BETA

22 Amendments of Daniel BUDA related to 2016/0152(COD)

Proposal for a regulation
Recital 1

~~(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, people, goods and services is ensured, it is not sufficient to abolish, as between Member States, only State barriers. Such abolition can be undermined by certain private parties putting in place obstacles inconsistent with the principles and freedoms of the internal market ~~freedoms~~. That occurs where certain traders operating in one Member State block or limit ~~the~~ access to their online interfaces, such as websites and apps, ~~of customer~~for consumers and/or undertakings 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 restrictive general conditions of access to their goods and services with respect to such c~~ustomer~~onsumers and/or undertakings from other Member States, both online and offline. Whereas there may sometimes be objective justifications 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.

2017/02/10
Committee: JURI

Proposal for a regulation
Recital 2

~~(2)~~2. In this manner certain traders resort to practices which artificially segment the internal market along internal frontiers and hamper the free movement of goods and services, thus restricting the rights of c~~ustomer~~onsumers and/or undertakings 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 - online and offline - transactions within the Union, including in the sector of electronic commerce, which prevents the full growth potential of the internal market from being realised. Clarifying in which situations there can be no justification for differential treatment of this kind and the responsibilities of traders when selling to consumers in other Member States, as set out in this Regulation, should bring clarity and legal certainty for all participants in online and offline cross-border transactions and should ensure that rules on non-discrimination can be effectively applied and enforced across the internal market.

2017/02/10
Committee: JURI

Proposal for a regulation
Recital 4

~~(4)~~4. For the purposes of ensuring the good functioning of the internal market and guaranteeing the free movement of people, goods and services without discrimination based on nationality, place of residence or place of establishment, the targeted measures set out in this Regulation, which provide for a clear, uniform and effective set of rules on a selected number of issues, are therefore required.

2017/02/10
Committee: JURI

Proposal for a regulation
Recital 5

~~(5)~~5. This Regulation aims at preventing discrimination based on ~~customers' nationality,~~the place of residence or place of establishment of consumers and/or undertakings, respectively, including geo-blocking, in cross-border - online and offline - commercial transactions between traders and customers relating to the sales of goods and the provision of services within the Union. It seeks to address direct as well as indirect discrimination, thus also covering 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'~~the nationality, place of residence or place of establishment of consumers and/or undertakings. 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. This Regulation should therefore prohibit the blocking of access to websites and other online undertakings, and the rerouting of customers from one country version to another, discrimination against customers in specific cases of the sale of goods and services and the circumventing of that prohibition on discrimination in passive sales agreements.

2017/02/10
Committee: JURI

Proposal for a regulation
Recital 8

~~(8)~~8. This Regulation ~~should~~must be without prejudice to the rules applicable in the field of taxation, given that the Treaty on the Functioning of the European Union (TFEU) provides specific base for action at Union level as regards taxation matters.

2017/02/10
Committee: JURI

Proposal for a regulation
Recital 9

~~(9)~~9. Pursuant to Regulation (EC) No 593/2008 of the European Parliament and of the Council22 , the choice of law applicable to contracts between a consumer and a professional who pursues his or her commercial or professional activities in the country where the consumer has his or her habitual residence or, by any means, directs such activities to that country or to several countries including that country (and the contract is concluded in connection with the activity in question), may not have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law of the country where the consumer has his or her habitual residence. Pursuant to Regulation (EU) 1215/2012 of the European Parliament and of the Council23 , in matters related to a contract between a consumer and a professional who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, and the contract comes under the scope of those activities, a consumer may bring proceedings against the other party in the courts of the Member State where he is domiciled and proceedings may be brought against the consumer only in those courts. _________________ 22 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6). 23 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).

