44 Amendments of Daniel BUDA related to 2015/0287(COD)
Amendment 77 #
Proposal for a directive
Recital 1
Recital 1
(1) The growth potential of e- commerce has not yet been fully exploited. This Directive, incorporated into 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 digital services and facilitating businesses to supply digital content and digital services is necessary to boost the Union’'s digital economy and crossborder trade and stimulate overall growth. _________________ 29 COM (2015) 192 final.
Amendment 83 #
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 the supply of digital content and digital services is necessary, taking as a base a high level of consumer protection, is and a business-friendly environment and guaranteeing legal certainty and avoiding unnecessary costs. .
Amendment 96 #
Proposal for a directive
Recital 3
Recital 3
(3) Differences in national mandatory consumer contract law rules and a lack of clear and uniform contract law rules are among the key obstacles which hinder the development of the supply of digital content and digital services, as very few tailor-made rules exist at Union level. Businesses face additional costs stemming from differences in national mandatory consumer contract law rules and legal uncertainty when sellupplying digital content and digital services across borders. Businesses also face costs when adapting their contracts to specific mandatory rules for the supply of digital content are already in Memberging in several Member States, States in which those rules exist. 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 or digital services, traders willing to sellmake cross-border sales face uncertainty and a lack of legal certainty, as they will often not know which rules apply to digital content or digital services in the Member States to which they want to export tosupply their digital content and digital services, nor the content of those rules and whether they are mandatory.
Amendment 104 #
Proposal for a directive
Recital 4
Recital 4
(4) There is very low consumer confidence in crossborder electronic trade (especially online). Consumers are not confident when buying cross border and especially online. One of the major factors for this lack of confidence is uncertainty about their key contractual rights and the lack of a clear and uniform contractual framework for digital content and digital services. Many consumers of digital content and digital services experience problems related to the quality of, or access to, digital content and digital services. For instance, they receive wrong or faulty digital content, or they are not able to access the digital content or digital service in question. As a result, consumers suffer financial and non- financial detriment.
Amendment 114 #
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 rules for the supply of digital content and digital services, setting out Union-wide contractual rights which are essential for this type of transactions and guaranteeing a high and uniform level of consumer protection while limiting unnecessary additional costs to businesses.
Amendment 124 #
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 and digital services cross-border. They will have a stable and uniform contract law environment when selling online and otherwise at a distance to other Member States. Fully harmonised rules specific for digital content and digital services throughout the EU will remove the complexity caused by the different national rules that currently apply to contracts for the supply of digital content and/or digital services. They will also prevent legal fragmentation that otherwise would arise from new national legislations regulating specifically digital content and digital services.
Amendment 131 #
Proposal for a directive
Recital 7
Recital 7
(7) Consumers will benefit from fully harmonised rights for digital content at a highnd digital services at a high and uniform level of protection. They will have clear rights when they receive or access digital content and digital services from anywhere in the EU. This will increase their confidence in buying digital content and digital services. This will also contribute to reducing the detriment consumers currently suffer, since there will be a set of clear and uniform rights that will enable them to address problems they face with digital content and digital services.
Amendment 147 #
Proposal for a directive
Recital 9
Recital 9
(9) By fully harmonising all requirements related to the topics regulated by this Directive, it precludes Member States, within its scope of application, from providing any further formal or substantive rules, be they more or less stringent, including requirements, such as a period during which the lack of conformity has to become apparent, an obligation for the consumer to notify the supplier of a lack of conformity within a specific period or an obligation for the consumer to pay for the use of the digital content until the moment of termination because of a lack of conformity with the contract.
