52 Amendments of Lucy ANDERSON related to 2018/0089(COD)
Amendment 42 #
Proposal for a directive
Recital 1
Recital 1
(1) The purpose of this Directive is to enable qualified entities, which represent the collective interest of consumers, to seek remedy through representative actions against infringements of provisions of Union law. The qualified entities should be able to ask for stopping or prohibiting an infringement, for confirming that an infringement took place and to seek redress for the economic and non-economic damages, such as compensation, repair or price reduction as available under national laws.
Amendment 45 #
Proposal for a directive
Recital 3
Recital 3
(3) A representative action should offer an effective and efficient way of protecting the collective interests of consumers. It should allow qualified entities to act with the aim of ensuring compliance with relevant provisions of Union law and to overcome the obstacles faced by consumers within individual actions with regard to their generally weaker position, such as the uncertainty about their rights and available procedural mechanisms, psychological reluctance to take action and the negative balance of the expected costs and benefits of the individual action.
Amendment 49 #
Proposal for a directive
Recital 6
Recital 6
(6) This Directive should cover a variety of areas such as data protection, financial services, travel and tourism, energy, telecommunications and environmentll consumer law and related areas in line in particular with Articles 11 and 169 TFEU and Article 47 of the EU Charter of Fundamental Rights. It should also be recognised that, in light of recent scandals involving the automobile industry, the impact upon consumers can often have secondary elements alongside the initial financial aspects, such as damage to health caused by emissions. It should cover infringements of provisions of Union law which protect the interests of consumers, regardless of whether they are referred to as consumers or as travellers, users, customers, retail investors, retail clients or other in the relevant Union law. To ensure adequate response to infringement to Union law, the form and scale of which is quickly evolving, it should be considered, each time where a new Union act relevant for the protection of the collective interests of consumers is adopted, whether to amend the Annex to the present Directive in order to place it under its scope.
Amendment 50 #
Proposal for a directive
Recital 2
Recital 2
(2) Directive 2009/22/EC of the European Parliament and of the Council29 enabled qualified entities to bring representative actions primarily aimed at stopping and prohibiting infringements of Union law harmful to the collective interests of consumers. However, that Directive did not sufficiently address the challenges for the enforcement of consumer law. To improve the deterrence of unlawful practices, to encourage good and responsible business practices, and to reduce consumer detriment, it is necessary to strengthen the mechanism for protection of collective interests of consumers. Given the numerous changes, for the sake of clarity it is appropriate to replace Directive 2009/22/EC. _________________ 29 OJ L 110/30, 1.5.2009.
Amendment 55 #
Proposal for a directive
Recital 7
Recital 7
Amendment 64 #
Proposal for a directive
Recital 11
Recital 11
(11) Independent public bodies and, consumer organisations, and citizens' advice groups in particular should play an active role in ensuring compliance with relevant provisions of Union law and are all well placed to act as qualified entities. Since these entities have access to different sources of information regarding traders' practices towards consumers and hold different priorities for their activities, Member States should be free to decide on the types of measures that may be sought by each of these qualified entities in representative actions.
Amendment 65 #
Proposal for a directive
Recital 6
Recital 6
(6) This Directive should cover a variety of areas such asconsumer law and related areas in line in particular with Article 169 TFEU and Article 47 of the Charter of Fundamental Rights of the European Union. These rights should include data protection, financial services, travel and tourism, energy, telecommunications and environment, equality and non- discrimination, environment or any other relevant area. It should cover infringements of provisions of Union law which protect the interests of consumers, regardless of whether they are referred to as consumers or as travellers, users, customers, retail investors, retail clients or other in the relevant Union law. To ensure adequate response to infringement to Union law, the form and scale of which is quickly evolving, it should be considered, each time where a new Union act relevant for the protection of the collective interests of consumers is adopted, whether to amend the Annex to the present Directive in order to place it under its scope.
