33 Amendments of Daniel BUDA related to 2018/0089(COD)
Amendment 48 #
Proposal for a directive
Recital 1 a (new)
Recital 1 a (new)
(1a) This Directive contributes to achieving a more effective enforcement system in the European Union, guaranteeing that Member States fully transpose Union law and ensure the implementation thereof by providing adequate redress mechanisms establishing a sound balance between greater consumer confidence in the internal market on the one hand and encouraging compliance by businesses with EU law on the other.
Amendment 54 #
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 all consumers against both internal and cross-border infringements. 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, such as the uncertainty about their rights and available procedural mechanisms, previous experience of unsuccessful claims, excessively lengthy proceedings, psychological reluctance to take action and the negative balance of the expected costs and benefits of the individual action, thereby increasing legal certainty for both claimants and defendants, as well as for the legal system.
Amendment 58 #
Proposal for a directive
Recital 4
Recital 4
(4) It is important to ensure the necessary balance between access to justice and procedural safeguards against abusive litigation which could unjustifiably hinder the ability of businesses to operate in the Single Market and, by extension, the freedom to conduct a business under Article 16 of the EU Charter of Fundamental Rights. To prevent the misuse of representative actions, elements such as punitive damages and the absence of limitations as regards the entitlement to bring an action on behalf of the harmed consumers should be avoided and clear harmonised rules on various procedural aspects, such as the designation of qualified entities, the origin of their funds and nature of the information required to support the representative action, should be laid down, taking account of national legal traditions. This Directive should not affect national rules concerning the allocation of procedural costs.
Amendment 62 #
Proposal for a directive
Recital 5
Recital 5
(5) Infringements that affect the collective interests of consumers often have cross-border implications. More effective and efficient representative actions available across the Union should boost consumer confidence in the internal market and empower consumers to exercise their rights, while at the same time guaranteeing a high level of protection for the rights of traders.
Amendment 83 #
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 103 #
Proposal for a directive
Recital 15
Recital 15
(15) The qualified entity initiating the representative action under this Directive should be a party to the proceedings. Consumers concerned by the infringement should have adequate opportunities to benefit frominformation regarding the relevant outcomes of the representative action and how they can benefit from them. Injunction orders issued under this Directive should be without prejudice to individual actions brought by consumers harmed by the practice subject to the injunction order.
Amendment 133 #
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 suchthose 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 thewhere consumers fail to act within a reasonable time or where they do not agree to receive individually the share of the funds to which they are entitled, Member States should allow the court or authority to decide on the use of funds received as redress through representative actions would better serve the purposes of thetaking into account that they should be used to protection of the 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. Member States should decide on the reasonable period of time during which the consumers may take action.
Amendment 140 #
Proposal for a directive
Recital 23
Recital 23
(23) This Directive provides for a standard procedural mechanism that is harmonised at European level, which does not affect the rules establishing substantive rights of consumers to contractual and non- contractual remedies in case their interests have been harmed by an infringement, such as the right to compensation for damages, contract termination, reimbursement, replacement, repair or price reduction. A representative action seeking redress under this Directive can only be brought where Union or national law provides for such substantive rights.
Amendment 145 #
Proposal for a directive
Recital 25
Recital 25
(25) Qualified entities should be fully transparent about the source of funding of their activity in general and regarding the funds supporting a specific representative action for redress in order to enable courts or administrative authorities to assess whether there may be a conflict of interest between the third party funder and the qualified entity and to avoid risks of abusive litigation as well as to assess whether the funding third parqualified entity has sufficient resources in order to meet its financial commitments to the qualified entityrepresent the best interests of the consumers concerned and to support all necessary legal costs should it lose the redress action. To ensure that the rights of the trader are fully respected, the financing of collective redress litigation against a trader by an individual contribution from one of its competitors should be avoided. The information provided by the qualified entity to the court or administrative authority overseeing the representative action should enable it to assess whether thea third party may influence procedural decisions of the qualified entity in the context of the representative action, including on settlements and whether it provides financing for a representative action for redress against a defendant who is a competitor of the fund provider or against a defendant on whom the fund provider is dependant. If any of these circumstances is confirmed, the court or administrative authority should be empowered to require the qualified entity to refuse the relevant funding and, if necessary, reject standing of the qualified entity in a specific case.
