49 Amendments of Marco ZULLO related to 2015/0288(COD)
Amendment 70 #
Proposal for a directive
Title 1
Title 1
Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on certain aspects concerning contracts for the online and other distance sales of goodssale of goods and repealing Directive 1999/44/EC (Text with EEA relevance)
Amendment 73 #
Proposal for a directive
Recital 1
Recital 1
(1) In order to remain competitive on global markets, the Union needs to successfully answer the multiple challenges raised today by an increasingly technologically-driven economy. The Digital Single Market Strategy38 lays down a comprehensive framewguidelines fork facilitating the integration of the digital dimension into the Single Market. The first pillar of the Strategy tackles fragmentation in intra-EU trade by approaching all major obstacles to the development of cross-border e- commerce. _________________ 38 COM(2015) 192 final.
Amendment 85 #
Proposal for a directive
Recital 4
Recital 4
(4) WThile online sales of goods constitute the vast majority of distance sales in the Union, this Directive should cover alls Directive should cover all sales channels, both for face-to-face sales and for distance sales channels, including phone and mail orders, in order to avoid any unjustifiedivergences in the rules and distortions of competition and to create a level playing field for all businesses selling at a distance, which serve to create uncertainties and make consumers less inclined to buy.
Amendment 90 #
Proposal for a directive
Recital 5
Recital 5
(5) The Union rules applicable to the online and other distance sales of goods are still fragmented, although Directive 2011/83/EC has harmonised the rules on pre- contractual information requirements, the right of withdrawal and delivery conditions havfor distance salready been fully harmonisedes and other contracts. Other key contractual elements such as the conformity criteria, the remedies and modalities for their exercise for goods which do not conform to the contract are subject to minimum harmonisation in Directive 1999/44/EC of the European Parliament and of the Council39 . Member States have been allowed to go beyond the Union standards and introduce rules that ensure an even higher level of consumer protection. Having done so, they have acted on different elements and to different extents. Thus, national provisions transposing the Union legislation on consumer contract law significantly diverge today on essential elements of a sales contract, such as the absence or existence of a hierarchy of remedies, the period of the legal guarantee, the period of the reversal of the burden of proof, or the notification of the defect to the seller. _________________ 39 Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, OJ L 171, 7.7.1999, p. 12.
Amendment 96 #
Proposal for a directive
Recital 7
Recital 7
(7) While consumers enjoy a high level of protection when they purchase online or otherwise at a distance from abroad as a result of the application of Regulation (EC) No 593/2008, fragmentation also impacts negatively on consumers’ levels of confidence in e- commerce. While several factors contribute to this mistrust, uUncertainty about key contractual rights ranks prominently among consumers’ concerns. This uncertainty exists independently of whether or not consumers are protected by the mandatory consumer contract law provisions of their own Member State in the case where a seller directs his cross- border activities to them or whether or not consumers conclude cross-border contracts with a seller without the respective seller pursuing commercial activities in the consumer's Member State.
Amendment 103 #
Proposal for a directive
Recital 8
Recital 8
(8) In order to remedy those problems, businesses and consumers should be able to rely on a set of fully harmonised, targeted rules for the online and othersale of goods, including online sales and the other types of distance sales of goods. Uniform rules are necessary in relation to several essential elements of consumer contract law which under the current minimum harmonisation approach have led to disparities and trade barriers across the Union.
Amendment 109 #
Proposal for a directive
Recital 9
Recital 9
(9) Fully harmonised consumer contract law rules will make it easier for traders to offer their products in other Member States. Businesses will have reduced costs as they will no longer need to take account of different consumer mandatory rules. They will enjoy more legal certainty when selling at a distance to other Member States through a stable contract law environment.
Amendment 114 #
Proposal for a directive
Recital 10
Recital 10
(10) Increased competition among retailers is likely to result in wider choices at more competitive prices being offered to consumers. Consumers will benefit from a high level of consumer protection and welfare gains through targeted fully harmonised rules. This in turn would increase their trust in the cross-border commerce at a distance and in particular online. Consumers will more confidently buy at a distance cross-border knowing they would enjoy the same rights across the Union.
Amendment 120 #
Proposal for a directive
Recital 11
Recital 11
(11) This Directive covers rules applicable to the online and othersale of goods, including online sales and the other types of distance sales of goods, only in relation to key contract elements needed to overcome contract- law -related barriers in the Single Market and the Digital Single Market. For this purpose, rules on conformity requirements, remedies available to consumers for lack of conformity of the goods with the contract and modalities for their exercise should be fully harmonised and the level of consumer protection, as compared to Directive 1999/44/EC, should be increased.
