Activities of Klaus-Heiner LEHNE related to 2008/0196(COD)
Legal basis opinions (0)
Amendments (194)
Amendment 94 #
Proposal for a directive
Citation 1
Citation 1
Having regard to the Treaty establishon the Functioning of the European Community,Union and in particular Article 95114 thereof,
Amendment 95 #
Proposal for a directive
Citation 4
Citation 4
Acting in accordance with the procedure laid down in Article 251 of the Treaty3 ordinary legislative procedure,
Amendment 96 #
Proposal for a directive
Recital 3
Recital 3
(3) Article 15369(1) and (3)(a) of the Treatypoint (a) of Article 169(2) of the Treaty on the Functioning of the European Union (TFEU) provides that the CommunityUnion is to contribute to the attainment of a high level of consumer protection by the measures it adopts pursuant to Article 95114 thereof.
Amendment 97 #
Proposal for a directive
Recital 4
Recital 4
(4) In accordance with Article 14(2) of the Treaty26 TFEU, the internal market comprises an area without internal frontiers in which the free movement of goods and services and freedom of establishment are ensured. The harmonisation of certain aspects of consumer contract law is necessary for the promotion of a real consumer internal market striking the right balance between a high level of consumer protection and the competitiveness of enterprises, while ensuring the respect of the principle of subsidiarity.
Amendment 99 #
Proposal for a directive
Recital 6
Recital 6
(6) The laws of the Member States on consumer contracts show marked differences which can generate appreciable distortions of competition and obstacles to the smooth functioning of the internal market. The existing CommunityUnion legislation in the field of consumer contracts concluded at a distance or away from business premises, consumer goods and guarantees as well as unfair contract terms establishes minimum standards for harmonising legislation allowing the Member States the possibility to maintain or introduce more stringent measures which ensure a higher level of consumer protection in their territories. Furthermore, many issues are regulated inconsistently between directives or have been left open. These issues have been addressed differently by the Member States. As a result, the national provisions implementing directives on consumer contract law diverge significantly.
Amendment 100 #
Proposal for a directive
Recital 7
Recital 7
(7) These disparities create significant internal market barriers affecting business and consumers. They increase compliance costs to business wishing to engage in cross border sale of goods or provision of services. Fragmentation also undermines consumer confidence in the internal market. The negative effect on consumer confidence is strengthened by an uneven level of consumer protection across the CommunityUnion. This problem is particularly acute in the light of new market developments.
Amendment 101 #
Proposal for a directive
Recital 8
Recital 8
(8) Full harmonisation of some key regulatory aspects will considerably increase legal certainty for both consumers and business. Both consumers and business will be able to rely on a single regulatory framework based on clearly defined legal concepts regulating certain aspects of business-to-consumer contracts across the CommunityUnion. The effect will be to eliminate the barriers stemming from the fragmentation of the rules and to complete the internal market in this area. These barriers can only be eliminated by establishing uniform rules at CommunityUnion level. Furthermore consumers will enjoy a high common level of protection across the CommunityUnion.
Amendment 103 #
Proposal for a directive
Recital 9 a (new)
Recital 9 a (new)
(9a) This Directive should not affect national law in the area of general contract law, insofar as this is not harmonised in this Directive.
Amendment 104 #
Proposal for a directive
Recital 11
Recital 11
(11) The existing CommunityUnion legislation on consumer financial services contains numerous rules on consumer protection. For this reason the provisions of this Directive coverContracts related to the transfer of rights in immovable property or for the construction of immovable property, including the constraucts relating to financial services only insofar as thiion of annexes to immovable property, accommodation and transport services as well as healthcare and social services are subject to a number of specific requirements isn necessary to fillational legislation. For these regulatory gapsasons such contracts should be excluded from the scope of Chapter II.
Amendment 106 #
Proposal for a directive
Recital 12
Recital 12
(12) The new definition of distance contract should cover all cases where sales and service contracts are concludecontracts concerning the provision of a good or supply of a service are concluded without the simultaneous physical presence of the parties and using exclusively one or more means of distance communication (such as mail order, Internet, telephone or fax). This should create a level playing field for all distance traders. It should also improve legal certainty as compared to the current definition requiring the presence of an organised distance selling scheme run by the trader up to the conclusion of the contractbusinesses.
Amendment 107 #
Proposal for a directive
Recital 13
Recital 13
(13) The particular circumstances under which an offer was made or the contract was negotiated should not be relevant in the definition of a distance contract. The fact that the trader is an occasional distance seller or that hebusiness uses an organised scheme run by a third party such as an online platform, should not deprive consumers of their protection . Similarly, a transaction negotiated face to face between the traderbusiness and the consumer away from business premises should be a distance contract, if the contract has then been concluded through the exclusive use of means of distance communication, such as the Internet or telephone. For traderbusinesses, a simpler definition of a distance contract should improve legal certainty and protect them from unfair competition. (The change from trader to business applies throughout the text)
Amendment 108 #
Proposal for a directive
Recital 14
Recital 14
(14) An off-premises contract should be defined as a contract concluded with the simultaneous physical presence of the traderbusiness and the consumer, away from business premises, for example at the consumer's home or workplace. In an off- premises context, consumers are under psychological pressuretemporarily in a special situation which is different from the situation in a shop, e.g. from a psychological point of view and as regards the scope for comparing goods and prices, no matter whether they have solicited the trader'sbusiness' visit or not. Furthermore, in order to prevent circumventions of rules when consumers are approached away from business premises, a contract negotiated, for example at the consumer's home but concluded in a shop should be regarded as an off-premises contract. Member States should be able to establish, however, in their national legislation that the value of a contract not exceeding 60 EUR should be excluded from the scope of Chapter II as the information requirements would be disproportionate to the value of the contract. Contracts which, in accordance with the provisions of the Member States, are established by a public official, do not present a situation where the consumer is put under exceptional psychological pressure. Such contracts should be excluded from the scope of Chapter II.
Amendment 110 #
Proposal for a directive
Recital 16
Recital 16
(16) The definition of dDurable mediuma should include in particular documents on paper, USB sticks, CD-ROMs, DVDs, memory cards and the hard disk drives of the computer on which the electronic mail or a pdf file is storedfiles saved in unmodifiable form are stored. Internet sites as such should not be regarded as durable media.
Amendment 112 #
Proposal for a directive
Recital 17
Recital 17
(17) Consumers should be entitled to receive information in good time before the conclusion of the contract. However traders should not have to provide the information when already apparent from the context. For example in an on-premises transactisumer is bound by any distance or off-premises contract or offer. The business should always provide certain information, such as on, the main characteristics of a product, the identity of the trader and the arrangements for delivery may be apparent from the context. In distance and off-premises transactions, the trader should always provide the information onthe good or service or arrangements for payment, delivery, performance and the complaint handling policy, since these might not be apparent from the context.
Amendment 114 #
Proposal for a directive
Recital 20
Recital 20
Amendment 115 #
Proposal for a directive
Recital 22
Recital 22
(22) Since in the case of distance sales, the consumer is not able to see the good before concluding the contract he should have a right of withdrawal, which allowsing him to ascerta, until expiry of the withdrawal period, to determine the nature and ascertain the functioning of the goods.
