, should be subject to unfairness control under the national provisions implementing Directive 93/13/EC and should not be considered as defining the main subject matter of the contract within the meaning of Article 4(2) of Directive 93/13/EC. Also, any standard term that would reduce or undermine any right afforded to the consumer as a data subject under Regulation (EU) 2016/679, including any term defining the functionality and other performance features of the digital content or digital service in a way that is not in conformity with Article 25 of Regulation (EU) 2016/679, should always be regarded as unfair within the meaning of Article 3(1) of Directive 93/13/EC.
Amendment 192 #
Proposal for a directive
Recital 14
Recital 14
(14) As regards digital content or a digital service supplied not in exchange for a price but against counter-performance other than money, this Directive should apply only to contracts where the supplier requests and the consumer actively provides data, such as name and e-mail address or photos, directly or indirectly to the supplier for example through individual registration or on the basis of a contract which allows access to consumers' photosconsumer provides personal or other data and the supplier directly or indirectly collects them. Thise Directive should not apply to situations where the supplier collects data necessary for the digital content to function in conformity with the contract, for example geographical location where necessary for a mobile application to function properly, or for the sole purpose of meeting legal requirements, for instance where the registration of the consumer is required for security and identification purposes by applicable laws. This Directive should also not apply to situations where the supplier collects information, including personal data, such as the IP address, or other automatically generated information such as information collected and transmitted by a cookie, without the consumer actively supplying it, even if the consumer accepts the cookie. It should also not apply to situations where the consumer is exposed to advertisements exclusively in order to gain access to digital contentconclusion or performance of a contract for the supply of digital content or a digital service.
Amendment 224 #
Proposal for a directive
Recital 22
Recital 22
(22) The protection of individuals with regard to the processing of personal data is governed by Directive 95/46/EC of the European Parliament and of the Council31, by Regulation (EU) 2016/679 of the European Parliament and of the Council and by Directive 2002/58/EC of the European Parliament and of the Council32, which are fully applicable in the context of contracts for the supply of digital content. Thosee aforementioned Regulation and Directives already establish a legal framework in the field of personal data in the Union. The implementation and application of this Directive should be made in full compliance with that legal framework. _________________ 31 OJ L 281, 23/11/1995, p. 31 - 50) [to be replaced by the General Data Protection Regulation, once adopted]. 32 OJ L 201, 31.7.2002, p. 37–47.
Amendment 232 #
Proposal for a directive
Recital 23
Recital 23
(23) There are various ways for digital content to reach consumers. It is opportune to set simple and clear rules as to the modalities and the time for performing the supplier's main contractual obligation to supply digital content to the consumer. Considering that the supplier is not in principle responsible for acts or omissions of an internet provider or an electronic platform which the consumer selected for receiving the digital content, it should be sufficient for the supplier to supply the digital content to this third party. With regard to the time of supply, in line with market practices and technical possibilities, the digital content should be supplied immediatwithout undue delay, unless the parties decide to agree otherwise in order to cater for other supply models.
Amendment 233 #
Proposal for a directive
Recital 24
Recital 24
Amendment 236 #
Proposal for a directive
Recital 25
Recital 25
(25) In cases whordere the contract does not stipulate sufficiently clear and comprehensive benchmarks to ascertain the conformity of the digital content with the contract, it is necessaryo ensure that consumers are not deprived of their rights, the rules used to sdet objectivermine conformity criteria to ensure that consumers are not deprived of their rights. In such caseswith the contract must be fully harmonised. In particular, the conformity with the contract should be assessed considering the purpose for which digital content or service of the same description would normally be used.
Amendment 261 #
Proposal for a directive
Recital 32
Recital 32
(32) Due to the specific nature of digital content with its high complexity as well as the supplier's better knowledge and access to know how, technical information and high-tech assistance, it is the supplier who is in a better position than the consumer to know the reasons for the digital content or digital service not being in conformity with the contract. The supplier is also in a better position to assess whether the lack of conformity with the contract is due to incompatibility of the consumer's digital environment with the technical requirements for the digital content. Therefore, in case of a dispute, it should be for the supplier to prove that the digital content is in conformity with the contract, unless the supplier proves that the consumer's digital environment is not compatible with the digital content. Only where the supplier proves that the consumer's digital environment is not compatible with the interoperability and other technical requirements, it should be for the consumer to prove that the digital content is not in conformity with the contract.
