Activities of Antanas GUOGA related to 2016/0152(COD)
Plenary speeches (1)
Geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment (debate)
Shadow opinions (1)
OPINION on the proposal for a regulation of the European Parliament and of the Council on addressing geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC
Amendments (114)
Amendment 24 #
Proposal for a regulation
Recital 1
Recital 1
(1) In order to realise the objective of ensuring good functioning of the internal market, as an area without internal frontiers in which the free movement of inter alia goods and services is ensured, it is not sufficient to abolish, as between Member States, only State barriers. Such abolition can be undermined by private parties putting in place obstacles inconsistent with internal market freedoms. That occurs where traders operating in one Member State block or limit the access to their online interfaces, such as websites and apps, of custoonsumers from other Member States wishing to engage in cross-border commercial transactions (a practice known as geo-blocking). It also occurs through other actions by certain traders involving the application of different general conditions of access to their goods and services with respect to such custoonsumers from other Member States, both online and offline. Whereas there may sometimes be objective justifications for such differential treatment, in other cases traders deny consumers wishing to engage in cross- border commercial transactions access to goods or services, or apply different conditions in this regard, for purely commercial reasons. This practice undermines the core purpose of the internal market, lowers consumers options and the level of competition.
Amendment 29 #
Proposal for a regulation
Recital 2
Recital 2
(2) In this manner certain traders artificially segment the internal market along internal frontiers and hamper the free movement of goods and services, thus restricting the rights of custoonsumers and preventing them from benefitting from a wider choice and optimal conditions. Such discriminatory practices are an important factor contributing to the relatively low level of cross-border commercial transactions within the Union, including in the sector of electronic commerce, which prevents the full growth potential of the internal market from being realiseda truly integrated internal market and its fostering. Clarifying in which situations there can be no justification for differential treatment of this kind should bring clarity and legal certainty for all participants in cross-border transactions and should ensure that rules on non-discrimination can be effectively applied and enforced across the internal market.
Amendment 31 #
Proposal for a regulation
Recital 3
Recital 3
(3) Pursuant to Article 20 of Directive 2006/123/EC of the European Parliament and of the Council17 , Member States are to ensure that service providers established in the Union do not treat recipients of services differently on the basis of their nationality or place of residence. However, that provision has not been fully effective in combatting discrimination and it has not sufficiently reduced legal uncertainty, particularly because of the possibility to justify the differences in treatment for which it allows and the corresponding difficulties in enforcing it in practice. Moreover, geo-blocking and other forms of discrimination based on nationality, or place of residence or place of establishment can also arise as a consequence of actions by traders established in third countries, which fall outside the scope of that Directive, but which need to be tackled. _________________ 17 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36).
Amendment 42 #
Proposal for a regulation
Recital 5
Recital 5
(5) This Regulation aims at preventing discrimination based on custoonsumers' nationality, or place of residence or place of establishment, including geo-blocking, in cross-border commercial transactions between traders and custoonsumers relating to the sales of goods and the provision of services within the Union. It seeks to address direct as well as indirect discrimination, thus also covering unjustified differences of treatment on the basis of other distinguishing criteria which lead to the same result as the application of criteria directly based on custoonsumers' nationality, or place of residence or place of establishment. Such other criteria can be applied, in particular, on the basis of information indicating the physical location of custoonsumers, such as the IP address used when accessing an online interface, the address submitted for the delivery of goods, the choice language made or the Member State where the custoonsumer's payment instrument has been issued.
Amendment 49 #
Proposal for a regulation
Recital 6
Recital 6
(6) Considering that some regulatory and administrative barriers for traders have been removed across the Union in certain services sectors as a result of the implementation of Directive 2006/123/EC, in terms of material scope, consistency should be ensured between this Regulation and Directive 2006/123/EC. As a consequence, the provisions of this Regulation should apply inter alia to non- audio-visual copyright-protected works when a copyrighted content is blocked for reasons that are not copyright and electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, subject however to the specific exclusion provided for in Article 4 and the subsequent evaluation of that exclusion as provided for in Article 9. Audio-visual services, including services the main feature of which is the provision of access to broadcasts of sports events and which are provided on the basis of exclusive territorial licenses, are excluded from the scope of this Regulation. Access to retail financial services, including payment services, should therefore also be excluded. However, the Commission should nevertheless review possibilities to include them in the scope of the Regulation, notwithstanding the provisions of this Regulation regarding non-discrimination in payments.
Amendment 53 #
Proposal for a regulation
Recital 7
Recital 7
(7) Discrimination can also occurs in relation to services in the field of transport, in particular with respect to the sales of tickets for the transport of passengers. However, in that regard R, even though regulation (EC) No 1008/2008 of the European Parliament and of the Council18 , Regulation (EU) No 1177/2010 of the European Parliament and of the Council19 and Regulation (EU) No 181/2011 of the European Parliament and of the Council20 already contain broad prohibitions of discriminations covering all discriminatory practices that the present Regulation seeks to address. Furthermore, it is intended that Regulation (EC) No 1371/2007 of the European Parliament and of the Council21 will be amended to that effect in near future. Therefore, and in order to ensure consistency with the scope of application of Directive 2006/123/EC, services in the field of transport should remain outside the scope of this Regulationservices in the field of transport should either, after review of this Regulation, be included in the scope of this Regulation, or prohibition of discriminations covering all discriminatory practices should be effectively enforced through specific Union legislation in that area. _________________ 18 Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ L 293, 31.10.2008, p. 3). 19 Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 (OJ L 334, 17.12.2010, p. 1). 20 Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 on the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004 (OJ L 55, 28.2.2011, p. 1). 21 Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations (OJ L 315, 3.12.2007, p. 14).
Amendment 56 #
Proposal for a regulation
Recital 7 a (new)
Recital 7 a (new)
(7 a) This Regulation should also cover the sale of bundled services. However, a trader should be under no obligation to sell the bundled services if he or she doesn't have a legal right to provide part of one or several services that are included in that bundle.
Amendment 60 #
Proposal for a regulation
Recital 9
Recital 9
(9) PursuantThis Regulation should be without prejudice to Regulation (EC) No 593/2008 of the European Parliament and of the Council22 , the choice of law applicable to contracts between a consumer and a professional who pursues his or her commercial or professional activities in the. In cases where a trader actively directs or declares his or her activities to a country or to several countryies where the consumer has his or her habitual residence or, by any means, directs such activities to that, the choice of law applicable to country or to several countries including that country,acts between a consumer and a trader may not have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law of the country where the consumer has his or her habitual residence. Pursuant to Regulation (EU) 1215/2012 of the European Parliament and of the Council23 , in matters related to a contract between a consumer and a professional who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, a consumer may bring proceedings against the other party in the courts of the Member State where he is domiciled and proceedings may be brought against the consumer only in those courts. _________________ 22 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6). 23 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).
Amendment 63 #
Proposal for a regulation
Recital 10
Recital 10
(10) This Regulation should not affect acts ofbe without prejudice to Union law concerning judicial cooperation in civil matters, notably the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 of the European Parliament and of the Council24 and (EU) 1215/2012 of the European Parliament and of the Council25 , including the application of those acts and provisions in individual cases. In particular, the mere fact that a trader actprovides access to his or her online interface for consumers from other Member States in accordance with the provisions of this Regulation should not be construed as implying that he directs his activities to the consumer's Member State for the purpose of such application. _________________ 24 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6). 25 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).
