[ParlTrack]

Evelyne GEBHARDT, Olga SEHNALOVÁ, Virginie ROZIÈRE, Nicola DANTI, Lucy ANDERSON

Proposal for a directive
Recital 7

(7) Furthermore, any fines imposed as penalties should take into account the total worldwide annual turnover and profits of the infringing trader and any fines that have been imposed on the trader in other Member States for the same infringement in, particular, in the context of the widespread infringements of consumer law and widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394.

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Lucy ANDERSON

Proposal for a directive
Recital 8

(8) These common non-exhaustive criteria for the application of penalties may not be relevant in deciding on penalties regarding every infringement, in particular regarding non-serious infringements. Member States should also take account of other general principles of law applicable to the imposition of penalties, such as the principle of non bis in idem. The enforcement of penalties should not require Member States to establish a comprehensive system of public enforcement. It should be left to Member States to determine the modalities of imposing and enforcing penalties.

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Nicola DANTI, Olga SEHNALOVÁ, Lucy ANDERSON, Virginie ROZIÈRE

Proposal for a directive
Recital 9

(9) To ensure that Member State authorities can impose effective, proportionate and dissuasive penalties in relation to widespread infringements of consumer law and to widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394, fines should be introduced as a mandatory element of penalties for such infringements. In order to ensure deterrence of the fines, Member States should set in their national law the maximum fine for such infringements at a level that is at least 4% of the trader's ~~annual turnover in the Member State concerned~~total worldwide annual turnover.

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Nicola DANTI, Olga SEHNALOVÁ, Biljana BORZAN, Lucy ANDERSON, Virginie ROZIÈRE

Proposal for a directive
Recital 10

(10) Where, as a result of the coordination mechanism under Regulation (EU) 2017/2394, a single national competent authority within the meaning of that Regulation imposes a fine on the trader responsible for the widespread infringement or the widespread infringement with a Union dimension, it should be able to impose a fine of at least 4 % of the trader’s ~~annual turnover in all Member States concerned by the coordinated enforcement action~~total worldwide annual turnover.

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Olga SEHNALOVÁ, Virginie ROZIÈRE, Lucy ANDERSON

Proposal for a directive
Recital 11

(11) Member States should not be prevented from maintaining or introducing in their national law higher maximum turnover-based fines or fixed maximum fines for widespread infringements and widespread infringements with a Union dimension of consumer law, as defined in Regulation EU 2017/2394. The requirement to set the fine at a level of not less than 4 % of the trader's turnover should not apply to any additional rules of the Member States on periodic penalty payments, such as daily fines, for non- compliance with any decision, order, interim measure, trader's commitment or other measure with the aim of stopping the infringement.

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Lucy ANDERSON, Virginie ROZIÈRE

Proposal for a directive
Recital 15

(15) Member States should ensure that remedies are available for consumers harmed by unfair commercial practices in order to eliminate all the effects of those unfair practices. In order to meet that objective, Member States should make both contractual and non-contractual remedies available in their national law. As a minimum, the contractual remedies provided by the Member States should include the right to contract termination, the right to compensation for damages and the right to price reduction. Non- contractual remedies provided under national law should, as a minimum, include the right to compensation for damages. Member States would not be prevented from maintaining or introducing rights to additional remedies for consumers harmed by unfair commercial practices in order to ensure full removal of the effects of such practices.

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Olga SEHNALOVÁ, Virginie ROZIÈRE, Lucy ANDERSON

Proposal for a directive
Recital 15

(15) Member States should ensure that remedies are available for consumers harmed by unfair commercial practices in order to eliminate all the effects of those unfair practices. In order to meet that objective, Member States should make both contractual and non-contractual remedies available. As a minimum, the contractual remedies provided by the Member States should include the right to contract termination and the right to price reduction. Non-contractual remedies provided under national law should, as a minimum, include the right to compensation for damages. Member States would not be prevented from maintaining or introducing rights to additional remedies for consumers harmed by unfair commercial practices in order to ensure full removal of the effects of such practices.

