225 Amendments of Evelyne GEBHARDT related to 2015/0288(COD)
Amendment 40 #
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 goodssales of goods and repealing Directive 1999/44/EC (Text with EEA relevance)
Amendment 42 #
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 framework 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-bordershould remove obstacles to cross-border economic activity that prevent the internal market from exploiting its full potential for growth and the creation of quality jobs and to meet the challenges of an increasingly technologically-driven e-commerce. _________________ 38nomy. COM(2015) 192 final.
Amendment 43 #
Proposal for a directive
Recital 1 a (new)
Recital 1 a (new)
(1 a) Article 169(1) and point (a) of Article 169(2) of the Treaty on the Functioning of the European Union (TFEU) provide that the Union is to contribute to the attainment of a high level of consumer protection through measures adopted pursuant to Article 114 TFEU.
Amendment 44 #
Proposal for a directive
Recital 1 b (new)
Recital 1 b (new)
(1 b) Article 38 of the Charter of Fundamental Rights of the European Union provides that Union policies are to ensure a high level of consumer protection and Article 47 of the Charter provides that everyone whose rights under Union law are violated shall have the right to an effective remedy. Article 16 of the Charter recognises the freedom to run a business in accordance with Union and national law and practices.
Amendment 46 #
Proposal for a directive
Recital 2
Recital 2
(2) For the achievement of a genuine and well-functioning internal digital single market, the harmonisation of certain aspects concerning contracts for sales of goods, taking as a base a high level of consumer protection, is necessarywhile recognising Member States' competences within the Union, is justifiable.
Amendment 47 #
Proposal for a directive
Recital 2 a (new)
Recital 2 a (new)
(2 a) Differences in national mandatory consumer contract law rules are an essential pre-condition for a learning process within the Union, whereas a maximum harmonisation approach would bear the risk of making contractual law non-responsive to swift technological or behavioural developments and changes. This is because maximum harmonisation would prevent Member States from adopting more stringent rules in their national laws and would thus prevent them from quickly and adequately responding to new business practices detrimental to consumers. Sellers willing to trade goods cross-border would benefit highly from the Union's harmonisation efforts, despite a minimum harmonisation approach. This gives the Union the opportunity to harmonise this area of law and set common (high) standards, while acknowledging that Member States may want to maintain certain national provisions. Business-to-business transactions are regulated differently in each Member State and should remain outside the scope of this Directive.
Amendment 49 #
Proposal for a directive
Recital 3
Recital 3
(3) E-commerce is the maina key driver for growth within the Digital Single Market. However its growth potential is far from being fully exploited. In order to strengthen Union competiveness and to boost growth, the Union needs to act swiftly and encourage economic actors to unleash the full potential offered by the Digital Single Market. The full potential of the Digital Single Market can only be unleashed if all market participants enjoy smooth access to the online sales of goods and are able to confidently to engage in e- commerce transactions. Contracts are an indispensable legal tool for most economic transactions. The contract law rules on the basis of which market participants conclude transactions are among the key factors shaping business’' decisions whether to offer goods online cross-border. Those rules also influence consumers’' willingness to embrace and trust this type of purchase.
Amendment 52 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4 a) This Directive should guarantee a high level of consumer protection, to provide consumers with appropriate reassurance when they are wishing to enter into cross-border contracts. These rules should maintain or improve upon the level of protection that consumers enjoy at present under national or Union law.
Amendment 53 #
Proposal for a directive
Recital 5
Recital 5
(5) TheCertain Union rules applicable to the online and other distance sales of goods are still fragmented althoughhave already been harmonised, including rules on pre- contractual information requirements, the right of withdrawal and delivery conditions have already been fully harmonised. 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 inregulated at a minimum level by 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 even higher level of consumer protection. Having done so, they have acted on different elements and to different extents. ThusIn practice therefore, 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 54 #
Proposal for a directive
Recital 6
Recital 6
(6) Existing disparities may adversely affect businesses and consumers. Pursuant to Regulation (EC) No 593/2008 of the European Parliament and of the Council40 , businein relation to contract law in different Member States may adversely affect businesses and consumers, in addition to other key regulatory and non-regulatory issues directing activities to consumers in other Member Stasuch as tax laws, delivery network issues, payment systems need to take account of the mandatory consumer contract law rules of the consumer’s country of habitual residence. As these rules differ among Member States, businesses may be faced with additional costs. Consequently many businesses may prefer to continue trading domestically or only export to one or two Member States. That choice of minimising exposure to costs and risks associated with cross-border e-commerce resand language barriers. However, the main difficulties encountered by consumers and the main source of disputes with sellers concern the non-conformity of goods with the contract. It is therefore necessary to improve consumer confidence in the internal market by providing for a high level of consumer protection and a modernised legal regime for the sale of consumer goods and associated guarantees. Those rultes in lost opportunities of commercial expansion and economies of scale. Small and medium enterprises are in particular affected. _________________ 40Regulation (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 L177, 4.7.2008, p.6may provide an appropriate legal framework whilst still allowing Member States flexibility in implementation to improve protection for consumers.
Amendment 56 #
Proposal for a directive
Recital 7
Recital 7
Amendment 57 #
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 other 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 led to disparities and trade barriers across the Unioncommon high standards for the sales of goods setting out Union- wide contractual rights which create an equal playing field for various actors.
Amendment 59 #
Proposal for a directive
Recital 8 a (new)
Recital 8 a (new)
(8 a) This Directive should establish a set of clear common rules for the contractual rights of consumers when buying goods and help to provide a stable trading environment for sellers. This set of rules should recognise that consumers and sellers are not on an equal footing so that the legal framework must be just and fair to ensure a high level of consumer protection whilst still recognising the concerns of businesses, including small businesses.
Amendment 60 #
Proposal for a directive
Recital 8 b (new)
Recital 8 b (new)
(8 b) The definition of consumer should cover natural persons who are acting outside their trade, business, craft or profession. However, in the case of dual- purpose contracts, where the contract is concluded for purposes partly within and partly outside natural person's trade, business, craft or profession and the trade or equivalent purpose is so limited as not to be predominant in the overall context of the contract, that person should also be considered to be a consumer. In order to determine whether a natural person is acting fully or partly for purposes which come within that person's trade, business, craft or profession, the way in which the person in question has acted towards the other contracting party should be taken into account.
Amendment 61 #
Proposal for a directive
Recital 9
Recital 9
(9) Fully harmonised consumer contract law rules will make it easier for traders to offer their productsMinimum standards on a high level of consumer protection set out 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 stableis Directive should prevent obstructions of the four freedoms in the area of the sales of goods while leaving room for national deviations in specific matters and without endangering the harmony of national contractual law environment.
Amendment 63 #
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 67 #
Proposal for a directive
Recital 11
Recital 11
(11) This Directive covers rules applicable to the online and other distance sales of goods only in relation to key contract elements needed to overcome contract-law related barriers in 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 at a minimum level and the level of consumer protection as compared to Directive 1999/44/EC, should be increased.
Amendment 69 #
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 goodssales of goods and repealing Directive 1999/44/EC (Text with EEA relevance)
Amendment 69 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
(11 a) This Directive should also apply to dual purpose contracts, where the contract is concluded for purposes partly within and partly outside the person's trade and the trade purpose is marginal within the overall context of the contract, so that that person should also be considered a consumer.
Amendment 71 #
Proposal for a directive
Recital 13
Recital 13
(13) This Directive should not apply to goods like DVDs and CDs incorporating digital content in such a way that the goods function only as a carrier of the digital content. However, this Directive should apply to digital contentdigital content or digital services integrated in goods such as household appliances, toys or stoyrage devices where the digital content is embedded in such a way that its functions are subordinate to the main functionalities of the goods and it operates as an integral part of the goods and cannot be uninstalled easily by the consumer, unless the seller proves that the lack of conformity lies in the hardware of the goods.
Amendment 72 #
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 framework 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-bordershould remove obstacles to cross-border economic activity that prevent the internal market from exploiting its full potential for growth and the creation of quality jobs and to meet the challenges of an increasingly technologically-driven e-commerce. _________________ 38nomy. COM(2015) 192 final.
Amendment 72 #
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 those are not fully harmonised by this Directive: this concerns limitation periods for exercising the consumers' rights, commercial guarantees, and the right of redress of the seller, and its implementation should under no circumstances constitute grounds for reducing the level of protection afforded to consumers in fields that fall within the scope of Union law.
Amendment 73 #
Proposal for a directive
Recital 14 a (new)
Recital 14 a (new)
(14 a) This Directive should not affect national laws governing the conditions under which a contract for the sale of goods is considered to be linked with or ancillary to another contract which the consumer has concluded with the same seller or another seller, and the effect those national laws have on either contract or on the remedies to be exercised under either contract. Member States should also be free to determine the nature of such contracts, which could be, inter alia, sales, services, rental or sui generis contracts.
Amendment 74 #
Proposal for a directive
Recital 1 a (new)
Recital 1 a (new)
(1 a) Article 169(1) and point (a) of Article 169(2) of the Treaty on the Functioning of the European Union (TFEU) provide that the Union is to contribute to the attainment of a high level of consumer protection through measures adopted pursuant to Article 114 TFEU.
Amendment 74 #
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, where relevant and appropriate, 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 75 #
Proposal for a directive
Recital 1 b (new)
Recital 1 b (new)
(1 b) Article 38 of the Charter of Fundamental Rights of the European Union provides that Union policies are to ensure a high level of consumer protection and Article 47 of the Charter provides that everyone whose rights under Union law are violated shall have the right to an effective remedy. Article 16 of the Charter recognises the freedom to run a business in accordance with Union and national law and practices.
Amendment 78 #
Proposal for a directive
Recital 2
Recital 2
(2) For the achievement of a genuine digital single market, the harmonisation of certain aspects concerning contracts for sales of goods, taking as a base a high level of consumer protection, while recognising Member States' competences within the Union, is necessary.