Amendment 130 #
Proposal for a directive
Recital 14
Recital 14
(14) This Directive should not affect contract laws of Member States in areas not regulated by this Directive. Member States should also be free to provide more detailed conditions in relation to aspects regulated in this Directive to the extent that those are not fully harmonised by this Directive: this concerns, for example, limitation periods for exercising the consumers' rights, commercial guarantees, and the right of redress of the seller. To afford the necessary protection to retailers, Member States should, in addition, consider whether commercial guarantees and legal guarantees might be couched in identical terms.
Amendment 134 #
Proposal for a directive
Recital 15
Recital 15
(15) Where referring to the same concepts, the rules of this Directive should be applied and interpreted in a manner consistent with the rules of Directive 1999/44/EC and Directive 2011/83/EU of the European Parliament and of the Council41 as interpreted by the case law of the Court of Justice of the European Union. _________________ 41 Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, OJ L 304, 22.11.2011, p. 64.
Amendment 137 #
Proposal for a directive
Recital 18
Recital 18
(18) In order to balance the requirement of legal certainty with an appropriate flexibility of the legal rules, any reference to what can be expected ofrom or by a personarty to a contract in this Directive should be understood as a reference to what can reasonably be expected. The standard of reasonableness should be objectively ascertained, having regard to the nature and purpose of the contract, to the circumstances of the case and to the usages and practices of the parties involved. In particular, the reasonable time for completing a repair or replacement should be objectively ascertained, having regard to the nature of the goods and the lack of conformity.
Amendment 142 #
Proposal for a directive
Recital 20
Recital 20
(20) A large number of consumer goods are intended to be installed before they can be usefully used by the consumer. Therefore any lack of conformity resulting from an incorrect installation of the goods should be regarded as a lack of conformity with the contract where the installation was performed by the seller or under the seller's control, as well as where the goods were installed by the consumer but the incorrect installation is due to incomplete, missing, or incorrect installation instructions.
Amendment 147 #
Proposal for a directive
Recital 21 a (new)
Recital 21 a (new)
(21a) Advertisements and pre- contractual information should be intrinsic to the conformity of a product. Where the seller, be it in his shop, on his website, or on social media pages linked to that website, publicises a way of using the product that is found to be impossible, the product should be considered non- conforming, irrespective of the fact that it might be in perfect working order, unless the seller proves that he had no knowledge of that advertising.
Amendment 165 #
Proposal for a directive
Recital 26
Recital 26
(26) In order to allow businesses to rely on a single set of rules across the Union, it is necessary to fully harmonise the period of time during which the burden of proof for the lack of conformity is reversed in favour of the consumer. Within the first two years, in order to benefit from the presumption of lack of conformity, the consumer should only establish that the good is not conforming, without needing to demonstrate that the lack of conformity actually existed at the relevant time for establishing conformity. In order to increase legal certainty in relation to available remedies for lack of conformity with the contract and in order to eliminate one of the major obstacles inhibiting the Digital Single Market, a fully harmonised order in which remedies can be exercised should be provided for. In particular, the consumer should enjoy a choice between repair or replacement as a first remedy which should help in maintaining the contractual relation and mutual trust. Moreover, enabling consumers to require repair should encourage a sustainable consumption and could contribute to a greater durability of products. To enable the circular economy genuinely to develop, good practices such as recycling, reuse, and repair should be fully taken into account by producers when developing products, as laid down in Directive 2009/125/EC establishing a framework for the setting of ecodesign requirements for energy-related products.
Amendment 171 #
Proposal for a directive
Recital 27
Recital 27
(27) The consumer's choice between repair and replacement should only be limited where the optionremedy chosen would be disproportionate compared to the other optionalternative remedy available, impossible or unlawful. For instance, it might be disproportionate to request the replacement of goods because of a minor scratch where this replacement would create significant costs while, at the same time,to the seller and the scratch could easily be repaired.
Amendment 172 #
Proposal for a directive
Recital 28
Recital 28
(28) Where the seller has not remedied the lack of conformity through repair or replacement without significant inconvenience for the consumer and within a reasonable time, the consumer should be entitled to a price reductione month after the consumer has returned the non-con for to terminate the contract. In particular any repair or replacement needs to be successfully accomplished within this reasonable period. What is a reasonable time should be objectively ascertained considering the nature of the goods and the lack of conformityming goods, the consumer should be entitled to a price reduction or to terminate the contract. If upon the lapse of the reasonable periodone month, the seller has failed to successfully remedy the lack of conformity, the consumer should not be obliged to accept any further attempts by the seller in relation to the same lack of conformity.
