43 Amendments of Martin SCHIRDEWAN related to 2018/0090(COD)
Amendment 75 #
Proposal for a directive
Recital 9
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 fines for such infringements at a level that is at least 4 % of the trader's overall total annual turnover in the Member State concerned.
Amendment 104 #
Proposal for a directive
Recital 19
Recital 19
(19) Specific transparency requirements for online marketplaces should therefore be provided in Directive 2011/83/EU to inform consumers using online marketplaces about the main parameters and their relative importance vis-à-vis other parameters determining ranking of offers, whether they enter into a contract with a trader or a non-trader (such as another consumer), whether consumer protection law applies and which trader is responsible for the performance of the contract and for ensuring consumer rights when these rights apply. This information should be provided in a clear and comprehensible manner and not only through a reference in the standard Terms and Conditions or similar contractual document. The information requirements for online marketplaces should be proportionate and need to strike a balance between a high level of consumer protection and the competitiveness of online marketplaces. Online marketplaces should not be required to list specific consumer rights when informing consumers about their applicability or non- applicability. The information to be provided about the responsibility for ensuring consumer rights depends on the contractual arrangements between the online marketplace and the relevant third party traders. Online marketplace may refer to the third party trader as being solely responsible for ensuring consumer rights or describe its specific responsibilities where it assumes the responsibility for certain aspects of the contract, for example, delivery or the exercise of the right of withdrawal. The obligation to provide information about the main parameters and their relative importance vis-à-vis other parameters determining ranking of search results is without prejudice to any trade secrets regarding the underlying algorithms. This information should explain the main default parameters used by the marketplace but does not have to be presented in a customized manner for each individual search query.
Amendment 116 #
Proposal for a directive
Recital 20
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, tThe online marketplace should require third party suppliers of products on the online marketplace to indicate their status as traders or non- traders for the purposes of consumer law and to provide this 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)Online marketplaces are responsible for the completeness and detail of the information concerning the status of the entrepreneur.
Amendment 120 #
Proposal for a directive
Recital 21
Recital 21
(21) Digital content and digital services are often supplied online under contracts where the consumer does not pay a price but provides personal data to the trader. Digital services are characterised by continuous involvement of the trader over the duration of the contract to enable the consumer to make use of the service, for instance, access to, creation, processing, storing or sharing of data in digital form. Examples of digital services are subscription contracts to content platforms, cloud storage, webmail, social media and cloud applications. The continuous involvement of the service provider justifies the application of the rules on the right of withdrawal provided in Directive 2011/83/EU that effectively allow the consumer to test the service and decide, during the 14-day period from the conclusion of the contract, whether to keep it or not. In contrast, contracts for the supply of digital content which is not supplied on a tangible medium are characterised by one-off action by the trader to supply to the consumer a specific piece or pieces of digital content, such as specific music or video files. This one-off nature of the provision of digital content is at the basis of the exception from the right of withdrawal pursuant to Article 16(m) of Directive 2011/83/EU, whereby the consumer loses the right of withdrawal when the performance of the contract is started, such as download or streaming of the specific content.
Amendment 121 #
Proposal for a directive
Recital 22
Recital 22
(22) Directive 2011/83/EU already applies to contracts for the supply of digital content which is not supplied on a tangible medium (i.e. supply of online digital content) regardless of whether the consumer pays a price in money or provides personal data. In contrast, Directive 2011/83/EU only applies to service contracts, including contracts for digital services, under which the consumer pays or undertakes to pay a price. Consequently, that Directive does not apply to contracts for digital services under which the consumer provides data to the trader without paying a price. Given their similarities and the interchangeability of paid digital services and digital services provided in exchange for personal data, they should be subject to the same rules under Directive 2011/83/EU.
Amendment 124 #
Proposal for a directive
Recital 23
Recital 23
(23) Consistency should be ensured between the scope of application of Directive 2011/83/EU and the [Digital Content Directive], which applies to contracts for the supply of digital content of digital services under which the consumer provides personal data to the trader.
Amendment 126 #
Proposal for a directive
Recital 24
Recital 24
(24) Therefore, the scope of Directive 2011/83/EU should be extended to cover also contracts under which the trader supplies or undertakes to supply a digital service to the consumer, and the consumer provides or undertakes to provide personal data. Similar to contracts for the supply of digital content which is not supplied on a tangible medium, the Directive should apply whenever the consumer provides or undertakes to provide personal data to the trader, except where the personal data provided by the consumer is exclusively processed by the trader for supplying the digital content or digital service, and the trader does not process this data for any other purpose. Any processing of personal data should comply with Regulation (EU) 2016/679.