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Olga SEHNALOVÁ, Lucy ANDERSON, Virginie ROZIÈRE

Proposal for a directive
Recital 16

(16) The Fitness Check of consumer and marketing law directives and the parallel evaluation of Directive 2011/83/EU also identified a number of areas where the existing consumer protection rules should be modernised and disproportionate burden on traders reduced.deleted

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Virginie ROZIÈRE, Lucy ANDERSON

Proposal for a directive
Recital 18

(18) Online marketplaces should be defined for the purposes of Directive 2011/83/EU in a similar manner as in Regulation (EU) 524/201342 and Directive 2016/1148/EU43. However, as the ~~definition should be updated and rendered more technologically neutral in order to cover new technologies. It is therefore appropriate to refer, instead of a 'website', to the no~~term platform is too wide in order to be used for describing the scope of this Directive, the definition of ~~an '~~online ~~interface' as provided by Regulation (EU) 2018/30244~~marketplaces should aim at being as inclusive as possible. __________________ 42 Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR) (OJ L 165, 18.6.2013, p. 1). 43 Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union (OJ L 194, 19.7.2016, p. 1). 44 Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on addressing unjustified geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market and amending Regulations (EC) No 2006/2004 and (EU) 2017/2394 and Directive 2009/22/EC (OJ L 60 I, 2.3.2018, p. 1).

2018/10/01
Committee: IMCO

Lucy ANDERSON, Liisa JAAKONSAARI, Catherine STIHLER, Biljana BORZAN, Evelyne GEBHARDT

Proposal for a directive
Recital 19 a (new)

(19a) It should be recognised that consumers increasingly rely on online platforms to make informed decisions about goods and services they may wish to purchase. As the consumer is in a weaker position than a business, in particular in case of online shopping, this reliance should be reflected by imposing legal liability upon the operators of an online marketplace if they fail to remove misleading information provided by traders once they have been notified by a supplier.

2018/10/01
Committee: IMCO

Lucy ANDERSON, Liisa JAAKONSAARI, Catherine STIHLER, Biljana BORZAN

Proposal for a directive
Recital 19 b (new)

(19b) It should be noted that comparison websites do not necessarily rank and display products objectively by price and quality and that consumers may not be aware that online platform operators may receive payment in order to give undue prominence to a particular product or service. As a result, national regulatory bodies should monitor sectors where consumers tend to use comparison websites and undertake research to ascertain whether consumers' understanding of marketplace rankings is accurate. In the event that there are discrepancies then sector-specific action should be undertaken.

2018/10/01
Committee: IMCO

Lucy ANDERSON, Liisa JAAKONSAARI, Catherine STIHLER, Biljana BORZAN, Evelyne GEBHARDT

Proposal for a directive
Recital 20

(20) In accordance with Article 15(1) of Directive 2000/31/EC45, online marketplaces should not be required to verify the legal status of third party suppliers. Instead, the online marketplace should require third party suppliers of products on the online marketplace to indicate their status as traders or non- traderOnline marketplaces should be obliged to take reasonable steps to ensure that the services they provide are not subject to misuse, leaving consumers vulnerable. There should be an adequate level of protection consistent with the nature of the goods for ~~the purposes of consumer law and to provide th~~services sold and any actual evidence of harm aris information to the online marketplace. __________________ 45 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ('Directive on electronic commerce') (OJ L 178, 17.7.2000, p. 1)g from the sale. Specifically, they should monitor activity which suggests that a trader is purporting to be a non-trader in order to influence consumers' choices and expectations of the quality of the product or service they are purchasing.

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Nicola DANTI, Virginie ROZIÈRE, Lucy ANDERSON, Biljana BORZAN

Proposal for a directive
Recital 33

(33) Directive 2011/83/EU provides fully harmonised rules regarding the right of withdrawal from distance and off- premises contracts. In this context, two concrete obligations have been shown to constitute disproportionate burdens on traders and should be deleted.