Amendment 163 #
Proposal for a directive
Recital 31
Recital 31
(31) Ensuring that consumers are informed about a representative action is crucial for its success and for their rights to be upheld. Consumers should be informed of ongoing representative action, the fact that a trader's practice has been considered as a breach of law, their rights following the establishment of an infringement, the way in which they could afterwards benefit and any subsequent steps to be taken by consumers concerned, particularly for obtaining redress. The reputational risks associated with spreading information about the infringement are also important for deterring traders infringing consumer rights.
Amendment 181 #
Proposal for a directive
Recital 37
Recital 37
(37) Evidence is an important element for establishing whether a given practice constitutes an infringement of law, whether there is a risk of its repetition, for determining the consumers concerned by an infringement, deciding on redress and adequately informing consumers concerned by a representative action about the ongoing proceedings and its final outcomes. However, business-to-consumer relationships are characterised by information asymmetry and the necessary information may be held exclusively by the trader, making it inaccessible to the qualified entity. Qualified entities should therefore be afforded the right to request to the competent court or administrative authority the disclosure by the trader of evidence relevant to their claim or needed for adequately informing consumers concerned about the representative action, without it being necessary for them to specify individual items of evidence. The need, scope and proportionality of such disclosure should be carefully assessed by the court or administrative authority overseeing the representative action having regard to the protection of legitimate interests relating to confidentiality and professional and trade secrecy and the protection of legitimate interests of third parties and subject to the applicable Union and national rules on confidentiality.
Amendment 189 #
Proposal for a directive
Recital 40
Recital 40
(40) Cooperation and exchange of information, good practices and experience between qualified entities from different Member States have proven to be useful in addressing cross-border infringements. There is a need for continuing and expanding the capacity- building and cooperation measures to a larger number of qualified entities across the Union in order to increase the use of representative actions with cross-border implications.
Amendment 195 #
Proposal for a directive
Recital 42
Recital 42
(42) This Directive respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. Accordingly, this Directive should be interpreted and applied in accordance with those rights and principles, including those related toespecially those related to ensuring a high level of consumer protection and the right to conduct a business, the right to an effective remedy and to a fair trial, as well as the right of defence.
Amendment 197 #
(44) The objectives of this Directive, namely establishing a representative action mechanism for the protection of the collective interests of consumers in order to ensure a uniformly high level of consumer protection across the Union and the proper functioning of the internal market, cannot be sufficiently achieved by actions taken exclusively by Member States, but can rather, due to cross-border implications of representative actions, be better achieved at Union level. The Union may therefore adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.
Amendment 207 #
Proposal for a directive
Article 1 – paragraph 2
Article 1 – paragraph 2
2. This Directive shall not prevent Member States from adopting or maintaining in force provisions designed to grant qualified entities or any other persons concerned othercomparable procedural means to bring actions aimed at the protection of the collective interests of consumers at national level. The representation mechanism shall meet the criteria of independence, impartiality and transparency set out in Article 4(1) of this Directive.
Amendment 232 #
Proposal for a directive
Article 3 – paragraph 1 – point 3
Article 3 – paragraph 1 – point 3
(3) ‘collective interests of consumers’ means the interests of a number oft least 25 consumers;
Amendment 242 #
Proposal for a directive
Article 3 – paragraph 1 – point 6 a (new)
Article 3 – paragraph 1 – point 6 a (new)
(6a) 'CPC entity' shall refer to the 'competent authority' as defined by Regulation (EU) 2017/2394 of the European Parliament and Council on cooperation between national authorities responsible for the enforcement of consumer protection laws 1a. _________________ 1a 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, OJ L 345, 27.12.2017.
Amendment 251 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1
Article 4 – paragraph 1 – subparagraph 1
Member States shall ensure that representative actions can be brought only by qualified entities designated, at their request, by the Member States in advance for this purpose and placed in a publicly available list.