2017/02/10
Committee: JURI

Proposal for a regulation
Recital 10

(10). This Regulation should not affect acts of Union law concerning judicial cooperation in civil matters, notably the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 of the European Parliament and of the Council24 and (EU) 1215/2012 of the European Parliament and of the Council25 , including the application of those acts and provisions in individual cases. In particular, the mere fact that a trader acts in ~~accord~~compliance with the provisions of this Regulation should not be construed as implying that he directs his activities to the consumer's Member State, within the meaning of Article 6(1)(b) of Regulation (EC) No 593/2008, and of Article 17(1)(c) of Regulation (EU) 1215/2012. Therefore, the mere fact that the trader does not block/limit access to its online interface for consumers from another Member State or does not apply different general conditions of access in the cases laid down in this Regulation or does not apply different conditions for payment transactions in the payment schedule does not denote acceptance, and should not be considered as directing activities to the consumer's Member State, for the purpose of ~~such application.~~ determining applicable law and jurisdiction. This is apparent from the case law of the Court of Justice of the European Union, according to which it is necessary to demonstrate, when establishing whether an activity is directed to the consumer's Member State, that the trader has expressed an intention to do this. Such an intention cannot be considered to have been expressed solely where the trader is complying with the legal obligations set out in this Regulation. It is also apparent from the case law of the Court of Justice of the European Union that the mere existence of a website accesible in a Member State other than the one in which the trader is established is insufficient grounds for establishing that the trader is directing his activities to that Member State. Moreover, the fact that the website is interactive or otherwise is not a decisive factor. However, the trader should remain at liberty to direct his activities to the Member State in which the consumer has his habitual residence or domicile. This should be assessed on a case-by-case basis, if additional elements going beyond compliance with the mandatory provisions exist, and if this constitutes proof from which it can be concluded that the trader is seeking to directs his activities to the Member State where the consumer has his habitual residence or domicile. _________________ 24 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6). 25 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).

2017/02/10
Committee: JURI

Proposal for a regulation
Recital 11

(11). The discriminatory practices that this Regulation ~~seeks to~~ addresses 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 c~~ustomer~~onsumer and/or undertaking and containing other clauses and/or conditions. 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. However, the possibility of individually negotiating terms and conditions or agreeing individually upon additional rights or obligations should not produce geo- blocking or other unjustified forms of discrimination provided for under this Regulation.

2017/02/10
Committee: JURI

Proposal for a regulation
Recital 14

(14). In order to increase the possibility for c~~ustomer~~onsumers and/or undertakings 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 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~~IP address used when accessing an online interface, 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.

2017/02/10
Committee: JURI

Proposal for a regulation
Recital 15

(15). Certain traders operate different versions of their online interfaces, targeting customers from different Member States. While this should remain possible, redirecting a customer from one version of the online interface to another version without his or her explicit consent should be prohibited. Traders should not be compelled to ask for the customer's explicit consent each time the customer accesses the same online interface, given that the customer has already been informed of the redirection. Once the customer has given his explicit consent, traders should be permitted to store the relevant information obtained with that explicit consent for all the future visits the same customer makes to the same online interface. All versions of the online interface should remain easily accessible to the customer at all times.

2017/02/10
Committee: JURI

Proposal for a regulation
Recital 17

(17). In a number of specific situations, any differences in the treatment of c~~ustomer~~onsumers and/or undertakings 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. 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 c~~ustomer~~onsumers and/or undertakings 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 c~~ustomer~~onsumers and/or undertakings with targeted offers and differing terms and general access conditions, including through the setting-up of country-specific online interfaces.

2017/02/10
Committee: JURI

Proposal for a regulation
Recital 18

(18) The first of those situations is where the trader sells goods and there is no cross-border delivery of those goods by or on behalf of the trader to the Member State where the c~~usto~~onsumer resides and/or where the consuming undertaking is established. In that situation the customer should be able to purchase goods, under exactly the same conditions, including price and conditions relating to the delivery of the goods, as similar customers who are residents of or established in the Member State of the trader. That may mean that a foreign customer will have to pick up the good in that Member State, or in a different Member State to which the trader delivers. In this situation, there is no need to register for value added tax ("VAT") in the Member State of the customer, nor arrange for the cross-border delivery of goods.

2017/02/10
Committee: JURI

Proposal for a regulation
Recital 19

(19) The second situation is where the trader provides electronically supplied services, other than audio-visual 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 . _________________ 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).

2017/02/10
Committee: JURI

Proposal for a regulation
Recital 23

(23) In all those situations, traders may in some cases be prevented from selling goods or providing services to certain c~~ustomer~~onsumers and/or undertakings or to customers in certain territories, for reasons related to the nationality, place of residence or place of establishment of the customer, as a consequence of a specific prohibition or a requirement laid down in Union law or in the laws of Member States in accordance with Union law. Laws of Member States may also require, in accordance with Union law, traders to respect certain rules on the pricing of books. Traders should not be prevented from complying with such laws in as far as necessary and in as far as the Union's principles and legislation, and the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union, are complied with.