Amendment 72 #
Proposal for a regulation
Recital 11
Recital 11
(11) The discriminatory practices that this Regulation seeks to address typically take place through general terms, conditions and other information set and applied by or on behalf of the trader concerned, as a precondition for obtaining access to the goods or services in question, and that are made available to the public at large. Such general conditions of access include inter alia prices, payment conditions and delivery conditions. They can be made available to the public at large by or on behalf of the trader through various means, such as information published in advertisements, on websites or pre-contractual or contractual documentation. Such conditions apply in the absence of an individually negotiated agreement to the contrary entered into directly between the trader and the custoonsumer. Terms and conditions that are individually negotiated between the trader and the custoonsumers should not be considered general conditions of access for the purposes of this Regulation.
Amendment 73 #
Proposal for a regulation
Recital 12
Recital 12
Amendment 79 #
Proposal for a regulation
Recital 13
Recital 13
(13) The effects for custoonsumers and on the internal market of discriminatory treatment in connection to commercial transactions relating to the sales of goods or the provision of services within the Union are the same, regardless of whether a trader is established in a Member State or in a third country. Therefore, and with a view to ensuring that competing traders are subject to the same requirements in this regard, the measures set out in this Regulation should apply equally to all traders operating within the Union.
Amendment 80 #
Proposal for a regulation
Recital 14
Recital 14
(14) In order to increase the possibility for custoonsumers to access information related to the sales of goods and the provision of services on the internal market and to increase transparency, including with respect to prices, traders should not, through the use of technological measures or otherwise, prevent custoonsumers from having full and equal access to online interfaces on the basis of their nationality, or place of residence or place of establishment. Such technological measure. Access to online interfaces in the form of a mobile application should not be blocked in any possible way for consumers if they prefer to access their chosen online interface through such means and a trader offers such an option in a Member State. Technological measures that prevent such access can encompass, in particular, any technologies used to determine the physical location of the custoonsumer, including the tracking of that by means of IP address, coordinates obtained through a global navigation satellite system or data related to a payment transaction. However, that prohibition of discrimination with respect to access to online interfaces should not be understood as creating an obligation for the trader to engage in commercial transactions with custoonsumers.
Amendment 85 #
Proposal for a regulation
Recital 1
Recital 1
(1) In order to realise the objective of ensuring good functioning of the internal market, as an area without internal frontiers in which the free movement of inter alia goods and services is ensured, it is not sufficient to abolish, as between Member States, only State barriers. Such abolition can be undermined by private parties putting in place obstacles inconsistent with internal market freedoms. That occurs where traders operating in one Member State block or limit the access to their online interfaces, such as websites and apps, of custoonsumers from other Member States wishing to engage in cross-border commercial transactions (a practice known as geo-blocking). It also occurs through other actions by certain traders involving the application of different general conditions of access to their goods and services with respect to such custoonsumers from other Member States, both online and offline. Whereas there may sometimes be objective justifications for such differential treatment, in other cases traders deny consumers wishing to engage in cross- border commercial transactions access to goods or services, or apply different conditions in this regard, for purely commercial reasons. This practice undermines the core purpose of the internal market, lowers consumers' options and the level of competition.
Amendment 86 #
Proposal for a regulation
Recital 15
Recital 15
(15) Certain traders operate different versions of their online interfaces, targeting custoonsumers from different Member States. While this should remain possible, redirecting a custoonsumer from one version of the online interface to another version without his or her explicit consent should be prohibited. All versions of the online interface should remain easily accessible to the custoonsumer at all times.
Amendment 87 #
Proposal for a regulation
Recital 16
Recital 16
(16) In certain cases, blocking, limiting of access or redirection without the custoonsumer's consent to an alternative version of an online interface for reasons related to the custoonsumer's nationality, or place or residence or place of establishment might becould be justified only if it is necessary in order to ensure compliance with a legal requirement in Union law or in the laws of a Member States in accordance with Union law. Such laws canmight limit custoonsumers' access to certain goods or services, for instance by prohibiting the display of specific content in a certain Member States. Traders should not be prevented from complying with such requirements and thus should be able to block, or limit the access or redirect certain custoonsumers or custoonsumers in certain territories to an online interface, insofar as that ismay be necessary for that reason. In this regard, a consumer should be notified on an online interface about the purpose of blocking, limiting or redirection to an alternative version of an online interface.
Amendment 91 #
Proposal for a regulation
Recital 2
Recital 2
(2) In this manner certain traders artificially segment the internal market along internal frontiers and hamper the free movement of goods and services, thus restricting the rights of custoonsumers and preventing them from benefitting from a wider choice and optimal conditions. Such discriminatory practices are an important factor contributing to the relatively low level of cross-border commercial transactions within the Union, including in the sector of electronic commerce, which prevents the full growth potential of the internal market from being realiseda truly integrated internal market and its fostering. Clarifying in which situations there can be no justification for differential treatment of this kind should bring clarity and legal certainty for all participants in cross-border transactions and should ensure that rules on non-discrimination can be effectively applied and enforced across the internal market.
Amendment 91 #
Proposal for a regulation
Recital 17
Recital 17
(17) In a number of specific situations, any differences in the treatment of custoonsumers through the application of general conditions of access, including outright refusals to sell goods, accept certain financial transactions that are officially stated by a trader or to provide services, for reasons related to the custoonsumers' nationality, or place of residence or place of establishment cannot be objectively justified. In those situations, all such discrimination should be prohibited and custoonsumers should consequently be entitled, under the specific conditions laid down in this Regulation, to engage in commercial transactions under the same conditions as a local custoonsumer and have full and equal access to any of the different goods or services offered irrespective of their nationality, or place of residence or place of establishment. Where necessary, traders should therefore take measures to ensure compliance with that prohibition of discrimination if otherwise the custoonsumers concerned would be precluded from having such full and equal access. However, the prohibition applicable in those situations should not be understood as precluding traders from directing their activities at different Member States or certain groups of customers with targeted offers and differing terms and conditions, including through the setting-up of country-specific online interfaces.
Amendment 95 #
Proposal for a regulation
Recital 3
Recital 3
(3) Pursuant to Article 20 of Directive 2006/123/EC of the European Parliament and of the Council17 , Member States are to ensure that service providers established in the Union do not treat recipients of services differently on the basis of their nationality or place of residence. However, that provision has not been fully effective in combatting discrimination and it has not sufficiently reduced legal uncertainty, particularly because of the possibility to justify the differences in treatment for which it allows and the corresponding difficulties in enforcing it in practice. Moreover, geo-blocking and other forms of discrimination based on nationality, or place of residence or place of establishment can also arise as a consequence of actions by traders established in third countries, which fall outside the scope of that Directive. that are necessary to tackle. __________________ 17 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36).