Amendment 128 #
Proposal for a directive
Recital 25
Recital 25
(25) Where digital content and digital services are not supplied in exchange for a price, Directive 2011/83/EU should also not apply to situations where the trader collects personal data exclusively to maintain in conformity digital content or a digital service or for the sole purpose of meeting legal requirements. Such situations could include cases where the registration of the consumer is required by applicable laws for security and identification purposes, or cases where the developer of open-source software only collects data from users to ensure the compatibility and interoperability of open-source software.
Amendment 137 #
Proposal for a directive
Recital 33
Recital 33
Amendment 145 #
Proposal for a directive
Recital 34
Recital 34
Amendment 155 #
Proposal for a directive
Recital 35
Recital 35
Amendment 161 #
Proposal for a directive
Recital 36
Recital 36
Amendment 180 #
Proposal for a directive
Recital 43
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, 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, a trader's right to adapt products of the same brand for different geographical markets due to 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 traders' right to offer products of the same brand in packages of different weight or volume in different geographical markets.
Amendment 194 #
Proposal for a directive
Recital 44
Recital 44
(44) While off-premises sales constitute a legitimate and well-established sales channel, like sales at a trader's business premises and distance–selling, some particularly aggressive or misleading marketing practices in the context of visits to the consumer's home without the consumer's prior agreement or during commercial excursions can put consumers under pressure to make purchases of goods they would not otherwise buy and/or purchases at excessive prices, often involving immediate payment. Such practices often target elderly or other vulnerable consumers. Some Member States consider those practices undesirable and deem it necessary to restrict certain forms and aspects of off-premises sales within the meaning of Directive 2011/83/EU, such as aggressive and misleading marketing or selling of a product in the context of unsolicited visits to a consumer's home or commercial excursions, on grounds of public policy or the respect for consumers’ private life protected by Article 7 of the Charter of Fundamental Rights of the EU. In accordance with the principle of subsidiarity and in order to facilitate enforcement, it should therefore be clarified that Directive 2005/29/EC is without prejudice to Member States' freedom to make arrangements without the need for a case-by-case assessment of the specific practice, to protect the legitimate interests of consumers with regard to unsolicited visits at their private home by a trader in order to offer or sell products or in relation to commercial excursions organised by a trader with the aim or effect of promoting or selling products to consumers where such arrangements are justified on grounds of public policy or the protection of private life. Any such provisions should be proportionate and not discriminatory. Member States should be required to notify any national provisions adopted in this regard to the Commission so that the Commission can make this information available to all interested parties and monitor the proportionate nature and legality of those measures.
Amendment 205 #
Proposal for a directive
Article 1 – paragraph 1 – point 1 – point a
Article 1 – paragraph 1 – point 1 – point a
Directive 2005/29/EC
Article 3 – paragraph 5
Article 3 – paragraph 5
This Directive does not prevent Member States from adopting provisions to protect the legitimate interests of consumers with regard to aggressive or misleading marketing or selling practices in the context of unsolicited visits by a trader to a consumer's home, or with regard to commercial excursions organised by a trader with the aim or effect of promoting or selling products to consumers, provided that such provisions are justified on grounds of public policy or the protection of the respect for private life.
Amendment 213 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2005/29/EC
Article 6 – paragraph 2 – point c
Article 6 – paragraph 2 – point c
(c) Any marketing of a product as being identical to the same product marketed in several other Member States, while those products have significantly different composition or characteristics;
Amendment 247 #
Proposal for a directive
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Directive 2005/29/EC
Article 13 – paragraph 2 – point d
Article 13 – paragraph 2 – point d
(d) where appropriate, the intentional or negligent character of the infringement;
Amendment 255 #
Proposal for a directive
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Directive 2005/29/EC
Article 13 – paragraph 3
Article 13 – paragraph 3
(3) Where the penalty to be imposed is a fine, the infringing trader’s annual turnover and net profits and profits obtained through the infringement as well as any fines imposed for the same or other infringements of this Directive in other Member States shall also be taken into account in the determination of its amount.
Amendment 263 #
Proposal for a directive
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Directive 2005/29/EC
Article 13 – paragraph 4
Article 13 – paragraph 4
(4) Member States shall ensure that the penalties for widespread infringements and widespread infringements with a Union dimension within the meaning of Regulation (EU) No 2017/2934 include the possibility to impose fines, the maximum amount of which shall be at least 4 % of the trader's worldwide overall annual turnover in the Member State or Member States concerned.