Amendment 116 #
Proposal for a directive
Recital 22 a (new)
Recital 22 a (new)
(22a) The provisions regarding information and the right of withdrawal for distance sales should, due to the nature of those services, not apply when a consumer uses a public pay phone, pays to use an Internet connection or chooses a specific provider for one single telephone call, for instance by dialling a prefix, in contrast to what is the case for telephone or Internet subscriptions.
Amendment 117 #
Proposal for a directive
Recital 26
Recital 26
Amendment 118 #
Proposal for a directive
Recital 27
Recital 27
(27) If the traderbusiness has not informed the consumer on the right of withdrawal prior to the conclusion of a distance or off- premises contract, the withdrawal period should be extended. However, in order to ensure legal certainty over time, a three- monthone-year limitation period should be introduced, provided that the trader has fully performed his contractual obligations. The trader should be regarded as having fully performed his obligations when he has delivered the goods or has fully provided the services ordered by the consumer.
Amendment 119 #
Proposal for a directive
Recital 28
Recital 28
(28) Differences in the ways in which the right of withdrawal is exercised in the Member States have caused costs for businesses selling cross-border. The introduction of a harmonised standardmodel withdrawal form to be used by the consumer should simplify the withdrawal process and bring legal certainty. For these reasons, Member States should refrain from adding any presentational requirements to the CommunityUnion-wide standard form relating for example to the font size. By using the model instructions on withdrawal set out in Annex I(A) the business will also comply with the information requirements for distance and off-premises contracts.
Amendment 120 #
Proposal for a directive
Recital 30
Recital 30
(30) In case of withdrawal the traderbusiness should reimburse all payments received from the consumer, including those covering the expenses borne by the traderbusiness to deliver goods to the consumer, with the exception of payments for express deliveries at the express wish of the consumer.
Amendment 122 #
Proposal for a directive
Recital 33
Recital 33
(33) Certain exemptions should exist from the right of withdrawal, such as in cases where a right of withdrawal would be inappropriate given the nature of the product. That is applicable for example to wine supplied a long time after the conclusion of the contract of a speculative nature where the value is dependent on fluctuations in the market and exercising a right of withdrawal would unfairly disadvantage the business. That is applicable in particular to foodstuffs and other hygienically sensitive or perishable goods which by their nature cannot be re-sold after having been opened. Exemptions from the right of withdrawal should also exist for certain other goods and services where the value is dependent on fluctuations in the market, for example to wine supplied a long time after the conclusion of the contract of a speculative nature (vin en primeur) or commodities.
Amendment 123 #
Proposal for a directive
Recital 34
Recital 34
(34) Furthermore, in case of distance contracts for the provision of services, for which the performance begins during the withdrawal period (e.g. data files downloaded by the consumer during that period), it would be unfair to allow the consumer to withdraw after the service has been enjoyed by the consumer in full or in part. Therefore the consumer should lose his right of withdrawal when performance begins with his prior express agreementConsidering that the consumer when withdrawing from a service contract is not obliged to pay for the services supplied, certain service providers might prefer not to perform until the withdrawal period has expired to ensure being paid. Therefore a consumer should be able to request the supply of services before the end of the withdrawal period. He should retain the right to withdraw from the contract during the withdrawal period, but should be prepared to bear the costs for any services provided up to the point of withdrawal from the contract. Before the performance begins the trader should inform the consumer of any obligation to pay such costs.
Amendment 124 #
Proposal for a directive
Recital 36
Recital 36
(36) The application of a right of withdrawal may be inappropriate for certain services relating to accommodation, transport and leisure. The conclusion of the corresponding contracts implies the setting aside of capacity which, if a right of withdrawal was introduced, the traderbusiness may find difficult to fill. Therefore these distance and off-premises contracts should not be covered by the provisions on consumer information and the right of withdrawal.
Amendment 125 #
Proposal for a directive
Recital 37
Recital 37
(37) For the purpose of simplification and legal certainty, the right of withdrawal should apply to all types of distance and off-premises contracts, except under strictly defined circumstances which can easily be proved. Therefore, no right of withdrawal should apply for urgent repairs at the consumer's home for which such a right of withdrawal would be incompatible with the emergency situation as well as for supermarket home-delivery schemes which allow consumers to select food, drinks and other goods intended for current consumption in the household through the supermarket's website and have them delivered at their home. These are goods, which are inexpensive and bought regularly by consumers for their every day's consumption or everyday use in the household and should therefore not be subject to a right of withdrawal. The main difficulties encountered by consumers and the main source of disputes with traders are about delivery of goods, including goods getting lost or damaged during transport and late and partial delivery. Therefore it is appropriate to clarify and harmonise the national rules on delivery and passing of risk.
Amendment 126 #
Proposal for a directive
Recital 37 a (new)
Recital 37 a (new)
(37a) The main difficulties encountered by consumers and the main source of disputes with businesses are about delivery of goods, including goods getting lost or damaged during transport and late and partial delivery. Therefore it is appropriate to harmonise the national rules on delivery and passing of risk. However, the rules concerning the determination of the conditions for and the moment at which the ownership in the goods is transferred remain subject to national law.
Amendment 127 #
Proposal for a directive
Recital 37 b (new)
Recital 37 b (new)
(37b) Where the business has failed to fulfil its obligations to deliver, the consumer should call upon it, on a durable medium, to make the delivery and notify it of his intention to terminate the contract if delivery does not take place. The consumer can withdraw from the contract on expiry of that period if no action has been taken. Without prejudice to his rights to damages, the consumer should be entitled to a refund within seven days of withdrawal if payment has already been made.
Amendment 128 #
Proposal for a directive
Recital 38
Recital 38
(38) In the context of consumer sales, the delivery of goods can take place in various ways. Only a rule which may be freely derogated from will allow the necessary flexibility to take into account those variations. The consumer should be protected against any risk of loss or damage of the goods occurring during the transport arranged or carried out by the traderbusiness. The rule introduced on the passing of risk should not apply where the consumer unduly delays taking possessionover of the goods (for example, when the goods are not collected by the consumer from the post-office within the deadline fixed by the latter). In those circumstances, the consumer should bear the risk of loss or deterioration after the time of delivery as agreed with the traderbusiness. A consumer should be considered to have taken over the good when he has received it or has access to it.
Amendment 130 #
Proposal for a directive
Recital 44
Recital 44
(44) Some traderbusinesses or producers offer consumers commercial guarantees. In order to ensure that consumers are not misled, the commercial guarantees should include certain information, including their duration, territorial scope and a statement that the commercial guarantee does not affect the consumer's legal rights. A commercial guarantee shall be drafted in the same language in which the goods were offered.
Amendment 131 #
Proposal for a directive
Recital 46
Recital 46
(46) Provisions on unfair contract terms should not apply to contract terms, which directly or indirectly reflect mandatory statutory or, regulatory or public policy provisions of the Member States which comply with CommunityUnion law. Similarly terms which reflect the principles or provisions of international conventions to which the CommunityUnion or the Member States are party, particularly in the transport area, should not be subject to the unfairness test.