Amendment 98 #
Proposal for a regulation
Recital 18
Recital 18
(18) The first of those situations is where the trader sells goods and there is no cross-border delivery of those goods by or on behalf of the trader to the Member State where the custoonsumer resides. In that situation the custoonsumer should be able to purchase goods, under exactly the same conditions, including price and conditions relating to the delivery of the goods, as similar custoonsumers who are residents of the Member State of the trader. That may mean that a foreign custoonsumer will have to pick up the good in that Member State, or in a different Member State to which the trader delivers. In this situation, the trader has no obligation to cover any additional costs of the cross- border delivery. Furthermore, there is no need to register for value added tax ("VAT") in the Member State of the custoonsumer, nor arrange for the cross-border delivery of goods.
Amendment 101 #
Proposal for a regulation
Recital 5
Recital 5
(5) This Regulation aims at preventing discrimination based on custoonsumers' nationality, or place of residence or place of establishment, including geo-blocking, in cross-border commercial transactions between traders and customers relating to the sales of goods and the provision of services within the Union. It seeks to address direct as well as indirect discrimination, thus also covering unjustified differences of treatment on the basis of other distinguishing criteria which lead to the same result as the application of criteria directly based on custoonsumers' nationality, or place of residence or place of establishment. Such other criteria can be applied, in particular, on the basis of information indicating the physical location of custoonsumers, such as the IP address used when accessing an online interface, the address submitted for the delivery of goods, the choice language made or the Member State where the custoonsumer's payment instrument has been issued.
Amendment 103 #
Proposal for a regulation
Recital 20
Recital 20
(20) Finally, in the situation where the trader provides services and those services are received by the custoonsumer in the premises of or at a location chosen by the trader and different from the Member State of which the custoonsumer is a national or in which the custoonsumer has his or her place of residence or place of establishment, the application of different general conditions of access for reasons related to such criteria should not be justified either. Those situations concern, as the case may be, the provision of services such as hotel accommodation, sport events, car rental, and entry tickets to music festivals or leisure parks. In those situations, the trader does not have to register for VAT in another Member State nor arrange for cross-border delivery of goods.
Amendment 106 #
Proposal for a regulation
Recital 21
Recital 21
(21) In all those situations, by virtue of the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 and (EU) 1215/2012, where a trader does not pursue his activities in the Member State of the consumer or does not direct his activities there, or where the customer is not a consumer, compliance with this Regulation does not imply any additional costs for the trader associated with jurisdiction or differences in applicable law. Where, in contrast, a trader does pursue his activities in the consumer's Member State or does direct his activities there, the trader has manifested its intention to establish commercial relations with consumers from that Member State and thus been able to take account of any such costs.
Amendment 108 #
Proposal for a regulation
Recital 22
Recital 22
(22) Traders falling under the special scheme provided in Chapter 1 of Title XII of Council Directive 2006/112/EC27 are not required to pay VAT. For those traders, when providing electronically supplied services, the prohibition of applying different general conditions of access for reasons related to the nationality, or place of residence or place of establishment of the custoonsumer would imply a requirement to register in order to account for VAT of other Member States and might entail additional costs, which would be a disproportionate burden, considering the size and characteristics of the traders concerned. Therefore, those traders should be exempted from that prohibition for such time as such a scheme is applicable. _________________ 27 Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ L 347, 11.12.2006, p. 1–118)
Amendment 112 #
Proposal for a regulation
Recital 23
Recital 23
(23) In all those situations, traders may in some cases be prevented from selling goods or providing services to certain custoonsumers or to custoonsumers in certain territories, for reasons related to the nationality, or place of residence or place of establishment of the custoonsumer, as a consequence of a specific prohibition or a requirement laid down in Union law or in the laws of Member States in accordance with Union law. Laws of Member States may also require, in accordance with Union law, traders to respect certain rules on the pricing of books. Traders should not be prevented from complying with such laws in as far as necessary.
Amendment 113 #
Proposal for a regulation
Recital 24
Recital 24
(24) Under Union law, traders are in principle free to decide which means of payment they wish to accept, including payment brands. However, once this choice . In accordance with the rules of Regulation (EU) 2015/751 and Directive (EU) 2015/2366, retailers accepting a card-based payment instrument of a specific brand and category are not under an obligation to accept card-based payment instruments of the same category but of a different brand. Likewise retailers accepting a debit card of a given brand are under no obligation to accept credit card of thast been made, in view of the existing legal framrand, or when accepting consumer credit cards of a given brand also to accept commercial credit card of the same brand. Equally, a trader accepting credit transfers or direct debits is under no obligation to accept the payment, if this requires entering into a new ork for payment services modified contract with a payment service provider. However, once this choice has been made, there are no reasons for traders to discriminate custoonsumers within the Union by refusing certain commercial transactions, or by otherwise applying certain different conditions of payment in respect of those transactions, for reasons related to the nationality, or place of residence or place of establishment of the customer. In this particular context, such unjustified unequal treatment for reasons related to the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union should be expressly prohibited as well. It should be further recalled that Regulation (EU) No 260/2012 already prohibits all payees, including traders, from requiring bank accounts to be located in a certain Member State for a payment in euro to be accepted. The trader should remain free to request charges for the use of a payment instrument. However, this right is subject to the restrictions introduced by Article 62(5) of the Directive (EU) 2015/2366.
Amendment 115 #
Proposal for a regulation
Recital 6
Recital 6
(6) Considering that some regulatory and administrative barriers for traders have been removed across the Union in certain services sectors as a result of the implementation of Directive 2006/123/EC, in terms of material scope, consistency should be ensured between this Regulation and Directive 2006/123/EC. As a consequence, the provisions of this Regulation should apply inter alia to non- audio-visual copyright-protected works when a copyrighted content is blocked for reasons that are not copyright and electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, subject however to the specific exclusion provided for in Article 4 and the subsequent evaluation of that exclusion as provided for in Article 9. Audio-visual services, including services the main feature of which is the provision of access to broadcasts of sports events and which are provided on the basis of exclusive territorial licenses, are excluded from the scope of this Regulation. Access to retail financial services, including payment services, should therefore also be excluded, nevertheless the Commission should review possibilities to include it in the scope of the Regulation, notwithstanding the provisions of this Regulation regarding non-discrimination in payments.
Amendment 117 #
Proposal for a regulation
Recital 25
Recital 25
(25) Directive 2015/2366/EU of the European Parliament and of the Council28 introduced strict security requirements for the initiation and processing of electronic payments, which reduced the risk of fraud for all new and more traditional means of payment, especially online payments. Payment service providers are obliged to apply so-called strong custoonsumer authentication, an authentication process that validates the identity of the user of a payment service or of the payment transaction. For remote transactions, such as online payments, the security requirements go even further, requiring a dynamic link to the amount of the transaction and the account of the payee, to further protect the user by minimising the risks in case of mistakes or fraudulent attacks. As a result of these provisions, the risk of payment fraud in national and cross- border purchases is brought to an equal level and should not be used as an argument to refuse or discriminate any commercial transactions within the Union. _________________ 28 Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35– 127).
Amendment 119 #
Proposal for a regulation
Recital 26
Recital 26
(26) This Regulation should not affect the application of the rules on competition, and in particular Articles 101 and 102 TFEU. Agreements imposing on traders obligations not to engage in passive sales within the meaning of Commission Regulation (EU) No 330/201029 to certain custoonsumers or to custoonsumers in certain territories are generally considered restrictive of competition and cannot normally be exempted from the prohibition laid down in Article 101(1) TFEU. Even when they are not caught by Article 101 TFEU, in the context of the application of this Regulation, they disrupt the proper functioning of the internal market and they may be used to circumvent the provisions of this Regulation. The relevant provisions of such agreements and of other agreements in respect of passive sales requiring the trader to act in violation of this Regulation should therefore be automatically void. However, this Regulation, and in particular its provisions on access to goods or services, should not affect agreements restricting active sales within the meaning of Regulation (EU) No 330/2010. _________________ 29 Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (OJ L 102, 23.4.2010, p. 1).