Amendment 272 #
Proposal for a directive
Recital 34
Recital 34
(34) The supplier should be liable to the consumer for the lack of conformity with the contract and for any failure to supply the digitalany failure to supply the digital content or a digital service and for the lack of conformity with the contenract. Moreover, given that digital content or digital services may be supplied over a period of time, it is justified that the supplier should be liable for any lack of conformity which occurs during that period.
Amendment 284 #
Proposal for a directive
Recital 36
Recital 36
Amendment 290 #
Proposal for a directive
Recital 36 a (new)
Recital 36 a (new)
(36 a) This Directive should grant consumers throughout the European Union a new and unrivalled freedom in choosing remedies. A consumer should be able to require the seller to bring the digital content or digital service into conformity with the contract either through repair of the defects in the digital content or digital service or the smart good in which they are embedded or through replacement of the defective good with a conforming one. But more importantly, the consumer should be able to turn down any offer by the supplier to cure so as to require price reduction or termination of the contract. The consumer should be able to decide whether or not to give the supplier a chance to cure the defects, and in which way the supplier should cure the defects, according to his own preference. Repair or replacement might be preferable if a consumer thinks the value of the defective product is great, for example because the products are unique or the market prices of the products have gone up.
Amendment 291 #
Proposal for a directive
Recital 37
Recital 37
Amendment 294 #
(37) As a second step, the consumer should be entitled to have the price reduced or the contract terminated. The right of a consumer to have the contract terminated should be limited to those cases where for instance bringing the digital content to conformity is not possible and the non-conformity impairs the main performance features of the digital content. Where the consumer terminates the contract, the supplier should reimburse the price paid by the consumer or, wWhere the digital content is supplied not in exchange for a price but against access to data provided by the consumer, the supplier should refrain from using it, from transferring that data to third parties or allowing third parties to acstop processing it after termination of the contract. Fulfilling the obligation to refrain from using data should mean in the case when the counter-performance consists of personal data, that the supplier should take all measures in order to comply with data protection rules by deleting it or rendering it anonymous in such a way that the consumer cannot be identified by any means likely reasonably to be used either by the supplier or by any other person. Without prejudice to obligations of a controller under Directive 95/46/ECRegulation (EU) 2016/679 the supplier should not be obliged to undertake any further steps in relation to data which the supplier has lawfully provided to third parties in the course of the duration of the contract for the supply of the digital content.
Amendment 307 #
Proposal for a directive
Recital 38
Recital 38
(38) Upon termination the supplier should also refrain from ustop processing the content generated by the consumer. However, in those cases where more than one consumer generated particular content, the supplier is entitled to continue to use the content generated by the consumer where those other consumers make use of it.
Amendment 317 #
Proposal for a directive
Recital 39
Recital 39
(39) In order to ensure that the consumer benefits from effective protection in relation to the right to terminate the contract, the supplier should allow the consumer to retrieve, at his request, all data uploaded by the consumer, or produced by the consumer with the use of the digital content or generated through the consumer's use of the digital content. This obligation should extend to data which the supplier is obliged to retain under the contract for the supply of the digital content as well as to data which the supplier has effectively retained in relation to the contract.
Amendment 344 #
Proposal for a directive
Recital 45
Recital 45
(45) Due to technological or other reasons the supplier might be compelled to change features of the digital content or digital services supplied over a period of time. These changes are often to the advantage of the consumer as they improve the digital content or digital services. Consequently, the parties to the contract may include respective clauses in the contract which allow the supplier to undertake modifications. However, where such modifications negatively affect the way the consumer benefits from main performance features of the digital content or digital services, they may disturb the balance of the contract or the nature of the performance due under the contract to an extent that the consumer may not have concluded such a contract. Therefore, in such cases these modifications should be subject to certain conditions.
