39 Amendments of António MARINHO E PINTO related to 2018/0089(COD)
Amendment 74 #
Proposal for a directive
Recital 7
Recital 7
(7) The Commission has adopted legislative proposals for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights and Regulation (EC) No 2027/97 on air carrier liability in respect of the carriage of passengers and their baggage by air30 and for a Regulation of the European Parliament and of the Council on rail passengers' rights and obligations.31 It is therefore appropriate to provide that, onthree years after the entry into force of this Directive, the Commission assesses whether the Union rules in the area of air and rail passengers' rights offer an adequate level of protection for consumers, comparable to that provided for in this Directive, and draws any necessary conclusions as regards the scope of this Directive. _________________ 30 31COM(2013) 130 final. COM(2013) 130 final. 31 COM(2017) 548 final. COM(2017) 548 final.
Amendment 84 #
Proposal for a directive
Recital 10
Recital 10
(10) As only qualified entities can bring the representative actions, to ensure that the collective interests of consumers are adequately represented the qualified entities should comply with the criteria established by this Directive. In particular, they would need to be properly constituted according to the law of a Member Statenational law, which could include for example requirements regarding the number of members, the degree of permanence, or transparency requirements on relevant aspects of their structure such as their constitutive statutes, management structure, objectives and working methods. They should also be not for profit and have a legitimate interest in ensuring compliance with the relevant Union law. These criteria should apply to both qualified entities designated in advance and to ad hoc qualified entities that are constituted for the purpose of a specific action.
Amendment 168 #
Proposal for a directive
Recital 32 a (new)
Recital 32 a (new)
(32a) Member States should be encouraged to set up a national register for representative actions free of charge, which could further enhance the transparency obligations.
Amendment 169 #
Proposal for a directive
Recital 33
Recital 33
(33) To enhance legal certainty, avoid inconsistency in the application of Union law and to increase the effectiveness and procedural efficiency of representative actions and of possible follow-on actions for redress, the finding of an infringement established in a final decision, including a final injunction order under this Directive, issued by an administrative authority or a court should not be relitigated in subsequent legal actions related to the same infringement by the same trader as regards the nature of the infringement and its material, personal, temporal and territorial scope as determined by that final decisionbe binding upon all parties, which participated in the representative action. The final decision should be without prejudice to any additional rights to redress that the consumers concerned may have under Union or national law. The redress obtained through the settlement should also be binding upon cases involving the same practice, the same trader and the same consumer. Where an action seeking measures eliminating the continuing effects of the infringement, including for redress, is brought in a Member State other than the Member State where a final decision establishing this infringement was issued, the decision should constitute a rebuttable presumption that the infringement has occurred.
Amendment 188 #
Proposal for a directive
Recital 39 b (new)
Recital 39 b (new)
(39b) In order to avoid creating incentives to litigation, Member States should prohibit contingency fees and success-based boni for lawyers and/or other legal representatives.
Amendment 194 #
Proposal for a directive
Recital 41 a (new)
Recital 41 a (new)
(41a) In order to explore the possibility of having a procedure at Union level for cross-border representative actions, the Commission should assess the possibility of establishing a European Ombudsman for collective redress.
Amendment 203 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Directive sets out rules enabling qualifiedrepresentative entities to seek representative actions aimed at the protection of the collective interests of consumers, while ensuring appropriate safeguards to avoid abusive litigation.
Amendment 248 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1
Article 4 – paragraph 1 – subparagraph 1
Member States shall ensure that representative actions can be brought by qualified entities designated, at their request, by the Member States in advance for this purpose and placed in a publicly available listdesignate within their respective territory representative entities for the purpose of representative actions within in meaning of Article 3 (4). The Member States shall make a list of representative entities publicly available and communicate this list to the Commission, updated where necessary.
Amendment 256 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point a
Article 4 – paragraph 1 – subparagraph 2 – point a
(a) it is properly constituted according to the law of a Member Statenational law;
Amendment 270 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point c a (new)
Article 4 – paragraph 1 – subparagraph 2 – point c a (new)
(ca) it is either organised as an independent public body or it demonstrates full transparency as regards its financial capacities.
Amendment 279 #
Proposal for a directive
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
Amendment 284 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
Amendment 294 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
3. Member States shall ensure that in particularonly consumer organisations and independent public bodies are eligible for the status of qualifiedrepresentative entity. Member States may designate as qualifiedrepresentative entities consumer organisations that represent members from more than one Member State.
