Activities of David BORRELLI related to 2016/0152(COD)
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 (11)
Amendment 48 #
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 the principles and goals of the 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 customers 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 customers from other Member States, both online and offline. Whereas there may sometimes be objective justifications in exceptional cases 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. As a result, customers feel frustrated, since they become aware that the guarantees of the internal market already regularly applied for physical transactions are not always respected in the online environment.
Amendment 52 #
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 customers 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 growthdevelopment potential of the internal market from being realised, and delays or impedes technological innovation in the field. 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 56 #
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, 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. Furthermore, such discrimination has often happened with the informal consensus of administrative and regulatory national authorities, which have been fully aware of the practice, but have chosen not to act against it. In order to develop the full potential of the Digital Single Market, such attitude should be overcome. _________________ 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 61 #
Proposal for a regulation
Recital 5
Recital 5
(5) This Regulation aims at preventing discrimination based on customers' nationality, 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 addressprevent direct as well as indirect discrimination, thus. By indirect discrimination it is understood the application of distinguishing criteria other than customer's nationality, place of residence or place of establishment which lead either deterministically or statistically to the same result as the direct application of those same criteria. It also coverings 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 customers' nationality, 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 customers, 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 customer's payment instrument has been issued.
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 customer. Terms and conditions that are individually negotiated between the trader and the customers should not be considered general conditions of access for the purposes of this Regulation. As a standard of proof for demonstrating such individual negotiation, regulatory authorities should request evidence of substantially personalised contractual terms and conditions.
Amendment 77 #
Proposal for a regulation
Recital 14
Recital 14
(14) In order to increase the possibility for customers 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 but not limited to them, traders or any other parties acting on their behalf should not, through the use of technological measures or otherwise, prevent customers from having full and equal access to online interfaces on the basis of their nationality, place of residence or place of establishment. Such technological measures can encompass, in particular, any technologies used to determine the physical location of the customer, including the tracking of that by means of IP address, surfing history and/or patterns, GSM tracking or localisation, 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 customers.
Amendment 80 #
Proposal for a regulation
Recital 14 a (new)
Recital 14 a (new)
(14a) In particular, any trader using technologies enabling it to carry out geo- marketing could be requested from the authorities to demonstrate that it is not using neither such technologies, nor the information collected through them, in order to apply discriminatory practices. Moreover, traders should not be allowed to sell physical products where regional lock out mechanisms are implemented to be applicable within the territory of the Union, either via hardware or software. Regional differences corresponding to national technical standards notified as established by Article 12 of Regulation (EU) 1025/2012 of the European Parliament and the Council are not deemed to constitute regional lock out mechanisms.
Amendment 85 #
Proposal for a regulation
Recital 17
Recital 17
(17) In a number of specific situprinciple, and barring the specific exceptions provided by this Regulations, any differences in the treatment of customers through the application of general conditions of access, including outright refusals to sell goods or to provide services, for reasons related to the customers' nationality, place of residence or place of establishment cannot be objectively justified, or any other indirect means correlated to these criteria, cannot be considered as objectively justified in the sense of Article 20 of Directive 2006/123 on services in the internal market. In those situations, all such discrimination should be prohibited and customers 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 customer and have full and equal access to any of the different goods or services offered irrespective of their nationality, 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 customers 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 91 #
Proposal for a regulation
Recital 19
Recital 19
(19) The second situation is 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, such as cloud services, data warehousing services, website hosting and the provision of firewalls. In this case, no physical delivery is required, as the services are being supplied electronically. The trader can declare and pay VAT in a simplified manner in accordance with the rules on VAT Mini-One-Stop-Shop (MOSS) set out in Council Implementing Regulation (EU) No 282/201126. Any difference in the application of tax regimes should not entail the application of different conditions of access. _________________ 26 Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax (OJ L 77, 23.3.2011, p. 1).
Amendment 115 #
Proposal for a regulation
Article 2 – paragraph 2 – point c
Article 2 – paragraph 2 – point c
(c) 'customer' means a consumer who, or an undertaking which, is a national of a Member State or has his or her place of residence or place of establishment in a Member State, and intends to purchase or purchases a good or a service within the Union, other than for resale, rental, transformation or processing on a commercial scale;
Amendment 139 #
Proposal for a regulation
Article 5 – paragraph 1 – point c
Article 5 – paragraph 1 – point c
(c) the payments are in a currency of a Member State of the European Union, or in any other currency that the payee accepts.