12 Amendments of Biljana BORZAN related to 2015/0287(COD)
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 280 #
Proposal for a directive
Recital 35
Recital 35
(35) A failure ofWhere the supplier fails to supply the digital content or a digital service to the consumer in accordance with the contract is a serious breach of the main contractual obligatthe consumer should call to make the supply within an additional and appropriate periond of the supplier, whichime. Any failure to supply within this additional period of time should allow the consumer to immediately terminate the contract. Where the supplier has initially not failed to supply the digital content or digital services, interruptions of the supply making the digital content or digital services not available or accessible to the consumer over a short period of time should be treated as non-conformity with the contract, and not a failure to supply. In particular, the requirement of proper continuity of the digital content should also cover more than negligible short term interruptions of the supply.
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 330 #
Proposal for a directive
Recital 43
Recital 43
(43) Due to its nature the digital content or a digital service, except when supplied as embedded software or ancillary software to a tangible good, is not subject to wear and tear while being used and it is often supplied over a period of time rather than as a one-off supply. It is, therefore, justified not to provide a period during which the supplier should be held liable for any lack of conformity which exists at the time of the supply of the digital content. Consequently Member States should refrain from maintaining or introducing such a period. Member States should remain free to rely on national prescription rules in order to ensure legal certainty in relation to claims based on the lack of conformity of digital content.
Amendment 634 #
Proposal for a directive
Article 8 a (new)
Article 8 a (new)
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 769 #
Proposal for a directive
Article 12 b (new)
Article 12 b (new)
Article 12 b Price reduction 1. As an alternative remedy to bringing into conformity, in the case of a lack of conformity of the digital content or digital service with the contract, the consumer shall be entitled to an appropriate reduction of the price in the manner set out in paragraph 2 where the digital content is supplied in exchange for a payment of a price. 2. The reduction in price shall be proportionate to the decrease in the value of the digital content or digital service which was received by the consumer compared to the value of the digital content or digital service would have if it were to be in conformity with the contract. 3. Where the digital content or digital service is to be supplied over a period of time, and for a certain period the digital content or digital service did not conform to the contract, the consumer shall be entitled to a price reduction proportionate to the period during which the digital content or digital service did not work conform to the contract. 4. The supplier shall reimburse the consumer without undue delay, and in any event within 14 days from the day on which the supplier was informed of the consumer's decision to invoke his right for a price reduction. The supplier shall give the refund using the same means of payment as the consumer used to pay for the digital content or digital service, unless the consumer expressly agrees otherwise. The supplier shall not impose any fee on the consumer in respect of the refund.
Amendment 772 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. The consumer shall exercise the right to terminate the contract by notice to the supplier given by any meansAs an alternative remedy to bringing into conformity or price reduction, in the case of a lack of conformity of the digital content or digital service with the contract, the consumer shall be entitled to terminate the contract if the lack of conformity with the contract is not minor and causes or may cause a substantial effect on the consumer's use or enjoyment of the digital content or digital service. The burden of proof that the lack of conformity with the contract does not have substantial effect on the consumer's use or enjoyment of the digital content or digital service shall be on the supplier.
Amendment 824 #
Proposal for a directive
Article 13 – paragraph 3
Article 13 – paragraph 3
Amendment 830 #
Proposal for a directive
Article 13 – paragraph 4
Article 13 – paragraph 4
Amendment 845 #
Proposal for a directive
Article 13 a (new)
Article 13 a (new)