2017/02/10
Committee: JURI

Proposal for a regulation
Recital 29

(29) This Regulation should be regularly evaluated, with a view to proposing amendments where necessary. The first evaluation should concentrate, in particular, on the possible extension of the prohibition of Article 4(1)(b) to electronically supplied services, the main feature of which is the provision of access to and use of copyright protected ~~work~~audio- visual works and services or other protected subject matter, provided that the trader has the requisite rights for the relevant territories. In particular, audio- visual service providers should in future cooperate in the evaluation in order to assess whether the inclusion of those services within the scope of this Regulation would lead to the evolution of business models which are more efficient than those currently used.

2017/02/10
Committee: JURI

Proposal for a regulation
Article 1 – title

OSubject~~ive~~ matter and scope

2017/02/10
Committee: JURI

Proposal for a regulation
Article 1 – paragraph 5

5. This Regulation shall not affect acts of Union law concerning judicial cooperation in civil matters. CSimple compliance with this Regulation shall not be construed as implying that a trader directs his or her activities to the Member State where the consumer has the habitual residence or domicile within the meaning of point (b) of Article 6(1) of Regulation (EC) No 593/2008 and point (c) of Article 17(1) of Regulation (EU) 1215/2012. Specifically, in accordance with Articles 3, 4 and 5, where a trader acts and does not block or limit access of customers to a version of the online interface, does not redirect customers to a version of the online interface that is different from the online interface which the customer initially sought to access (unless the customer has given his or her explicit consent to such redirection, regardless of his or her nationality or habitual place of residence or place of establishment), does not apply different general conditions of access when selling goods or providing services in situations laid down in this Regulation, or where the trader acts and accepts payment instruments issued in another Member State on a non- discriminatory basis, the trader should not be considered, simply for the above reasons, to be directing his or her activities to the Member State where the consumer has the habitual residence or domicile. It is nevertheless necessary to analyse, on a case-by-case basis, whether there are additional elements going beyond simple compliance with the mandatory provisions, and whether this constitutes proof from which it can be concluded that the trader is seeking to directs his or her activities to the Member State where the consumer has the habitual residence or domicile.

2017/02/10
Committee: JURI

Proposal for a regulation
Article 2 – paragraph 2 – point e

(f) 'online interface' means any software, including a website ~~and~~or a part thereof and mobile applications, operated by or on behalf of a trader, which serves to give customers access to the trader's goods or services with a view to engaging in a commercial transaction with respect to those goods or services;

2017/02/10
Committee: JURI

Proposal for a regulation
Article 3 – paragraph 2 – subparagraph 1

Traders shall not, for reasons related to the nationality, place of residence or place of establishment of the customer, redirect customers to a version of their online interface that is different from the online interface which the customer originally sought to access, by virtue of its layout, use of language or other characteristics that make it specific to customers with a particular nationality, place of residence or place establishment, unless the customer has givesn his or her explicit consent prior to such redirection, which the consumer originally sought to access.

2017/02/10
Committee: JURI

Proposal for a regulation
Article 3 – paragraph 3

3. The prohibitions set out in paragraphs 1 and 2 shall not apply where the blocking, or limitation of ~~access~~clients' access to the trader's online interface or redirection with respect to certain customers or to customers in certain territories is necessary in order to ensure compliance with a legal requirement in Union law or in the laws of Member States in accordance with Union law, to which the trader's activities are subject.

2017/02/10
Committee: JURI

Proposal for a regulation
Article 4 – paragraph 3 – subparagraph 2

With respect to sales of books, the prohibition set out in paragraph 1 shall ~~not preclude traders from applying different prices to customers in certain territories in so far as they are required to do so under the laws of~~be without prejudice to specific legislation regarding pricing in Member States, in accordance with Union law.

2017/02/10
Committee: JURI

Proposal for a regulation
Article 8 – paragraph 1

1. Each Member State shall confer responsibility for providing practical assistance to consumers to a body or bodies in case of a dispute between a consumer and a trader arising from the application of this Regulation. ~~Each Member State shall designate a body or bodies responsible for that task.~~

2017/02/10
Committee: JURI