Amendment 359 #
Proposal for a directive
Recital 50
Recital 50
(50) Directive 1999/44/EC of the European Parliament and of the Council35 [1] should be amended to reflect the scope of this Directive in relation to a duragoods in which digital content or a digital service is embedded and in relation to a tangible medium incorporating digital content where it has been used exclusively as carrier of the digital content to the consumer. _________________ 35[1] OJ L 171,7.7.1999, p.12. .
Amendment 360 #
Proposal for a directive
Recital 50
Recital 50
(50) Directive 1999/44/EC of the European Parliament and of the Council35 should be amended to reflect the scope of this Directive in relation to a durable medium incorporating digital content where it has been used exclusively as carrier of the digital content to the consumer. _________________ 35 <sup>OJ L 171,7.7.1999, p.12.</sup>
Amendment 370 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
This Directive lays down certain requirements concerninga harmonised legal framework for contracts for the supply of digital content or services to consumers, in particular rules on conformity of digital content with the contract, remedies in case of the lack of such conformity and the modalities for the exercise of those remedies as well as on modification and termination of such contracts, with a view to guaranteeing a high degree of consumer protection.
Amendment 372 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – introductory part
Article 2 – paragraph 1 – point 1 – introductory part
1. 'digital content' means data which is produced and supplied in digital form
Amendment 373 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point a
Article 2 – paragraph 1 – point 1 – point a
Amendment 378 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point b
Article 2 – paragraph 1 – point 1 – point b
Amendment 383 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point c
Article 2 – paragraph 1 – point 1 – point c
Amendment 391 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 a (new)
Article 2 – paragraph 1 – point 1 a (new)
1a. 'digital service' means any economic activity performed on a self- employed basis involving the creation, processing, conservation or sharing of data in digital form;
Amendment 394 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 b (new)
Article 2 – paragraph 1 – point 1 b (new)
1b. 'embedded digital content or service' means pre-installed digital content or a pre-installed digital service which operates as an integral part of a physical good and cannot easily be de- installed by the consumer or which is necessary for the conformity of the physical good with the contract;
Amendment 409 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
5. 'damages' means a sum of money to which consumers may be entitled as compensation for economic damage to their digital environment;
Amendment 428 #
Proposal for a directive
Article 2 – paragraph 1 – point 9
Article 2 – paragraph 1 – point 9
9. 'interoperability' means the ability of legally purchased digital content to perform all its functionalities in interaction with a concrete digital environmentfunction with other existing products or systems with no access or operating restrictions;
Amendment 433 #
Proposal for a directive
Article 2 – paragraph 1 – point 9 a (new)
Article 2 – paragraph 1 – point 9 a (new)
9a. 'compatibility' means the ability of digital content to perform all its functionalities in interaction with a concrete digital environment;
Amendment 439 #
Proposal for a directive
Article 2 – paragraph 1 – point 10
Article 2 – paragraph 1 – point 10
10. 'supply' means providing access to digital content or a digital service or making digital content or a digital service available;
Amendment 446 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. This Directive shall apply to any contract where the supplier supplies digital content to the consumer or undertakes to do so and, in exchange, a price is to be paid or the consumer actively provides counter-performance other than money in the form of personal data or anor undertakes to supply digital content or a digital service to the consumer in exchange for payment of a price or counter-performance other than money, such as personal or other data supplied by the consumer or collected by other data supplier or a third party in the interest of the supplier.
Amendment 458 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
2. This Directive shall apply to any contract for the supply of digital productcontent or a digital service developed according to consumer's specifications.
Amendment 461 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
Amendment 468 #
Proposal for a directive
Article 3 – paragraph 3 a (new)
Article 3 – paragraph 3 a (new)
Amendment 480 #
Proposal for a directive
Article 3 – paragraph 4
Article 3 – paragraph 4
4. This Directive shall not apply to digital content or digital services provided against counter- performance other than money to the extent the supplier requests the consumer to provide personal data the processing of which is strictlyprocessing of personal data or other data supplied by the consumer is necessary for the conclusion or performance of the contract or for meeting legal requirements and the supplier does not further process them in a way incompatible with this purpose. It shall equally not apply to any other data the supplier requests the consumer to provide for the purpose of ensuring that the digital content is in conformity with the contract or of meeting legal requirements, and the supplier does not use that data for commercialany other purposes.