Amendment 156 #
Proposal for a directive
Recital 11
Recital 11
(11) The Directive should address problems across different categories of digital content and its supply. In order toor digital services and their supply. In order to ensure consistency with the acquis and cater for fast technological developments and to maintain the future- proof nature of the notion of digital content, thise notion as used in this Directive should be broader thancorrespond to the one used in Directive 2011/83/EU of the European Parliament and of the Council.30 In particular. This notion should cover, for example, video and audio content, applications, digital games and any other software. In order to cater for rapid technological developments and to ensure this Directive remains abreast of the times, it should also cover services which allow the creation, processing or storage of data, such as cloud storage services or file hosting services. The notion of digital services should also cover social media platforms, instant messaging services, and video or audio-sharing websites or platforms which fall outside the scope of electronic communication services. While there are numerous ways for digital content or digital services to be supplied, such as transmission on a durable medium, downloading by consumers on their devices, web-streaming, allowing access to storage capabilities of digital content or access to the use of social media, this Directive should apply to all digital content and digital services independently of the medium used for itstheir transmission. Differentiating between different categories in this technologically fast changing market is not desirable because it would hardly be possible to avoid discriminations between suppliers. A level- playing -field between suppliers of different categories of digital content and digital services should be ensured. However this Directive should not apply to digital content which is embedded in goods in such a way that it operates as an integral part of the goods and its functions are subordinate to the main functionalities of the goods. _________________ 30 OJ L 304, 22.11.2011, p.64. OJ L 304, 22.11.2011, p.64.
Amendment 179 #
Proposal for a directive
Recital 13
Recital 13
(13) In the digital economy, information about individuals is often and increasingly seen by market participants as having a value comparable to money. Digital content isand digital services are often supplied not in exchange for a price but against counter-performance other than money i.e. by giving access to personal data or other data. Those specific business models apply in different forms in a considerable part of the market. Introducing a differentiation depending on the nature of the counter-performance would discriminate between different business models; it woul, and provide an unjustified incentive for businesses to move towards offering digital content or digital services against data. A level playing field should be ensured. In addition, defects of the performance features of the digital content or digital services supplied against counter- performance other than money may have an impact on the economic interests of consumers. ThereforeWith a view to ensuring a level playing-field and a high level of consumer protection, the applicability of the rules of this Directive should not depend on whether a price is paid for the specific digital content or digital service in question.
Amendment 207 #
Proposal for a directive
Recital 16
Recital 16
(16) In order to ensure a common set of rights for consumers andhigh and uniform level of consumer protection, through the introduction of a common set of rights for consumers and a business- friendly environment, by guaranteeing a level playing field for businesses, consumers should have the same remedies for digital content or digital services which isare not in conformity with the contract, irrespective of the way in which the content has been developed. Consequently, the Directive should apply to contracts for the development of digital content or digital services tailor -made to the specific requirements of the consumer, including tailor -made software. This Directive should also apply to the supply of visual modelling files required in the context of 3D printing. However this Directive should not regulate goods produced with the use of 3D printing technology or the damage caused to them.
Amendment 228 #
Proposal for a directive
Recital 23
Recital 23
(23) There are various ways for digital content or digital services to reach consumers. It is opportune to set simple and clear rules as to the modalities and the time for performing the supplier's main contractual obligation to supply digital content or digital services to the consumer. Considering that the supplier is not in principle responsible for acts or omissions of an internet provider or an electronic platform which the consumer selected for receiving the digital content or digital service, it should be sufficient for the supplier to supply the digital content or digital service to thisat third party. With regard to the time of supply, in line with market practices and technical possibilities, the digital content should be supplied immediatelyor digital service should be supplied without undue delay, and not later than 30 days from the date of conclusion of the contract, unless the parties decide to agree otherwise in order to cater for other supply models.
Amendment 243 #
Proposal for a directive
Recital 26
Recital 26
(26) Due to itstheir nature, digital content and digital services needs to interact with other digital equipment to function properly; interoperability should therefore form a part of the conformity criteria. In particular it needs, the digital content or digital services need to interact with hardware including processor speed and graphics card features and software including a specific version of the operating system or specific multi- media player. The notion of functionality should refer to the ways in which digital content or digital services can be used; it should also refer to the absence or presence of any technical restrictions such as protection via Digital Rights Management or regional coding.
Amendment 251 #
Proposal for a directive
Recital 29
Recital 29
(29) Many types of digital content or digital service are supplied over a period of time. For instance, consumers access cloud services over a period of time. It is therefore important to ensure that the digital content or digital service is in conformity with the contract throughout the duration of the contract. Moreover, given the frequent improvement of digital content, notably by updates, the version of digital content supplied to the consumer should be the most recent one available at the time of the conclusion of the contract.