Amendment 78 #
Proposal for a directive
Recital 18
Recital 18
(18) In order to balance the requirement of legal certainty with an appropriate flexibility of theinterpretation of legal rules, any reference to what can be expected of or by a person 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 involvedto a contract. 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 80 #
Proposal for a directive
Recital 19
Recital 19
(19) In order to provide clarity as to what a consumer can expect from the goods and what the seller would be liable for in case of failure to deliver what is expected, it is essential to fully harmonise rules for determining the conformity with the contract. Aapplying a combination of subjective and objective criteria shouldto safeguard legitimate interests of both partiesconsumer and seller to a sales contract. Conformity with the contract should be assessed by taking into account not only requirements which have actually been set in the contract - including in pre- contractual information which forms an integral part of the contract - but also certain objective requirements which constitute the standards normally expected for goods, in particular in terms of fitness for the purpose, packaging, installation instructions and normal qualities and performance capabilities.
Amendment 81 #
Proposal for a directive
Recital 2 a (new)
Recital 2 a (new)
(2 a) Differences in national mandatory consumer contract law rules are an essential pre-condition for a learning process within the Union, whereas a maximum harmonisation approach would bear the risk of making contractual law non-responsive to swift technological or behavioural developments and changes. This is because maximum harmonisation would prevent Member States from adopting more stringent rules in their national laws and would thus prevent them from quickly and adequately responding to new business practices detrimental to consumers. Sellers willing to trade goods cross-border would benefit highly from the Union's harmonisation efforts, despite a minimum harmonisation approach. This gives the Union the opportunity to harmonise this area of law and set common (high) standards, while acknowledging that Member States may want to maintain certain national provisions. Business-to-business transactions are regulated differently in each Member State and should remain outside the scope of this Directive;
Amendment 81 #
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 usedd in practice 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 incorrect installation instructions.
Amendment 82 #
Proposal for a directive
Recital 3
Recital 3
(3) E-commerce is the maina key driver for growth within the Digital Single Market. However its growth potential is far from being fully exploited. In order to strengthen Union competiveness and to boost growth, the Union needs to act swiftly and encourage economic actors to unleash the full potential offered by the Digital Single Market. The full potential of the Digital Single Market can only be unleashed if all market participants enjoy smooth access to the online sales of goods and are able to confidently to engage in e- commerce transactions. Contracts are an indispensable legal tool for most economic transactions. The contract law rules on the basis of which market participants conclude transactions are among the key factors shaping business’ decisions whether to offer goods online cross-border. Those rules also influence consumers’ willingness to embrace and trust this type of purchase.
Amendment 82 #
Proposal for a directive
Recital 21
Recital 21
(21) Conformity should cover material defects as well as legal defects. Third party rights and other legal defects might effectivelyshould not bar the consumer from enjoying the goods in accordance with the contract when the right's holder rightfully compels the consumer to stop infringing those rights. Therefore the seller should ensure that the goods are free from any right of a third party, which precludes the consumer from enjoying the goods in accordance with the contract.
Amendment 83 #
Proposal for a directive
Recital 22
Recital 22
(22) While freedom of contract with regard to the criteria of conformity with the contract should be ensured, iIn order to avoid circumvention of the liability for lack of conformity and ensure a high level of consumer protection, any derogation from the mandatory rules on criteria of conformity and incorrect installation, which is detrimental to the interests of the consumer, shall be valid only if the consumer has been expressly informed and has expressly consented to it when concluding the contractould not be valid.
Amendment 84 #
Proposal for a directive
Recital 23
Recital 23
(23) Ensuring longer durability of consumer goods is important for achieving more sustainable consumption patterns and a circular economy. Similarly, keeping non-compliant products out of the Union market by strengthening market surveillance and providing the right incentives to economic operators is essential to increase trust in the single market. For theose purposes, product specific Union legislation, such as Council Directive 85/374/EEC1a , is the most appropriate approach to introduce durability and other product related requirements in relation to specific types or groups of products, using for this purpose adapted criteria. This Directive should therefore be complementary to the objectives followed in this Union sector specific legislation. In so far as sproduct liability legislation. Specific durability information ishould be indicated in any pre- contractual statement which forms part of the sales contract, the consumwhich should be part of the criteria for conformity. Furthermore, sellers should be able to rely on them as a part of the criteria for conformityinform consumers about the availability of spare parts which are necessary for the use of the product. _________________ 1aCouncil Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ L 210, 7.8.1985, p. 29).
Amendment 86 #
Proposal for a directive
Recital 23 a (new)
Recital 23 a (new)
(23 a) Considering that the seller is liable towards the consumer for any lack of conformity of the goods resulting from an act or omission of the seller or a third party, it is justified that the seller should be able to pursue remedies against the responsible person in earlier links of the chain of transactions.
Amendment 87 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4 a) This Directive should guarantee a high level of consumer protection, to provide consumers with appropriate reassurance when they are wishing to enter into cross-border contracts. These rules should maintain or improve upon the level of protection that consumers enjoy at present under national or Union law.
Amendment 87 #
Proposal for a directive
Recital 23 b (new)
Recital 23 b (new)
(23 b) The European Commission considered in its Green Paper on Guarantees for Consumer Goods that in modern societies the confidence of consumers is bound up with their faith in the manufacturers. Directive 1999/44/EC envisages more far-reaching provisions on producers' liability, in particular by providing for producers' direct liability for non-conformity for which they are responsible.
Amendment 88 #
Proposal for a directive
Recital 23 c (new)
Recital 23 c (new)
(23 c) The liability of producers in these circumstances should be construed as deriving from a clause enforceable against the producer as a contractual guarantee, a breach of which would trigger a claim for damages for non- conformity. For the purposes of this approach, this Directive should include an appropriate definition of 'producer'.
Amendment 89 #
Proposal for a directive
Recital 5
Recital 5
(5) TheCertain Union rules applicable to the online and other distance sales of goods are still fragmented althoughhave already been harmonised, including rules on pre- contractual information requirements, the right of withdrawal and delivery conditions have already been fully harmonised. 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 inregulated at a minimum level by 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 even higher level of consumer protection. Having done so, they have acted on different elements and to different extents. ThusIn practice therefore, 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 89 #
Proposal for a directive
Recital 24
Recital 24
(24) Enhancing legal certainty for both consumers and sellers requires a clear indication of the time when the conformity of the goods to the contracts should be assessed, subject to national rules on the commencement of prescription periods in exceptional cases. In order to ensure coherence between the present Directive and Directive 2011/83/EU it is appropriate in general to indicate the time of the passing of risk as the time for assessing the conformity of the goods. However, in cases where the goods need to be installed, that relevant time should be adapted.
Amendment 90 #
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 and to provide a high level of consumer protection, it is justified to 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 addition to a short-term right to reject goods, 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 addition, in order to increase legal certainty in relation to the 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, the principle of free choice of remedies should be harmonised.
Amendment 91 #
Proposal for a directive
Recital 6
Recital 6
(6) Existing disparities may adversely affect businesses and consumers. Pursuant to Regulation (EC) No 593/2008 of the European Parliament and of the Council40 , businein relation to contract law in different Member States may adversely affect businesses and consumers, in addition to other key regulatory and non-regulatory issues directing activities to consumers in other Member Stasuch as tax laws, delivery network issues, payment systems need to take account of the mandatory consumer contract law rules of the consumer’s country of habitual residence. As these rules differ among Member States, businesses may be faced with additional costs. Consequently many businesses may prefer to continue trading domestically or only export to one or two Member States. That choice of minimising exposure to costs and risks associated with cross-border e-commerce resand language barriers. However, the main difficulties encountered by consumers and the main source of disputes with sellers concern the non-conformity of goods with the contract. It is therefore necessary to improve consumer confidence in the internal market by providing for a high level of consumer protection and a modernised legal regime for the sale of consumer goods and associated guarantees. Those rultes in lost opportunities of commercial expansion and economies of scale. Small and medium enterprises are in particular affected. _________________ 40 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 L177, 4.7.2008, p.6may provide an appropriate legal framework whilst still allowing Member States flexibility in implementation to improve protection for consumers.
Amendment 94 #
Proposal for a directive
Recital 7
Recital 7
Amendment 94 #
Proposal for a directive
Recital 26 a (new)
Recital 26 a (new)
(26 a) This Directive should grant consumers throughout the Union a new and unrivalled freedom in choosing remedies. A consumer should be able to require the seller to bring the goods into conformity with the contract either through repair of the defects or through replacement of the defective goods with conforming ones. But more importantly, the consumer should be able to turn down any offer by the supplier to have the goods brought into conformity and instead to require price reduction or termination of the contract. The consumer should be able to decide whether or not to give the supplier a chance to bring the goods into conformity, and in which way the supplier should cure the defects, according to his own preference. Repair or replacement might be preferable if a consumer thinks the value of the defective goods is substantial, for example because the goods are unique or the market prices of the goods have gone up.
Amendment 95 #
Proposal for a directive
Recital 27
Recital 27
(27) TIf, in the case of non-conformity of the goods with the contract, the consumer' has choice betweensen either repair andor replacement, his choice should only be limited where the option chosen would be disproportionate compared to the other option 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, the scratch could easily be repaired.
Amendment 98 #
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 reduction or to terminate the contract. In particularIf, in the case of non-conformity of the goods with the contract, the consumer has opted for a repair or replacement, any repair or replacement needs to be successfully accomplished within thisa reasonable period. What is a reasonable time should be objectively ascertained considering the nature of the goods and the lack of conformity. If upon the laps of the reasonable period, 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 100 #
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 other 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 led to disparities and trade barriers across the Unioncommon high standards for the sales of goods setting out Union- wide contractual rights which create an equal playing field for various actors.
Amendment 100 #
Proposal for a directive
Recital 28 a (new)
Recital 28 a (new)
(28 a) If, in the case of non-conformity of the goods with the contract, the consumer has chosen repair or replacement, he should still be entitled to a price reduction or termination of the contract if the seller fails to complete a repair or replacement within a reasonable time, if a repair or replacement would cause significant inconvenience to the consumer, if a repair or replacement is impossible or unlawful or, if the seller has declared, or it is equally clear from the circumstances, that the seller will not bring the goods into conformity with the contract within a reasonable time.
