32 Amendments of Marlene MIZZI related to 2015/0287(COD)
Amendment 74 #
Proposal for a directive
Recital 1
Recital 1
(1) The growth potential of e- commerce has not yet been fully exploited. Theis Digital Single Market Strategy for Europe29 tackles in a holistic manner therective tackles major obstacles to the development of cross-border e- commerce in the Union in order to unleash thisits full potential. Ensuring better access for consumers to digital content or digital services, providing remedies for consumers in case of lack of conformity or a failure to supply the digital content or digital services and facilitating businesses to supply digital content and digital services is necessary to boost the Union’s digital economy and, stimulate overall growth. _________________ 29 COM (2015) 192 final and increase consumer trust in the Digital Single Market.
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 82 #
Proposal for a directive
Recital 2
Recital 2
(2) For the achievement of a genuine digital single market, the harmonisation of certain aspects concerning contracts for supply of digital content, taking as a base a high level of consumer protect and digital services as a common platform for all Member States while recognising Member States' competences within the Union, is necessary.
Amendment 112 #
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 and digital services, provided that a high level of consumer protection is guaranteed, by setting out Union-wide contractual rights which are essential for this type of transactions.
Amendment 128 #
Proposal for a directive
Recital 7
Recital 7
(7) Consumers willalready benefit from fully harmonisedthe European Union's past harmonisation efforts and will profit greatly from common rights for digital content and digital services at a high level of protection. They will have clear rights when they receive or access digital content and digital services from anywhere in the EU. This will increase their confidence in buyaccessing digital content. This will also contribute to reducing the detriment consumers currently suffer, since there will be a set of clear rights that will enable them to address problems they face with digital content and digital services.
Amendment 168 #
Proposal for a directive
Recital 12
Recital 12
(12) In order to meet the expectations of consumers and ensure a clear-cut and simple legal framework for suppliers of digital content offered on a duratangible medium, in relation to conformity requirements and remedies available to consumers for non-conformity, this Directive should apply to goods such as DVDs and CDs, incorporatingdigital content integrated in goods such as household appliances, toys and storage devices where that digital content is embedded in such a way that the goods function only as a carrier of the digital content. Theit operates as an integral part of the goods and cannot easily be un- installed by the consumer, unless the seller proves that the lack of conformity lies in the hardware of the good. To the same avail, this Directive should also apply to the digital content supplied on a durable medium, independently whether it is soldgoods such as DVDs and CDs, incorporating digital content in such a way that the goods function only ats a distance or in face-to-face situations, so as to avoid fragmentation between the different distribution channels. Thecarrier of the digital content, unless the seller proves that the lack of conformity lies in the hardware of the good. Directive 2011/83 should continue to apply to those goods, including tohe 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. Theis Directive is also without prejudice to the distribution right applicable to theose goods under copyright law.
Amendment 172 #
Proposal for a directive
Recital 12 a (new)
Recital 12 a (new)
(12 a) Considering that the seller is liable towards the consumer for any lack of conformity of the digital content or service resulting from an act or omission of the seller or a third party it is justified that the seller should be able to pursue remedies against the responsible person earlier in the chain of transactions.
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 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 366 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
This Directive lays down certain requirements concerninge purpose of this Directive is, whilst providing a high level of consumer protection, to contribute to the proper functioning of the internal market by laying down common rules on contracts for the supply of digital content or digital services to consumers, in particular rules on conformity of digital content or digital services with the contract, remedies in case of failure to supply digital content or digital services or the lack of such conformity and the modalities for the exercise of those remedies as well as on modification of the digital content or digital service and termination of suchlong- term contracts.
Amendment 412 #
Proposal for a directive
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
6. 'price' means money or a digital representation of value including a virtual currency or another counter-performance such as data that is due in exchange for the supply of digital content suppliedor a digital service;
Amendment 416 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
6 a. personal or other data means data as defined by Article 4(1) of Regulation (EU) 2016/679 ;
Amendment 419 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
6 a. "data as counter-performance" means personal data or 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 digital service supplied, and which the supplier or a third party uses, on the basis of the consumer's consent or otherwise.
Amendment 452 #
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 paidor undertakes to supply digital content or a digital service to the consumer in exchange for payment of a price and/or personal data or othe consumer actively provides counter-pr data provided by the consumerf ormance other than money in the form of personal data or any other data collected by the supplier or a third party.
Amendment 464 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
3. With the exception of Articles 5 and 11, this Directive shall apply to any durable medium incorporating digital content where the durable medium has been used exclusively as carrier of digital contentgoods in which a digital content is embedded unless the supplier proves that the lack of conformity lies in the hardware of the good. This Directive shall also apply to tangible media which serve exclusively as carrier of digital content, unless the supplier proves that the lack of conformity lies in the tangible medium.
Amendment 535 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. The supplier shall supply the digital content or digital service immediately after the conclusion of the contract, unless the parties have agreed otherwise. The supplyier shall be deemed to take place when the digital content is suppliedhave fulfilled his obligation to supply when the digital content or digital service is made available or is accessible to the consumer or, where point (b) or (c) of paragraph 1 applies, to the third party chosen by the consumer, whichever is the earlierapplicable.