Amendment 311 #
Proposal for a directive
Article 5 – paragraph 2 – subparagraph 1 – introductory part
Article 5 – paragraph 2 – subparagraph 1 – introductory part
Member States shall ensure that qualified entitiesthe representative entities, which have been designated in advance, are entitled to bring representative actions seeking the following measures:
Amendment 314 #
Proposal for a directive
Article 5 – paragraph 2 – subparagraph 1 a (new)
Article 5 – paragraph 2 – subparagraph 1 a (new)
Member States shall ensure that no other action is pending at a national court or administrative entities of the same Member State regarding the same practice, the same claimants and the same defendant.
Amendment 315 #
Proposal for a directive
Article 5 – paragraph 2 – subparagraph 2
Article 5 – paragraph 2 – subparagraph 2
In order to seek injunction orders, qualifiedrepresentative entities shall not have to obtain the mandate of the individual consumers concerned orand provide proof of actual loss or damage on the part of the consumers concerned or of intention or negligence on the part of the trader.
Amendment 330 #
Proposal for a directive
Article 5 – paragraph 4 a (new)
Article 5 – paragraph 4 a (new)
4a. Member States shall ensure that an individual member of the claimant party is free to leave the claimant party at any time before the final judgment, without being deprived of the possibility to pursue its claims in another form, such as by an individual claims. Member States shall ensure that consumers can join the claimant party of a representative action until the final judgment or settlement.
Amendment 332 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article 5a Registry of collective redress actions 1. Member States may set up a national register for representative actions, which shall be available free of charge to any interested person through electronic means and/or otherwise. 2. Websites publishing the registries shall provide access to comprehensive and objective information on the available methods of obtaining compensation, including out of court methods as well as the pending representative actions. 3. The national registries shall be interlinked. Article 35 of Regulation (EU) 2017/2394 shall apply.
Amendment 342 #
Proposal for a directive
Article 6 – paragraph 1 – subparagraph 1
Article 6 – paragraph 1 – subparagraph 1
For the purposes of Article 5(3), Member States shall ensure that qualifiedrepresentative entities are entitled to bring representative actions seeking a redress order, which obligates the trader to provide for, inter alia, compensation, repair, replacement, price reduction, contract termination or reimbursement of the price paid, as appropriate. A Member State mayshall require the mandate of the individual consumers concerned before a declaratory decision is made or a redress order is issued.
Amendment 347 #
Proposal for a directive
Article 6 – paragraph 1 – subparagraph 2
Article 6 – paragraph 1 – subparagraph 2
The qualifiedrepresentative entity shall provide sufficientall the necessary information as required under national law to support the action, including a description of the consumers concerned by the action and the questions of fact and law to be resolved.
Amendment 364 #
Proposal for a directive
Article 6 – paragraph 3 – point a
Article 6 – paragraph 3 – point a
Amendment 368 #
Proposal for a directive
Article 6 – paragraph 3 – point b
Article 6 – paragraph 3 – point b
Amendment 376 #
Proposal for a directive
Article 6 – paragraph 4
Article 6 – paragraph 4
4. The redress obtained through a final decision in accordance with paragraphs 1, 2 and 32 shall be without prejudice to any additional rights to redress that the consumers concerned may have under Union or national law.
Amendment 381 #
Proposal for a directive
Article 7 – title
Article 7 – title
Amendment 386 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The qualifiedrepresentative entity seeking a redress order as referred to in Article 6(1) shall declare at an early stage of ththe stage of admissibility of the representative action the source of the funds used for its activity in general and the source of the funds that it uses to support the particular representative action. It shall demonstrate that it has sufficient financial resources to represent the best interests of the consumers concerned and to meet any adverse costs should the action fail.
Amendment 395 #
Proposal for a directive
Article 7 – paragraph 2 – introductory part
Article 7 – paragraph 2 – introductory part
2. Member States shall ensure that in cases where a representative action for redress is funded by a third party, it is prohibited forthe representative action may be declared inadmissible by the national court or administrative authority if it establishes that the funding by the third party would:
Amendment 398 #
Proposal for a directive
Article 7 – paragraph 2 – point a
Article 7 – paragraph 2 – point a
(a) to influence decisions of the qualifiedrepresentative entity in the context of a representative action, including the initiation of representative actions and decisions on settlements;
Amendment 401 #
Proposal for a directive
Article 7 – paragraph 2 – point b a (new)
Article 7 – paragraph 2 – point b a (new)
(ba) constitute any further conflict of interest between the third party, the claimant and the representative entities.