Amendment 71 #
Proposal for a directive
Recital 7
Recital 7
Amendment 79 #
Proposal for a directive
Recital 19
Recital 19
Amendment 87 #
Proposal for a directive
Recital 10
Recital 10
(10) As only qualified entities can bring the representative actions, to ensure that the collective interests of consumers are adequately represented the qualified entities should comply with the criteria established by this Directive. In particular, they would need to be properly constituted according to the law of a Member State, which could include for example requirements regarding the number of members, the degree of permanence, or transparency requirements on relevant aspects of their structure such as their constitutive statutes, management structure, objectives and working methods. They should also be not for profit and have a legitimate interest in ensuring compliance with the relevant Union law. These criteria should apply to both qualified entities designated in advance and to ad hoc qualified entities that are constituted for the purpose of a specific action.
Amendment 90 #
Proposal for a directive
Recital 11
Recital 11
(11) Independent public bodies or those with specific relevant statutory responsibilities and consumer organisations in particular should play an active role in ensuring compliance with relevant provisions of Union law and are all well placed to act as qualified entities. Since these entities have access to different sources of information regarding traders' practices towards consumers and hold different priorities for their activities, Member States should be free to decide on the types of measures that may be sought by each of these qualified entities in representative actions.
Amendment 91 #
Proposal for a directive
Recital 21
Recital 21
(21) In low-value cases most consumers are unlikely to take action in order to enforce their rights because the efforts would outweigh the individual benefits. However, if the same practice concerns a number of consumers, the aggregated loss may be significant. In such cases, a court or authority may consider that it is disproportionate to distribute the funds back to the consumers concerned, for example because it is too onerous or impracticable. Therefore the funds received as redress through representative actions would better serve the purposes of the protection of collective interests of consumers and should be directed to a relevant public purpose, such as a consumer legal aid fund, awareness campaigns or consumer movements. In such low-value cases, a court or administrative authority should not ask for a definition of the group of consumers concerned by the infringement.
Amendment 95 #
Proposal for a directive
Recital 22
Recital 22
(22) Measures aimed at eliminating the continuing effects of the infringement may be sought only on the basis of a final decision, establishing an infringement of Union law covered by the scope of this Directive harming collective interest of consumers, including a final injunction order issued within the representative action. In particular. For example, measures eliminating the continuing effects of the infringement may be sought on the basis of final decisions of a court or administrative authority in the context of enforcement activities regulated by Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004.32 _________________ 32 OJ L 345, 27.12.2017. OJ L 345, 27.12.2017.
Amendment 119 #
Proposal for a directive
Recital 19
Recital 19
(19) Member States should be allowed to decide whether their court or national authority seized of a representative action for redress may exceptionally issue, instead ofensure that qualified entities are entitled to bring representative actions seeking, in addition to injunction orders, either a redress order, or a declaratory decision regarding the liability of the trader towards the consumers harmed by an infringement which could be directly relied upon in subsequent redress actions by individual consumers. This possibility should be reserved to duly justified cases where the quantification of the individual redress to be attributed to each of the consumer concerned by the representative action is complex and it would be inefficient to carry it out within the representative action. Declaratory decisions s, or both. A declaratory decision may, for example, be appropriate where individual consumers have suffered negligible or unquantifiable loss but it is nevertheless in the public interest to hould not be issued in situations which are not complex and in particular where consumers concerned are identifiable and where the consumers have suffered a comparable harm in relation to a period of time or a purchase. Similarly,the trader formally to account for the breach of Union law concerned. However, a declaratory decisions should not be issued where the amount of loss suffered by each of the individual consumers is so small that individual consumers are unlikely to claim for individual redress. The court or the national authority should duly motivate its recourse to a declaratory decision instead of a redress order in a particular casemade instead of a redress order that was sought unless the mandate of the individual consumers concerned is obtained.