Amendment 486 #
Proposal for a directive
Article 3 – paragraph 5 – point a a (new)
Article 3 – paragraph 5 – point a a (new)
(aa) non-economic services of general interest;
Amendment 487 #
Proposal for a directive
Article 3 – paragraph 5 – point a b (new)
Article 3 – paragraph 5 – point a b (new)
(ab) activities forming part of the exercise of public authority in accordance with Article 45 of the Treaty;
Amendment 497 #
Proposal for a directive
Article 3 – paragraph 6
Article 3 – paragraph 6
6. Where a contract includes elements in addition to the supply of digital content or a digital service, this Directive shall only apply to the obligations and remedies of the parties as supplier and consumer of the digital content or digital service.
Amendment 516 #
Proposal for a directive
Article 4 a (new)
Article 4 a (new)
Article 4a. Information requirements Before the consumer is bound by a contract for the provision of digital content or a digital service, the supplier shall give the consumer the information required under Articles 6 and 8 of Directive 2011/83/EU in a clear and comprehensible form.
Amendment 521 #
Proposal for a directive
Article 5 – title
Article 5 – title
Supply of the digital content or service
Amendment 525 #
Proposal for a directive
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
1. When performing the contract for the supply of digital content or a digital service, the supplier shall supply the digital content to
Amendment 539 #
Proposal for a directive
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
2a. When digital content or a digital service is to be supplied immediately after the contract is concluded, the supplier shall duly inform the consumer that he will lose his right of withdrawal, in line with Article 16 (m) of Directive 2011/83/EU on consumer rights.
Amendment 545 #
Proposal for a directive
Article 6 – title
Article 6 – title
Conformity of the digital content or service with the contract
Amendment 547 #
Proposal for a directive
Article 6 – paragraph -1 (new)
Article 6 – paragraph -1 (new)
-1. The supplier shall give the consumer the same digital content or digital service set out in the contract.
Amendment 552 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. In order to conform with the contract, the digital content shall, where relevantor service shall:
Amendment 554 #
Proposal for a directive
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
(a) be of the quantity, quality, description, duration and version and shall possess functionality, interoperability and other performance features such as the accessibility, continuity and security, as required by the contract including in any pre-contractual information which forms integral part of the contract provided by the supplier;
Amendment 560 #
Proposal for a directive
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) be fit for any particular purpose for which the consumer requires it and which the consumer made known to the supplier at the time of the conclusion of the contract at the latest, and which the supplier accepted;
Amendment 562 #
Proposal for a directive
Article 6 – paragraph 1 – point b a (new)
Article 6 – paragraph 1 – point b a (new)
(ba) be fit for the purposes for which digital content or services of the same type are normally used;
Amendment 563 #
Proposal for a directive
Article 6 – paragraph 1 – point b b (new)
Article 6 – paragraph 1 – point b b (new)
(bb) show the quality and performance which are usual for content or services of the same type and which the consumer can reasonably expect, given the nature of the content or service and taking into account any public statements about the specific characteristics of the content or service made about them by the supplier or a third party representing the supplier, particularly in advertising or on labelling.
Amendment 567 #
Proposal for a directive
Article 6 – paragraph 1 – point d
Article 6 – paragraph 1 – point d
(d) be updated as stipulated by the contract, pre-contractual information, advertising or labelling.
Amendment 569 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
Amendment 635 #
Proposal for a directive
Article 8 b (new)
Article 8 b (new)
Article 8 b Commercial guarantees for lifespan 1. The producer of a technical good in which digital content or a digital service is embedded shall guarantee to the consumer the fitness of the product for its foreseeable minimum life span and indicate how long this life span is. The indicated timeframe shall not be shorter than the legal prescription period of the Member State where the consumer has his habitual residence and shall reflect the expectations of a reasonable and typical consumer. 2. When the producer does not fulfil his obligations according to paragraph 1, he shall have the same obligations to the consumer as the supplier.