Amendment 121 #
Proposal for a regulation
Recital 27
Recital 27
(27) Member States should designate one or more bodies responsible forresponsible bodies with necessary powers to takinge effective action to monitor and to secensure compliance with the provision of this Regulation. Member States should also ensure that effective, proportionate and dissuasive penalties can be imposed on traders in the event of any breach of this Regulation.
Amendment 124 #
Proposal for a regulation
Recital 7
Recital 7
(7) Discrimination can also occurs in relation to services in the field of transport, in particular with respect to the sales of tickets for the transport of passengers. However, in that regard, despite the fact that Regulation (EC) No 1008/2008 of the European Parliament and of the Council18 , Regulation (EU) No 1177/2010 of the European Parliament and of the Council19 and Regulation (EU) No 181/2011 of the European Parliament and of the Council20 already contain broad prohibitions of discriminations covering all discriminatory practices that the present Regulation seeks to address. Furthermore, it is intended that Regulation (EC) No 1371/2007 of the European Parliament and of the Council21 will be amended to that effect in near future. Therefore, and in order to ensure consistency with the scope of application of Directive 2006/123/EC, services in the field of transport should remain outside the scope of this Regulationservices in the field of transport should either after review of this Regulation be included in the scope of this Regulation or prohibition of discriminations covering all discriminatory practices should be effectively enforced through the specific Union legislation in that area. __________________ 18 Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ L 293, 31.10.2008, p. 3). 19 Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 (OJ L 334, 17.12.2010, p. 1). 20 Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 on the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004 (OJ L 55, 28.2.2011, p. 1). 21 Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations (OJ L 315, 3.12.2007, p. 14).
Amendment 124 #
Proposal for a regulation
Recital 28
Recital 28
(28) Consumers should be in the position to receive assistance from responsible authoritbodies facilitating the resolution of conflicts with traders, arising from the application of this Regulation, including by way of a uniform complaint form.
Amendment 125 #
Proposal for a regulation
Recital 7 a (new)
Recital 7 a (new)
(7a) This Regulation should also cover the sale of a bundle of services. However, a trader should be under no obligation to sell the bundle of services if he or she does not have the legal right to provide a part of one or several services that are included in that bundle.
Amendment 127 #
Proposal for a regulation
Recital 9
Recital 9
(9) PursuantThis Regulation should be without prejudice to Regulation (EC) No 593/2008 of the European Parliament and of the Council22 , the choice of law applicable to contracts between a consumer and a professional who pursues his or her commercial or professional activities in the. In cases where a trader actively directs or declares his or her activities to a country or to several countryies, where the consumer has his or her habitual residence or, by any means, directs such activities to that, the choice of law applicable to country or to several countries including that country,acts between a consumer and a trader may not have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law of the country where the consumer has his or her habitual residence. Pursuant to Regulation (EU) 1215/2012 of the European Parliament and of the Council23 , in matters related to a contract between a consumer and a professional who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, a consumer may bring proceedings against the other party in the courts of the Member State where he is domiciled and proceedings may be brought against the consumer only in those courts. __________________ 22 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6). 23 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).
Amendment 130 #
Proposal for a regulation
Recital 29
Recital 29
(29) This Regulation should be regularly evaluated, with a view to proposing amendments where necessary. The first evaluation should concentrate, in particular, on the possible extension of the prohibition of Article 4(1)(b) to electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, provided that the trader has the requisite rights for the relevant territoriscope of this Regulation to other sectors such as audio-visual services, financial or electronic communication services, transport services or healthcare services.
Amendment 133 #
Proposal for a regulation
Recital 10
Recital 10
(10) This Regulation should not affect acts ofbe without prejudice to Union law concerning judicial cooperation in civil matters, notably the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 of the European Parliament and of the Council24 and (EU) 1215/2012 of the European Parliament and of the Council25 , including the application of those acts and provisions in individual cases. In particular, the mere fact that a trader provides access to his or her online interface for consumers from other Member States acts in accordance with the provisions of this Regulation should not be construed as implying that he directs his activities to the consumer's Member State for the purpose of such application. __________________ 24 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6). 25 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).
Amendment 136 #
Proposal for a regulation
Recital 30
Recital 30
(30) With a view to facilitating the effective enforcement of the rules laid down in this Regulation, the mechanisms to ensure cross-border cooperation among competent authorities provided for in Regulation (EC) No 2006/2004 of the European Parliament and of the Council30 should also be available in relation to those rules. However, as Regulation (EC) No 2006/2004 only applies with respect to laws that protect consumers' interests, those measures should be available only when the customer is a consumer. Regulation (EC) No 2006/2004 should therefore be amended accordingly. _________________ 30 Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (the Regulation on consumer protection cooperation) (OJ L 364, 9.12.2004, p. 1).
Amendment 139 #
Proposal for a regulation
Recital 32
Recital 32
Amendment 141 #
Proposal for a regulation
Recital 11
Recital 11
(11) The discriminatory practices that this Regulation seeks to address typically take place through general terms, conditions and other information set and applied by or on behalf of the trader concerned, as a precondition for obtaining access to the goods or services in question, and that are made available to the public at large. Such general conditions of access include inter alia prices, payment conditions and delivery conditions. They can be made available to the public at large by or on behalf of the trader through various means, such as information published in advertisements, on websites or pre-contractual or contractual documentation. Such conditions apply in the absence of an individually negotiated agreement to the contrary entered into directly between the trader and the custoonsumer. Terms and conditions that are individually negotiated between the trader and the custoonsumers should not be considered general conditions of access for the purposes of this Regulation.
Amendment 141 #
Proposal for a regulation
Recital 33
Recital 33
(33) In order to achieve the objective of effectively addressing direct and indirect discrimination based on the nationality, or place of residence or place of establishment of custof consumers, it is appropriate to adopt a Regulation, which directly applies in all Member States. This is necessary in order to guarantee the uniform application of the non- discrimination rules across the Union and their entering into force at the same time. Only a Regulation ensures the degree of clarity, uniformity and legal certainty which is necessary in order to enable custoonsumers to fully benefit from those rules.
Amendment 143 #
Proposal for a regulation
Recital 34
Recital 34
(34) Since the objective of this Regulation, namely the prevention of direct and indirect discrimination based on nationality, or place of residence or place of establishment of custof consumers, including geo- blocking, in commercial transactions with traders within the Union, cannot be sufficiently achieved by Member States, due to the cross-border nature of the problem and the insufficient clarity of the existing legal framework, but can rather, by reason of its scale and potential effect on trade in the internal market be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.
Amendment 146 #
Proposal for a regulation
Recital 12
Recital 12
Amendment 149 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. The purpose of this Regulation seekis to contribute to the proper functioning of the internal market and achieve a high level of consumer protection by preventing discrimination based, directly or indirectly, on the nationality, or place of residence or place of establishment of custof consumers.