Amendment 273 #
Proposal for a directive
Recital 34
Recital 34
(34) The supplier should be liable to the consumer for the lack of conformity with the contract and for any failure to supply the digital content or digital service. Moreover, given that digital content or digital service may be supplied over a period of time, it is justified that the supplier should be liable for any lack of conformity which occurs during that period.
Amendment 281 #
Proposal for a directive
Recital 35
Recital 35
(35) A failure of the supplier to supply the digital content or digital service to the consumer in accordance with the contract is a serious breach of the main contractual obligation of the supplier, which should allow the consumer to immediately terminate the contract. Where the supplier has initially not failed to supply the digital content or digital service, interruptions of the supply making the digital content is not available or the digital services not accessible to the consumer over a short period of time should be treated as non- conformity with the contract, and not a failure to supply. In particular, the requirement of proper continuity of the digital content or digital services should also cover more than negligible short term interruptions of the supply.
Amendment 287 #
Proposal for a directive
Recital 36
Recital 36
(36) In the case of non-conformity with the contract, consumers should as a first step be entitled to have the digital content or digital services brought to conformity with the contract. Depending on technical characteristics of the digital content or digital services, the supplier may select a specific way of bringing the digital content to conformity with the contract, for example by issuing updates or requiring the consumer to access a new copy of the digital content. Given the diversity of digital content or digital services, it is not appropriate to set fixed deadlines for the exercise of rights or the fulfilling of obligations related to thatose digital content or digital services. Such deadlines may not capture this diversity and be either too short or too long, depending on the case. It is therefore more appropriate to refer to reasonable deadlines. The digital content or digital service should be brought into conformity with the contract within a reasonable time and free of any costs; in particular the consumer should not incur any costs associated with the development of an update for the digital content.
Amendment 314 #
Proposal for a directive
Recital 39
Recital 39
(39) In order to ensure that the consumer benefits from effective protection in relation to the right to terminate the contract, the supplier should allow the consumer to retrieve all data uploaded by the consumer, produced by the consumer with the use of the digital content or generated through the consumer's use of the digital content or digital services. This obligation should extend to data which the supplier is obliged to retain under the contract for the supply of the digital content or digital services as well as to data which the supplier has effectively retained in relation to the contract.
Amendment 322 #
Proposal for a directive
Recital 41
Recital 41
(41) Where the contract is terminated, the consumer should not be required to pay for the use of digital content or digital services which isare not in conformity with the contract because that would deprive the consumer of effective protection.
Amendment 325 #
(42) Considering the need to balance legitimate interests of consumers and suppliers, where the digital content or digital services provided over a period of time in exchange for a payment of a price, gives rise to the right to terminate, the consumer should be entitled to terminate only the part of the contract which corresponds to the time when the digital content or digital service was not in conformity with the contract. However where the digital content or digital service is provided against a counter-performance other than money partial termination is not feasible because it is impossible to proportionally apportion a counter- performance other than money.
Amendment 338 #
Proposal for a directive
Recital 44
Recital 44
(44) The principle of the supplier's liability for damages is an essential element of the contracts for supply of digital content or digital services. In order to increase consumers' trust in digital content and digital services this principle should thus be regulated at Union level to ensure that consumers do not suffer a detriment if their hardware or software is damaged by digital content or digital services which isare not in conformity with the contract. Therefore, consumers should be entitled to a compensation for damages caused to the consumer's digital environment by a lack of conformity with the contract or a failure to supply the digital content or digital services. However, it should be for Member States to lay down the detailed conditions for the exercise of the right to damages while taking into account that discounts on prices for future supplies of the digital content, especially when offered by suppliers as an exclusive compensation for losses, do not necessarily put the consumer as nearly as possible into the position in which the consumer would have been if the digital content or digital services had been duly supplied and been in conformity with the contract.
Amendment 368 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
Amendment 377 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point a
Article 2 – paragraph 1 – point 1 – point a
(a) data which is produced and supplied in digital form, for example video, audio, applications, and digital games and any other software,
Amendment 379 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point b
Article 2 – paragraph 1 – point 1 – point b
Amendment 384 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point c
Article 2 – paragraph 1 – point 1 – point c
Amendment 389 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 a (new)
Article 2 – paragraph 1 – point 1 a (new)
1a. 'digital service' means: (a) a service allowing the creation, processing or storage of data in digital form, where such data is created by the consumer, and (b) a service allowing sharing of and any other interaction with data in digital form that is created by the consumer or by other users of the service.