Amendment 101 #
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 are not feasible or have failed, the consumer should also enjoy the right to terminate the contract in cases where the lack of conformity is 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 or acquired in conjunction with 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 or additional elements, even if the latter are in conformity with the contract.
Amendment 103 #
Proposal for a directive
Recital 31
Recital 31
(31) In order to ensure the effectiveness of the right to terminate for consumers while avoiding the consumer's unjustified enrichment, the consumer's obligation to pay for the decrease of the value of the goods should be limited to those situations where the decrease exceeds normal use, and where it is possible to take a proportionate approach. In any case the consumer should not be obliged to pay more than the price agreed for the goods. In situations where the return of the goods is impossible due to their destruction or loss, the consumer should pay the monetary value of the goods which were destroyed. However, the consumer should not be obliged to pay the monetary value where the destruction or loss is caused by the lack of conformity of the goods with the contract.
Amendment 104 #
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 at a minimum level the 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 foreseen a two-year period when implementing Directive 1999/44 and in practice this is considered by market participants as a reasonable period, this period should be maintained.
Amendment 105 #
Proposal for a directive
Recital 8 b (new)
Recital 8 b (new)
(8 b) The definition of consumer should cover natural persons who are acting outside their trade, business, craft or profession. However, in the case of dual- purpose contracts, where the contract is concluded for purposes partly within and partly outside natural person's trade, business, craft or profession and the trade or equivalent purpose and that purpose is so limited as not to be predominant in the overall context of the contract, that person should also be considered to be a consumer. In order to determine whether a natural person is acting fully or partly for purposes which come within that person's trade, business, craft or profession, the way in which the person in question has acted towards the other contracting party should be taken into account.
Amendment 105 #
Proposal for a directive
Recital 33
Recital 33
Amendment 106 #
Proposal for a directive
Recital 33 a (new)
Recital 33 a (new)
(33 a) The development of a circular economy requires such matters as reuse, recycling and repair to be facilitated in the development of products. A simple and highly resource-efficient approach would be to extend the initial lifetime or first use of a product. The use of lifespan guarantees under the Ecodesign requirements for a product would capture this approach.
Amendment 107 #
Proposal for a directive
Recital 33 b (new)
Recital 33 b (new)
(33 b) The producer of an energy-related product should be obliged to guarantee to the consumer a minimum lifespan to be expected of the energy-related product. This lifespan indication should reflect the expectations of reasonable and typical consumers. If the producer does not fulfil these obligations, the consumer should be entitled to have the goods brought into conformity with the contract by the producer through repair or replacement.
Amendment 109 #
Proposal for a directive
Recital 35
Recital 35
Amendment 110 #
Proposal for a directive
Recital 9 a (new)
Recital 9 a (new)
(9 a) Minimum standards on a high level of consumer protection set out in this Directive should prevent obstructions of the four freedoms in the area of the supply of digital content and digital services while leaving room for national deviations in specific matters and without endangering the harmony of national contractual law.
Amendment 110 #
Proposal for a directive
Recital 36
Recital 36
(36) Persons or organisations regarded under national law as having a legitimate interest in protecting consumer contractual rights should be afforded the right to initiate proceedings, either before a court or before an administrative authority which is competent to decide upon complaints or to initiate appropriate legal proceedings. It is also important to further develop alternative, out-of-court dispute resolution procedures such as conciliation and mediation as well as the assistance provided by an ombudsman or complaint boards, which are efficient and well-tried means to solve consumer disputes.
Amendment 111 #
Proposal for a directive
Recital 36
Recital 36
(36) Persons or organisations regarded under national law as having a legitimate interest in protecting consumer contractual rights should be afforded the right to initiate proceedings, either before a court or before an administrative authority which is competent to decide upon complaints or to initiate appropriate legal proceedings. It is also important that Member States continue to be mindful of the need for consumers to be informed about, enabled and facilitated to enforce their rights in practice, including through claiming remedies collectively where appropriate.
Amendment 112 #
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 112 #
Proposal for a directive
Recital 36 a (new)
Recital 36 a (new)
(36 a) In the light of the significance of the issues and rights addressed in this Directive for the internal market and for consumers and citizens of the Union, this Directive should be subject to close scrutiny and review, including meaningful and detailed consultation and involvement with Member States and consumer, legal and business organisations at Union level.
Amendment 113 #
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 other distance sales of goodimprove the conditions for the establishment and the functioning of the internal market, to ensure a high level of consumer protection and confidence and to help provide a level playing field for traders 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 114 #
Proposal for a directive
Recital 43
Recital 43
Amendment 115 #
Proposal for a directive
Article 1 – title
Article 1 – title
Subject matter and scope, scope and objectives
Amendment 116 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Directive lays down certain requiremente purpose of this Directive is the approximation of the laws, regulations and administrative provisions of the Member States con cerning distancetain aspects concerning 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 118 #
Proposal for a directive
Recital 11
Recital 11
(11) This Directive covers rules applicable to the online and other distance sales of goods only in relation to key contract elements needed to overcome contract-law related barriers in 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 at a minimum level and the level of consumer protection as compared to Directive 1999/44/EC, should be increased.
Amendment 119 #
Proposal for a directive
Article 1 – paragraph 1 a (new)
Article 1 – paragraph 1 a (new)
1 a. This Directive aims to improve the conditions for the establishment and the functioning of the internal market, to ensure a high level of consumer protection and confidence and to help provide a level playing field for traders.
Amendment 120 #
Proposal for a directive
Article 1 – paragraph 2
Article 1 – paragraph 2
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.
Amendment 122 #
Proposal for a directive
Article 1 – paragraph 3
Article 1 – paragraph 3
3. This Directive shall not apply to any durable medium incorporating digital content where the durable medium has been usedgoods in which digital content or a digital service are embedded unless the seller proves that the lack of conformity lies in the hardware of the good. This Directive shall also not apply to tangible media which serve exclusively as a carrier for the supply of the digital content to the consumerof digital content, unless the seller proves that the lack of conformity lies in the tangible medium.
Amendment 123 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
(11 a) This Directive should also apply to dual purpose contracts, where the contract is concluded for purposes partly within and partly outside the person's trade and the trade purpose is marginal within the overall context of the contract, so that that person should also be considered a consumer.
Amendment 124 #
Proposal for a directive
Recital 13
Recital 13
(13) This Directive should not apply to goods like DVDs and CDs incorporating digital content in such a way that the goods function only as a carrier of the digital content. However, this Directive should apply to digital contentdigital content or digital services integrated in goods such as household appliances, toys or stoyrage devices where the digital content is embedded in such a way that its functions are subordinate to the main functionalities of the goods and it operates as an integral part of the goods and cannot be uninstalled easily by the consumer, unless the seller proves that the lack of conformity lies in the hardware of the goods.
Amendment 129 #
Proposal for a directive
Article 2 – paragraph 1 – point b
Article 2 – paragraph 1 – point b
(b) ‘'consumer’' means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession; where the contract is concluded for a purpose which is partly within and partly outside that natural person's trade, business, craft or profession or an equivalent purpose and that purpose is so limited as not to be predominant in the overall context of the contract, that person shall also be considered to be a consumer;
Amendment 130 #
Proposal for a directive
Article 2 – paragraph 1 – point c
Article 2 – paragraph 1 – point c
(c) ‘'seller’' means any natural person or any legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in his name or on his behalf or as an intermediary for a natural person, for purposes relating to his trade, business, craft or profession in relation to contracts covered by this Directive;
Amendment 131 #
Proposal for a directive
Article 2 – paragraph 1 – point c a (new)
Article 2 – paragraph 1 – point c a (new)
(c a) 'producer', in relation to goods, means the manufacturer of a finished product, the producer of any raw material or the manufacturer of a component part and any person who, by putting his name, trade mark or other distinguishing feature on the product, holds himself out to be its producer;
Amendment 132 #
Proposal for a directive
Recital 14 a (new)
Recital 14 a (new)
(14 a) This Directive should not affect national laws governing the conditions under which a contract for the sale of goods is considered to be linked with or ancillary to another contract which the consumer has concluded with the same seller or another seller, and the effect those national laws have on either contract or on the remedies to be exercised under either contract. Member States should also be free to determine the nature of such contracts, which could be, inter alia, sales, services, rental or sui generis contracts.
Amendment 133 #
Proposal for a directive
Article 2 – paragraph 1 – point d b (new)
Article 2 – paragraph 1 – point d b (new)
(d b) 'embedded digital content or digital service' means pre-installed digital content, or an inherent digital service, which operates as an integral part of the goods and cannot be easily uninstalled by the consumer or which is necessary for the conformity of the goods with the contract;
Amendment 134 #
Proposal for a directive
Article 2 – paragraph 1 – point d a (new)
Article 2 – paragraph 1 – point d a (new)
(d a) 'tangible medium' means a tangible moveable item which serves exclusively as a carrier of digital content or of a digital service;
Amendment 135 #
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, where relevant and appropriate, 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 136 #
Proposal for a directive
Article 3
Article 3
Amendment 138 #
Proposal for a directive
Recital 18
Recital 18
(18) In order to balance the requirement of legal certainty with an appropriate flexibility of theinterpretation of legal rules, any reference to what can be expected of or by a person 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 involvedto a contract. 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 139 #
Proposal for a directive
Recital 19
Recital 19
(19) In order to provide clarity as to what a consumer can expect from the goods and what the seller would be liable for in case of failure to deliver what is expected, it is essential to fully harmonise rules for determining the conformity with the contract. Aapplying a combination of subjective and objective criteria shouldto safeguard legitimate interests of both partiesconsumer and seller to a sales contract. Conformity with the contract should be assessed by taking into account not only requirements which have actually been set in the contract - including in pre- contractual information which forms an integral part of the contract - but also certain objective requirements which constitute the standards normally expected for goods, in particular in terms of fitness for the purpose, packaging, installation instructions and normal qualities and performance capabilities.