Amendment 154 #
Proposal for a regulation
Article 1 – paragraph 2 – point a
Article 1 – paragraph 2 – point a
(a) where the trader sells goods, provides services, or seeks to do so, in a Member State other than the Member State in which the custoonsumer has the place of residence or the place of establishment;
Amendment 155 #
Proposal for a regulation
Article 1 – paragraph 2 – point b
Article 1 – paragraph 2 – point b
(b) where the trader sells goods, provides services, or seeks to do so, in the same Member State as the one in which the custoonsumer has the place of residence or place of establishment, but the custoonsumer is a national of another Member State;
Amendment 156 #
Proposal for a regulation
Recital 13
Recital 13
(13) The effects for custoonsumers and on the internal market of discriminatory treatment in connection to commercial transactions relating to the sales of goods or the provision of services within the Union are the same, regardless of whether a trader is established in a Member State or in a third country. Therefore, and with a view to ensuring that competing traders are subject to the same requirements in this regard, the measures set out in this Regulation should apply equally to all traders operating within the Union.
Amendment 156 #
Proposal for a regulation
Article 1 – paragraph 2 – point c
Article 1 – paragraph 2 – point c
(c) where the trader sells goods or provides services, or seeks to do so, in a Member State in which the custoonsumer is temporarily located without residing in that Member State or having the place of establishment in that Member State.
Amendment 157 #
Proposal for a regulation
Recital 14
Recital 14
(14) In order to increase the possibility for custoonsumers to access information related to the sales of goods and the provision of services on the internal market and to increase transparency, including with respect to prices, traders should not, through the use of technological measures or otherwise, prevent custoonsumers from having full and equal access to online interfaces on the basis of their nationality, or place of residence or place of establishment. Such technological measure. Access to online interfaces in the form of a mobile application should not be blocked in any possible way to consumers if they prefer to access their chosen online interface through such means and a trader offers such an option in a Member State. Technological measures that prevent such access can encompass, in particular, any technologies used to determine the physical location of the custoonsumer, including the tracking of that by means of IP address, coordinates obtained through a global navigation satellite system or data related to a payment transaction. However, that prohibition of discrimination with respect to access to online interfaces should not be understood as creating an obligation for the trader to engage in commercial transactions with custoonsumers.
Amendment 163 #
Proposal for a regulation
Article 1 – paragraph 5
Article 1 – paragraph 5
5. This Regulation shall not affectbe without prejudice to acts of Union law concerning judicial cooperation in civil matters. Compliance with this Regulation shall not be construed as implying that a trader directs his or her activities to the Member State where the consumer has the habitual residence or domicile within the meaning of point (b) of Article 6(1) of Regulation (EC) No 593/2008 and point (c) of Article 17(1) of Regulation (EU) 1215/2012. When a trader is acting in accordance with Articles 3, 4 and 5 of this Regulation, it shall not be considered on these grounds alone that he or she is actively directing his or her activities to another Member State where the consumer has a place of residence.
Amendment 166 #
Proposal for a regulation
Recital 15
Recital 15
(15) Certain traders operate different versions of their online interfaces, targeting custoonsumers from different Member States. While this should remain possible, redirecting a custoonsumer from one version of the online interface to another version without his or her explicit consent should be prohibited. All versions of the online interface should remain easily accessible to the custoonsumer at all times.
Amendment 166 #
Proposal for a regulation
Article 2 – paragraph 2 – point c
Article 2 – paragraph 2 – point c
Amendment 167 #
Proposal for a regulation
Article 2 – paragraph 2 – point d
Article 2 – paragraph 2 – point d
(d) 'general conditions of access' means all terms, conditions and other information, including sale prices, regulating the access of custoonsumers to goods or services offered for sale by a trader, which are set, applied and made available to the public at large by or on behalf of the trader and which apply in the absence of an individually negotiated agreement between the trader and the custoonsumer;
Amendment 168 #
Proposal for a regulation
Article 2 – paragraph 2 – point e
Article 2 – paragraph 2 – point e
(e) 'goods' means any tangible movable item, with the exception of items sold by way of execution or otherwise by authority of law; water, gas and electricity shall be considered as goods within the meaning of this Regulation where they are put up for sale in a limited volume or a set quantity;.
Amendment 170 #
Proposal for a regulation
Recital 16
Recital 16
(16) In certain cases, blocking, limiting of access or redirection without the custoonsumer's consent to an alternative version of an online interface for reasons related to the custoonsumer's nationality, or place or residence or place of establishment might becould be justified only if it is necessary in order to ensure compliance with a legal requirement in Union law or in the laws of a Member States in accordance with Union law. Such laws canmight limit custoonsumers' access to certain goods or services, for instance by prohibiting the display of specific content in certain Member States. Traders should not be prevented from complying with such requirements and thus should be able to block, limit the access or redirect certain custoonsumers or custoonsumers in certain territories to an online interface, insofar as that ismay be necessary for that reason. In this regard, a consumer should be notified on an online interface about the purpose of blocking, limiting or redirection to an alternative version of an online interface.
Amendment 170 #
Proposal for a regulation
Article 2 – paragraph 2 – point f
Article 2 – paragraph 2 – point f
(f) 'online interface' means any software, including a website and applications, operated by or on behalf of a trader, which serves to give custoonsumers access to the trader's goods or services with a view to engaging in a commercial transaction with respect to those goods or services;
Amendment 174 #
Proposal for a regulation
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Traders shall not, through the use of technological measures or otherwise, block or limit custoonsumers' access to their online interface for reasons related to the nationality, or place of residence or place of establishment of the custoonsumer.
Amendment 175 #
Proposal for a regulation
Recital 17
Recital 17
(17) In a number of specific situations, any differences in the treatment of custoonsumers through the application of general conditions of access, including outright refusals to sell goods, accept certain financial transactions that are officially stated by a trader or to provide services, for reasons related to the custoonsumers' nationality, or place of residence or place of establishment cannot be objectively justified. In those situations, all such discrimination should be prohibited and custoonsumers should consequently be entitled, under the specific conditions laid down in this Regulation, to engage in commercial transactions under the same conditions as a local custoonsumer and have full and equal access to any of the different goods or services offered irrespective of their nationality, or place of residence or place of establishment. Where necessary, traders should therefore take measures to ensure compliance with that prohibition of discrimination if otherwise the custoonsumers concerned would be precluded from having such full and equal access. However, the prohibition applicable in those situations should not be understood as precluding traders from directing their activities at different Member States or certain groups of customers with targeted offers and differing terms and conditions, including through the setting-up of country-specific online interfaces.
Amendment 177 #
Proposal for a regulation
Article 3 – paragraph 2 – subparagraph 1
Article 3 – paragraph 2 – subparagraph 1
Traders shall not, for reasons related to the nationality, or place of residence or place of establishment of the custoonsumer, redirect custoonsumers to a version of their online interface that is different from the online interface which the custoonsumer originally sought to access, by virtue of its layout, use of language or other characteristics that make it specific to custoonsumers with a particular nationality, or place of residence or place establishment, unless the customer gives his or her explicit consent prior to such redirection.