Amendment 181 #
Proposal for a directive
Recital 29
Recital 29
(29) Considering that the right to terminate the contract due to the lack of conformity is an important remedy applicable where repair or replacement areis not feasible or haves failed, the consumer should also enjoy the right to terminate the contract in cases where the lack of conformity is not minor. This would provide a strong incentive to remedy all cases of a lack of conformity at an early stage. In order to make the right to terminate effective for consumers, in situations where the consumer acquires multiple goods, some being an accessory to the main item which the consumer would not have acquired without the main item, and the lack of conformity impacts that main item, the consumer should have the right to terminate the contract also in relation to the accessory elements, even if the latter are in conformity with the contract.
Amendment 186 #
Proposal for a directive
Recital 32
Recital 32
(32) In order to increase legal certainty for sellers and overall consumer confidence in cross-border purchases it is necessary to harmonise the minimum period during which the seller is held liable for any lack of conformity which exists at the time when the consumer acquires the physical possession of goods. Considering that the large majority of Member States have foreseelaid down a two-year period when implementing Directive 1999/44/EC and in practice this is considered by market participants as a reasonable period, this periominimum standard should be maintained.
Amendment 197 #
Proposal for a directive
Recital 38
Recital 38
(38) Directive 1999/44/EC should be amended to exclude distance sales contracts from its scope of applicationrepealed.
Amendment 199 #
Proposal for a directive
Recital 42
Recital 42
(42) Since the objectives of this Directive, namely to contribute to the functioning of the internal market by tackling in a consistent manner contract law-related obstacles for the online and othersale of goods, including online sales and the other types of distance sales of goods, cannot be sufficiently achieved by the Member States but can rather be better achieved at Union level, the Union may 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 those objectives.
Amendment 203 #
Proposal for a directive
Article 1 – title
Article 1 – title
Subject matter and scope
Amendment 205 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Directive lays down certain requirements concerning contracts for the sale of goods, including distance sales contracts, concluded between the seller and the consumer, in particular rules on conformity of goods, remedies in case of non-conformity and the modalities for the exercise of these remedies.
Amendment 209 #
Proposal for a directive
Article 1 – paragraph 2
Article 1 – paragraph 2
Amendment 210 #
Proposal for a directive
Article 1 – paragraph 3
Article 1 – paragraph 3
Amendment 217 #
Proposal for a directive
Article 1 – paragraph 4
Article 1 – paragraph 4
Amendment 234 #
Proposal for a directive
Article 2 a (new)
Article 2 a (new)
Article 2a Scope 1. This Directive shall apply to all sale contracts concluded between a consumer and a seller. 2. This Directive shall not apply to distance contracts for the provision of services. However, in case of sales contracts providing both for the sale of goods and the provision of services, this Directive shall apply to the part relating to the sale of goods. 3. This Directive shall not apply to any durable medium incorporating digital content where the durable medium has been used exclusively as a carrier for the supply of the digital content to the consumer. 4. In so far as not regulated therein, 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 of a contract.
Amendment 248 #
Proposal for a directive
Article 4 – paragraph 1 – point c a (new)
Article 4 – paragraph 1 – point c a (new)
(ca) meet the quality and performance standards indicated in advertising material , including that available on the business premises, on the relevant website or on social media pages linked to the seller, unless the seller shows that he has not been informed thereof.
Amendment 264 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article 5a Hidden defects 1. A hidden defect shall be understood to be a defect that makes the product unfit for its intended use, or impedes its use in such a way that the consumer would not have bought the product or would have paid a lower price. 2. The seller is liable to the consumer for any hidden defect if the following conditions are also met: (a) the defect is not immediately visible or evident; (b) the product was defective prior to purchase; (c) the defect is such as to render the product wholly or partly unserviceable. 3. If conditions (a), (b) and (c) of paragraph 2 are met, the consumer may terminate the contract or seek payment of an amount corresponding to the loss in the product's value in use, even if the consumer discovers the defect after the expiry of the legal guarantee.
Amendment 267 #
Proposal for a directive
Article 6 – paragraph 1 – point b
Article 6 – paragraph 1 – point b
(b) the goods, intended to be installed by the consumer, were installed by the consumer and the incorrect installation was due to a shortcoming inincomplete, missing or erroneous the installation instructions.
Amendment 271 #
Proposal for a directive
Article 8 – paragraph 1 – point b
Article 8 – paragraph 1 – point b
(b) the goods are handed over to the carrier chosen by the consumer, where that carrier was not proposed by the seller or where the seller proposes no means of carriage, without prejudice to the rights of the consumer against the carrier.
Amendment 292 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. A repair or replacement shall be completed within a reasonable timeone month from the return of the goods and without any significant inconvenience to the consumer, taking account of the nature of the goods and the purpose for which the consumer required the goods.