Amendment 132 #
Proposal for a directive
Recital 47
Recital 47
(47) Consumer contract terms should be drafted in plain, intelligible language and be legible. Traders should be free to choose the font type or size in which the contract terms are drafted. The consumer should be given an opportunity to read the terms before concluding the contract. This opportunity could be given to the consumer by providing him with the terms on request (for on-premises contracts) or making those terms otherwise available (e.g. on the traderbusiness's website in respect of distance contracts) or attaching standard terms to the order form (in respect of off-premises contracts). The traderbusiness should seek the consumer's express consent to any payment in addition to the remuneration for the traderbusiness's main contractual obligation. Inferring consent by using opt-out systems, such as pre-ticked boxes online should be prohibited.
Amendment 133 #
Proposal for a directive
Recital 47 a (new)
Recital 47 a (new)
Amendment 135 #
Proposal for a directive
Recital 50
Recital 50
(50) In order to ensure legal certainty and improve the functioning of the internal market, the Directive should contain two lists of unfair terms. Annex II contains a list of terms which should in all circumstances be considered unfair. Annex III contains a list of terms which should be deemed unfair unless the traderbusiness proves otherwise. These same lists should apply in all Member States. Member States should be able to adopt or retain provisions compatible with the TFEU that complete these lists with additional terms.
Amendment 137 #
Proposal for a directive
Recital 51
Recital 51
Amendment 138 #
Proposal for a directive
Recital 52
Recital 52
Amendment 139 #
Proposal for a directive
Recital 53
Recital 53
Amendment 141 #
Proposal for a directive
Recital 63
Recital 63
Amendment 144 #
Proposal for a directive
Recital 65
Recital 65
(65) Since the objectives of this Directive cannot be sufficiently achieved by the Member States and can therefore be better achieved at CommunityUnion level, the CommunityUnion may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. 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 eliminate the internal market barriers and achieve a high common level of consumer protection.
Amendment 145 #
Proposal for a directive
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
(1) "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;
Amendment 146 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
(2) "traderbusiness' means any natural or legal person who, irrespective of whether it is publicly or privately owned, which, in contracts covered by this Directive, is acting for purposes relating to hithat person's trade, business, craft or profession and anyone acting in the name of or on behalf of a traderbusiness, even if the person does not intend to make a profit in the course of the activity;
Amendment 147 #
Proposal for a directive
Article 2 – paragraph 1 – point 3
Article 2 – paragraph 1 – point 3
(3) "sales contract' means any contract for the sale of goods by the traderunder which a business in accordance with the applicable national law transfers ownership of the goods to thea consumer including any mixed-purpose contract having as its object both goods and serveither immediately upon conclusion of the contract or at a point in the future, and under which the consumer undertakes to pay the prices;
Amendment 149 #
Proposal for a directive
Article 2 – paragraph 1 – point 4 a (new)
Article 2 – paragraph 1 – point 4 a (new)
(4a) 'good made to the customer's specifications' means any non- prefabricated good made on the basis of an individual choice or decision by the consumer;
Amendment 150 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
(5) "service contract' means any contract other than a sales contract whereby a service is provided by the trader to the consumerunder which a business undertakes to supply a service to the consumer in exchange for a price;
Amendment 151 #
Proposal for a directive
Article 2 – paragraph 1 – point 5 a (new)
Article 2 – paragraph 1 – point 5 a (new)
(5a) 'mixed purpose contract' means any contract containing both parts on the supply of services and parts on the delivery of goods;
Amendment 152 #
Proposal for a directive
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
(6) "distance contract' means any sales or service contract where the trader, for the conclusion of the contractcontract for the provision of a good or supply of a service concluded between a business and a consumer under an organised distance sales or service-provision scheme where the business and the consumer, for the conclusion of the contract, are not simultaneously physically present, but, rather, makes exclusive use of one or more means of distance communication;
Amendment 154 #
Proposal for a directive
Article 2 – paragraph 1 – point 7
Article 2 – paragraph 1 – point 7
Amendment 155 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 – introductory part
Article 2 – paragraph 1 – point 8 – introductory part
(8) "off-premises contract' means any contract between a business and a consumer for the provision of a good or supply of a service:
Amendment 156 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 –point a
Article 2 – paragraph 1 – point 8 –point a
(a) any sales or service contractwhich is concluded away from business premises with the simultaneous physical presence of the trader and the consumer or any sales or service contract for which an offer was made by the consumer in the same circumstancesbusiness and the consumer, or
Amendment 157 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 –point a a (new)
Article 2 – paragraph 1 – point 8 –point a a (new)
(aa) for which an offer was made by the consumer with the simultaneous physical presence of the business and the consumer away from business premises, or
Amendment 158 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 –point b
Article 2 – paragraph 1 – point 8 –point b
(b) any sales or service contractwhich is concluded on business premises but negotiatwhose main components have been determined away from business premises, with the simultaneous physical presence of the traderbusiness and the consumer.
Amendment 159 #
Proposal for a directive
Article 2 – paragraph 1 – point 11
Article 2 – paragraph 1 – point 11
Amendment 160 #
Proposal for a directive
Article 2 – paragraph 1 – point 12
Article 2 – paragraph 1 – point 12
Amendment 161 #
Proposal for a directive
Article 2 – paragraph 1 – point 14
Article 2 – paragraph 1 – point 14
Amendment 162 #
Proposal for a directive
Article 2 – paragraph 1 – point 15
Article 2 – paragraph 1 – point 15
Amendment 163 #
Proposal for a directive
Article 2 – paragraph 1 – point 16
Article 2 – paragraph 1 – point 16
(16) 'public auction' means a method of sale where goods are or a service is offered by the traderbusiness to consumers, who attend or are given the possibility to attend the auction in person, through a competitive bidding procedure run by an auctioneer and where the highest bidder is bound to purchase the goodsduring an event which is physically accessible to the public, through a competitive bidding procedure run by an a third party (the auctioneer) for pecuniary consideration; in an ascending price auction, the good or service goes to the consumer making the highest bid; in a descending price auction, the good or service goes to the consumer who is first to agree immediately to purchase the good or service for the asking price;
Amendment 164 #
Proposal for a directive
Article 2 – paragraph 1 – point 17
Article 2 – paragraph 1 – point 17
(17) '"producer' means the manufacturer of goods, the importer of goods into the territory of the CommunityUnion or any person purporting to be a producer by placing his name, trade mark or other distinctive sign on the goods;
Amendment 165 #
Proposal for a directive
Article 2 – paragraph 1 – point 18
Article 2 – paragraph 1 – point 18
(18) 'commercial guarantee' means any undertaking by the traderbusiness or producer (the 'guarantor') to the consumer, in addition to discharging its legal obligations, to reimburse the price paid or to replace, repair or service goods in any way if they do not meet the specifications set out in the guarantee statement or in the relevant advertising available at the time of, or before the conclusion of the contract;
Amendment 166 #
Proposal for a directive
Article 2 – paragraph 1 – point 19
Article 2 – paragraph 1 – point 19
Amendment 167 #
Proposal for a directive
Article 2 – paragraph 1 – point 20
Article 2 – paragraph 1 – point 20
(20) 'ancillarylinked contract' means a contract by which the consumer acquires goods or services related toand which forms a single commercial transaction with a distance contract or an off-premises contract and these goods or services are provided by the traderbusiness or a third party on the basis of an arrangement between that third party and the trader. business. A single commercial transaction exists where the good or service covered by the linked contract serves to perform the other contract or is intended for use of the good or service covered by the other contract.