Amendment 178 #
Proposal for a regulation
Article 3 – paragraph 2 – subparagraph 2
Article 3 – paragraph 2 – subparagraph 2
In the event of such redirection with the custoonsumer's explicit consent, the original version of the online interface which the consumer initially sought to access, shall remain easily accessible for that custoonsumer.
Amendment 181 #
Proposal for a regulation
Article 3 – paragraph 3
Article 3 – paragraph 3
3. The prohibitions set out in paragraphs 1 and 2 shall not apply where the blocking, limitation of access or redirection with respect to certain custoonsumers or to custoonsumers in certain territories is necessary in order to ensure compliance with a legal requirement in Union law or in the laws of Member States in accordance with Union law.
Amendment 182 #
Proposal for a regulation
Article 3 – paragraph 4
Article 3 – paragraph 4
4. Where a trader blocks or limits access of custoonsumers to an online interface or redirects customers to a different version of the online interface in compliance with paragraph 43, the trader shall provide a clear justification and explanation to the consumer. That justification shall be given in the language of the online interface that the customer originally sought to access.
Amendment 183 #
Proposal for a regulation
Recital 18
Recital 18
(18) The first of those situations is where the trader sells goods and there is no cross-border delivery of those goods by or on behalf of the trader to the Member State where the custoonsumer resides. In that situation the custoonsumer should be able to purchase goods, under exactly the same conditions, including price and conditions relating to the delivery of the goods, as similar custoonsumers who are residents of the Member State of the trader. That may mean that a foreign custoonsumer will have to pick up the good in that Member State, or in a different Member State to which the trader delivers. In this situation, the trader has no obligation to cover any additional costs of the cross-border delivery. Furthermore, there is no need to register for value added tax ("VAT") in the Member State of the custoonsumer, nor arrange for the cross-border delivery of goods.
Amendment 184 #
Proposal for a regulation
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
1. Traders shall not apply different general conditions of access to their goods or services, for reasons related to the nationality, or place of residence or place of establishment of the custoonsumer, in the following situationswhere:
Amendment 187 #
Proposal for a regulation
Article 4 – paragraph 1 – point a
Article 4 – paragraph 1 – point a
(a) where the trader sells goods and those goods are not delivered cross-border to the Member State of the custoonsumer by the trader or on his or her behalf, but are collected at a location agreed between the trader and the consumer in which the trader operates;
Amendment 191 #
Proposal for a regulation
Article 4 – paragraph 1 – point b
Article 4 – paragraph 1 – point b
(b) where the trader provides electronically supplied services, other than services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter;
Amendment 193 #
Proposal for a regulation
Article 4 – paragraph 1 – point c
Article 4 – paragraph 1 – point c
(c) where the trader provides services, other than those covered by point (b), and those services are supplied to the custoonsumer in the premises of the trader or in a physical location where the trader operates, in a Member State other than that of which the custoonsumer is a national or in which the custoonsumer has the place of residence or the place of establishment.
Amendment 194 #
Proposal for a regulation
Recital 20
Recital 20
(20) Finally, in the situation where the trader provides services and those services are received by the custoonsumer in the premises of or at a location chosen by the trader and different from the Member State of which the custoonsumer is a national or in which the custoonsumer has his or her place of residence or place of establishment, the application of different general conditions of access for reasons related to such criteria should not be justified either. Those situations concern, as the case may be, the provision of services such as hotel accommodation, sport events, car rental, and entry tickets to music festivals or leisure parks. In those situations, the trader does not have to register for VAT in another Member State nor arrange for cross-border delivery of goods.
Amendment 194 #
Proposal for a regulation
Article 4 – paragraph 1 – point c a (new)
Article 4 – paragraph 1 – point c a (new)
(c a) the consumer seeks to receive electronically supplied services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter in respect of which the trader has the requisite rights for the territory from which the consumer seeks to receive such services;
Amendment 200 #
Proposal for a regulation
Recital 21
Recital 21
(21) In all those situations, by virtue of the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 and (EU) 1215/2012, where a trader does not pursue his activities in the Member State of the consumer or does not direct his activities there, or where the customer is not a consumer, compliance with this Regulation does not imply any additional costs for the trader associated with jurisdiction or differences in applicable law. Where, in contrast, a trader does pursue his activities in the consumer's Member State or does direct his activities there, the trader has manifested its intention to establish commercial relations with consumers from that Member State and thus been able to take account of any such costs.
Amendment 200 #
Proposal for a regulation
Article 4 – paragraph 3 – subparagraph 1
Article 4 – paragraph 3 – subparagraph 1
The prohibition set out in paragraph 1 shall not apply in so far as a specific provision laid down in Union law or in the laws of Member States in accordance with Union law by preventsing the trader from selling the goods or providing the services to certain custoonsumers or to custoonsumers in certain territories.
Amendment 201 #
Proposal for a regulation
Article 4 – paragraph 3 – subparagraph 2
Article 4 – paragraph 3 – subparagraph 2
Amendment 205 #
Proposal for a regulation
Recital 22
Recital 22
(22) Traders falling under the special scheme provided in Chapter 1 of Title XII of Council Directive 2006/112/EC27 are not required to pay VAT. For those traders, when providing electronically supplied services, the prohibition of applying different general conditions of access for reasons related to the nationality, or place of residence or place of establishment of the custoonsumer would imply a requirement to register in order to account for VAT of other Member States and might entail additional costs, which would be a disproportionate burden, considering the size and characteristics of the traders concerned. Therefore, those traders should be exempted from that prohibition for such time as such a scheme is applicable. __________________ 27 Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ L 347, 11.12.2006, p. 1–118)
Amendment 210 #
Proposal for a regulation
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
1. Traders shall not, for reasons related to the nationality, or place of residence or place of establishment of the custoonsumer, the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union, apply different conditions of payment for any sales of goods or provision of services, where:
Amendment 212 #
Proposal for a regulation
Recital 23
Recital 23
(23) In all those situations, traders may in some cases be prevented from selling goods or providing services to certain customers or to custoonsumers in certain territories, for reasons related to the nationality, or place of residence or place of establishment of the custoonsumer, as a consequence of a specific prohibition or a requirement laid down in Union law or in the laws of Member States in accordance with Union law. Laws of Member States may also require, in accordance with Union law, traders to respect certain rules on the pricing of books. Traders should not be prevented from complying with such laws in as far as necessary.
Amendment 213 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Each Member State shall designate a body or bodies responsible for the enforcement of this Regulation. Member States shall ensure that adequate and effective means exist with the body or bodies designated in order to enforce compliance withbodies for the effective enforcement of this Regulation.
Amendment 214 #
Proposal for a regulation
Recital 24
Recital 24
(24) Under Union law, traders are in principle free to decide which means of payment they wish to accept, including payment brands. However, once this choice . In accordance with the rules of Regulation (EU) 2015/751 and Directive (EU) 2015/2366, retailers accepting a card- based payment instrument of a specific brand and category are not under an obligation to accept card-based payment instruments of the same category but of a different brand. Likewise retailers accepting a debit card of a given brand are under no obligation to accept credit card of thast been made, in view of the existing legal framrand, or when accepting consumer credit cards of a given brand also to accept commercial credit card of the same brand. Equally, a trader accepting credit transfers or direct debits is under no obligation to accept the payment, if this requires entering into a new ork for payment services modified contract with a payment service provider. However, once this choice has been made, there are no reasons for traders to discriminate custoonsumers within the Union by refusing certain commercial transactions, or by otherwise applying certain different conditions of payment in respect of those transactions, for reasons related to the nationality, or place of residence or place of establishment of the customer. In this particular context, such unjustified unequal treatment for reasons related to the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union should be expressly prohibited as well. It should be further recalled that Regulation (EU) No 260/2012 already prohibits all payees, including traders, from requiring bank accounts to be located in a certain Member State for a payment in euro to be accepted. The trader should remain free to request charges for the use of a payment instrument. However, this right is subject to the restrictions introduced by Article 62(5) of Directive (EU) 2015/2366.