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Nicola DANTI, Olga SEHNALOVÁ, Biljana BORZAN, Lucy ANDERSON, Virginie ROZIÈRE

Proposal for a directive
Recital 34

(34) The first relates to the consumer right to withdraw from sales contracts concluded at a distance or off-premises even after using goods more than necessary to establish their nature, characteristics and functioning. According to Article 14(2) of Directive 2011/83/EU, a consumer is still able to withdraw from the online/off-premises purchase even if he or she has used the good more than allowed; however, in such a case, the consumer can be held liable for any diminished value of the good.deleted

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Nicola DANTI, Lucy ANDERSON, Virginie ROZIÈRE, Biljana BORZAN, Olga SEHNALOVÁ

Proposal for a directive
Recital 35

(35) The obligation to accept the return of such goods creates difficulties for traders who are required to assess the ‘diminished value’ of the returned goods and to resell them as second-hand goods or to discard them. It distorts the balance between a high level of consumer protection and the competitiveness of enterprises pursued by Directive 2011/83/EU. The right for consumers to return goods in such situations should therefore be deleted. Annex I of Directive 2011/83/EU 'Information concerning the exercise of the right of withdrawal' should also be adjusted in accordance with this amendment.deleted

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Nicola DANTI, Olga SEHNALOVÁ, Biljana BORZAN, Lucy ANDERSON, Virginie ROZIÈRE

Proposal for a directive
Recital 36

(36) The second obligation concerns Article 13 of Directive 2011/83/EU, according to which traders can withhold the reimbursement until they have received the goods back, or until the consumer has supplied evidence of having sent them back, whichever is the earliest. The latter option may, in some circumstances, effectively require traders to reimburse consumers before having received back the returned goods and having had the possibility to inspect them. It distorts the balance between a high level of consumer protection and the competitiveness of enterprises pursued by Directive 2011/83/EU. Therefore, the obligation for traders to reimburse the consumer on the mere basis of the proof that the goods have been sent back to the trader should be deleted. Annex I of Directive 2011/83/EU 'Information concerning the exercise of the right of withdrawal' should also be adjusted in accordance with this amendment.deleted

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Nicola DANTI, Olga SEHNALOVÁ, Biljana BORZAN, Lucy ANDERSON, Momchil NEKOV, Igor ŠOLTES, Jiří MAŠTÁLKA

Proposal for a directive
Recital 41

(41) Article 16 of the Charter of Fundamental Rights of the EU guarantees the freedom to conduct a business in accordance with Union law and national laws and practices. However, marketing across Member States of products as being identical when, in reality, they have a significantly different composition or characteristics may mislead consumers and cause them to take a transactional decision that they would not have taken otherwise. of products as being seemingly identical or similar when, in reality, they have different composition or characteristics, without the consumer being clearly and comprehensively informed thereof, may mislead consumers and cause them to take a transactional decision that they would not have taken otherwise. Assessments of whether different composition or characteristics exist may vary depending on the facts and circumstances of each case, but generally speaking, in cases where: one or more ingredients or their ratio in the product differs from another marketed product under the same or similar trademark or designation; this difference may change the economic behaviour of the average consumer, who would have taken a different purchasing decision where he was aware of such a difference. In order to assess whether the appearance is seemingly identical, any words, data, trademarks, brand names, illustrations or symbols relating to a particular product and placed on the package, the document, the inscription or the label in the field of vision most likely to be spotted by the consumer at first glance and which will enable him to recognise the product immediately in terms of its characteristics, taste or nature and, where appropriate, its trademark, shall be taken into account.

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Olga SEHNALOVÁ, Virginie ROZIÈRE, Lucy ANDERSON, Biljana BORZAN, Momchil NEKOV, Igor ŠOLTES, Jiří MAŠTÁLKA

Proposal for a directive
Recital 43

(43) However, the enforcement experience has shown that it may be unclear to consumers, traders and national competent authorities which commercial practices could be contrary to the Directive 2005/29/EC in the absence of an explicit provision. Therefore, Directive 2005/29/EC should be amended to ensure legal certainty both for traders and enforcement authorities by addressing explicitly the marketing of a product as being ~~identical to the same product marketed in several other Member States~~seemingly identical or similar to the another product marketed, where those products have ~~significantly~~ different composition or characteristics. Competent authorities should assess and address on a case by case basis such practices according to the provisions of the Directive. In undertaking its assessment the competent authority should take into account whether such differentiation is easily identifiable by consumers,. When assessing a trader's right to adapt ~~products of~~ the same brand ~~for~~to different geographical markets ~~due to~~, taking into account legitimate factors, such as availability or seasonality of raw materials, defined consumer preferences or voluntary strategies aimed at improving access to healthy and nutritious food ~~as well as~~ , the competent authority should examine whether t~~raders' right to offer products of the same brand in packages of different weight or volume in different geographical markets~~he consumer has been sufficiently, clearly and comprehensibly informed by the trader about such changes so that the difference is apparent at one glance.