Amendment 659 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
3. The consumer shall cooperate with the supplier to the extent possible and necessary to determine the consumer's digital environment. The obligation to cooperate shall be limited to the technically available means which are the least intrusive for the consumer. Where the consumer fails to cooperate, the burden of proof with respect to the non-conformity with the contract shall be on the consumer.
Amendment 699 #
Proposal for a directive
Article 11 a (new)
Article 11 a (new)
Article 11 a In the case of a lack of conformity of the digital content or digital service with the contract, the consumer shall be entitled to choose between the following remedies: (a) have the digital content or digital service brought into conformity with the contract, in accordance with Article 12a; (b) be entitled to a price reduction, in accordance with Article 12b; (c) terminate the contract, in accordance with Articles 13, 13a and 13b.
Amendment 700 #
Proposal for a directive
Article 12 – title
Article 12 – title
Amendment 706 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1
Article 12 – paragraph 1 – subparagraph 1
In the case of a lack of conformity with the contract, the consumer shall be entitled to have the digital content or digital service brought into conformity with the contract free of charge, unless this is factually or legally impossible, disproportionate or unlawful.
Amendment 728 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. The supplier shall bring the digital content or digital service in conformity with the contract pursuant to paragraph 1 within a reasonable timeout undue delay from the time the supplier has been informed by the consumer about the lack of conformity with the contract and without any significant inconvenience to the consumer, taking account of the nature of the digital content or digital service and the purpose for which the consumer required this digital content or digital service.
Amendment 757 #
Proposal for a directive
Article 12 – paragraph 5
Article 12 – paragraph 5
5. The consumer may terminate the contract only if the lack of conformity with the contract impairs functionality, interoperability and other main performance features of the digital content such as its accessibility, continuity and security where required by Article 6 paragraphs (1) and (2). The burden of proof that the lack of conformity with the contract does not impair functionality, interoperability and other main performance features of the digital content shall be on the supplierfreely choose between these different remedies.
Amendment 797 #
Proposal for a directive
Article 13 – paragraph 2 – point b
Article 13 – paragraph 2 – point b
(b) the supplier shall take all measures which could be expected in order to refrain from the use of the counter- performance other than money which the consumer has provided in exchange for the digital content or digital service and any other data collected by the supplier in relation to the supply of the digital content including any content provided by the consumer with the exception of the content which has been generated jointly by the consumer and others who continue to make use of the content;
Amendment 805 #
Proposal for a directive
Article 13 – paragraph 2 – point c
Article 13 – paragraph 2 – point c
(c) the supplier shall provide the consumer with technical means to retrieve all content provided by the consumer and any other non-anonymised data produced or generated through the consumer's use of the digital content to the extent that data has been retained by the supplier, with the exception of the content which has been generated jointly by the consumer and others who continue to make use the content. The consumer shall be entitled to retrieve the content free of charge, without significant inconvenience, in reasonable time and in a commonly used data format;
Amendment 853 #
Proposal for a directive
Article 13 c (new)
Article 13 c (new)
Amendment 864 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. The supplier shall be liable to the consumer for any economic damage to the digital environment of the consumer caused by a lack of conformity with the contract or a failure to supply the digital content. Damages shall put the consumer as nearly as possible into the position in which the consumer would have been if the digital content had been duly supplied and been in conformity with the contract.
Amendment 867 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. The Member States shall lay down detailed rules for the exercise of the right to damages in respect to damage to the digital environment.