Amendment 139 #
Proposal for a directive
Article 4 – paragraph 1 – point a
Article 4 – paragraph 1 – point a
(a) be ofpossess the quantity, quality of and description required by the contract, which includes that where the seller shows acorrespond to the description of the sample or model thereof; where a contract is concluded by reference to a sample or model of the goods that is seen or examined by the consumer before the contract is concluded, the goods shall: (i) match the sample or a model to the consumer, the goods shall possess the quality of and correspond to the descripexcept to the extent that any differences between the sample or model and the goods are brought to the consumer's attention before the contract is concluded; and (ii) be free from any defect that renders their quality unsatisfactory and that would not be apparent on a reasonable examination of thise sample or model;
Amendment 142 #
Proposal for a directive
Article 4 – paragraph 1 – point b
Article 4 – paragraph 1 – point b
(b) be fit for any particular purpose for which the consumer requires them and which the consumer made known to the seller at the time of the conclusion of the contract and which the seller has accepted; and
Amendment 143 #
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 usedd in practice 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 incorrect installation instructions.
Amendment 144 #
Proposal for a directive
Recital 21
Recital 21
(21) Conformity should cover material defects as well as legal defects. Third party rights and other legal defects might effectivelyshould not bar the consumer from enjoying the goods in accordance with the contract when the right's holder rightfully compels the consumer to stop infringing those rights. Therefore the seller should ensure that the goods are free from any right of a third party, which precludes the consumer from enjoying the goods in accordance with the contract.
Amendment 145 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
3. Any agreement excluding, derogating from or varying the effects of Articles 5 and 6 to the detriment of the consumer is valid only if, at the time of the conclusion of the contract, the consumer knew of the specific condition of the goods and the consumer has expressly accepted this specific condition when concluding the contractshall be invalid.
Amendment 146 #
Proposal for a directive
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
The goods shall, where relevantapplicable:
Amendment 148 #
Proposal for a directive
Recital 22
Recital 22
(22) While freedom of contract with regard to the criteria of conformity with the contract should be ensured, iIn order to avoid circumvention of the liability for lack of conformity and ensure a high level of consumer protection, any derogation from the mandatory rules on criteria of conformity and incorrect installation, which is detrimental to the interests of the consumer, shall not be valid only if the consumer has been expressly informed and has expressly consented to it when concluding the contract.
Amendment 149 #
Proposal for a directive
Article 5 – paragraph 1 – point c – introductory part
Article 5 – paragraph 1 – point c – introductory part
(c) possess qualities and performance capabilitifeatures, including functionality, durability and security features, which are normal in goods of the same type and which the consumer may expect given the nature of the goods, taking into account, where relevant, any existing technical standards or, in the absence of such technical standards, applicable industry codes of conduct and good practices, and taking into account any public statement made by or on behalf of the seller or other persons in earlier links of the chain of transactions, including the producer, unless the seller can shows that:
Amendment 151 #
Proposal for a directive
Recital 23
Recital 23
(23) Ensuring longer durability of consumer goods is important for achieving more sustainable consumption patterns and a circular economy. Similarly, keeping non-compliant products out of the Union market by strengthening market surveillance and providing the right incentives to economic operators is essential to increase trust in the single market. For theose purposes, product specific Union legislation, such as Council Directive 85/374/EEC1a , is the most appropriate approach to introduce durability and other product related requirements in relation to specific types or groups of products, using for this purpose adapted criteria. This Directive should therefore be complementary to the objectives followed in this Union sector specific legislation. In so far as sproduct liability legislation. Specific durability information ishould be indicated in any pre- contractual statement which forms part of the sales contract, the consumwhich should be part of the criteria for conformity. Furthermore, sellers should be able to rely on them as a part of the criteria for conformityinform consumers about the availability of spare parts which are necessary for the use of the product. _________________ 1a Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ L 210, 7.8.1985, p. 29).
Amendment 151 #
Proposal for a directive
Article 5 – paragraph 1 – point c – point ii
Article 5 – paragraph 1 – point c – point ii
(ii) by the time of conclusion of the contract the statement had been corrected and the consumer could not reasonably have been unaware of that correction; or
Amendment 152 #
Proposal for a directive
Article 5 – paragraph 1 – point c – point iii
Article 5 – paragraph 1 – point c – point iii
(iii) the decision to buyacquire the goods could not have been influenced by the statement.
Amendment 153 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article 5 a Pre-contractual information Where the provisions of Directive 2011/83/EU require the seller to provide information to the consumer before the contract becomes binding, any of that information that was provided by the seller other than information about the main characteristics of goods shall be deemed to be included as a term of the contract.
Amendment 154 #
Proposal for a directive
Recital 23 a (new)
Recital 23 a (new)
(23 a) Considering that the seller is liable towards the consumer for any lack of conformity of the goods resulting from an act or omission of the seller or a third party, it is justified that the seller should be able to pursue remedies against the responsible person in earlier links of the chain of transactions.
Amendment 155 #
Proposal for a directive
Recital 23 b (new)
Recital 23 b (new)
(23 b) The Commission considered in its Green Paper on Guarantees for Consumer Goods1a that in modern societies the confidence of consumers is bound with their faith in the manufacturers; Directive 1999/44/EC envisages more far-reaching provisions on producers' liability, in particular by providing for producers' direct liability for non-conformity for which they are responsible. _________________ 1a OJ C 338, 15.12.1993.
Amendment 156 #
Proposal for a directive
Recital 23 c (new)
Recital 23 c (new)
(23 c) The liability of producers in these circumstances should be construed as deriving from a clause enforceable against the producer as a contractual guarantee, a breach of which would trigger a claim for damages for non- conformity. For the purposes of this approach, this Directive should include an appropriate definition of 'producer’.
Amendment 156 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
Amendment 157 #
Proposal for a directive
Recital 24
Recital 24
(24) Enhancing legal certainty for both consumers and sellers requires a clear indication of the time when the conformity of the goods to the contracts should be assessed, subject to national rules on the commencement of prescription periods in exceptional cases. In order to ensure coherence between the present Directive and Directive 2011/83/EU it is appropriate in general to indicate the time of the passing of risk as the time for assessing the conformity of the goods. However, in cases where the goods need to be installed, that relevant time should be adapted.
Amendment 159 #
Proposal for a directive
Article 8 – paragraph 2
Article 8 – paragraph 2
2. In cases where the goods were installed by the seller or under the seller’'s responsibility, the time when the installation is complete shall be considered as the time when the consumer has acquired the physical possession of the goods. In a case where the goods were intended to be installed by the consumer, the time when the consumer had reasonable time for the installation but in any case not later than 30 days after the time indicated in paragraph 1 shall be considered as the time when the consumer has acquired the physical possession of the goods.
Amendment 160 #
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 and to provide a high level of consumer protection, it is justified to 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 addition to a short-term right to reject goods, 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 addition, in order to increase legal certainty in relation to the 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, the principle of free choice of remedies should be harmonised.
Amendment 160 #
Proposal for a directive
Article 8 – paragraph 3
Article 8 – paragraph 3
3. Any lack of conformity with the contract which becomes apparent within not less than two years from the time indicated in paragraphs 1 and 2 ishall be presumed to have existed at the time indicated in paragraphs 1 and 2 unless this is incompatible with the nature of the goods or with the nature of the lack of conformity.
Amendment 162 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. In the case of a lack of conformity with the contract, the consumer shall be entitled to havechoose between the following remedies: (a) having the goods brought into conformity bywith the seller, free of charge, by repair or replacementcontract, in accordance with Article 11; (b) being granted a price reduction, in accordance with Article 12; (c) terminating the contract, in accordance with Article 113.
Amendment 163 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. A repair or replacement shall be completed within a reasonable time, and in any event within 30 days from the moment the seller has acquired physical possession 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 164 #
Proposal for a directive
Article 9 – paragraph 3 – introductory part
Article 9 – paragraph 3 – introductory part
3. The consumer shall also be entitled to a proportionate reduction of the price in accordance with Article 12 or to terminate the contract in accordance with Article 13 where the consumer has opted for repair or replacement, if:
Amendment 166 #
Proposal for a directive
Recital 26 a (new)
Recital 26 a (new)
(26 a) This Directive should grant consumers throughout the Union a new and unrivalled freedom in choosing remedies. A consumer should be able to require the seller to bring the goods into conformity with the contract either through repair of the defects or through replacement of the defective goods with conforming ones. But more importantly, the consumer should be able to turn down any offer by the supplier to have the goods brought into conformity and instead to require price reduction or termination of the contract. The consumer should be able to decide whether or not to give the supplier a chance to bring the goods into conformity, and in which way the supplier should cure the defects, according to his own preference. Repair or replacement might be preferable if a consumer thinks the value of the defective goods is substantial, for example because the goods are unique or the market prices of the goods have gone up.
Amendment 167 #
Proposal for a directive
Article 9 – paragraph 4
Article 9 – paragraph 4
4. The consumer shall be entitled to withhold the payment of any outstanding part of the price, or where the non- conformity is minor, an appropriate proportion of the outstanding amount of the price, until the seller has brought the goods into conformity with the contract.
Amendment 169 #
Proposal for a directive
Article 9 – paragraph 5 a (new)
Article 9 – paragraph 5 a (new)
5 a. This Article does not preclude the consumer from seeking any national remedies which may also be available. Those national remedies may apply: (a) in addition to the remedies provided for by this Article, but not so as to allow the consumer to recover twice for the same loss; or (b) instead of the remedies provided for by this Article; or (c) where no such remedy is provided for by this Article.
Amendment 170 #
Proposal for a directive
Recital 27
Recital 27
(27) TIf, in the case of non-conformity of the goods with the contract, the consumer' has choice betweensen either repair andor replacement, his choice should only be limited where the option chosen would be disproportionate compared to the other option 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, the scratch could easily be repaired.
Amendment 170 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Where the seller remedies the lack of conformity with the contract by replacement, the seller shall take back the replaced goods at the seller's expense unless the parties have agreed otherwise after the lack of conformity with the contract has been brought to the seller's attention by the consumer.
