40 Amendments of Maria GRAPINI related to 2015/0287(COD)
Amendment 75 #
Proposal for a directive
Recital 1
Recital 1
(1) The growth potential of e- commerce has not yet been fully exploited. The Digital Single Market Strategy for Europe29 tackles in a holistic manner the major obstacles to the development of cross-border e-commerce in the Union in order to unleash this potential. Ensuring better access for consumers to digital content and facilitating businesses, and especially SMEs, to supply digital content is necessary to boost the Union’s digital economy and stimulate overall growth. _________________ 29 COM (2015) 192 final. COM(2015) 192 final.
Amendment 79 #
Proposal for a directive
Recital 1 a (new)
Recital 1 a (new)
(1 a) Article 169(1) and point (a) of Article 169(2) of the Treaty on the Functioning of the European Union (TFEU) provide that the Union is to contribute to the attainment of a high level of consumer protection through measures adopted pursuant to Article 114 TFEU.
Amendment 80 #
Proposal for a directive
Recital 1 b (new)
Recital 1 b (new)
(1 b) Article 38 of the Charter of Fundamental Rights of the European Union provides that Union policies are to ensure a high level of consumer protection and Article 47 of the Charter provides that everyone whose rights under Union law are violated shall have the right to an effective remedy. Article 16 of the Charter recognises the freedom to run a business in accordance with Union and national law and practices.
Amendment 82 #
Proposal for a directive
Recital 2
Recital 2
(2) For the achievement of a genuine digital single market, the harmonisation of certain aspects concerning contracts for supply of digital content, taking as a base a high level of consumer protect and digital services as a common platform for all Member States while recognising Member States' competences within the Union, is necessary.
Amendment 88 #
Proposal for a directive
Recital 2
Recital 2
(2) For the achievement of a genuine digital single market, the harmonisation of certain aspects concerning contracts for supply of digital content, taking as a base a high level of consumer protection, is necessary and the need to develop crossborder trade.
Amendment 100 #
Proposal for a directive
Recital 3
Recital 3
(3) Differences in national mandatory consumer contract law rules and a lack of clear contract law rules are among the key obstacles which hinder the development of the supply of digital content, as very few tailor-made rules exist at Union level. Businesses, and especially SMEs, face additional costs stemming from differences in national mandatory consumer contract law rules and legal uncertainty when selling digital content across borders. Businesses also face costs when adapting their contracts to specific mandatory rules for the supply of digital content that are already emerging in several Member States, creating differences in scope and content between specific national rules governing these contracts. In those Member States where there are not yet specific rules for the supply of digital content, traders willing to sell cross-border face uncertainty, as they will often not know which rules apply to digital content in the Member State they want to export to, nor the content of those rules and whether they are mandatory.
Amendment 110 #
Proposal for a directive
Recital 5
Recital 5
(5) In order to remedy these problems, both businesses and consumers should be able to rely on fully harmonised rulehigh common standards for the supply of digital content and digital services setting out Union-wide contractual rights which are essential for this type of transactioncreate an equal playing field for various actors.
Amendment 120 #
Proposal for a directive
Recital 6
Recital 6
(6) Fully harmonised consumer contract law rules in all Member States will make it easier for businesses to offer digital content cross-border. They will have a stable contract law environment when selling online and otherwise at a distance to other Member States. Fully harmonised rules specific for digital content throughout the EUMinimum standards on a high level of consumer protection will premove the complexity caused by the different national rules that currently apply to contracts for the supply of digital content. They will also prevent legal fragmentation that otherwise would arise fvent obstructions of the four freedoms in the area of the supply of digital content and digital services while leaving room newfor national legisldeviations regulating specifically digital content matters and without endangering the harmony of national contractual law.
Amendment 136 #
Proposal for a directive
Recital 8
Recital 8
(8) This Directive should fully harmonise a set of key rules that are so far not regulated at Union level while leaving room for regulatory competition. It should include therefore rules on conformity of the digital content and digital services, remedies available to consumers in cases of lack of conformity of digital content and digital services with the contract and certain modalities for the exercise of those remedies. This Directive should also harmonise certain aspects concerning the right to terminate a long term contract, as well as certain aspects concerning the modification of the digital content.
Amendment 150 #
Proposal for a directive
Recital 9 a (new)
Recital 9 a (new)
(9 a) In order to allow businesses and consumers to rely upon clear rules across the Union reflecting good customer- focused commercial practice, without prejudice to any other rights under this Directive or otherwise, the consumer should have a right to reject digital content or services for non-conformity by returning them to the relevant supplier or unsubscribing as applicable.
Amendment 172 #
Proposal for a directive
Recital 12 a (new)
Recital 12 a (new)
(12 a) Considering that the seller is liable towards the consumer for any lack of conformity of the digital content or service resulting from an act or omission of the seller or a third party it is justified that the seller should be able to pursue remedies against the responsible person earlier in the chain of transactions.