Amendment 168 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. This Directive shall apply, under the conditions and to the extent set out in its provisions, to sales and service contracts concluded between the traderbusiness and the consumer.
Amendment 169 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
Amendment 170 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
Amendment 171 #
Proposal for a directive
Article 3 – paragraph 4
Article 3 – paragraph 4
Amendment 175 #
Proposal for a directive
Article 4
Article 4
Member States may not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions to ensure a different level of consumer protection unless otherwise provided in this directive.
Amendment 176 #
Proposal for a directive
Chapter 2 – title
Chapter 2 – title
Consumer information and right of withdrawal for distance and off-premises contracts
Amendment 177 #
Proposal for a directive
Article 4 a (new)
Article 4 a (new)
Amendment 178 #
Proposal for a directive
Article 5 – title
Article 5 – title
Amendment 179 #
Proposal for a directive
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
1. Prior to the conclusion of any sales or service contract, the traderIn good time before the consumer is bound by any distance or off-premises contract or offer, the business or any person acting in his name or on his behalf shall provide the consumer with the following information, if not already apparent from the contextn a clear and intelligible manner:
Amendment 180 #
Proposal for a directive
Article 5 – paragraph 1 – point a
Article 5 – paragraph 1 – point a
(a) the main characteristics of the productgood or service, to an extent appropriate to the medium and the productgood or service;
Amendment 181 #
Proposal for a directive
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) the geographical address and the identity of the traderbusiness, such as hits trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;
Amendment 182 #
Proposal for a directive
Article 5 – paragraph 1 – point b a (new)
Article 5 – paragraph 1 – point b a (new)
(ba) the business address of the business as well as its telephone and fax number and e-mail address, where available, to enable the consumer to contact the business quickly and communicate with it efficiently;
Amendment 183 #
Proposal for a directive
Article 5 – paragraph 1 – point d
Article 5 – paragraph 1 – point d
(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;
Amendment 186 #
Proposal for a directive
Article 5 – paragraph 1 – point e
Article 5 – paragraph 1 – point e
(e) the existence of a right of withdrawal, where applicablein so far as a right of withdrawal, where applicable, exists, the conditions, period and procedure for exercising that right; for this purpose, the business may use the model instructions on withdrawal and the model withdrawal form set out in Annex I(A) and I(B) respectively or any other clearly worded statement;
Amendment 187 #
Proposal for a directive
Article 5 – paragraph 1 – point e a (new)
Article 5 – paragraph 1 – point e a (new)
(ea) where a right of withdrawal does not apply in accordance with Article 19(1) that the consumer will not benefit from a right of withdrawal;
Amendment 188 #
Proposal for a directive
Article 5 – paragraph 1 – point h
Article 5 – paragraph 1 – point h
Amendment 190 #
Proposal for a directive
Article 5 – paragraph 1 – point i a (new)
Article 5 – paragraph 1 – point i a (new)
(ia) the possibility of having recourse to an amicable dispute settlement, where applicable;
Amendment 191 #
Proposal for a directive
Article 5 – paragraph 1 – point i b (new)
Article 5 – paragraph 1 – point i b (new)
(ib) the obligation of the consumer for payment in accordance with Article 17(3) where performance of services has begun during the withdrawal period with the consumer's prior express consent, where applicable;
Amendment 192 #
Proposal for a directive
Article 5 – paragraph 1 – point i c (new)
Article 5 – paragraph 1 – point i c (new)
(ic) the existence of codes of conduct and how they can be obtained, where applicable;
Amendment 193 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. In the case of a public auction, the information in points (a) and (b) of paragraph 1(b) may be replaced by the geographical address and the identity ofequivalent details for the auctioneer.
Amendment 194 #
Proposal for a directive
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
2a. Member States shall not provide for any other formal requirements applicable to the model instructions on withdrawal in Annex I(A).
Amendment 195 #
Proposal for a directive
Article 5 – paragraph 2 b (new)
Article 5 – paragraph 2 b (new)
2b. If the business uses the model instructions on withdrawal in Annex I(A) it will comply with the information requirements for distance and off- premises contracts in paragraph 1(e).
Amendment 196 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
3. The information referred to in paragraph 1 shall form an integral part of the sales or service distance or off-premises contract.
Amendment 197 #
Proposal for a directive
Article 5 – paragraph 3 a (new)
Article 5 – paragraph 3 a (new)
3a. Should the provisions of this Article run counter to other legislative provisions of the Union which regulate special contracts, the latter provisions shall take precedence and shall govern those special contracts.
Amendment 198 #
Proposal for a directive
Article 5 – paragraph 3 b (new)
Article 5 – paragraph 3 b (new)
3b. The business bears the burden of proof that is has provided the information required by this article.
Amendment 199 #
Proposal for a directive
Article 5 – paragraph 3 c (new)
Article 5 – paragraph 3 c (new)
3c. Article 5 shall be without prejudice to the provisions concerning information requirements contained in Directive 2006/123/EC of the European Parliament and of the Council[1] and Directive 2000/31/EC of the European Parliament and of the Council[2]. [1] OJ L 376, 27.12.2006, p. 36. [2] OJ L 178, 17.7.2000, p. 1.
Amendment 200 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
2. Without prejudice to Articles 7(2), 13 and 42, the consequences of any breach of Article 5, shall be determined in accordance with the applicable national law. Member States shall provide in their national laws for effective contract law remedies for any breach of Article 5.
Amendment 202 #
Proposal for a directive
Article 7
Article 7
Amendment 203 #
Proposal for a directive
Chapter III – title
Chapter III – title
Amendment 204 #
Proposal for a directive
Article 8
Article 8
Amendment 205 #
Proposal for a directive
Article 9
Article 9
Amendment 207 #
Proposal for a directive
Article 10 – title
Article 10 – title
Formal rules for compliance with information requirements for off-premises contracts
Amendment 208 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. With respect to off-premises contracts, the information provided for in Article 95 shall be given in the order form in plain and intelligible language and be legible. The order form shall include the standard withdrawal form set out in Annex I(B). good time before the consumer if bound by any contract or offer, in so far as this appears appropriate in view of the nature of the contract, in the contract document or on another durable medium in plain and intelligible language and be legible.
Amendment 209 #
Proposal for a directive
Article 10 – paragraph 2
Article 10 – paragraph 2
Amendment 211 #
Proposal for a directive
Article 10 – paragraph 3
Article 10 – paragraph 3
3. Member States shall not impose any formpre- contractual requirements other than those provided for in paragraphs 1 and 2Article 5(1).
Amendment 212 #
Proposal for a directive
Article 11 – title
Article 11 – title
Formal rules for compliance with information requirements for distance contracts
Amendment 214 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
1. With respect to distance contracts, the information provided for in Article 9(a)5 shall be given or made available to the consumer prior to the conclusion of the contractin good time before the consumer if bound by any contract or offer, in plain and intelligible language and be legible, in a way appropriate to the means of distance communication used.