Amendment 437 #
Proposal for a directive
Article 2 – paragraph 1 – point 10
Article 2 – paragraph 1 – point 10
10. 'supply' means providing access to digital content and/or digital services or making digital content and/or digital services available;
Amendment 448 #
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 or digital services to the consumer or undertakes to do so and, in exchange, a price is to be paid or the consumer actively provides counter- performance other than money in the form of personal data or any other data.
Amendment 484 #
Proposal for a directive
Article 3 – paragraph 5 – point a
Article 3 – paragraph 5 – point a
(a) services performed with a predominant element of human intervention by the supplier where the digital format is used mainly as a carrier, such as legal services;
Amendment 493 #
Proposal for a directive
Article 3 – paragraph 5 a (new)
Article 3 – paragraph 5 a (new)
5a. This Directive shall not apply to the provision of digital extracts from public registers.
Amendment 494 #
Proposal for a directive
Article 3 – paragraph 6
Article 3 – paragraph 6
6. Where athe contract includes elements in addition to the supply of digital contentfor the supply of digital content or digital services includes additional contractual obligations, this Directive shall only apply to the obligations and remedieights of the parties and the remedies available to them as supplier and consumer of the digital content or digital services.
Amendment 507 #
Proposal for a directive
Article 3 – paragraph 9
Article 3 – paragraph 9
9. In so far as not regulated in this Directive, this Directive shall not affect national general contract laws such as rules on formation, the validity or effects of contracts, including the consequences of the termination or rescinding of a contract.
Amendment 513 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
Member States shall not maintain or introduce provisions diverging from those laid down in this Directive, including more or less stringent provisions to ensure a differentuniform level of consumer protection.
Amendment 518 #
Proposal for a directive
Article 5 – title
Article 5 – title
Supply of the digital content or the digital services
Amendment 522 #
1. When performing the contract for the supply of digital content or services, the supplier shall supply the digital content or services to
Amendment 528 #
Proposal for a directive
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) a third party which operates a physical or virtual facility making the digital content or digital service available to the consumer or allowing the consumer to access it and which has been chosen by the consumer for receiving the digital content or digital service.
Amendment 534 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. TUnless the parties have agreed otherwise, the supplier shall supply the digital content immediator digital service without undue delay afternd not later than 30 days from the conclusion of the contract, unless the parties have agreed otherwise. The supply shall be deemed to take place when the digital content or service is supplied to the consumer or, where point (b) of paragraph 1 applies, to the third party chosen by the consumer, whichever is the earlier.
Amendment 542 #
Proposal for a directive
Article 6 – title
Article 6 – title
Conformity of the digital content or digital service with the contract
Amendment 549 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. In order to conform with the contract, the digital content or digital service shall, where relevant:
Amendment 667 #
Proposal for a directive
Article 10 – paragraph 1 – point a
Article 10 – paragraph 1 – point a
(a) any failure to supply the digital content or digital service;
Amendment 671 #
Proposal for a directive
Article 10 – paragraph 1 – point b
Article 10 – paragraph 1 – point b
(b) any lack of conformity which exists at the time the digital content or digital service is supplied; and
Amendment 678 #
Proposal for a directive
Article 10 – paragraph 1 – point c
Article 10 – paragraph 1 – point c
(c) where the contract provides that the digital content or digital service shall be supplied over a period of time, any lack of conformity which occurs during the duration of that period.
Amendment 773 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. The consumer shall exercise the right to terminate the contract by noticemeans of an unequivocal declaration of their intent to terminate the contract, notified to the supplier given by any means of communication.
Amendment 858 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. The supplier shall be liable to the consumer for any economic damage to the digital environment of the consumer caused by a lack of conformity with the contract or a failure to supply the digital content or digital service. Damages shall put the consumer as nearly as possible into the position in which the consumer would have been if the digital content or digital service had been duly supplied and been in conformity with the contract.