Amendment 173 #
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 reduction or to terminate the contract. In particularIf, in the case of non-conformity of the goods with the contract, the consumer has opted for a repair or replacement, any repair or replacement needs to be successfully accomplished within thisa reasonable period. What is a reasonable time should be objectively ascertained considering the nature of the goods and the lack of conformity. If upon the laps of the reasonable period, 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 173 #
Proposal for a directive
Article 11 – paragraph 1 – introductory part
Article 11 – paragraph 1 – introductory part
The consumer may choose between repair and replacement in order to have the goods brought into conformity unless the option chosen would be impossible, or unlawful or, compared to the other option, would impose costs on the seller that would be disproportionate, taking into account all circumstances, including:
Amendment 175 #
Proposal for a directive
Recital 28 a (new)
Recital 28 a (new)
(28 a) If, in the case of non-conformity of the goods with the contract, the consumer has chosen repair or replacement, he should still be entitled to a price reduction or termination of the contract if the seller fails to complete a repair or replacement within a reasonable time, if a repair or replacement would cause significant inconvenience to the consumer, if a repair or replacement is impossible or unlawful or if the seller has declared, or it is equally clear from the circumstances, that the seller will not bring the goods into conformity with the contract within a reasonable time.
Amendment 176 #
Proposal for a directive
Article 12 – paragraph -1 (new)
Article 12 – paragraph -1 (new)
-1 In the case of a lack of conformity of the goods with the contract, the consumer shall be entitled to an appropriate reduction of the price in the manner set out in paragraph 1.
Amendment 178 #
Proposal for a directive
Article 12 – paragraph 1 a (new)
Article 12 – paragraph 1 a (new)
The seller shall reimburse the consumer without undue delay, and in any event within 14 days from the day on which the seller was informed of the consumer's decision to invoke his right to a price reduction.
Amendment 179 #
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 are not feasible or have failed, the consumer should also enjoy the right to terminate the contract in cases where the lack of conformity is 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 or acquired in conjunction with 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 or additional elements, even if the latter are in conformity with the contract.
Amendment 179 #
Proposal for a directive
Article 12 – paragraph 1 b (new)
Article 12 – paragraph 1 b (new)
The seller shall carry out the reimbursement using the same means of payment as the consumer used for the initial transaction, unless the consumer expressly agrees otherwise. The seller shall not impose any fees on the consumer in respect of the reimbursement.
Amendment 180 #
The consumer's right to terminateion of the contract for lack of conformity
Amendment 181 #
Proposal for a directive
Article 13 – paragraph -1 (new)
Article 13 – paragraph -1 (new)
-1. In the case of a lack of conformity of the goods with the contract, the consumer shall be entitled to terminate the contract if the lack of conformity with the contract is not minor and if it has or may have a substantial effect on the consumer's use of the goods.
Amendment 182 #
Proposal for a directive
Recital 31
Recital 31
(31) In order to ensure the effectiveness of the right to terminate for consumers while avoiding the consumer's unjustified enrichment, the consumer's obligation to pay for the decrease of the value of the goods should be limited to those situations where the decrease exceeds normal use, and where it is possible to take a proportionate approach. In any case the consumer should not be obliged to pay more than the price agreed for the goods. In situations where the return of the goods is impossible due to their destruction or loss, the consumer should pay the monetary value of the goods which were destroyed. However, the consumer should not be obliged to pay the monetary value where the destruction or loss is caused by the lack of conformity of the goods with the contract.
Amendment 183 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. The consumer shall exercise the right to terminateend the contract by notice to the seller given by any meansan unequivocal statement setting out his or her decision to terminate the contract.
Amendment 185 #
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 on a minimum level the 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 foreseen a two-year period when implementing Directive 1999/44 and in practice this is considered by market participants as a reasonable period, this period should be maintained.
Amendment 185 #
Proposal for a directive
Article 13 – paragraph 2
Article 13 – paragraph 2
2. Where the lack of conformity with the contract relates to only some of the goods delivered under the contract and there is a ground for termination of a contract pursuant to Article 9, the consumer may terminate the contract only in relation to those goods and any other goods, which the consumer acquired as an accessory to or in conjunction with the non-conforming goods.
Amendment 186 #
Proposal for a directive
Article 13 – paragraph 3 – point a
Article 13 – paragraph 3 – point a
(a) the seller shall reimburse to the consumer the price paidall sums received under the contract without undue delay and in any event not later than 14 days from receipt of the notice and shall bear the cosunequivocal statement on termination of the contract referred to in paragraph 1. The seller shall carry out the reimbursement using the same means of payment as the consumer used for the initial transaction, unless the consumer expressly agrees otherwise. The seller shall not impose any fee on the consumer in respect of the reimbursement;
Amendment 190 #
Proposal for a directive
Recital 33
Recital 33
Amendment 192 #
Proposal for a directive
Recital 33 a (new)
Recital 33 a (new)
(33 a) The producer of a technical product should be obliged to inform the consumer about the minimum life span to be expected of the technical product. This life span indication should reflect the expectations of reasonable and typical consumers, particularly because many of these products entail mass produced software packages and services. The obligation of producers to offer a commercial guarantee, independent from the legal prescription period, should take account of the new situation that sellers of technical products are regularly unable to rectify any defects by themselves.
Amendment 193 #
Proposal for a directive
Recital 35
Recital 35
Amendment 193 #
Proposal for a directive
Article 13 – paragraph 3 – point b
Article 13 – paragraph 3 – point b
(b) the consumer shall return, at the seller's expense, to the seller the goods without undue delay after send in any event not later than 14 days from sending the notice of terminationg the unequivocal statement on termination of the contract referred to in paragraph 1;
Amendment 194 #
Proposal for a directive
Recital 36
Recital 36
(36) Persons or organisations regarded under national law as having a legitimate interest in protecting consumer contractual rights should be afforded the right to initiate proceedings, either before a court or before an administrative authority which is competent to decide upon complaints or to initiate appropriate legal proceedings. It is also important that Member States continue to be mindful of the need for consumers to be informed about, enabled and facilitated to enforce their rights in practice, including through claiming remedies collectively where appropriate.
Amendment 195 #
Proposal for a directive
Recital 36 a (new)
Recital 36 a (new)
(36 a) In the light of the significance of the issues and rights addressed in this Directive for the internal market and for consumers and citizens of the Union, this Directive should be subject to close scrutiny and review, to include meaningful and detailed consultation and involvement with Member States and consumer, legal and business organisations at Union level.
Amendment 195 #
Proposal for a directive
Article 13 a (new)
Article 13 a (new)
Article 13 a Short-term right to reject Without prejudice to any other rights under this Directive or otherwise, the consumer shall have a right to reject goods for non-conformity with the contract by returning them within 30 days of receipt.
Amendment 196 #
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 a period of not less than two years as from the relevant time for establishing conformity. 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 197 #
Proposal for a directive
Article 15 – paragraph 2 – introductory part
Article 15 – paragraph 2 – introductory part
2. The guarantee statement shall be made available on ain writing or on another durable medium and shall be drafted in plain, intelligible language. It shall include the following:
Amendment 198 #
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 other distance sales of goodimprove the conditions for the establishment and the functioning of the internal market, to ensure a high level of consumer protection and confidence and to help provide a level playing field for traders 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 198 #
Proposal for a directive
Article 15 a (new)
Article 15 a (new)
Article 15 a Commercial guarantees for lifespan 1. The producer of an energy-related product as defined in Article 2(1) of Directive 2009/125/EC of the European Parliament and of the Council1a shall: (a) guarantee to the consumer the fitness of the product for such foreseeable minimum lifespan, as is normal in goods of the same type, and shall indicate the duration of this lifespan, or (b) clearly indicate that he does not guarantee the fitness of the product during its lifespan. This information shall be made available to the consumer as a contractual guarantee at the time where he enters into the contract. 2. If the producer does not fulfil his obligations according to paragraph 1, the consumer shall be entitled to have the goods brought into conformity with the contract by the producer in accordance with Article 11. _________________ 1aDirective 2009/125/EC of the European Parliament and of the Council of 21 October 2009 establishing a framework for the setting of ecodesign requirements for energy-related products (OJ L 285, 31.10.2009, p. 10).
Amendment 200 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
Where the seller is liable to the consumer because of a lack of conformity with the contract resulting from an act or omission by a person in earlier links of the chain of transactions, the seller shall be entitled to pursue remedies against the person or persons liable in the chain of transactions. The person against whom the seller may pursue remedies, and the relevant actions and conditions of exercise, shall be determined by national law. However, the seller shall be entitled to pursue remedies for at least the duration of the legal guarantee period, and the period during which a presumption exists that any lack of conformity with the contract already existed at the time indicated in Article 8(1) and (2) shall be no shorter than as provided for in Article 8(3).
Amendment 201 #
Proposal for a directive
Recital 43
Recital 43
Amendment 201 #
Proposal for a directive
Article 16 a (new)
Article 16 a (new)
Article 16 a Information requirement on spare parts and accessories The seller shall inform the consumer in a clear and intelligible manner of the existence of any spare parts or accessories available on the market and necessary for the use of the goods sold.
Amendment 202 #
Proposal for a directive
Article 1 – title
Article 1 – title
Subject matter and scope, scope and objectives
Amendment 202 #
Proposal for a directive
Article 17 – title
Article 17 – title
Enforcement and information
Amendment 203 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – paragraph 1
1. Member States shall ensure that adequate and effective means exist to ensure compliance with this Directive, taking account in particular of the need for consumers to be informed about their rights and enabled and facilitated to enforce those rights in practice. Such means shall include legal mechanisms to enable two or more natural persons or their representative entities to claim remedies collectively where appropriate.
Amendment 204 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Directive lays down certain requiremente purpose of this Directive is the approximation of the laws, regulations and administrative provisions of the Member States con cerning distancetain aspects concerning 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 204 #
Proposal for a directive
Article 17 – paragraph 2 – introductory part
Article 17 – paragraph 2 – introductory part
2. The means referred to in paragraph 1 shall include provisions whereby one or more of the following bodies,representative bodies, under justified and appropriate criteria as determined by national law, may take action under national law before the courts or before the competent administrative bodies to ensure that the national provisions transposing this Directive are applied. Such bodies shall include but shall not be limited to:
Amendment 205 #
Proposal for a directive
Article 17 – paragraph 2 – point a
Article 17 – paragraph 2 – point a
(a) public bodies or their representatives; and
Amendment 206 #
Proposal for a directive
Article 17 – paragraph 2 – point b
Article 17 – paragraph 2 – point b
(b) consumer organisations having a legitimate interest in protecting consumers; and
Amendment 207 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
Any contractual agreement which, to the detriment of the consumer, excludes the application of national measures transposing this Directive, derogates from them or varies their effect before the lack of conformity with the contract of the goods is brought to the seller's attention by the consumer shall not be binding on the consumer unless parties to the contract exclude, derogate from or vary the effects of the requirements of Articles 5 and 6 in accordance with Article 4 (3).