Amendment 218 #
Proposal for a directive
Article 11 – paragraph 3
Article 11 – paragraph 3
3. If the contract is concluded through a medium which allows limited space or time to display the information, the traderbusiness shall provide at least the information regarding the main characteristics of the product and the total price referred to in Articles 5(1)(a) and (c) on that particular medium prior to the conclusion of such a contract. The other information referred to in Articles 5 and 7 shall be provided by the traderbusiness to the consumer in an appropriate way in accordance with paragraph 1.
Amendment 219 #
Proposal for a directive
Article 11 – paragraph 3 a (new)
Article 11 – paragraph 3 a (new)
3a. If a distance contract concluded on the internet places the consumer under an obligation to make a payment, the consumer shall only be bound by the contract if the business (a) indicates clearly and prominently the total price including all price components and (b) designs its internet presentation in a manner that a binding order is only possible after the consumer has confirmed recognition of the indication required in item (a).
Amendment 221 #
Proposal for a directive
Article 11 – paragraph 4
Article 11 – paragraph 4
4. The consumer shall receive confirmation of all the information referred to in Article 9(a) to (f)5, on a durable medium, in reasonable time after the conclusion of any distance contract, and at the latest at the time of the delivery of the goods or when the performance of the service has begun, unless the information has already been given to the consumer prior to the conclusion of any distance contract on a durable medium.
Amendment 224 #
Proposal for a directive
Article 11 – paragraph 5
Article 11 – paragraph 5
5. Member States shall not impose any formpre- contractual requirements other than those provided for in paragraphs 1 to 4Article 5(1).
Amendment 226 #
Proposal for a directive
Article 12 – paragraph 1 a (new)
Article 12 – paragraph 1 a (new)
1a. Unless provided otherwise, the withdrawal period shall begin from the day of the conclusion of the contract or on the day on which the consumer receives a copy of the signed contract on a durable medium, if this is not the day of the conclusion of the contract.
Amendment 230 #
Proposal for a directive
Article 12 – paragraph 2 – subparagraph 1
Article 12 – paragraph 2 – subparagraph 1
Amendment 232 #
Proposal for a directive
Article 12 – paragraph 2 – subparagraph 2
Article 12 – paragraph 2 – subparagraph 2
In the case of a distance or off-premises contract for the saleupply of goods, the withdrawal period shall begin from the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires the material possession of each oftakes over the goods ordered.
Amendment 234 #
Proposal for a directive
Article 12 – paragraph 2 – subparagraph 3
Article 12 – paragraph 2 – subparagraph 3
In the case of a distance contract for the provision of servicethe recurring supply of identical goods, the withdrawal period shall begin from the day ofn which the conclusion of the contracsumer or a third party other than the carrier takes over the goods delivered first.
Amendment 242 #
Proposal for a directive
Article 13
Article 13
If the traderbusiness has not provided the consumer with the information on the right of withdrawal in breach of Articles 9(b5(1)(e), 10(1) and 11(4), the withdrawal period shall expire three months after the trader has fully performed his other contractual obligationsone year from the day referred to in Article 12 (1a), and (2).
Amendment 243 #
Proposal for a directive
Article 13 – paragraph 1 a (new)
Article 13 – paragraph 1 a (new)
1a. If the business has provided the consumer with the information on the right of withdrawal within one year from the day referred to in Article 12 (1a), and (2), the withdrawal period shall expire after one month from the day where the consumer receives the information.
Amendment 244 #
Proposal for a directive
Article 14 – paragraph 1 – subparagraph 1
Article 14 – paragraph 1 – subparagraph 1
Amendment 245 #
Proposal for a directive
Article 14 – paragraph 1 – subparagraph 2
Article 14 – paragraph 1 – subparagraph 2
Member States shall not provide for any other formal requirements applicable to this standardmodel withdrawal form.
Amendment 246 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. For distance contracts concluded on the Internet, the traderbusiness may, in addition to the possibilities referred to in paragraph 1, give the option to the consumer either to email the model withdrawal form in Annex I(B) or any other withdrawal statement or to electronically fill in and submit the standard withdrawal form on the trader'sform on a website. In thate latter case the traderbusiness shall communicate to the consumer an acknowledgement of receipt of such a withdrawal by email without delay.
Amendment 247 #
Proposal for a directive
Article 15 – paragraph 1 – point b
Article 15 – paragraph 1 – point b
(b) to conclude an distance or off-premises contract, in cases where an offer was made by the consumer.
Amendment 248 #
Proposal for a directive
Article 16 – title
Article 16 – title
Amendment 249 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. The traderbusiness shall reimburse any payment received from the consumer within thirtyfourteen days from the day on which he receives the communication of withdrawal.
Amendment 250 #
Proposal for a directive
Article 16 – paragraph 1 a (new)
Article 16 – paragraph 1 a (new)
1a. If the consumer has expressly opted for a type of delivery other than a standard delivery, the business shall not be required to reimburse the resulting additional costs.
Amendment 252 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. For sales contracts, the traderdistance and off-premises contracts for the supply of goods, the business may withhold the reimbursement until heit has received or collected the goods back, or the consumer has supplied evidence of having sent back the goods, whichever is the earliest.
Amendment 253 #
Proposal for a directive
Article 17 – title
Article 17 – title
Obligations of the consumer to return goods in case of withdrawal
Amendment 255 #
Proposal for a directive
Article 17 – paragraph 1 – subparagraph 1
Article 17 – paragraph 1 – subparagraph 1
For sales contracts for which the material possession of the goods has been transferred to thdistance and off-premises contracts for the supply of goods where consumer or at his request, to a third party has taken over the goods before the expiration of the withdrawal period, the consumer shall send back the goods or hand them over to the traderbusiness or to a person authorised by the traderbusiness to receive them, within fourteen days from the day on which he communicates his withdrawal to the traderbusiness, unless the traderbusiness has offered to collect the goods himitself.
Amendment 257 #
Proposal for a directive
Article 17 – paragraph 1 – subparagraph 2
Article 17 – paragraph 1 – subparagraph 2
The consumer shall only be charged for the direct cost of returning the goods unless the trader has agreed to bear that cost. He shall not be charged for that cost if the business has agreed to bear it or the price of the goods to be returned is more than EUR 50.
Amendment 259 #
Proposal for a directive
Article 17 – paragraph 2
Article 17 – paragraph 2
2. The consumer shall only be liable for any diminished value of the goods resulting from the handling other than what is necessary to ascertain the nature and functioning of the goods. He shall not be liable for diminished value where the traderbusiness has failed to provide notice of the withdrawal right in accordance with Article 9(b). For service contracts subject to a right of withdrawal, the consumer shall bear no cost for services performed, in full or in part, during the withdrawal period(5)(1)(e).
Amendment 261 #
Proposal for a directive
Article 17 – paragraph 2 a (new)
Article 17 – paragraph 2 a (new)
2a. For service contracts the consumer shall bear the costs for services supplied, in full or in part, during the withdrawal period where the business provided the information in accordance with Article 5(1)(k) and where performance of services has begun during the withdrawal period with the consumer's prior express consent.
Amendment 262 #
Proposal for a directive
Article 18 – title
Article 18 – title
Effects of the exercise of the right of withdrawal on ancillarylinked contracts
Amendment 263 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
1. Without prejudice to Article 15 of Directive 2008/48/EC, if the consumer exercises his right of withdrawal from a distance or an off-premises contract in accordance with Articles 12 to 17, any ancillarylinked contracts shall be automatically terminated, without any costs for the consumer which are not provided for in this Directive.