Amendment 128 #
Proposal for a directive
Recital 21
Recital 21
(21) In low-value cases most consumers are unlikely to take action in order to enforce their rights because the efforts would outweigh the individual benefits. However, if the same practice concerns a number of consumers, the aggregated loss may be significant. In such cases, a court or authority may consider that it is disproportionate to distribute the funds back to the consumers concerned, for example because it is too onerous or impracticable. Therefore the funds received as redress through representative actions would better serve the purposes of the protection of collective interests of consumers and should be directed to a relevant public purpose, such as a consumer legal aid fund, awareness campaigns or consumer movements.
Amendment 132 #
Proposal for a directive
Article 1 – paragraph 2
Article 1 – paragraph 2
2. This Directive shallaims at minimum harmonisation and shall therefore not prevent Member States from adopting or maintaining in force provisions designed to grant qualified entities or any other persons concerned other procedural means to bring actions aimed at the protection of the collective interests of consumers at national level.
Amendment 136 #
(22) Measures aimed at eliminating the continuing effects of the infringement may be sought only on the basis of a final decision, establishing an infringement of Union law covered by the scope of this Directive harming collective interest of consumers, including a final injunction order issued within the representative action. In particular, measures eliminating the continuing effects of the infringement may be sought on the basis of final decisions of a court or administrative authority in the context of enforcement activities regulated by Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004.32 _________________ 32 OJ L 345, 27.12.2017.
Amendment 137 #
Proposal for a directive
Article 2 – paragraph 1
Article 2 – paragraph 1
1. This Directive shall apply to representative actions brought against infringements by traders of provisions of the Union law including those listed in Annex I that harm or may harm the collective interests of consumers. It shall apply to domestic and cross-border infringements, including where those infringements have ceased before the representative action has started or before the representative action has been concluded.
Amendment 139 #
Proposal for a directive
Article 3 – paragraph 1 – point 1
Article 3 – paragraph 1 – point 1
(1) ‘consumer’ means any natural person who is acting for purposes which are mainly outside their trade, business, craft or profession;
Amendment 175 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
2. Member States mayshall designate a qualified entity on an ad hoc basis for a particular representative action, at its request, if it complies with the criteria referred to in paragraph 1. This shall apply, in particular, to cases where there are often smaller and voluntary advice groups concerned.
Amendment 180 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
Amendment 187 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Member States shall ensure that representative actions according to Article 1 can be brought before national courts or administrative authorities by qualified entities provided that there is a direct relationship between the main objectives of the entity and the rights granted under Union law that are claimed to have been violated in respect of which the action is brought.
Amendment 197 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
3. Member States shall ensure that qualified entities are entitled to bring representative actions seeking redress measures eliminating the continuing effects of the infringement. These measures shall be sought on the basis of any final decision establishing that a practice constitutes an infringement of Union law listed in Annex I harming collective interests of consumers, including a final injunction order referred to in paragraph (2)(b).
Amendment 202 #
Proposal for a directive
Article 5 – paragraph 4
Article 5 – paragraph 4
Amendment 210 #
Proposal for a directive
Article 6 – paragraph 1 – subparagraph 1
Article 6 – paragraph 1 – subparagraph 1
For the purposes of Article 5(3), Member States shall ensure that qualified entities are entitled to bring representative actions seeking a redress order for the economic and non-economic damages, which obligates the trader to provide for, inter alia, compensation, repair, replacement, price reduction, contract termination or reimbursement of the price paid, as appropriate. A Member State may require the mandate of the individual consumers concerned before a declaratory decision is made or a redress order is issuedredress order is issued. . If a Member State does not require a mandate of the individual consumer to join the representative action, this Member State shall nevertheless allow those individuals who are not habitually resident in the Member State where the action occurs, to participate in the representative action, in case they expressed their willingness to be part of the representative action within the applicable time limit.