Amendment 578 #
Proposal for a directive
Article 6 – paragraph 2 – point a
Article 6 – paragraph 2 – point a
(a) wThether the digital content is supplied in exchange for a price or other cou interoperability that the consumer may reasonably expect from an electronic file supplied for an unlimited period of time requires, whatever the provisions of the contract may be, that this electronic file shall be supplied in an open format only. The supplier of such a file which uses proprietary technological protection measures shall make available to other suppliers of files or digital services which so request, the information which is necessary for the purpose of inter-operformance than money;ability. It shall not impose other hardware or software limitations preventing the access and use to a file in a digital environment other than the one in which it has been supplied, meaning that consumers can access digital content without having to use applications or other technologies to convert the content they want to have access to.
Amendment 580 #
Proposal for a directive
Article 6 – paragraph 2 – point b
Article 6 – paragraph 2 – point b
(b) where relevant, any existing international technical standards or, in the absence of such technical standards, applicable industry codes of conduct and good practices; and
Amendment 617 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
1. At the time tThe digital content is supplied to the consumer, theor digital contentservice shall be free ofrom any restriction resulting from any right of a third party, including based on intellectual property, so that rights, that may prevent the consumer using the digital content can be usedor digital service in accordance with the contract.
Amendment 656 #
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 determascertaine the consumer's digital environment in order to be able to establish whether the lack of conformity existed at the time of supply. The obligation to cooperate shall be limited to the technically available means which are the least intrusive for the consumer. Only in exceptional and duly justified circumstances where there are no other means available the consumer shall grant the supplier upon request virtual access to the consumer's digital environment. 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 675 #
Proposal for a directive
Article 10 – paragraph 1 – point c
Article 10 – paragraph 1 – point c
(c) where the contract provides that the digital content shall be supplied over a period of time or at specified time or date for a single act of supply, any lack of conformity which occurs during the duration of that period or at the time or date agreed to supply the digital content or digital service.
Amendment 695 #
Proposal for a directive
Article 11 – paragraph 1 a (new)
Article 11 – paragraph 1 a (new)
The first paragraph shall not be applicable where the supplier has refused to supply the digital content or digital services or where supply within the agreed period is essential taking into account all the circumstances attending the conclusion of the contract or where the consumer informs the supplier, prior to the conclusion of the contract, that supply by or on a specified date is essential. In those cases, if the supplier fails to supply at the relevant time pursuant Article 5(2), the consumer shall be entitled to terminate the contract immediately.
Amendment 704 #
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 entitledable to request to have the digital content or digital service brought into conformity with the contract free of charge, unless this is impossible, disproportionate or unlawful, or to have an appropriate reduction in the price, or to terminate the contract under the conditions set out in this Article.
Amendment 798 #
Proposal for a directive
Article 13 – paragraph 2 – point b
Article 13 – paragraph 2 – point b
(b) the supplier, without prejudice to Regulation 2016/678, shall take allnecessary measures which could be expected in order to refrain from to restrain any further use of the counter- performance other than moneydata which the consumer has provided in exchange for the digital content 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 contentand provide the right to the consumer to retrieve the collected data free of charge and to know how the data was utilised;
Amendment 836 #
Proposal for a directive
Article 13 – paragraph 5
Article 13 – paragraph 5
5. Where the digital content has been supplied in exchange for a payment of a price and over the period of time stipulated in the contract, the consumer mayshall be entitled to terminate the contract only in relation to that part of the period of time where the digital content has not been in conformity with the contractfrom the date on which the digital content or digital service ceased to be in conformity with the contract, unless the lack of conformity with the contract is such as to justify termination of the contract as a whole.
Amendment 845 #
Proposal for a directive
Article 13 a (new)
Article 13 a (new)
Amendment 851 #
Proposal for a directive
Article 13 b (new)
Article 13 b (new)
Article 13 b Obligations of the consumer in the event of termination 1. In the event of termination, where the digital content or digital service was not supplied on a tangible medium, the consumer shall refrain from using the digital content or making it available to third parties, in particular by deleting the digital content or rendering it otherwise unintelligible. 2.Where the digital content or digital service was supplied on a tangible medium or embedded in a good, the consumer shall (i) upon the request of the supplier, return, at the supplier's expense, the durable tangible medium or the good to the supplier without undue delay, and in any event within 14 days from the receipt of the supplier's request; and (ii) delete any usable copy of the digital content, render it unintelligible or otherwise refrain from using it or making it available to third parties. 3.The consumer shall not be liable to pay for any use made of the digital content or the digital service in the period prior to the termination of the contract.
Amendment 964 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – paragraph 1
Where the supplier is liable to the consumer because of any failure to supply the digital content or digital service or a lack of conformity with the contract resulting from an act or omission by a person in earlier links of the chain of transactions, the supplier shall be entitled to pursue remedies against the person or persons liable in the chain of transactions or a third party who has granted an end- use license to the consumer. The person against whom the supplier may pursue remedies and the relevant actions and conditions of exercise, shall be determined by national law.
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.