Amendment 869 #
Proposal for a directive
Article 14 – paragraph 2 a (new)
Article 14 – paragraph 2 a (new)
2a. Paragraphs 1 and 2 of this Article shall not exclude the possibility for Member States to regulate in respect of other grounds for damages, in particular to the non-digital environment;
Amendment 880 #
Proposal for a directive
Article 15 – paragraph 1 – introductory part
Article 15 – paragraph 1 – introductory part
1. Where the contract provides that the digital content shall be suppliedor digital service is to be supplied or made accessible over the period of time stipulated in the contract, the supplier may only alter the functionality, interoperability and other main performance features of the digital content such as its accessibility, continuity and securityor digital service, to the extent that those alternations adversely affect access to or use of the digital content bybenefit the consumer, only if:
Amendment 882 #
Proposal for a directive
Article 15 – paragraph 1 – point a
Article 15 – paragraph 1 – point a
(a) the contract so stipulates; and
Amendment 885 #
Proposal for a directive
Article 15 – paragraph 1 – point b
Article 15 – paragraph 1 – point b
(b) the consumer is notified reasonably in advance of the modification by an explicit clear and compehensible notice on a durable medium;
Amendment 889 #
Proposal for a directive
Article 15 – paragraph 1 – point c
Article 15 – paragraph 1 – point c
Amendment 895 #
Proposal for a directive
Article 15 – paragraph 1 a (new)
Article 15 – paragraph 1 a (new)
1a. In the event of modification of the content or the service in accordance with paragraph 1, the consumer is allowed to terminate the contract free of any charges within 30 days from the receipt of the notice. In this case the supplier shall provide the consumer with the technical means to retrieve all content provided in accordance with Article 13(2)(c).
Amendment 916 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Where the contract provides for the supply of the digital content for an indeterminate period or where the initial contract duration or any combination of renewal periods exceed 12 months, the consumer shall be entitled to terminate the contract free of any charges any time after the expiration of the first 12 months period.
Amendment 930 #
Proposal for a directive
Article 16 – paragraph 3
Article 16 – paragraph 3
3. Where the digital content is supplied in exchange for a payment of a price, the consumer remains liable to pay the part of the price for the digital content or digital service supplied corresponding to the period of time before the termination becomes effective.
Amendment 950 #
Proposal for a directive
Article 16 – paragraph 4 – point b
Article 16 – paragraph 4 – point b
(b) the supplier shall provide the consumer, at his request, with technical means to retrieve all any content provided by the consumer and any other data produced or generated through the consumer's use of the digital content to the extent this data has been retained by the supplier. The consumer shall be entitled to retrieve the content and the data without significant inconvenience, in reasonable time and in a commonly used data format; and
Amendment 969 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
1. Member States shall ensure that adequate and effective means exist to ensure compliance with this Directive, taking account in particular of the need for consumers to be informed about, enabled and facilitated to enforce their rights in practice. Such means shall include legal mechanisms to enable two or more natural persons or their representative entities to claim remedies collectively where appropriate.
Amendment 971 #
Proposal for a directive
Article 18 – paragraph 2 – introductory part
Article 18 – paragraph 2 – introductory part
2. The means referred to in paragraph 1 shall include provisions whereby one or more of the following bodies,representative bodies, under justified and appropriate criteria as determined by national law, may take action under national law before the courts or before the competent administrative bodies to ensure that the national provisions transposing this Directive are applied. Such bodies shall include, but are not limited to:
Amendment 982 #
Proposal for a directive
Article 22 – paragraph 1
Article 22 – paragraph 1
The Commission shall, not later than on [the date of five years after entry into force] review the application of this Directive and submit a report to the European Parliament and the Council and the European Economic and Social Committee taking full account of the process of scrutiny and review on the application and implementation of this Directive. The review process shall include meaningful and detailed consultation and involvement with Member States and consumer, legal and business organisations at Union level. The report shall examine, inter alia, the case for harmonisation of rules applicable to contracts for the supply of digital content against counter-performance other than that covered by this Directive, in particular supplied against advertisement or indirect collection of data.
Amendment 983 #
Proposal for a directive
Article 22 – paragraph 1
Article 22 – paragraph 1
The Commission shall, not later than on [the date of five years after entry into force] review the application of this Directive and submit a report to the European Parliament and the Council. The report shall examine, inter alia, the case for harmonisation of rules applicable to contracts for the supply of digital content against counter-performance other than that covered by this Directive, in particular supplied against advertisement or indirect collection of data.