Amendment 208 #
Proposal for a directive
Article 1 – paragraph 1 a (new)
Article 1 – paragraph 1 a (new)
1 a. This Directive aims to improve the conditions for the establishment and the functioning of the internal market, to ensure a high level of consumer protection and confidence and to help provide a level playing field for traders.
Amendment 211 #
Proposal for a directive
Article 20 a (new)
Article 20 a (new)
Article 20 a National law and minimum protection 1. The rights resulting from this Directive shall be exercised without prejudice to other rights which the consumer may invoke under the national rules governing contractual or non-contractual liability. 2. Member States may adopt or maintain in force more stringent provisions, compatible with the Treaty in the field covered by this Directive, to ensure a higher level of consumer protection.
Amendment 212 #
Proposal for a directive
Article 1 – paragraph 3
Article 1 – paragraph 3
3. This Directive shall not apply to any durable medium incorporating digital content where the durable medium has been usedgoods in which digital content or a digital service is embedded unless the seller proves that the lack of conformity lies in the hardware of the good. This Directive shall also not apply to tangible media which serve exclusively as a carrier for the supply of the digital content to the consumerof digital content, unless the seller proves that the lack of conformity lies in the tangible medium.
Amendment 212 #
Proposal for a directive
Article 20 b (new)
Article 20 b (new)
Article 20 b Review 1. The Commission shall keep the application and implementation of this Directive under close scrutiny and review. This process shall include meaningful and detailed consultation and involvement of the Member States and of consumer, legal and business organisations at Union level. 2. No later than within three years from its entry into application, the Commission shall submit a report to the European Parliament and to the Council taking full account of the process of scrutiny and review referred to in paragraph 1. That report shall include, inter alia, a detailed analysis of the impact of provisions of this Directive on the burden of proof in Member States.
Amendment 216 #
Proposal for a directive
Recital 2
Recital 2
(2) For the good functioning of the internal market, the harmonisation of certain aspects concerning contracts for sales of goods, taking as a base a high level of consumer protection, is necessary. while recognising Member States’ competences within the Union, is justifiable. Keeping in mind the evolving and complex European case law on this subject matter, and in order to provide a greater degree of legal certainty to businesses and consumers alike, Member States may maintain or introduce more stringent provisions for the protection of consumers in so far as provided for, or not expressly regulated otherwise in this Directive.
Amendment 217 #
Proposal for a directive
Recital 3
Recital 3
(3) E-commerce is one of the maina key drivers for growth within the internal market. However its growth potential is far from being fully exploited. In order to strengthen Union competiveness and to boost growth, the Union needs to act swiftly and encourage economic actors to unleash the full potential offered by the internal market. The full potential of the internal market can only be unleashed if all market participants enjoy smooth access to cross-border sales of goods including in e- commerce transactions. Contracts are an indispensable legal tool for most economic transactions. The contract law rules on the basis of which market participants conclude transactions are among the key factors shaping business’ decisions whether to offer goods cross- border. Those rules also influence consumers’ willingness to embrace and trust this type of purchase.
Amendment 218 #
Proposal for a directive
Article 1 – paragraph 4
Article 1 – paragraph 4
4. In so far as not regulated therein, tThis Directive shall not affect national general contract laws such as rules on the formation, the validity or effects of contracts, prescription periods, including the consequences of the termination of a contract.
Amendment 221 #
Proposal for a directive
Article 2 – paragraph 1 – point b
Article 2 – paragraph 1 – point b
(b) ‘'consumer’' means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession; where the contract is concluded for a purpose which is partly within and partly outside that natural person's trade, business, craft or profession or an equivalent purpose and that purpose is so limited as not to be predominant in the overall context of the contract, that person shall also be considered to be a consumer;
Amendment 222 #
Proposal for a directive
Article 2 – paragraph 1 – point c
Article 2 – paragraph 1 – point c
(c) ‘seller’ means any natural person or any legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in his name or on his behalf or as an intermediary for a natural person, for purposes relating to his trade, business, craft or profession in relation to contracts covered by this Directive;
Amendment 223 #
Proposal for a directive
Article 2 – paragraph 1 – point c a (new)
Article 2 – paragraph 1 – point c a (new)
(c a) 'producer', in relation to goods, means the manufacturer of a finished product, the producer of any raw material or the manufacturer of a component part and any person who, by putting his name, trade mark or other distinguishing feature on the product, holds himself out to be its producer;
Amendment 226 #
Proposal for a directive
Article 2 – paragraph 1 – point d a (new)
Article 2 – paragraph 1 – point d a (new)
(d a) 'embedded digital content or digital service' means pre-installed digital content, or an inherent digital service, which operates as an integral part of the goods and cannot be easily uninstalled by the consumer or which is necessary for the conformity of the goods with the contract;
Amendment 227 #
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. In addition, and its implementation should under no circumstances constitute grounds for reducing the level of protection afforded to consumers in fields that fall within the scope of Union law. Furthermore, in certain areas regulated by this Directive Member States should also be free to lay down rules in relation to those aspects which are not regulated in this Directive: this concerns limitation periods for exercising the consumers’ rights and commercial guarantees. Finally, in relation to the right of redress of the seller, Member States should be free to provide more detailed conditions on the exercise of such right.
Amendment 229 #
Proposal for a directive
Recital 15
Recital 15
(15) The rules of this Directive complement the rules of Directive Directive 2011/83/EU of the European Parliament and of the Council. While Directive 2011/83/EU of the European Parliament and of the Council mainly lays down provisions regarding pre-contractual information requirements, the right of withdrawal from distance and off-premises contracts and rules on delivery and passing of risk, this Directive introduces rules on conformity of the goods, remedies in the event of a lack of conformity and modalities for the exercise of such remedies.
Amendment 230 #
Proposal for a directive
Article 2 – paragraph 1 – point d a (new)
Article 2 – paragraph 1 – point d a (new)
(d a) 'tangible medium' means a tangible moveable item which serves exclusively as a carrier of digital content or of a digital service;
Amendment 233 #
Proposal for a directive
Recital 19
Recital 19
(19) In order to provide clarity as to what a consumer can expect from the goods and what the seller would be liable for in case of failure to deliver what is expected, it is essential to fully harmonise rules for determining the conformity with the contract. Aapplying a combination of subjective and objective criteria shouldto safeguard legitimate interests of both partiesconsumer and seller to a sales contract. Conformity with the contract should be assessed by taking into account not only requirements which have actually been set in the contract - including in pre- contractual information which forms an integral part of the contract or models and samples shown in shop windows, showrooms and trade fairs - but also certain objective requirements which constitute the standards normally expected for goods, in particular in terms of fitness for the purpose, packaging, installation instructions and normal qualities and performance capabilities.
Amendment 235 #
Proposal for a directive
Article 3
Article 3
Amendment 235 #
Proposal for a directive
Recital 23
Recital 23
(23) Ensuring longer durability of consumer goods is important for achieving more sustainable consumption patterns and a circular economy. Similarly, keeping non-compliant products out of the Union market by strengthening market surveillance and providing the right incentives to economic operators is essential to increase trust in the functioning of the internal market. For theose purposes, product specific Union legislation, such as Council Directive 85/374/EEC1a, is the most appropriate approach to introduce durability and other product related requirements in relation to specific types or groups of products, using for this purpose adapted criteria. This Directive should therefore be complementary to the objectives followed in such Union product specificliability legislation. In so far as sSpecific durability information ishould be indicated in any pre- contractual statement which forms part of the sales contract, the consumwhich should be part of the criteria for conformity. Furthermore, sellers should be able to rely on them as a part of the criteria for conformity. inform consumers about the availability of spare parts which are necessary for the use of the product. __________________ 1aCouncil Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ L 210, 7.8.1985, p. 29).
Amendment 236 #
Proposal for a directive
Recital 23 a (new)
Recital 23 a (new)
(23a) The Commission considered in its Green Paper on Guarantees for Consumer Goods that in modern societies the confidence of consumers is bound up with their faith in the manufacturers. Current Directive 1999/44/EC envisages more far-reaching provisions on producers’ liability, in particular by providing for producers’ direct liability for non-conformity for which they are responsible.
Amendment 239 #
Proposal for a directive
Recital 26 a (new)
Recital 26 a (new)
(26a) This Directive should grant consumers throughout the Union a new and unrivalled freedom in choosing remedies. A consumer should be able to require the seller to bring the goods into conformity with the contract either through repair of the defects or through replacement of the defective goods with conforming ones. But more importantly, the consumer should be able to turn down any offer by the seller to have the goods brought into conformity and instead to require price reduction or termination of the contract. The consumer should be able to decide whether or not to give the supplier a chance to bring the goods into conformity, and in which way the seller should cure the defects, according to his own preference. Repair or replacement might be preferable if a consumer thinks the value of the defective goods is substantial, for example because the goods are unique or the market prices of the goods have gone up.