Amendment 276 #
Proposal for a directive
Article 1 – paragraph 1 – point 6
Article 1 – paragraph 1 – point 6
Directive 2005/29/EC
Annex I – point 11
Annex I – point 11
11. Using editorial content in the media, or providing information to a consumer’s online search query, to promote a product where a trader has paid the trader has paid direct or indirect remuneration for theis promotion, 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).
Amendment 280 #
Proposal for a directive
Article 1 – paragraph 1 – point 6 a (new)
Article 1 – paragraph 1 – point 6 a (new)
Directive 2005/29/EC
Annex I – point 20
Annex I – point 20
6a. In Annex I, point 20 is replaced by the following: “20. Describing a product or service as ‘gratis’, ‘free’, ‘without charge’ or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item. content/DE/TXT/HTML/?uri=CELEX:32005L0029&qid=1537794151556&from=EN) or if in return their data may be processed. Or. de (https://eur-lex.europa.eu/legal-
Amendment 286 #
Proposal for a directive
Article 1 – paragraph 1 – point 6 b (new)
Article 1 – paragraph 1 – point 6 b (new)
Directive 2005/29/EC
Annex I – point 23 a (new)
Annex I – point 23 a (new)
6b. In Annex I, point 23 a is added as follows: 23a. Any marketing of a product as being identical to the same product marketed in other Member States, while those products have significantly different composition or characteristics;
Amendment 295 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point a
Article 2 – paragraph 1 – point 1 – point a
Directive 2011/83/EU
Article 2 – paragraph 1, point 4 a
Article 2 – paragraph 1, point 4 a
Amendment 300 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point d
Article 2 – paragraph 1 – point 1 – point d
Directive 2011/83/EU
Article 2 – paragraph 1 – point 16
Article 2 – paragraph 1 – point 16
(16) ‘contract for the supply of digital content which is not supplied on tangible medium’ means a contract under which a trader supplies or undertakes to supply specific digital content to the consumer and the consumer pays or undertakes to pay the price thereof. This also includes contracts where the consumer provides or undertakes to provide personal data to the trader, except where the personal data provided by the consumer is exclusively processed by the trader for the purpose of supplying the digital content, or for 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;
Amendment 304 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point d
Article 2 – paragraph 1 – point 1 – point d
Directive 2011/83/EU
Article 2 – paragraph 1 – point 18
Article 2 – paragraph 1 – point 18
(18) ‘digital service contract’ means a contract under which a trader supplies or undertakes to supply a digital service to the consumer and the consumer pays or undertakes to pay the price thereof. This also includes contracts where the consumer provides or undertakes to provide personal data to the trader, except where the personal data provided by the consumer is exclusively processed by the trader for the purpose of supplying the digital service, or for 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;
Amendment 307 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point d
Article 2 – paragraph 1 – point 1 – point d
Directive 2011/83/EU
Article 2 – paragraph 1 – point 19
Article 2 – paragraph 1 – point 19
(19) ‘online marketplace’ means a service providernatural 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;
Amendment 326 #
Proposal for a directive
Article 2 – paragraph 1 – point 3 a (new)
Article 2 – paragraph 1 – point 3 a (new)
Directive 2011/83/EU
Article 6 – paragraph 1 – point sa (new)
Article 6 – paragraph 1 – point sa (new)
(3a) The following paragraph 1(sa) is inserted in Article 3: ‘(sa) the commercial use of data, even if the consumer does not have to make monetary payment to receive goods or services.’
Amendment 336 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
Directive 2011/83/EU
Article 6 a – paragraph 1 – point a
Article 6 a – paragraph 1 – point a
(a) the main parameters determining ranking of offers presented to the consumer as result of his search query on the online marketplace and the relative weighting of those parameters compared to other parameters;
Amendment 377 #
Proposal for a directive
Article 2 – paragraph 1 – point 4 a (new)
Article 2 – paragraph 1 – point 4 a (new)
Directive 2011/83/EU
Article 6 b (new)
Article 6 b (new)
Amendment 381 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 – point b a (new)
Article 2 – paragraph 1 – point 6 – point b a (new)
Directive 2011/83/EU
Article 8 – paragraph 11 (new)
Article 8 – paragraph 11 (new)
(ba) The following paragraph 11 is inserted: 11. Within the withdrawal period, the trader must not use the consumer’s data unless this is necessary for the completion of the contract.