Amendment 264 #
Proposal for a directive
Article 19 – paragraph 1 – introductory part
Article 19 – paragraph 1 – introductory part
1. In respect of distance and off-premises contracts, the right of withdrawal shall not apply as regards the following:
Amendment 265 #
Proposal for a directive
Article 19 – paragraph 1 – point a
Article 19 – paragraph 1 – point a
Amendment 268 #
Proposal for a directive
Article 19 – paragraph 1 – point b
Article 19 – paragraph 1 – point b
(b) the supply of goods or services for which the price is dependent on fluctuations in the financial market which cannot be controlled by the traderbusiness and which may occur within the withdrawal period;
Amendment 270 #
Proposal for a directive
Article 19 – paragraph 1 – point c a (new)
Article 19 – paragraph 1 – point c a (new)
(ca) the supply of foodstuffs, beverages or other hygienically sensitive goods whose packaging or sealing has already been opened by the consumer;
Amendment 271 #
Proposal for a directive
Article 19 – paragraph 1 – point c b (new)
Article 19 – paragraph 1 – point c b (new)
(cb) contracts for which the consumer, in order to respond to an immediate emergency, has requested the immediate performance of the contract by the business; if, on this occasion, the business supplies or sells additional services or goods other than those which are strictly necessary to meet the immediate emergency of the consumer, the right of withdrawal shall apply to those additional services or goods;
Amendment 272 #
Proposal for a directive
Article 19 – paragraph 1 – point c c (new)
Article 19 – paragraph 1 – point c c (new)
(cc) contracts for which the consumer has specifically requested the business to visit him at home for the purpose of carrying out repairs or maintenance; if on this occasion, the business supplies services in addition to those specifically requested by the consumer or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the right of withdrawal shall apply to those additional services or goods;
Amendment 273 #
Proposal for a directive
Article 19 – paragraph 1 – point d
Article 19 – paragraph 1 – point d
(d) the supply of wine, the price of which has been agreed upon at the time of the conclusion of the sales contract, the delivery of which can only take place beyond the time- limit referred to in Article 22(1) and the actual value of which is dependent on fluctuations in the market which cannot be controlled by the traderbusiness;
Amendment 274 #
Proposal for a directive
Article 19 – paragraph 1 – point e
Article 19 – paragraph 1 – point e
(e) the supply of sealed audio or video recordings or sealed computer software which were unsealed by the consumer;
Amendment 276 #
Proposal for a directive
Article 19 – paragraph 1 – point g
Article 19 – paragraph 1 – point g
Amendment 279 #
Proposal for a directive
Article 19 – paragraph 1 – point h
Article 19 – paragraph 1 – point h
(h) contracts concluded at an public auction.
Amendment 281 #
Proposal for a directive
Article 19 – paragraph 2
Article 19 – paragraph 2
Amendment 282 #
Proposal for a directive
Article 19 – paragraph 3
Article 19 – paragraph 3
3. The parties may agree not to apply paragraphs 1 and 2.
Amendment 283 #
Proposal for a directive
Article 20
Article 20
Amendment 285 #
Proposal for a directive
Article 21 – paragraph 4
Article 21 – paragraph 4
Amendment 288 #
Proposal for a directive
Article 22 – paragraph 1
Article 22 – paragraph 1
1. Unless the parties have agreed otherwise, the traderbusiness shall deliver the goods by transferring the material possession ofmaking the goods available to the consumer or to a third party, other than the carrier and indicated by the consumer, within a maximum ofreasonable time which in any event shall not be more than thirty days from the day of the conclusion of the contract.
Amendment 293 #
Proposal for a directive
Article 22 – paragraph 2
Article 22 – paragraph 2
2. Where the traderIf the business has failed to fulfil hits obligations to deliver in time, the consumer shall be entitled to a refund of any sums paid within seven days from the date of delivery provided for in paragraph 1may call upon it, on a durable medium, to make the delivery within a period appropriate to the circumstances, and notify it of his intention to withdraw from the contract if delivery does not take place. If, upon expiry of that period, no action has been taken, the consumer can terminate the contract. A consumer who has already paid the price shall be entitled to a refund of any sums paid within seven days from the date on which he terminated the contract. This shall be without prejudice to the rights of the consumer to claim damages in accordance with national law.
Amendment 298 #
Proposal for a directive
Article 23 – paragraph 1
Article 23 – paragraph 1
1. The risk of loss of or damage to the goods shall pass to the consumer when he or a third party, other than the carrier and indicated by the consumer has acquired the material possession oftaken over the goods.
Amendment 299 #
Proposal for a directive
Article 23 – paragraph 2
Article 23 – paragraph 2
2. The risk referred to in paragraph 1 shall pass to the consumer atfrom the time of delivery as agreed by the parties,when the goods should have been taken over if the consumer or a third party, other than the carrier and indicated by the consumer has failed to take reasonable steps to acquire the material possession of the goodsperform the obligation to take over the goods and the non-performance is not excused due to an impediment.
Amendment 300 #
Proposal for a directive
Article 23 – paragraph 2 a (new)
Article 23 – paragraph 2 a (new)
2a. The parties may not, to the detriment of the consumer, exclude the application of this Article, derogate from it or vary its effects.
Amendment 301 #
Proposal for a directive
Article 24 – paragraph 1
Article 24 – paragraph 1
1. The traderbusiness shall deliver the goods to the consumer in conformity with the sales contract.
Amendment 304 #
Proposal for a directive
Article 24 – paragraph 2 – introductory part
Article 24 – paragraph 2 – introductory part
2. Delivered goods shall be presumed to be in conformity with the sales contract if they satisfy the following conditions:
Amendment 307 #
Proposal for a directive
Article 24 – paragraph 2 – point c
Article 24 – paragraph 2 – point c
(c) they are fit for the purposes for which goods of the same type are normally used orand
Amendment 312 #
Proposal for a directive
Article 24 – paragraph 3
Article 24 – paragraph 3
3. There shall be no lack of conformity for the purposes of this Article ifwhere, at the time the contract was concluded, the consumer was aware, or should reasonably have been aware of, the lack of conformity, or ifwhere the lack of conformity has its origin in materials supplied by the consumer.
Amendment 313 #
Proposal for a directive
Article 24 – paragraph 4 – introductory part
Article 24 – paragraph 4 – introductory part
4. The traderbusiness shall not be bound by public statements, as referred to in paragraph 2(d) if he shows thatwhere one of the following situations existed:
Amendment 316 #
Proposal for a directive
Article 24 – paragraph 4 – point b
Article 24 – paragraph 4 – point b
(b) by the time of conclusion of the contract the statement had been corrected and the consumer had the opportunity to become aware of the correction;
Amendment 317 #
Proposal for a directive
Article 24 – paragraph 5
Article 24 – paragraph 5
5. Any lack of conformity resulting from the incorrect installation of the goods shall be considered as a lack of conformity of the goods where the installation forms part of the sales contract and the goods were installed by the traderbusiness or under hits responsibility. The same shall apply equally if the goods, intended to be installed by the consumer, are installed by the consumer and the incorrect installation is due to a shortcoming in the installation instructions.