Amendment 242 #
Proposal for a directive
Article 4 – paragraph 1 – point a
Article 4 – paragraph 1 – point a
(a) be ofpossess the quantity, quality of and description required by the contract, which includes that where the seller shows acorrespond to the description of the sample or model thereof; where a contract is concluded by reference to a sample or model of the goods that is seen or examined by the consumer before the contract is concluded, the goods shall: (i) match the sample or a model to the consumer, the goods shall possesexcept to the extent that any differences between the sample or model and the goods are brought to the consumer's attention before the contract is concluded; and (ii) be free from any defect that renders their quality of and correspond to the descripunsatisfactory and that would not be apparent on a reasonable examination of thise sample or model;
Amendment 244 #
Proposal for a directive
Article 4 – paragraph 1 – point a
Article 4 – paragraph 1 – point a
(a) be of the quantity, quality, durability and description required by the contract, which includes that where the seller shows a sample or a model to the consumer, the goods shall possess the quality of and correspond to the description of this sample or model;
Amendment 246 #
Proposal for a directive
Article 4 – paragraph 1 – point b
Article 4 – paragraph 1 – point b
(b) be fit for any particular purpose for which the consumer requires them and which the consumer made known to the seller at the time of the conclusion of the contract and which the seller has accepted; and
Amendment 246 #
Proposal for a directive
Article 2 – point d
Article 2 – point d
(d) ‘producer’, in relation to goods, means the manufacturer of goodsa product, the importer of goods into the Union or, the producer of any raw material or the manufacturer of a component part and any person purporting to be a producer by placing their name, trade mark or other distinctive sign on the goods;
Amendment 249 #
Proposal for a directive
Article 2 – point i
Article 2 – point i
(i) ‘free of charge’ means free of the necessaryusual costs incurred in order to bring the goods into conformity, particularly the cost of postage, labour and materials.
Amendment 250 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
3. Any agreement excluding, derogating from or varying the effects of Articles 5 and 6 to the detriment of the consumer is valid only if, at the time of the conclusion of the contract, the consumer knew of the specific condition of the goods and the consumer has expressly accepted this specific condition when concluding the contractshall be invalid.
Amendment 251 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
Amendment 252 #
Proposal for a directive
Article 5 – point b
Article 5 – point b
(b) be delivsurrendered along with such accessories including packaging, installation instructions or other instructions as the consumer may expect to receive;
Amendment 253 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. A repair or replacement shall be completed within a reasonable time, and in any event within 30 days from the moment the seller has acquired physical possession of the goods or the consumer has handed over the goods to the carrier chosen by the seller, 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 255 #
Proposal for a directive
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
The goods shall, where relevantapplicable:
Amendment 257 #
Proposal for a directive
Article 5 – paragraph 1 – point c – introductory part
Article 5 – paragraph 1 – point c – introductory part
(c) possess qualities and performance capabilitiesfeatures, including its functionality, durability and security, which are normal in goods of the same type and which the consumer may expect given the nature of the goods, taking into account, where relevant, any existing technical standards or, in the absence of such technical standards, applicable industry codes of conduct and good practices, and taking into account any public statement made by or on behalf of the seller or other persons in earlier links of the chain of transactions, including the producer, unless the seller can shows that:
Amendment 262 #
Proposal for a directive
Article 5 – paragraph 1 – point c – point ii
Article 5 – paragraph 1 – point c – point ii
(ii) by the time of conclusion of the contract the statement had been corrected and the consumer could not reasonably have been unaware of that correction; or
Amendment 263 #
Proposal for a directive
Article 5 – paragraph 1 – point c – point iii
Article 5 – paragraph 1 – point c – point iii
(iii) the decision to buyacquire the goods could not have been influenced by the statement.
Amendment 265 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article 5 a Pre-contractual information Where the provisions of Directive 2011/83/EU require the seller to provide information to the consumer before the contract becomes binding, any of that information that was provided by the seller other than information about the main characteristics of goods shall be deemed to be included as a term of the contract.
Amendment 269 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
Amendment 273 #
Proposal for a directive
Article 8 – paragraph 2
Article 8 – paragraph 2
2. In cases where the goods were installed by the seller or under the seller’s responsibility, the time when the installation is complete shall be considered as the time when the consumer has acquired the physical possession of the goods. In a case where the goods were intended to be installed by the consumer, the time when the consumer had reasonable time for the installation but in any case not later than 30 days after the time indicated in paragraph 1 shall be considered as the time when the consumer has acquired the physical possession of the goods.
Amendment 274 #
Proposal for a directive
Article 8 – paragraph 2
Article 8 – paragraph 2
2. In cases where the goods were installed by the seller or under the seller’s responsibility, the time when the installation is complete shall be considered as the time when the consumer has acquired the physical possession of the goods. In a case where the goods were intended to be installed by the consumer, the time when the consumer had reasonable time for the installation, but in any caseeing not later than 30 days after the time indicated in paragraph 1, shall be considered as the time when the consumer has acquired the physical possession of the goods, save where the complexity of the installation requires a longer time.
Amendment 278 #
Proposal for a directive
Article 8 – paragraph 3
Article 8 – paragraph 3
3. Any lack of conformity with the contract which becomes apparent within not less than two years from the time indicated in paragraphs 1 and 2 ishall be presumed to have existed at the time indicated in paragraphs 1 and 2 unless this is incompatible with the nature of the goods or with the nature of the lack of conformity.
Amendment 287 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. In the case of a lack of conformity with the contract, the consumer shall be entitled to havechoose between the following remedies: (a) having the goods brought into conformity bywith the seller, free of charge, by repair or replacementcontract, in accordance with Article 11; (b) being granted a price reduction, in accordance with Article 12; (c) terminating the contract, in accordance with Article 113.
Amendment 288 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. In the case of a lack of conformity with the contract, the consumer shall be entitled to havechoose any of the following remedies: (a) having the goods brought into conformity by the seller, free of charge, by repair or replacement in accordance with Article 11; (b) being granted a proportionate price reduction in accordance with Article 12; (c) terminating the contract in accordance with Article 13.
Amendment 298 #
Proposal for a directive
Article 9 – paragraph 3 – introductory part
Article 9 – paragraph 3 – introductory part
3. The consumer shall also be entitled to a proportionate reduction of the price in accordance with Article 12 or to terminate the contract in accordance with Article 13 where the consumer has opted for repair or replacement, if:
Amendment 307 #
Proposal for a directive
Article 9 – paragraph 4
Article 9 – paragraph 4
4. The consumer shall be entitled to withhold the payment of any outstanding part of the price, or where the non- conformity is minor, an appropriate proportion of the outstanding amount of the price, until the seller has brought the goods into conformity with the contract.
Amendment 312 #
Proposal for a directive
Article 9 – paragraph 5 a (new)
Article 9 – paragraph 5 a (new)
5 a. This Article does not preclude the consumer from seeking any national remedies which may also be available. Those national remedies may apply: (a) in addition to the remedies provided for by this Article, but not so as to allow the consumer to recover twice for the same loss; or (b) instead of the remedies provided for by this Article; or (c) where no such remedy is provided for by this Article.
Amendment 315 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Where the seller remedies the lack of conformity with the contract by replacement, the seller shall take back the replaced goods at the seller's expense unless the parties have agreed otherwise after the lack of conformity with the contract has been brought to the seller's attention by the consumer.
Amendment 327 #
Proposal for a directive
Article 11 – paragraph 1 – introductory part
Article 11 – paragraph 1 – introductory part
The consumer may choose between repair and replacement in order to have the goods brought into conformity unless the option chosen would be impossible, or unlawful or, compared to the other option, would impose costs on the seller that would be disproportionate, taking into account all circumstances, including:
Amendment 329 #
Proposal for a directive
Article 12 – paragraph -1 (new)
Article 12 – paragraph -1 (new)
-1 In the case of a lack of conformity of the goods with the contract, the consumer shall be entitled to an appropriate reduction of the price in the manner set out in paragraph 1.
Amendment 332 #
Proposal for a directive
Article 12 – paragraph 1 a (new)
Article 12 – paragraph 1 a (new)
The seller shall reimburse the consumer without undue delay, and in any event within 14 days from the day on which the seller was informed of the consumer's decision to invoke his right to a price reduction.
Amendment 333 #
Proposal for a directive
Article 12 – paragraph 1 b (new)
Article 12 – paragraph 1 b (new)
The seller shall carry out the reimbursement using the same means of payment as the consumer used for the initial transaction, unless the consumer expressly agrees otherwise. The seller shall not impose any fees on the consumer in respect of the reimbursement.
Amendment 334 #
Proposal for a directive
Article 13 – title
Article 13 – title
The consumer's right to terminateion of the contract for lack of conformity
Amendment 335 #
Proposal for a directive
Article 13 – paragraph -1 (new)
Article 13 – paragraph -1 (new)
-1. In the case of a lack of conformity of the goods with the contract, the consumer shall be entitled to terminate the contract if the lack of conformity with the contract is not minor and if it has or may have a substantial effect on the consumer's use of the goods.
Amendment 338 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. The consumer shall exercise the right to terminateend the contract by notice to the seller given by any meansan unequivocal statement setting out his or her decision to terminate the contract.
Amendment 341 #
Proposal for a directive
Article 13 – paragraph 2
Article 13 – paragraph 2
2. Where the lack of conformity with the contract relates to only some of the goods delivered under the contract and there is a ground for termination of a contract pursuant to Article 9, the consumer may terminate the contract only in relation to those goods and any other goods, which the consumer acquired as an accessory to or in conjunction with the non-conforming goods.
Amendment 349 #
Proposal for a directive
Article 13 – paragraph 3 – point a
Article 13 – paragraph 3 – point a
(a) the seller shall reimburse to the consumer the price paidall sums received under the contract without undue delay and in any event not later than 14 days from receipt of the notice and shall bear the cosunequivocal statement on termination of the contract referred to in paragraph 1. The seller shall carry out the reimbursement using the same means of payment as the consumer used for the initial transaction, unless the consumer expressly agrees otherwise. The seller shall not impose any fee on the consumer in respect of the reimbursement;.
Amendment 352 #
Proposal for a directive
Article 13 – paragraph 3 – point b
Article 13 – paragraph 3 – point b
(b) the consumer shall return, at the seller's expense, to the seller the goods without undue delay after send in any event not later than 14 days from sending the notice of terminationg the unequivocal statement on termination of the contract referred to in paragraph 1;
Amendment 358 #
Proposal for a directive
Article 13 a (new)
Article 13 a (new)
Article 13 a Short-term right to reject Without prejudice to any other rights under this Directive or otherwise, the consumer shall have a right to reject goods for non-conformity with the contract by returning them within 30 days of receipt.