Amendment 408 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Member States shall ensure that courts and administrative authorities are empowered to assess the circumstances referred to in paragraph 2 and accordingly require the qualified entity to refuse the relevant funding and, if necessary, reject the stant the stage of admissibility of the representative action and at a later stage during the court proceeding os if the qualified entity in a specific casecircumstances only yield then.
Amendment 424 #
Proposal for a directive
Article 8 – paragraph 6
Article 8 – paragraph 6
6. Individual consumers concerned shall be given the possibility to accept or to refuse to be bound by settlements referred to in paragraphs 1, 2 and 3. The redress obtained through an approved settlement in accordance with paragraph 4 shall be binding upon all parties, which participated in the representative action without prejudice to any additional rights to redress that the consumers concerned may have under Union or national law. The redress obtained through the settlement shall also be binding upon cases involving the same practice, the same trader and the same consumer.
Amendment 430 #
Proposal for a directive
Article 9 – paragraph -1 (new)
Article 9 – paragraph -1 (new)
-1 Member States shall ensure that the representative entities: (a) inform consumers about the claimed violation of rights granted under Union law and the intention to seek an injunction or to pursue an action for damages, (b) explain the possibility to join the action, (c) where relevant, inform about subsequent steps and the potential legal consequences.
Amendment 431 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Member States shall ensure that the court or administrative authority shall require the infringing trader to inform affected consumers at its expense about the final decisions providing for measures referred to in Articles 5 and 6, and the approved settlements referred to in Article 8, by means appropriate to the circumstance of the case and within specified time limits, including, where appropriate, through notifying all consumers concerned individually. Member States may foresee that the information obligation can be complied with through the national register as referred to in Article 5a (new).
Amendment 437 #
Proposal for a directive
Article 9 – paragraph 1 a (new)
Article 9 – paragraph 1 a (new)
1a. Notwithstanding paragraph 1, in case the representative action fails, the representative entity shall bear the costs of consumer information in accordance with the principle laid down in Article 13a.
Amendment 439 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. The information referred to in paragraph -1 and 1 shall inclube provided in intelligible language an explanation of the subject- matter of the representative action, its legal consequences and, if relevant, the subsequent steps to be taken by the consumers concerned.
Amendment 460 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
Member States shall ensure that, at the request of a qualified entity that has presented reasonably available facts and evidence sufficient to support the representative action, and has indicatedone of the parties, in order to obtain further evidence which lies in the control of the defendantother party, the court or administrative authority may order, in accordance with national procedural rules, that such evidence be presented by the defendant, subject to the applicable Union law and national rules on confidentiality. The order must be adequate and proportionate in the respective case and must not create an imbalance between the two parties involved.
Amendment 476 #
Proposal for a directive
Article 15 – paragraph 2
Article 15 – paragraph 2
Amendment 479 #
Proposal for a directive
Article 15 a (new)
Article 15 a (new)
Article 15a Legal representation and fees Member States shall ensure that the lawyers’ remuneration and the method by which it is calculated do not create any incentive to litigation, unnecessary from the point of view of the interest of any of the parties. In particular, Member States shall prohibit contingency fees.
Amendment 494 #
Proposal for a directive
Article 18 – paragraph 2
Article 18 – paragraph 2
2. No later than onthree years after the entry into force of this Directive, the Commission shall assess whether the rules on air and rail passenger rights offer a level of protection of the rights of consumers comparable to that provided for under this Directive. Where that is the case, the Commission intends to make appropriate proposals, which may consist in particular in removing the acts referred to in points 10 and 15 of Annex I from the scope of application of this Directive as defined in Article 2.
Amendment 495 #
Proposal for a directive
Article 18 a (new)
Article 18 a (new)
Article 18a Review clause Without prejudice to Article 16, the Commission shall assess whether cross- border representative actions could be best addressed at Union level by establishing a European Ombudsman for collective redress. No later than three years after the entry into force of this Regulation, the Commission shall draw up a report in this regard and submit it to the European Parliament and the Council, accompanied, if appropriate, by a relevant proposal.