Amendment 216 #
Proposal for a regulation
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Member States shall lay down the rules on the penaltiesanctions applicable for infringements of the provisions of this Regulation and shall take all measures necessary measures to ensure that they are implemented. The penaltiesanctions provided for shall be effective, proportionate and dissuasive.
Amendment 220 #
Proposal for a regulation
Article 8 – paragraph 1
Article 8 – paragraph 1
1. Each Member State shall confedesignate a body or responsibilityle bodies for providing practical assistance to consumers to a body or bodies in cases of a dispute between a consumer and a trader arising from the application of this Regulation. Each Member State shall designate a body or bodies responsible for that task.
Amendment 222 #
Proposal for a regulation
Recital 25
Recital 25
(25) Directive 2015/2366/EU of the European Parliament and of the Council28 introduced strict security requirements for the initiation and processing of electronic payments, which reduced the risk of fraud for all new and more traditional means of payment, especially online payments. Payment service providers are obliged to apply so-called strong custoonsumer authentication, an authentication process that validates the identity of the user of a payment service or of the payment transaction. For remote transactions, such as online payments, the security requirements go even further, requiring a dynamic link to the amount of the transaction and the account of the payee, to further protect the user by minimising the risks in case of mistakes or fraudulent attacks. As a result of these provisions, the risk of payment fraud in national and cross- border purchases is brought to an equal level and should not be used as an argument to refuse or discriminate any commercial transactions within the Union. __________________ 28 Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35– 127).
Amendment 224 #
Proposal for a regulation
Recital 26
Recital 26
(26) This Regulation should not affect the application of the rules on competition, and in particular Articles 101 and 102 TFEU. Agreements imposing on traders obligations not to engage in passive sales within the meaning of Commission Regulation (EU) No 330/201029 to certain custoonsumers or to custoonsumers in certain territories are generally considered restrictive of competition and cannot normally be exempted from the prohibition laid down in Article 101(1) TFEU. Even when they are not caught by Article 101 TFEU, in the context of the application of this Regulation, they disrupt the proper functioning of the internal market and they may be used to circumvent the provisions of this Regulation. The relevant provisions of such agreements and of other agreements in respect of passive sales requiring the trader to act in violation of this Regulation should therefore be automatically void. However, this Regulation, and in particular its provisions on access to goods or services, should not affect agreements restricting active sales within the meaning of Regulation (EU) No 330/2010. __________________ 29 Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (OJ L 102, 23.4.2010, p. 1).
Amendment 227 #
Proposal for a regulation
Recital 27
Recital 27
(27) Member States should designate one or more bodies responsible forresponsible bodies with necessary powers to takinge effective action to monitor and to secensure compliance with the provision of this Regulation. Member States should also ensure that effective, proportionate and dissuasive penalties can be imposed on traders in the event of any breach of this Regulation.
Amendment 228 #
Proposal for a regulation
Recital 28
Recital 28
(28) Consumers should be in the position to receive assistance from responsible authoritbodies facilitating the resolution of conflicts with traders, arising from the application of this Regulation, including by way of a uniform complaint form.
Amendment 228 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
2. The first evaluation referred to in paragraph 1 shall be carried out, in particular, with a view to assessing whether the prohibition of Article 4(1)(b) should also apply to electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, provided that the trader has the requisite rights for the relevant territoriscope of this Regulation should be extended to cover additional sectors such as audio-visual, financial, transport, electronic communication and healthcare services.
Amendment 231 #
Proposal for a regulation
Recital 29
Recital 29
(29) This Regulation should be regularly evaluated, with a view to proposing amendments where necessary. The first evaluation should concentrate, in particular, on the possible extension of the prohibition of Article 4(1)(b) to electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, provided that the trader has the requisite rights for the relevant territoriscope of this Regulation to other sectors such as audio-visual services, financial or electronic communication services, transport services or healthcare services.
Amendment 238 #
Proposal for a regulation
Recital 30
Recital 30
(30) With a view to facilitating the effective enforcement of the rules laid down in this Regulation, the mechanisms to ensure cross-border cooperation among competent authorities provided for in Regulation (EC) No 2006/2004 of the European Parliament and of the Council30 should also be available in relation to those rules. However, as Regulation (EC) No 2006/2004 only applies with respect to laws that protect consumers' interests, those measures should be available only when the customer is a consumer. Regulation (EC) No 2006/2004 should therefore be amended accordingly. __________________ 30 Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (the Regulation on consumer protection cooperation) (OJ L 364, 9.12.2004, p. 1).
Amendment 239 #
Proposal for a regulation
Recital 32
Recital 32
Amendment 242 #
Proposal for a regulation
Recital 33
Recital 33
(33) In order to achieve the objective of effectively addressing direct and indirect discrimination based on the nationality, or place of residence or place of establishment of custof consumers, it is appropriate to adopt a Regulation, which directly applies in all Member States. This is necessary in order to guarantee the uniform application of the non- discrimination rules across the Union and their entering into force at the same time. Only a Regulation ensures the degree of clarity, uniformity and legal certainty which is necessary in order to enable custoonsumers to fully benefit from those rules.
Amendment 246 #
Proposal for a regulation
Recital 34
Recital 34
(34) Since the objective of this Regulation, namely the prevention of direct and indirect discrimination based on nationality, or place of residence or place of establishment of custof consumers, including geo- blocking, in commercial transactions with traders within the Union, cannot be sufficiently achieved by Member States, due to the cross-border nature of the problem and the insufficient clarity of the existing legal framework, but can rather, by reason of its scale and potential effect on trade in the internal market be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.
Amendment 255 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. The purpose of this Regulation seekis to contribute to the proper functioning of the internal market and to achieve a high level of consumer's protection by preventing discrimination based, directly or indirectly, on the nationality, or place of residence or place of establishment of custof consumers.
Amendment 264 #
Proposal for a regulation
Article 1 – paragraph 2 – point a
Article 1 – paragraph 2 – point a
(a) where the trader sells goods, provides services, or seeks to do so, in a Member State other than the Member State in which the custoonsumer has the place of residence or the place of establishment;
Amendment 269 #
Proposal for a regulation
Article 1 – paragraph 2 – point b
Article 1 – paragraph 2 – point b
(b) where the trader sells goods, provides services, or seeks to do so, in the same Member State as the one in which the custoonsumer has the place of residence or place of establishment, but the custoonsumer is a national of another Member State;
Amendment 273 #
Proposal for a regulation
Article 1 – paragraph 2 – point c
Article 1 – paragraph 2 – point c
(c) where the trader sells goods or provides services, or seeks to do so, in a Member State in which the custoonsumer is temporarily located without residing in that Member State or having the place of establishment in that Member State.