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Olga SEHNALOVÁ, Biljana BORZAN, Lucy ANDERSON, Virginie ROZIÈRE, Momchil NEKOV, Igor ŠOLTES, Jiří MAŠTÁLKA

Proposal for a directive
Article 1 – paragraph 1 – point 2

Directive 2005/29/EC
Article 6 – paragraph 2 – point c

(c) Aany marketing of a product ~~as be~~of seemingly identical ~~to the same product marketed in several other Member States~~appearance to another product, which is marketed with the same or similar trademark or designation, while those products have ~~significantly~~ different composition or characteristics;

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Nicola DANTI, Olga SEHNALOVÁ, Lucy ANDERSON, Virginie ROZIÈRE

Proposal for a directive
Article 1 – paragraph 1 – point 3 a (new)

Directive 2005/0029/EC
Article 7 – paragraph 4 – point f (new)

(3a) In Article 7(4), the following point is added: “(f) in the case of ranking of offers presented to the consumer as result of his search query, the main ranking parameters and the preferential treatment of certain offers;”

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Lucy ANDERSON, Virginie ROZIÈRE, Nicola DANTI, Olga SEHNALOVÁ

Proposal for a directive
Article 1 – paragraph 1 – point 4

Directive 2005/29/EC
Article 11 a – paragraph 2

2. Contractual remedies shall include, as a minimum, the possibility for the consumer to unilaterally terminate the contract, obtain compensation for damages or price reduction.

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Lucy ANDERSON

Proposal for a directive
Article 1 – paragraph 1 – point 5

Directive 2005/29/EC
Article 13 – paragraph 6 a (new)

6a. The enforcement of penalties should not require Member States to establish a comprehensive system of public enforcement. It should be left to Member States to determine the modalities of imposing and enforcing penalties.

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Lucy ANDERSON, Olga SEHNALOVÁ

Proposal for a directive
Article 1 – paragraph 1 – point 6

Directive 2005/29/EC
Annex I – point 11

11. Using editorial content in the media, or providing information to a ~~consumer’s~~n online search query, to promote a product or service where a trader has p~~aid for the promotion~~rovided remuneration, including remuneration other than money, for a promotion or prominent placement without making that clear in the content or search results or by images or sounds clearly identifiable by the consumer (advertorial; paid placement or paid inclusion). This is without prejudice to Directive 2010/13/EU48. __________________ 48 Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95, 15.4.2010, p. 1).

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Virginie ROZIÈRE, Lucy ANDERSON, Olga SEHNALOVÁ, Nicola DANTI

Proposal for a directive
Article 1 – paragraph 1 – point 6 a (new)

Directive 2005/29/EC
Annex 1 – point 23 a (new)

(6a) In Annex I, the following point is inserted: “23a. Creating the false impression that a review of a product or a service was submitted by a consumer who used the product or service.”

2018/10/01
Committee: IMCO

Catherine STIHLER, Lucy ANDERSON

Proposal for a directive
Article 1 – paragraph 1 – point 6 a (new)

Directive 2005/29/EC
Annex I – point 23 a (new)

(6a) In Annex I, the following point is inserted: “23a. Using different techniques that allow buying tickets at large scale, including through automated software, to resell event tickets for more than their face value.”

2018/10/01
Committee: IMCO

Catherine STIHLER, Lucy ANDERSON

Proposal for a directive
Article 1 – paragraph 1 – point 6 b (new)

Directive 2005/29/EC
Annex I – point 23 b (new)

(6b) In Annex I, the following point is inserted: “23b. The organised resale of tickets where restrictions – including restrictions set out in terms and conditions – imposed by event organisers or primary ticket sellers do not allow the resale of tickets or restrict the resale of tickets in a way that could or likely could render the function of the ticket of granting access to events ineffective.”