Amendment 211 #
Proposal for a directive
Article 1 – paragraph 2
Article 1 – paragraph 2
2. This Directive shall not prevent Member States frommay adopting or maintaining in force provisions designed to grant qualified entities or any other persons concerned other procedural means to bring actions aimed at the protection of the collective interests of consumers at national levelmore stringent provisions aimed at the protection of the collective interests of consumers at national level, and the implementation of this Directive shall under no circumstances constitute grounds for the reduction of protection for consumers in fields covered by the scope of Union law.
Amendment 213 #
Proposal for a directive
Article 2 – paragraph 1
Article 2 – paragraph 1
1. This Directive shall apply to representative actions brought against infringements by traders of provisions of the Union law, including but not limited to those listed in Annex I that harm or may harm the collective interests of consumers in the fields of data protection, financial services, travel and tourism, energy, telecommunications, equality and non- discrimination, environment or any other relevant area. It shall apply to domestic and cross-border infringements, including where those infringements have ceased before the representative action has started or before the representative action has been concluded.
Amendment 225 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
Amendment 229 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
Amendment 238 #
Proposal for a directive
Article 6 – paragraph 3 a (new)
Article 6 – paragraph 3 a (new)
3 a. Where consumers have suffered a small amount of loss and it would be disproportionate to distribute the redress to them, Member States shall ensure that the mandate of the individual consumers concerned is not required. The redress shall be directed to a public interest serving the collective interests of consumers. The same shall apply to any unclaimed or leftover funds.
Amendment 244 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The qualified entity seeking a redress order as referred in Article 6(1) shall declare at an early stage of the action the source of the funds used for its activity in general and the funds that it uses to support the action. It shall demonstrate that it has sufficient financial resources to represent the best interests of the consumers concerned and to meet any adverse costs should the action fail.
Amendment 245 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The qualified entity seeking a redress order as referred in Article 6(1) shall declare at an early stage of the action the source of the funds used for its activity in general and the funds that it uses to support the action. It shall demonstrate that it has access to sufficient financial resources to represent the best interests of the consumers concerned and to meet any adverse costs should the action fail. This may include a guarantee or indemnity from a third party subject also to the provisions of paragraphs 2 and 3 of this Article.
Amendment 251 #
Proposal for a directive
Article 7 – paragraph 2 – introductory part
Article 7 – paragraph 2 – introductory part
2. Member States shall ensure that in cases where a representative action for redress is funded by a third party, transparency as to the origin of the funds is ensured and that it is prohibited for the third party:
Amendment 256 #
Proposal for a directive
Article 7 – paragraph 3
Article 7 – paragraph 3
3. Member States shall ensure that courts and administrative authorities are empowered to assess the circumstances referred to in paragraph 2 and accordingly require the qualified entity to refuse the relevant funding and, if necessary, reject the standing of the qualified entity in a specific case.
Amendment 267 #
Proposal for a directive
Article 9 – paragraph 1 a (new)
Article 9 – paragraph 1 a (new)
1 a. The first paragraph does not prevent qualified entities from informing, from the beginning of the action, the individual consumers concerned, in order to ensure that they can come forward and that relevant documents and other information necessary for the action are kept.
Amendment 286 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
2. Member States mayshall designate a qualified entity on an ad hoc basis for a particular representative action, at its request, if it complies with the criteria referred to in paragraph 1.
Amendment 290 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
1. Member States shall take the necessary measures to ensure that procedural costs related to representative actions do not constitute financial obstacles for qualified entities to effectively exercise the right to seek the measures referred to in Articles 5 and 6, such asin particular limiting applicable court or administrative fees, granting them access to legal aid where necessary, or by providing them with public funding for this purpose.
Amendment 291 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
3. Member States shall ensure that in particular consumer organisations, ands well as independent public bodies and those with specific relevant legal responsibilities are eligible for the status of qualified entity. Member States may designate as qualified entities consumer organisations that represent members from more than one Member State.