Amendment 259 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point b
Article 4 – paragraph 1 – subparagraph 2 – point b
(b) it has a legitimate interest in ensuring that provisions of Union law covered by this Directive are complied with as reflected by its mission, goals and statute;
Amendment 266 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point c a (new)
Article 4 – paragraph 1 – subparagraph 2 – point c a (new)
(ca) it has an organisational structure that ensures its independence from other entities or persons other than consumers, who may have an interest in the outcome of the representative action;
Amendment 273 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 2 – point c b (new)
Article 4 – paragraph 1 – subparagraph 2 – point c b (new)
(cb) it publicly discloses by any appropriate means, in particular on its website, in plain and intelligible language, information regarding its funding, organisational and management structure, objectives, working methods and activities;
Amendment 278 #
Proposal for a directive
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
1a. Member States shall ensure that qualified entities: (a) regularly update their websites, facilitating quick access to information regarding the procedure to initiate a representative action; (b) on request, provide consumers with the information referred to in point (a) on a durable medium; (c) where appropriate, allow consumers to file complaints online or offline; (d) when dealing with disputes covered by this Directive take the necessary measures to ensure that the processing of personal data complies with the rules on the protection of personal data laid down in the national legislation implementing the general Data Protection Regulation2a. _________________ 2A Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with EEA relevance) (OJ L 119, 4.5.2016)
Amendment 280 #
Proposal for a directive
Article 4 – paragraph 1 b (new)
Article 4 – paragraph 1 b (new)
1b. Member States shall ensure that natural persons in charge of preparing representative actions to be introduced by the qualified entity have the necessary expertise and are independent and impartial. This shall be guaranteed by ensuring that they: (a) possess the necessary knowledge, experience and skills in the field of consumer disputes as well as a general understanding of the law; (b) are appointed for a term of office of sufficient duration to ensure the independence of their actions and are not liable to be relieved from their duties without just cause; (c) shall not accept any instructions from either Party or their representatives; (d) are remunerated in a way unconnected with the outcome of the procedure; (e) disclose without delay to the qualified entity any circumstances that may or could be likely to affect their independence and impartiality or that give rise to a conflict of interest with any of the parties to the dispute. The obligation to disclose such circumstances shall continue to apply throughout the procedure.
Amendment 281 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
Amendment 312 #
Proposal for a directive
Article 5 – paragraph 2 – subparagraph 1 – introductory part
Article 5 – paragraph 2 – subparagraph 1 – introductory part
To avoid irremediable damage, Member States shall ensure that qualified entities are entitled to bring representative actions seeking the following measures:
Amendment 337 #
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 issued.
Amendment 344 #
Proposal for a directive
Article 6 – paragraph 1 – subparagraph 2
Article 6 – paragraph 1 – subparagraph 2
Amendment 357 #
Proposal for a directive
Article 6 – paragraph 2 a (new)
Article 6 – paragraph 2 a (new)
2a. Member States shall require the mandate of individual consumers concerned by the representative action, in which they indicate whether they wish to benefit from a redress order in cross- border cases. Member States should not require a mandate from individual consumers who have suffered reduced losses.
Amendment 358 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
Amendment 377 #
Proposal for a directive
Article 6 – paragraph 4 a (new)
Article 6 – paragraph 4 a (new)
4a. The redress measures shall aim to grant consumers concerned full compensation for their loss. Where an unclaimed amount remains outstanding after payment of compensation or in cases where individual consumers have suffered a reduced loss and provided that consumers do not take action within a reasonable period or individually refuse the right to their share, Member States shall allow the court or authority to decide on the use of the funds obtained by way of redress through the representative action. Unclaimed amounts shall not go to the qualified entity or to the trader. The national law of the Member States shall determine the reasonable period of time during which consumers may take action.
Amendment 403 #
Proposal for a directive
Article 7 – paragraph 2 a (new)
Article 7 – paragraph 2 a (new)
2a. Member States shall ensure that the party that loses a collective redress action reimburses the legal costs borne by the winning party, subject to the provisions of national law.
Amendment 453 #
Proposal for a directive
Article 10 – paragraph 3 a (new)
Article 10 – paragraph 3 a (new)
3a. Member States shall be encouraged to create a database containing all final decisions on collective actions that could facilitate other redress measures, and to share their best practices in this field. These databases should be transmitted to the Commission, taking into account the need for a European register for the entry of all information from the Member States, in particular those concerning the non-compliant trader, the consumers affected, the substance of the dispute, the court of referral and the outcome. Consumer access to this extended database should be facilitated.
Amendment 457 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
1. Member States shall take the necessary measures to ensure representative actions referred to in Articles 5 and 6 are treated with due expediency in order to increase legal certainty for both claimants and defendants, as well as for the judiciary.