Amendment 302 #
Proposal for a directive
Article 9 – paragraph 3 – point a a (new)
Article 9 – paragraph 3 – point a a (new)
(aa) the defect is not minor;
Amendment 303 #
Proposal for a directive
Article 9 – paragraph 3 – point b
Article 9 – paragraph 3 – point b
(b) the seller has not completed repair or replacement within a reasonable tione month from the return of the goods by the consumer;
Amendment 304 #
Proposal for a directive
Article 9 – paragraph 3 – point b a (new)
Article 9 – paragraph 3 – point b a (new)
(ba) repair or replacement are impossible or excessively expensive;
Amendment 305 #
Proposal for a directive
Article 9 – paragraph 3 – point d
Article 9 – paragraph 3 – point d
(d) the seller has declared, or it is equally clear from the circumstances, that the seller will not bring the goods in conformity with the contract within a reasonable tione month from the return of the goods by the consumer.
Amendment 311 #
Proposal for a directive
Article 9 – paragraph 5 a (new)
Article 9 – paragraph 5 a (new)
5a. If the seller becomes insolvent, has ceased activities or is no longer contactable, the consumer has the right, in the case of defective goods, to seek satisfaction from the operator who sold the goods to the seller.
Amendment 337 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. The consumer shall exercise the right to terminate the contract by notice to the seller given by any meansa written statement to the seller specifying the decision to terminate the contract.
Amendment 359 #
Proposal for a directive
Article 13 a (new)
Article 13 a (new)
Article 13a Right to damages 1. The supplier shall be liable to the consumer for any financial loss arising from lack of conformity with the contract or a failure to supply the goods. Damages shall, as far as possible, place the consumer in the position in which he would have been had the goods been in conformity with the contract. The Member States shall lay down detailed rules for the exercise of the right to damages.
Amendment 365 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
The consumer shall be entitled to a remedy for the lack of conformity with the contract of the goods where the lack of conformity becomes apparent within two years as from the relevant time for establishing conformity unless a longer period is stipulated under national law. If, under national legislation, the rights laid down in Article 9 are subject to a limitation period, that period shall not be shorter than two years from the relevant time for establishing conformity with the contract.
Amendment 370 #
Proposal for a directive
Article 14 – paragraph 1 a (new)
Article 14 – paragraph 1 a (new)
Consumers purchasing used products shall be entitled to remedy for the lack of conformity with the contract where the defect becomes apparent within one year from the relevant time for establishing conformity.
Amendment 374 #
Proposal for a directive
Article 14 – paragraph 1 a (new)
Article 14 – paragraph 1 a (new)
During the period of repair or replacement of the product, the legal guarantee shall be suspended until the consumer receives the product replaced or repaired.
Amendment 375 #
Proposal for a directive
Article 14 – paragraph 1 b (new)
Article 14 – paragraph 1 b (new)
If, as part of the repair of a product, a component is replaced with a new one, the new component shall have a warranty period of two years from delivery of the repaired product.
Amendment 377 #
Proposal for a directive
Article 15 – paragraph 1 – point b
Article 15 – paragraph 1 – point b
(b) advertising available at the time of or before the conclusion of the contract; and, including affirmations contained on the website or social media pages linked to the seller;
Amendment 381 #
Proposal for a directive
Article 15 – paragraph 2 – point a a (new)
Article 15 – paragraph 2 – point a a (new)
(aa) a clear statement that that the product must comply with declarations of conformity contained in pre- contractual information and advertisements;
Amendment 388 #
Proposal for a directive
Article 15 a (new)
Article 15 a (new)
Article 15a Commercial guarantee of minimum duration 1. Manufacturers of products that consume energy for their operation must (a) guarantee to consumers the serviceability of the product for its minimum expected life and indicate the duration thereof, or (b) indicate clearly that they do not guarantee the serviceability of the product for its minimum expected life. 2. In the commercial guarantee, the manufacturer shall inform the consumer if the minimum life of the product is less or greater than that specified under the legal guarantee. 3. A manufacturer who fails to comply with the obligations set out in paragraphs 1 and 2 shall have the same obligations as the seller vis-a-vis the consumer.
Amendment 402 #
Proposal for a directive
Article 19 – title
Article 19 – title
Amendments to Directive 1999/44/EC, Regulation (EC) No 2006/2004 and Directive 2009/22/ECE
Amendment 403 #
Proposal for a directive
Article 19 – paragraph 1
Article 19 – paragraph 1
Directive 1999/44/EC
Article 1
Article 1
Amendment 406 #
Proposal for a directive
Article 19 a (new)
Article 19 a (new)
Article 19a Repeal Directive 1999/44/EC shall be repealed as of (date of application of this Directive). References to the repealed Directive shall be construed as references to this Directive.