Amendment 295 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
Amendment 296 #
Proposal for a directive
Article 16 a (new)
Article 16 a (new)
Article 16 a In order to make the possibility of cross- border injunctions more visible, Member States shall ensure that the relevant domestic administrative authorities set up a registry of unlawful acts which have been subject to injunction orders in order to provide a basis for best practice and information to other Member State authorities.
Amendment 299 #
Proposal for a directive
Article 18 – paragraph 2
Article 18 – paragraph 2
Amendment 307 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Member States shall ensure that representative actions can be brought before national courts or administrative authorities by qualified entities provided that there is a direct relationship between the main objectives of the entity and the rights granted under Union law that are claimed to have been violated in respect of which the action is broughtsufficient interest in the issue to which the alleged breach of Union law relates.
Amendment 322 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
3. Member States shall ensure that qualified entities are entitled to bring representative actions seeking measures eliminating the continuing effects of the infringement. These measures shall be sought on the basis of any final decision establishing that a practice constitutes an infringement of Union law listed in Annex I harming collective interests of consumers, including a final injunction order referred to in paragraph (2)(b).
Amendment 340 #
Proposal for a directive
Article 6 – paragraph 1 – subparagraph 1
Article 6 – paragraph 1 – subparagraph 1
For the purposes of Article 5(3), Member States shall ensure that qualified entities are entitled to bring representative actions seeking a redress order, which obligates the trader to provide for, inter alia, compensation, repair, replacement, price reduction, contract termination or reimbursement of the price paid, as appropriate. A Member State may require the mandate of the individual consumers concerned before a declaratory decision is made or a redress order is issu, or additionally or alternatively, a declaratory decision. A declaratory decision shall not be made instead of a redress order that was sought unless the mandate of the individual consumers concerned is obtained.
Amendment 345 #
Proposal for a directive
Article 6 – paragraph 1 – subparagraph 2
Article 6 – paragraph 1 – subparagraph 2
The qualified entity shall provide sufficient information as required under national law to support the action, including a description of the consumers concerned by the action and the questions of fact and law to be resolved but this requirement shall not be such as to place such a significant burden on the qualified entity that qualified entities may be discouraged from seeking to bring representative actions.
Amendment 351 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
Amendment 361 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
Amendment 384 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The qualified entity seeking a redress order as referred in Article 6(1) shall declare at an early stage of the action the source of the funds used for its activity in general and the funds that it uses to support the action. It shall demonstrate that it has sufficient financial resources to represent the best interests of the consumers concerned and to meet any adverse costs should the action fail. This may include a guarantee or indemnity from a third party subject also to the provisions of paragraphs 2 and 3 of this Article.
Amendment 473 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
1. Member States shall take the necessary measures to ensure that procedural costs, including the risk of adverse costs, related to representative actions do not constitute financial obstacles for qualified entities to effectively exercise the right to seek the measures referred to in Articles 5 and 6, such as limiting applicable court or administrative fees, indemnifying them against adverse costs exposure, granting them access to legal aid where necessary, or by providing them with public funding for this purpose.
Amendment 480 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Member States shall take the measures necessary to ensure that any qualified entity designated in advance in one Member State in accordance with Article 4(1) or ad hoc in accordance with Article 4(2) may apply to the courts or administrative authorities of another Member State upon the presentation of ad hoc designation in accordance with Article 4(2) or the publicly available list referred to in that Article 4(1). The courts or administrative authorities shall accept this list or other applicable evidence as proof of the legal standing of the qualified entity without prejudice to their right to examine whether the purpose of the qualified entity justifies its taking action in a specific case.
Amendment 488 #
Proposal for a directive
Article 16 a (new)
Article 16 a (new)
Article 16a Public Register Member States shall ensure that the relevant national competent authorities set up a publicly accessible register of unlawful acts that have been subject to injunction orders in accordance with the provisions of this Directive.
Amendment 489 #
Proposal for a directive
Article 18 – paragraph 2
Article 18 – paragraph 2