Amendment 173 #
Proposal for a directive
Recital 12 b (new)
Recital 12 b (new)
(12 b) The European Commission considered in its Green Paper on Guarantees for Consumer Goods1a that in modern societies the confidence of consumers is bound with their faith in the manufacturers; Directive 1999/44/EC envisages more far-reaching provisions on producers' liability, notably by providing for producers' direct liability for non-conformity for which they are responsible. _________________ 1a OJ C 338, 15.12.1993.
Amendment 181 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13 a) The protection of natural persons in relation to processing of their personal data is a fundamental right. If a provision of this Directive conflicts with a provision of Regulation (EU) 2016/6791a the provision of that Regulation should take precedence over this Directive. The implementation and application of this Directive should be made in full compliance with the legal framework in the field of personal data and should supplement those rules where necessary in order to ensure a parallel protection of personal privacy and the dignity it seeks to secure through contract law. The exercise of rights granted under Regulation (EU) 2016/679 in a contractual context should not be put at risk by possible claims for damages or unjustified enrichment as a consequence of the exercise of those rights, which would go against the spirit of Recital 42 of Regulation (EU) 2016/679, which states that „(c)onsent should not be regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment." _________________ 1a Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
Amendment 184 #
Proposal for a directive
Recital 13 b (new)
Recital 13 b (new)
(13 b) Terms not individually negotiated and that concern the processing of personal data or any other data provided by the consumer to the supplier in the context of the conclusion or performance of the contract, including data generated by the consumer's use of any digital content or services supplied, should be subject to unfairness control under the national provisions implementing Directive 93/13/EC and should not be considered as defining the main subject matter of the contract within the meaning of Article 4(2) of Directive 93/13/EC. Also, any standard term that would reduce or undermine any right afforded to the consumer as a data subject under Regulation (EU) 2016/679, including any term defining the functionality and other performance features of the digital content or digital service in a way that is not in conformity with Article 25 of Regulation (EU) 2016/679, should always be regarded as unfair within the meaning of Article 3(1) of Directive 93/13/EC.
Amendment 185 #
Proposal for a directive
Recital 14
Recital 14
Amendment 256 #
Proposal for a directive
Recital 31 a (new)
Recital 31 a (new)
(31 a) In order to avoid a potential gap for contracts for the supply of digital content and digital services, the conditions for any binding commercial guarantees, notably pre-contractual information, advertising and guarantee statements should be laid down.
Amendment 290 #
Proposal for a directive
Recital 36 a (new)
Recital 36 a (new)
(36 a) This Directive should grant consumers throughout the European Union a new and unrivalled freedom in choosing remedies. A consumer should be able to require the seller to bring the digital content or digital service into conformity with the contract either through repair of the defects in the digital content or digital service or the smart good in which they are embedded or through replacement of the defective good with a conforming one. But more importantly, the consumer should be able to turn down any offer by the supplier to cure so as to require price reduction or termination of the contract. The consumer should be able to decide whether or not to give the supplier a chance to cure the defects, and in which way the supplier should cure the defects, according to his own preference. Repair or replacement might be preferable if a consumer thinks the value of the defective product is great, for example because the products are unique or the market prices of the products have gone up.
Amendment 364 #
Proposal for a directive
Recital 54 a (new)
Recital 54 a (new)
Amendment 427 #
Proposal for a directive
Article 2 – paragraph 1 – point 9
Article 2 – paragraph 1 – point 9
9. 'interoperability' means the acompatibility of the digital content to perform all its functionalities in interaction with a concrete digital environment;and its functions with a standard hardware and software environment other than the one in which it is supplied including the fact that consumers can access digital content without having to use applications or other technologies to convert the content they want to have access to.
Amendment 453 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. This Directive shall apply to any contract where the supplier supplies digital content to the consumer or undertakes to do so and, in exchange, a price is to be paid or the consumer actively provides counter-pand/or personal data or any other economically valuable data is to be provided by the consumerf ormance other than money in the form of personal data or any other data collected by the supplier or by a third party.
Amendment 502 #
Proposal for a directive
Article 3 – paragraph 8
Article 3 – paragraph 8
8. This Directive is without prejudice to the protection of individuals with regard to the processing of personal data. Consumer rights under Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC shall not be affected and may be exercised in accordance with the conditions stipulated
Amendment 509 #
Proposal for a directive
Article 4
Article 4
Amendment 535 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. The supplier shall supply the digital content or digital service immediately after the conclusion of the contract, unless the parties have agreed otherwise. The supplyier shall be deemed to take place when the digital content is suppliedhave fulfilled his obligation to supply when the digital content or digital service is made available or is accessible to the consumer or, where point (b) or (c) of paragraph 1 applies, to the third party chosen by the consumer, whichever is the earlierapplicable.