Amendment 319 #
Proposal for a directive
Article 26 – paragraph 1 – introductory part
Article 26 – paragraph 1 – introductory part
1. AUnder the conditions provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer ishall be entitled to:
Amendment 322 #
Proposal for a directive
Article 26 – paragraph 1 – point b
Article 26 – paragraph 1 – point b
(b) have the price reduced, or
Amendment 326 #
Proposal for a directive
Article 26 – paragraph 3 – subparagraph 1
Article 26 – paragraph 3 – subparagraph 1
3. Where the traderbusiness has proved that remedying the lack of conformity by repair or replacement is unlawful, impossible or would cause the trader business a disproportionate effort, the consumer may choose to have the price reduced or the contract rescinded. A trader'sbusiness' effort is disproportionate if where it imposes costs on himit which, in comparison with the price reduction or the rescission of the contract, are excessive, taking into account the value of the goods ifwhere there was no lack of conformity and the significance of the lack of conformity.
Amendment 327 #
Proposal for a directive
Article 26 – paragraph 3 – subparagraph 2
Article 26 – paragraph 3 – subparagraph 2
Amendment 334 #
Proposal for a directive
Article 26 – paragraph 4 – point d
Article 26 – paragraph 4 – point d
(d) after repair the same defect has reappeared more than once within a short period of time.
Amendment 337 #
Proposal for a directive
Article 26 – paragraph 5
Article 26 – paragraph 5
5. The significant inconvenience for the consumer and the reasonable time needed for the traderbusiness to remedy the lack of conformity shall be assessed taking into account the nature of the goods orand the purpose for which the consumer acquired the goods as provided for by Article 24(2)(b).
Amendment 340 #
Proposal for a directive
Article 26 – paragraph 5 a (new)
Article 26 – paragraph 5 a (new)
5a. The consumer may only rescind the contract if the lack of conformity is not minor.
Amendment 342 #
Proposal for a directive
Article 26 – paragraph 5 b (new)
Article 26 – paragraph 5 b (new)
5b. In addition to the remedies set out in paragraph 1, Member States may entitle the consumer to terminate the contract during a period of thirty days from the time the risk passed to the consumer, where the lack of conformity is not minor. The burden of proof is incumbent on the business. Member States shall notify the provisions to the Commission which shall make this information public in an easily accessible way.
Amendment 343 #
Proposal for a directive
Article 27 – paragraph 2
Article 27 – paragraph 2
2. Without prejudice to the provisions of this Chapter, the consumer may claim damages provided for by national law for any loss not remedied in accordance with Article 26.
Amendment 346 #
Proposal for a directive
Article 28 – paragraph 1 a (new)
Article 28 – paragraph 1 a (new)
1a. Member States may extend the time limit up to 6 years for all goods or certain goods or where a significant lack of conformity becomes apparent after the period referred to in paragraph 1. Member States shall notify the corresponding provision to the Commission which shall make this information public in an easily accessible way.
Amendment 348 #
Proposal for a directive
Article 28 – paragraph 2
Article 28 – paragraph 2
2. When the traderbusiness has remedied the lack of conformity by replacement, heit shall be held liable under Article 25 where the lack of conformity becomes apparent within two years as from the time the consumer or a third party indicated by the consumer has acquired the material possession oftaken over the replaced goods.
Amendment 358 #
Proposal for a directive
Article 29 – paragraph 2 – introductory part
Article 29 – paragraph 2 – introductory part
2. The guarantee statement shall be drafted in plain intelligible language and be legible. It shall also be drafted in the same language in which the goods were offered and, if not otherwise provided in the guarantee statement, shall be binding on the guarantor in favour of every owner of the goods within the duration of the guarantee. It shall include the following:
Amendment 359 #
Proposal for a directive
Article 29 – paragraph 2 – point a
Article 29 – paragraph 2 – point a
(a) legal rights of the consumer, as provided for in Article 26 and Article 28 and a clear statement that those rights are not affected by the commercial guarantee,
Amendment 360 #
Proposal for a directive
Article 29 – paragraph 2 – point b
Article 29 – paragraph 2 – point b
(b) set the contents of the commercial guarantee and the conditions for making claims, notably the duration, territorial scope and the name and address of the guarantor, the name and address of the guarantor and the name and address of the person to whom any notification is to be made and the procedure by which the notification is to be made,
Amendment 363 #
Proposal for a directive
Article 29 – paragraph 2 – point c
Article 29 – paragraph 2 – point c
(c) without prejudice to Articles 32 and 35 and Annex III(1)(j), set out, where applicable, that the commercial guarantee cannot be transferred to a subsequent buyowner.
Amendment 364 #
Proposal for a directive
Article 29 – paragraph 3
Article 29 – paragraph 3
3. If the consumer so requests, the traderThe business shall make the guarantee statement available in a durable medium. If this obligation is not observed the guarantee holder may require the guarantor to provide the guarantee statement which conforms with the requirements in paragraph 2.
Amendment 366 #
Proposal for a directive
Article 30 – paragraph 1
Article 30 – paragraph 1
1. This Chapter shall apply to contract terms drafted in advance by the traderbusiness or a third party, which the consumer agreed to without having the possibility ofhave not been individually negotiated. A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influencinge their content substance of the term, in particular where such contract terms are is part of a pre-formulated standard contract.
Amendment 367 #
Proposal for a directive
Article 30 – paragraph 2
Article 30 – paragraph 2
2. The fact that the consumer had the possibility of influencing the content of certain aspects of a contract term or one specific term have been individually negotiated, shall not exclude the application of this Chapter to other contract terms which form part of the contract..
Amendment 369 #
Proposal for a directive
Article 30 – paragraph 3
Article 30 – paragraph 3
3. This Chapter shall not apply to contract terms reflecting mandatory statutory or, regulatory or ordre public provisions, which comply with CommunityUnion law and the provisions or principles of international conventions to which the CommunityUnion or the Member States are party.
Amendment 378 #
Proposal for a directive
Article 31 – paragraph 4
Article 31 – paragraph 4
4. Member States shall refrain from imposing any presentational requirements as to the way the contract terms are expressed or made available to the consumerrequirements on the presentation of contract terms, except for presentational requirements in relation to persons with disabilities.
Amendment 382 #
Proposal for a directive
Article 32 – paragraph 2
Article 32 – paragraph 2
2. Without prejudice to Articles 34 and 38, the unfairness of a contract term shall be assessed, taking into account the nature of the products for which the contract was concluded and by referring, at the time of the conclusion of the contract, to all the circumstances attending the conclusion and to all the other terms of the contract or of another contract on which the former is dependent. When assessing the fairness of a contract term, the competent national authority shall also take into account the manner in which the contract was drafted and communicated to the consumer by the trader in accordance with Article 31.
Amendment 383 #
Proposal for a directive
Article 32 – paragraph 2 a (new)
Article 32 – paragraph 2 a (new)
2a. When assessing the fairness of a contract term, the competent national authority shall also take into account the manner in which the contract was drafted and communicated to the consumer by the business in accordance with Article 31 (1) and 31 (2). A term which has been supplied by the business in breach of the duty of transparency imposed by paragraph 1 may on that ground alone be considered unfair.