Amendment 391 #
Proposal for a directive
Article 2 – paragraph 1 – point 7 – point a
Article 2 – paragraph 1 – point 7 – point a
Directive 2011/83/EU
Article 13 – paragraph 3
Article 13 – paragraph 3
Amendment 394 #
Proposal for a directive
Article 2 – paragraph 1 – point 7 – point b
Article 2 – paragraph 1 – point 7 – point b
Directive 2011/83/EU
Article 13 – paragraph 4
Article 13 – paragraph 4
4. In respect of personal data of the consumer, the trader shall comply with the obligations applicable under Regulation (EU) 2016/679.
Amendment 396 #
Proposal for a directive
Article 2 – paragraph 1 – point 7 – point b
Article 2 – paragraph 1 – point 7 – point b
Directive 2011/83/EU
Article 13 – paragraph 5
Article 13 – paragraph 5
5. In respect of any digital content to the extent that it does not constitute personal data, which was uploaded or created by the consumer when using the digital content or digital service supplied by the trader the trader shall comply with the obligations and can exercise the rights provided under [Digital Content Directive].’
Amendment 409 #
Proposal for a directive
Article 2 – paragraph 1 – point 9 – point 1
Article 2 – paragraph 1 – point 9 – point 1
Directive 2011/83/EU
Article 16 – paragraph 1 – point a
Article 16 – paragraph 1 – point a
Amendment 418 #
Proposal for a directive
Article 2 – paragraph 1 – point 9 – point 3
Article 2 – paragraph 1 – point 9 – point 3
Directive 2011/83/EU
Article 16 – paragraph 1– point n
Article 16 – paragraph 1– point n
Amendment 425 #
Proposal for a directive
Article 2 – paragraph 1 – point 10
Article 2 – paragraph 1 – point 10
Directive 2011/83/EU
Article 24 – paragraph 2 – point (d)
Article 24 – paragraph 2 – point (d)
(d) where appropriate, the intentional or negligent character of the infringement;
Amendment 434 #
Proposal for a directive
Article 2 – paragraph 1 – point 10
Article 2 – paragraph 1 – point 10
Directive 2011/83/EU
Article 24 – paragraph 4
Article 24 – paragraph 4
4. Member States shall ensure that the penalties for widespread infringements and widespread infringements with a Union dimension within the meaning of Regulation (EU) No 2017/2934 include the possibility to impose fines, the maximum amount of which shall be at least 4 % of the trader’s total global annual turnover in the Member State or Member States concerned.
Amendment 446 #
Proposal for a directive
Article 2 – paragraph 1 – point 11 – point 1 – point c
Article 2 – paragraph 1 – point 11 – point 1 – point c
Directive 2011/83/EU
Annex I – part A – Instructions for completion – point 4
Annex I – part A – Instructions for completion – point 4
Amendment 452 #
Proposal for a directive
Article 2 – paragraph 1 – point 11 – point 1 – point d
Article 2 – paragraph 1 – point 11 – point 1 – point d
Directive 2011/83/EU
Annex I – part A – Instructions for completion – point 5 – point c
Annex I – part A – Instructions for completion – point 5 – point c
Amendment 456 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1
Article 3 – paragraph 1 – subparagraph 1
Directive 1993/13/EEC
Article 8 b – paragraph 2 – point d
Article 8 b – paragraph 2 – point d
(d) where appropriate, the intentional or negligent character of the infringement;
Amendment 465 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1
Article 3 – paragraph 1 – subparagraph 1
Directive 1993/13/EEC
Article 8 b – paragraph 4
Article 8 b – paragraph 4
4. Member States shall ensure that the penalties for widespread infringements and widespread infringements with a Union dimension within the meaning of Regulation (EU) No 2017/2934 include the possibility to impose fines, the maximum amount of which shall be at least 4 % of the trader’s total global annual turnover in the Member State or Member States concerned.
Amendment 472 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1
Article 4 – paragraph 1 – subparagraph 1
Directive 1998/06/EC
Article 8 – paragraph 2 – point d
Article 8 – paragraph 2 – point d
(d) where appropriate, the intentional or negligent character of the infringement;
Amendment 483 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1
Article 4 – paragraph 1 – subparagraph 1
Directive 1998/06/EC
Article 8 – paragraph 4
Article 8 – paragraph 4
4. Member States shall ensure that the penalties for widespread infringements and widespread infringements with a Union dimension within the meaning of Regulation (EU) No 2017/2934 include the possibility to impose fines, the maximum amount of which shall be at least 4 % of the trader’s total global annual turnover in the Member State or Member States concerned.