Amendment 541 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Amendment 555 #
Proposal for a directive
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
(a) be of the quantity, quality, description, duration and version and shall possess functionality, interoperability and other performance features such as accessibility, continuity and security, as required by the contract including in any pre-contractual information which forms integral part of the contract;
Amendment 568 #
Proposal for a directive
Article 6 – paragraph 1 – point d a (new)
Article 6 – paragraph 1 – point d a (new)
(da) meet consumers' legitimate expectations;
Amendment 578 #
Proposal for a directive
Article 6 – paragraph 2 – point a
Article 6 – paragraph 2 – point a
(a) wThether the digital content is supplied in exchange for a price or other cou interoperability that the consumer may reasonably expect from an electronic file supplied for an unlimited period of time requires, whatever the provisions of the contract may be, that this electronic file shall be supplied in an open format only. The supplier of such a file which uses proprietary technological protection measures shall make available to other suppliers of files or digital services which so request, the information which is necessary for the purpose of inter-operformance than money;ability. It shall not impose other hardware or software limitations preventing the access and use to a file in a digital environment other than the one in which it has been supplied, meaning that consumers can access digital content without having to use applications or other technologies to convert the content they want to have access to.
Amendment 635 #
Proposal for a directive
Article 8 b (new)
Article 8 b (new)
Article 8 b Commercial guarantees for lifespan 1. The producer of a technical good in which digital content or a digital service is embedded shall guarantee to the consumer the fitness of the product for its foreseeable minimum life span and indicate how long this life span is. The indicated timeframe shall not be shorter than the legal prescription period of the Member State where the consumer has his habitual residence and shall reflect the expectations of a reasonable and typical consumer. 2. When the producer does not fulfil his obligations according to paragraph 1, he shall have the same obligations to the consumer as the supplier.
Amendment 695 #
Proposal for a directive
Article 11 – paragraph 1 a (new)
Article 11 – paragraph 1 a (new)
The first paragraph shall not be applicable where the supplier has refused to supply the digital content or digital services or where supply within the agreed period is essential taking into account all the circumstances attending the conclusion of the contract or where the consumer informs the supplier, prior to the conclusion of the contract, that supply by or on a specified date is essential. In those cases, if the supplier fails to supply at the relevant time pursuant Article 5(2), the consumer shall be entitled to terminate the contract immediately.
Amendment 764 #
Proposal for a directive
Article 12 – paragraph 5 a (new)
Article 12 – paragraph 5 a (new)
5a. The consumer can exercise their rights in respect of non-conformity with the contract in the courts, via an online dispute resolution mechanism or via an alternative dispute resolution mechanism.
Amendment 782 #
Proposal for a directive
Article 13 – paragraph 1 a (new)
Article 13 – paragraph 1 a (new)
1 a. Without prejudice to any other rights under this Directive or otherwise, the consumer has a right to reject digital content or services for non-conformity by returning them to the relevant supplier or unsubscribing as applicable.
Amendment 824 #
Proposal for a directive
Article 13 – paragraph 3
Article 13 – paragraph 3
Amendment 830 #
Proposal for a directive
Article 13 – paragraph 4
Article 13 – paragraph 4
Amendment 836 #
Proposal for a directive
Article 13 – paragraph 5
Article 13 – paragraph 5
5. Where the digital content has been supplied in exchange for a payment of a price and over the period of time stipulated in the contract, the consumer mayshall be entitled to terminate the contract only in relation to that part of the period of time where the digital content has not been in conformity with the contractfrom the date on which the digital content or digital service ceased to be in conformity with the contract, unless the lack of conformity with the contract is such as to justify termination of the contract as a whole.
Amendment 839 #
Proposal for a directive
Article 13 – paragraph 5 a (new)
Article 13 – paragraph 5 a (new)
5 a. The consumer shall exercise the right to terminate the contract by an unequivocal statement setting out his decision to terminate the contract.
Amendment 845 #
Proposal for a directive
Article 13 a (new)
Article 13 a (new)
Amendment 870 #
Proposal for a directive
Article 14 – paragraph 2 a (new)
Article 14 – paragraph 2 a (new)
2 a. The consumer's right to damages under paragraph 1 shall be without prejudice to any other rights to damages under the applicable national law.
Amendment 918 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Where the contract provides for the supply of the digital content for an indeterminate digital service for a fixed period or whlongere the initial contract duration or any combination of an 6 months or where any combination of subsequent contracts or renewal periods exceed 126 months from the moment of conclusion of the initial contract, the consumer shall be entitled to terminateend the contract any time after the expiration of the first 126 months period.
Amendment 928 #
Proposal for a directive
Article 16 – paragraph 3
Article 16 – paragraph 3
3. Where the digital content or digital service is supplied in exchange for a payment of a price, the consumer remains liable to pay the part of the price for the digital content or digital service supplied corresponding to the period of time before the termination becomescontract ended effectively.
Amendment 968 #
Proposal for a directive
Article 17 – paragraph 1 a (new)
Article 17 – paragraph 1 a (new)
Where the seller is liable to the consumer because of a lack of conformity with the contract resulting from an act or omission by a person in earlier links of the chain of transactions, the seller shall be entitled to pursue remedies against the person or persons liable in the chain of transactions. The person against whom the seller may pursue remedies and the relevant actions and conditions of exercise, shall be determined by national law. However, the seller shall be entitled to pursue remedies for at least the duration of the legal guarantee period, and the reversal of the burden of proof shall be no shorter than as provided for in Article 9 .