Amendment 363 #
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. If, under national legislation, the rights laid down in Article 9 or from the date on which the applicable prescription period starts to run, whichever is the later. After two years from that date, the consumer may still be entitled to a remedy for lack of conformity to the extent that he or she can establish that any fault which develops was inherent in the goods at the time of purchase. If, under national legislation, remedies for the lack of conformity with the contract under this Directive are subject to a limitaprescription period, that period shall not be shorter than two years from the relevant time for establishing conformity with the contract.
Amendment 364 #
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 a period of not less than two years as from the relevant time for establishing conformity. 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 379 #
Proposal for a directive
Article 15 – paragraph 2 – introductory part
Article 15 – paragraph 2 – introductory part
2. The guarantee statement shall be made available on ain writing or on another durable medium and shall be drafted in plain, intelligible language. It shall include the following:
Amendment 386 #
Proposal for a directive
Article 15 a (new)
Article 15 a (new)
Article 15 a Commercial guarantees for lifespan 1. The producer of a technical product shall guarantee to the consumer the fitness of the product for its foreseeable minimum lifespan and shall indicate the duration of that lifespan. The indicated timeframe shall not be shorter than the legal prescription period applying in the Member State where the consumer has his habitual residence and shall reflect the expectations of a reasonable and typical consumer. 2. Where the producer does not fulfil his obligations in accordance with paragraph 1, the obligations owed by him to the consumer shall be the same as those owed by the supplier.
Amendment 389 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
Where the seller is liable to the consumer because of a lack of conformity with the contract resulting from an act or omission by a person in earlier links of the chain of transactions, the seller shall be entitled to pursue remedies against the person or persons liable in the chain of transactions. The person against whom the seller may pursue remedies, and the relevant actions and conditions of exercise, shall be determined by national law. However, the seller shall be entitled to pursue remedies for at least the duration of the legal guarantee period, and the period during which a presumption exists that any lack of conformity with the contract already existed at the time indicated in Article 8(1) and (2) shall be no shorter than as provided for in Article 8(3).
Amendment 394 #
Proposal for a directive
Article 16 a (new)
Article 16 a (new)
Article 16 a Information requirement on spare parts and accessories The seller shall inform the consumer in a clear and intelligible manner of the existence of any spare parts or accessories available on the market and necessary for the use of the goods sold.
Amendment 395 #
Proposal for a directive
Article 17 – title
Article 17 – title
Enforcement and information
Amendment 396 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – paragraph 1
1. Member States shall ensure that adequate and effective means exist to ensure compliance with this Directive, taking account in particular of the need for consumers to be informed about their rights and enabled and facilitated to enforce those rights in practice. Such means shall include legal mechanisms to enable two or more natural persons or their representative entities to claim remedies collectively where appropriate.
Amendment 397 #
Proposal for a directive
Article 17 – paragraph 2 – introductory part
Article 17 – paragraph 2 – introductory part
2. The means referred to in paragraph 1 shall include provisions whereby one or more of the following bodies,representative bodies, under justified and appropriate criteria as determined by national law, may take action under national law before the courts or before the competent administrative bodies to ensure that the national provisions transposing this Directive are applied. Such bodies shall include but shall not be limited to:
Amendment 398 #
Proposal for a directive
Article 17 – paragraph 2 – point a
Article 17 – paragraph 2 – point a
(a) public bodies or their representatives; and
Amendment 399 #
Proposal for a directive
Article 17 – paragraph 2 – point b
Article 17 – paragraph 2 – point b
(b) consumer organisations having a legitimate interest in protecting consumers; and
Amendment 400 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
Any contractual agreement which, to the detriment of the consumer, excludes the application of national measures transposing this Directive, derogates from them or varies their effect before the lack of conformity with the contract of the goods is brought to the seller's attention by the consumer shall not be binding on the consumer unless parties to the contract exclude, derogate from or vary the effects of the requirements of Articles 5 and 6 in accordance with Article 4 (3).
Amendment 408 #
Proposal for a directive
Article 20 a (new)
Article 20 a (new)
Article 20 a National law and minimum protection 1. The rights resulting from this Directive shall be exercised without prejudice to other rights which the consumer may invoke under the national rules governing contractual or non-contractual liability. 2. Member States may adopt or maintain in force more stringent provisions, compatible with the Treaty in the field covered by this Directive, to ensure a higher level of consumer protection.
Amendment 409 #
Proposal for a directive
Article 20 a (new)
Article 20 a (new)
Article 20 a Review 1. The Commission shall keep the application and implementation of this Directive under close scrutiny and review. This process shall include meaningful and detailed consultation and involvement of the Member States and of consumer, legal and business organisations at Union level. 2. No later than (...), the Commission shall submit a report to the European Parliament and to the Council taking full account of the process of scrutiny and review referred to in paragraph 1. That report shall include, inter alia, a detailed analysis of the impact of provisions of this Directive on the burden of proof in Member States.
Amendment 418 #
Proposal for a directive
Recital 2
Recital 2
(2) For the good functioning of the internal market, the harmonisation of certain aspects concerning contracts for sales of goods, taking as a base a high level of consumer protection, is necessarywhile recognising Member States’ competences, is justifiable. Keeping in mind the evolving and complex European case law on this subject matter, and in order to provide a greater degree of legal certainty to businesses and consumers alike, Member States should be able to maintain or introduce more stringent provisions for the protection of consumers in so far as provided for, or not expressly regulated otherwise in this Directive.
Amendment 419 #
Proposal for a directive
Recital 3
Recital 3
(3) E-commerce is one of the maina key drivers for growth within the internal market. However its growth potential is far from being fully exploited. In order to strengthen Union competiveness and to boost growth, the Union needs to act swiftly and encourage economic actors to unleash the full potential offered by the internal market. The full potential of the internal market can only be unleashed if all market participants enjoy smooth access to cross-border sales of goods, including in e- commerce transactions. Contracts are an indispensable legal tool for most economic transactions. The contract law rules on the basis of which market participants conclude transactions are among the key factors shaping business’ decisions whether to offer goods cross- border. Those rules also influence consumers’ willingness to embrace and trust this type of purchase.
Amendment 421 #
Proposal for a directive
Recital 7
Recital 7
(7) While online sales of goods constitute the vast majority of cross-border sales in the Union, differences in national contract laws equally affect retailers using distance sales channels and retailers selling face-to-face and prevent them from expanding across borders. This Directive should cover all sales channels, in order to create a level playing field for all businesses selling goods to consumers. By laying down uniform rules across sales channels, this Directive should avoid any divergence that would create disproportionate burdens for the growing number of omni-channel retailers in the Union. The need for retaining consistent rules on sales and guarantees for all sales channels was confirmed in the Fitness Check of EU consumer and marketing law, which also covered Directive 1999/44/EC.48 __________________ 48 Commission Staff Working Document{SWD(2017) 208 final}, Report of the Fitness Check on Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’); Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts; Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers; 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; Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers' interests; Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertisingAt the same time, this Directive should also ensure a very high level of consumer protection in accordance with Union law in order to provide consumers with the confidence to buy cross-border and in order to enhance the functioning of the internal market.
Amendment 422 #
Proposal for a directive
Recital 8
Recital 8
(8) In order to remedy those problems that are due to the fragmentation of national rules, businesses and consumers should be able to rely on a set of fully harmonised, targeted rules for the sales of goods. Uniform rules are necessary in relation to several essential elements of consumer contract law which under the current minimum harmonisation approach led to disparities and trade barriers across the Union. Therefore, this Directive should repeal the minimum harmonisation Directive 1999/44/EC and introduce fully harmonised rules on contracts for theonline and other distance sales of goods. This Directive should establish a set of clear, common rules that provide for the contractual rights of consumers when buying goods and help to provide a stable trading environment for sellers. Those rules should recognise that consumers and sellers are not on an equal footing and that, therefore, the legal framework needs to be just and fair in order to ensure that there is a high level of consumer protection, whilst continuing to recognise the concerns of businesses, including smales of goodl businesses.
Amendment 423 #
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. In addition, its implementation should under no circumstances constitute grounds for reducing the level of protection afforded to consumers in fields that fall within the scope of Union law. Furthermore, in certain areas regulated by this Directive Member States should also be free to lay down rules in relation to those aspects which are not regulated in this Directive: this concerns limitation periods for exercising the consumers' rights and commercial guarantees. Finally, in relation to the right of redress of the seller, Member States should be free to provide more detailed conditions on the exercise of such right.
Amendment 424 #
Proposal for a directive
Recital 19
Recital 19
(19) In order to provide clarity as to what a consumer can expect from the goods and what the seller would be liable for in case of failure to deliver what is expected, it is essential to fully harmonise rules for determining the conformity with the contract. Aapplying a combination of subjective and objective criteria shouldin order to safeguard the legitimate interests of bothe parties, consumers and sellers, to a sales contract. Conformity with the contract should be assessed by taking into account not only requirements which have actually been set in the contract - including in pre-contractual information which forms an integral part of the contract or models and samples shown in shop windows, showrooms and trade fairs - but also certain objective requirements which constitute the standards normally expected for goods, in particular in terms of fitness for the purpose, packaging, installation instructions and normal qualities and performance capabilities.
Amendment 428 #
Proposal for a directive
Article 2 – paragraph 1 – point d
Article 2 – paragraph 1 – point d
(d) ‘producer’, in relation to goods, means the manufacturer of goodsa product, the importer of goods into the Union or, the producer of any raw material or the manufacturer of a component part, as well as any person purporting to be a producer by placing their name, trade mark or other distinctive sign on the goods;
Amendment 429 #
Proposal for a directive
Article 2 – paragraph 1 – point i
Article 2 – paragraph 1 – point i
(i) ‘free of charge’ means free of the necessaryusual costs incurred in order to bring the goods into conformity, particularly the cost of postage, labour and materials
Amendment 430 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
Amendment 431 #
Proposal for a directive
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) be delivsurrendered along with such accessories including packaging, installation instructions or other instructions as the consumer may expect to receive; and
Amendment 432 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. A repair or replacement shall be completed within a reasonable time, and in any event within 30 days from the moment the seller has acquired physical possession of the goods or the consumer has handed over the goods to the carrier chosen by the seller. Such repair or replacement shall be 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.