Amendment 288 #
Proposal for a regulation
Article 1 – paragraph 5
Article 1 – paragraph 5
5. This Regulation shall not affectbe without prejudice to acts of Union law concerning judicial cooperation in civil matters. Compliance with this Regulation shall not be construed as implying that a trader directs his or her activities to the Member State where the consumer has the habitual residence or domicile within the meaning of point (b) of Article 6(1) of Regulation (EC) No 593/2008 and point (c) of Article 17(1) of Regulation (EU) 1215/2012. When a trader is acting in accordance with Articles 3, 4 and 5 of this Regulation, it shall not be considered on these grounds alone that he or she is actively directing his or her activities to another Member State where the consumer has a place of residence.
Amendment 301 #
Proposal for a regulation
Article 2 – paragraph 2 – point c
Article 2 – paragraph 2 – point c
Amendment 305 #
Proposal for a regulation
Article 2 – paragraph 2 – point d
Article 2 – paragraph 2 – point d
(d) 'general conditions of access' means all terms, conditions and other information, including sale prices, regulating the access of custoonsumers to goods or services offered for sale by a trader, which are set, applied and made available to the public at large by or on behalf of the trader and which apply in the absence of an individually negotiated agreement between the trader and the custoonsumer;
Amendment 308 #
Proposal for a regulation
Article 2 – paragraph 2 – point e
Article 2 – paragraph 2 – point e
(e) 'goods' means any tangible movable item, with the exception of items sold by way of execution or otherwise by authority of law; water, gas and electricity shall be considered as goods within the meaning of this Regulation where they are put up for sale in a limited volume or a set quantity;
Amendment 310 #
Proposal for a regulation
Article 2 – paragraph 2 – point f
Article 2 – paragraph 2 – point f
(f) 'online interface' means any software, including a website and applications, operated by or on behalf of a trader, which serves to give custoonsumers access to the trader's goods or services with a view to engaging in a commercial transaction with respect to those goods or services;
Amendment 315 #
Proposal for a regulation
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Traders shall not, through the use of technological measures or otherwise, block or limit custoonsumers' access to their online interface for reasons related to the nationality, or place of residence or place of establishment of the custoonsumer.
Amendment 320 #
Proposal for a regulation
Article 3 – paragraph 2 – subparagraph 1
Article 3 – paragraph 2 – subparagraph 1
Traders shall not, for reasons related to the nationality, or place of residence or place of establishment of the custof the consumer, redirect custoonsumers to a version of their online interface that is different from the online interface which the customer originally sought to access, by virtue of its layout, use of language or other characteristics that make it specific to customers with a particular nationality, or place of residence or place establishment, unless the custoonsumer gives his or her explicit consent prior to such redirection.
Amendment 328 #
Proposal for a regulation
Article 3 – paragraph 2 – subparagraph 2
Article 3 – paragraph 2 – subparagraph 2
In the event of such redirection with the customer's explicit consent, the original version of the online interface shall remain easily accessible for that custoonsumer.
Amendment 333 #
Proposal for a regulation
Article 3 – paragraph 3
Article 3 – paragraph 3
3. The prohibitions set out in paragraphs 1 and 2 shall not apply where the blocking, limitation of access or redirection with respect to certain custoonsumers or to custoonsumers in certain territories is necessary in order to ensure compliance with a legal requirement in Union law or in the laws of Member States in accordance with Union law.
Amendment 338 #
Proposal for a regulation
Article 3 – paragraph 4
Article 3 – paragraph 4
4. Where a trader blocks or limits access of custoonsumers to an online interface or redirects customers to a different version of the online interface in compliance with paragraph 43, the trader shall provide a clear justification and explanation to the consumer. That justification shall be given in the language of the online interface that the customer originally sought to access.
Amendment 346 #
Proposal for a regulation
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
1. Traders shall not apply different general conditions of access to their goods or services, for reasons related to the nationality, or place of residence or place of establishment of the custoonsumer, in the following situationswhere:
Amendment 355 #
Proposal for a regulation
Article 4 – paragraph 1 – point a
Article 4 – paragraph 1 – point a
(a) where the trader sells goods and those goods are not delivered cross-border to the Member State of the custoonsumer by the trader or on his or her behalf, but are collected at location agreed between the trader and the consumer in which the trader operates;
Amendment 360 #
Proposal for a regulation
Article 4 – paragraph 1 – point b
Article 4 – paragraph 1 – point b
(b) where the trader provides electronically supplied services, other than services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter;
Amendment 361 #
Proposal for a regulation
Article 4 – paragraph 1 – point b a (new)
Article 4 – paragraph 1 – point b a (new)
(ba) the consumer seeks to receive electronically supplied services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter in respect of which the trader has the requisite rights for the territory from which the consumer seeks to receive such services;
Amendment 368 #
Proposal for a regulation
Article 4 – paragraph 1 – point c
Article 4 – paragraph 1 – point c
(c) where the trader provides services, other than those covered by point (b), and those services are supplied to the custoonsumer in the premises of the trader or in a physical location where the trader operates, in a Member State other than that of which the custoonsumer is a national or in which the custoonsumer has the place of residence or the place of establishment.
Amendment 377 #
Proposal for a regulation
Article 4 – paragraph 3 – subparagraph 1
Article 4 – paragraph 3 – subparagraph 1
The prohibition set out in paragraph 1 shall not apply in so far as a specific provision laid down in Union law or in the laws of Member States in accordance with Union law by preventsing the trader from selling the goods or providing the services to certain custoonsumers or to custoonsumers in certain territories.
Amendment 379 #
Proposal for a regulation
Article 4 – paragraph 3 – subparagraph 2
Article 4 – paragraph 3 – subparagraph 2
Amendment 386 #
Proposal for a regulation
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
1. Traders shall not, for reasons related to the nationality, or place of residence or place of establishment of the custoonsumer, the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union, apply different conditions of payment for any sales of goods or provision of services, where:
Amendment 414 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Each Member State shall designate a body or bodies responsible for the enforcement of this Regulation. Member States shall ensure that adequate and effective means exist with the body or bodies designated in order to enforce compliance withbodies for the effective enforcement of this Regulation.
Amendment 415 #
Proposal for a regulation
Article 7 – paragraph 2
Article 7 – paragraph 2
2. Member States shall lay down the rules on the penaltiesanctions applicable for infringements of the provisions of this Regulation and shall take all measures necessary measures to ensure that they are implemented. The penaltiesanctions provided for shall be effective, proportionate and dissuasive.
Amendment 418 #
Proposal for a regulation
Article 8 – paragraph 1
Article 8 – paragraph 1
1. Each Member State shall confedesignate a body or responsibilityle bodies for providing practical assistance to consumers to a body or bodies in cases of a dispute between a consumer and a trader arising from the application of this Regulation. Each Member State shall designate a body or bodies responsible for that task.
Amendment 428 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
2. The first evaluation referred to in paragraph 1 shall be carried out, in particular, with a view to assessing whether the prohibition of Article 4(1)(b) should also apply to electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, provided that the trader has the requisite rights for the relevant territoriscope of this Regulation should be extended to cover additional sectors such as audio-visual, financial, transport, electronic communication and healthcare services.