2018/10/01
Committee: IMCO

Catherine STIHLER, Lucy ANDERSON

Proposal for a directive
Article 1 – paragraph 1 – point 6 c (new)

Directive 2005/29/EC
Annex I – point 23 c (new)

(6c) In Annex I, the following point is inserted: “23c. Informing about a price reduction without indicating the reference price from which the reduction was made and without being able to prove the correctness of this reference price in the 30 days preceding this announcement.”

2018/10/01
Committee: IMCO

Catherine STIHLER, Lucy ANDERSON

Proposal for a directive
Article 1 – paragraph 1 – point 6 d (new)

Directive 2005/29/EC
Annex I – point 23 d (new)

(6d) In Annex I, the following point is inserted: “23d. Online advertising of unhealthy food to children. Whether food is unhealthy should be assessed by taking into account the WHO Regional Office for Europe nutrient profile model from 2015.”

2018/10/01
Committee: IMCO

Olga SEHNALOVÁ, Evelyne GEBHARDT, Nicola DANTI, Biljana BORZAN, Lucy ANDERSON

Proposal for a directive
Article 1 – paragraph 1 – point 6 a (new)

Directive 2005/29/EC
Annex I – point 31 a (new)

(6a) In Annex I, the following point is inserted: “31a. Restricting or preventing a consumer to make use of the right of withdrawal laid down in Article 9(1) of Directive 2011/83/EU.”

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Virginie ROZIÈRE, Lucy ANDERSON

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point a a (new)

Directive 2011/83/EU
Article 2 – paragraph 1 – point 5

(aa) Point (5) is replaced by the following: “(5) ‘sales contract’ means any contract ~~under which~~where the trader transfers or undertakes to transfer ~~the~~ ownership of a goods to the consumer and the consumer pays or undertakes to pay ~~the~~a price ~~thereof, including any contract having as~~or the consumer provides or undertakes to provide personal data to the trader, except where the personal data provided by the consumer its ~~object both goods and services;~~ exclusively processed by the trader to comply with legal requirements to which the trader is subject, and the trader does not process this data for any other purpose.” Or. en (https://eur-lex.europa.eu/legal- content/EN/TXT/HTML/?uri=CELEX:32011L0083&qid=1537797342987&from=EN)

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Lucy ANDERSON, Virginie ROZIÈRE

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point c a (new)

(ca) point 15 is replaced by the following: “(15) ‘ancillary contract’ means a contract by which the consumer acquires goods or services related to a distance contract or an off-premises contract and where those goods are supplied or those services are provided by the trader or by a third party ~~on the basis of an arrangement between that third party and the trader. (https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32011L0083&from=DE)~~.” Or. en

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Lucy ANDERSON, Virginie ROZIÈRE, Martin SCHIRDEWAN, Felix REDA

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point d

Directive 2011/83/EU
Article 2 – paragraph 1 – point 19

(19) ‘online marketplace’ means a ~~service provider~~natural or legal person offering, on a professional basis, whether for remuneration or not, an online public communication service which allows consumers to conclude ~~online~~ contracts with traders and consumers on the online marketplace’s online interface the functioning of which is based on the classification or referencing, by means of computer algorithms, of content, goods or services offered or posted by third parties, or the bringing together of several parties for the purpose of selling goods, providing services or the sharing of content, goods or services;

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Virginie ROZIÈRE, Lucy ANDERSON

Proposal for a directive
Article 2 – paragraph 1 – point 2

Directive 2011/83/EU
Article 5 – paragraph 1 – point h

(h) where applicable, any relevant interoperability of digital content and digital services, including where those are embedded in goods, and digital services with hardware and software that the trader is aware of or can reasonably be expected to have been aware of.

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Lucy ANDERSON, Virginie ROZIÈRE, Olga SEHNALOVÁ

Proposal for a directive
Article 2 – paragraph 1 – point 3

Directive 2011/83/EU
Article 6 – paragraph 1 – point c

(c) the geographical address at which the trader is established as well as the trader’s telephone number, e-mail address orand, if available, other means of online communication which guarantee that the consumer can keep the correspondence with the trader on a durable medium, to enable the consumer to contact the trader quickly and communicate with him efficiently. Where applicable, the trader shall also provide the geographical address and identity of the trader on whose behalf he is acting.

2018/10/01
Committee: IMCO

Evelyne GEBHARDT, Virginie ROZIÈRE, Lucy ANDERSON