Amendment 385 #
Proposal for a directive
Article 32 – paragraph 3
Article 32 – paragraph 3
3. Paragraphs 1 and 2 shall not apply to the assessment of the main subject matter of the contract or to the adequacy of the remuneration foreseen for the trader'sbusiness' main contractual obligation, provided that the traderbusiness fully complies with Article 31 (1) and 31 (2).
Amendment 391 #
Proposal for a directive
Article 34
Article 34
Member States shall ensure that contract terms, as set out in the list in Annex II, are considered unfair in all circumstances. That list of contract terms shall apply in all Member States and may only be amended in accordance with Articles 39(2) and 40. . Member States may adopt or retain provisions compatible with the Treaty that complete this list with additional terms considered unfair in all circumstances.
Amendment 393 #
Proposal for a directive
Article 35
Article 35
Member States shall ensure that contract terms, as set out in the list in point 1 of Annex III, are considerpresumed unfair, unless the traderbusiness has proved that such contract terms are fair in accordance with Article 32. That list of contract terms shall apply in all Member States and may only be amended in accordance with Articles 39(2) and 40. Member States may adopt or retain provisions compatible with the Treaty that complete this list with additional terms presumed unfair.
Amendment 395 #
Proposal for a directive
Article 37 – paragraph 1
Article 37 – paragraph 1
Contract terms which are unfair according to this Directive shall not be binding on the consumer in accordance with national law. The contract shall continue to bind the parties if it can remain in force without the unfair terms.
Amendment 396 #
Proposal for a directive
Article 38 – paragraph 1
Article 38 – paragraph 1
1. Member States shall ensure that, in the interests of consumers and competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by traderbusinesses.
Amendment 397 #
Proposal for a directive
Article 38 – paragraph 3
Article 38 – paragraph 3
3. Member States shall enable the courts or administrative authorities to apply appropriate and effective means to prevent traders from continuing tobusinesses from the use of terms which have been found unfair.
Amendment 398 #
Proposal for a directive
Article 39
Article 39
Amendment 400 #
Proposal for a directive
Article 40 – paragraph 1
Article 40 – paragraph 1
Amendment 401 #
Proposal for a directive
Article 45 – paragraph 1
Article 45 – paragraph 1
The consumer shall be exempted from the provision of any consideration in cases of unsolicited supply of a productgood or service as prohibited by Article 5(5) and point 29 of Annex I of Directive 2005/29/EC. The absence of a response from the consumer following such an unsolicited supply shall not constitute consent.
Amendment 402 #
Proposal for a directive
Article 47 – paragraph 1
Article 47 – paragraph 1
Directives 85/577/EEC 93/13/EEC and 97/7/EC and Directive 1999/44/EC, as amended by the Directives listed in Annex IV, are repealed as of [date of transposition].
Amendment 405 #
Proposal for a directive
Annex I – part A
Annex I – part A
A. Information to be provided with the withdrawal form 1. The name, geographical address and the email address of the trader to whom the withdrawal form must be sent. 2. A statement that the consumer has a right to withdraw from the contract and that this right can be exercised by sending the withdrawal form below on a durable medium to the trader referred to in paragraph 1: (a) for off-premises contracts, within a period of fourteen days following his signature of the order form; (b) for distance sales contracts, within a period of fourteen days following the material possession of the goods by the consumer or a third party, other than the carrier and indicated by the consumer; (c) for distance service contracts: - within a period of fourteen days following the conclusion of the contract, where the consumer has not given his prior express consent for the performance of the contract to begin before the end of this fourteen day period; - within a period ending when the performance of the contract begins, where the consumer has given his prior express consent for the performance of the contract to begin before the end of the fourteen day period. 3. For all sales contracts, a statement informing the consumer about the time- limits and modalities to send back the goods to the trader and the conditions for the reimbursement in accordance with Articles 16 and 17(2). 4. For distance contracts concluded on the Internet, a statement that the consumer can electronically fill in and submit the standard withdrawal form on the trader's website and that he will receive an acknowledgement of receipt of such a withdrawal from the trader by email without delay. 5. A statement that the consumer can use the withdrawal form set out in Part B. Model instructions on withdrawal Right of withdrawal You may withdraw on a durable medium from this contract within a period of 14 days without giving any reason. The period for withdrawal shall begin [on receipt of the goods ordered] 1. The day [on which the goods are received] 2 shall not be counted as part of the period for withdrawal. If the last day of the period for withdrawal falls on a public holiday, a Saturday or a Sunday, the period shall end on the first working day thereafter. The period for withdrawal shall be deemed to have been observed if notice of withdrawal is sent before its expiry. Notice of withdrawal should be sent on a durable medium (for example in the form of a posted letter) 3 to: 4. You may use the model withdrawal form below, although you are not required to do so. Effects of withdrawal For withdrawal to be valid you must send the goods back, at [our expense] 5, within a period of 14 days of sending your notice of withdrawal. The day on which you send the notice of withdrawal shall not be counted as part of the period for return of the goods. If the last day of this period falls on a public holiday, a Saturday or a Sunday, the period shall end on the first working day thereafter. If you are unable to return the goods in their original condition, you shall be liable for any deterioration in their value. This provision shall apply only if the deterioration in value is attributable to the goods having been handled in a manner other than that necessary for ascertaining their nature, qualities and functioning. You can prevent deterioration by refraining from using the goods as you would your own property and by avoiding any form of handling liable to reduce their value. In the case of valid withdrawal, we must reimburse within a period of 14 days any payment you have made to us. The period for reimbursement shall begin when we receive your notice of withdrawal. The day on which we receive the notice of withdrawal shall not be counted as part of the period for reimbursement. If the last day of this period falls on a public holiday, a Saturday or a Sunday, the period shall end on the first working day thereafter. We may refuse to reimburse you until we have [received the returned goods] 6 Advice on alternative wording: 1. In the following specific cases, the text in parentheses should read as indicated: Unless provided otherwise for distance or off-premises contracts for the supply of services: 'from the day of the conclusion of the contract or on the day on which the consumer receives a copy of the signed contract on a durable medium, if this is not the day of conclusion of the contract '. 2. In the following specific cases, the text in parentheses should read as indicated: Unless provided otherwise for distance or off-premises contracts for the supply of services: 'from the day of the conclusion of the contract or on the day on which the consumer receives a copy of the signed contract on a durable medium, if this is not the day of conclusion of the contract'. 3. In the case of distance contracts, additional text should be the inserted as follows: (a) if the business allows the consumer to withdraw from the contract by e-mail: 'or by e-mail'; (b) if the business allows the consumer to fill in a model form electronically on a website: 'or via our website'. 4. To be inserted: the business' name and business address. In the case of distance contracts, the following must also be indicated: the e-mail and/or web address of the business which the consumer can use to withdraw from the contract. 5. If the price of the goods to be returned is not more than EUR 50, the text in parentheses should read as follows: 'your own expense'. 6. If the business offers to collect the goods from the consumer, the text in parentheses should read as follows: 'collected the goods from you'.
Amendment 406 #
Proposal for a directive
Annex II – part B
Annex II – part B
B. Model withdrawal form (complete and return this form only if you wish to withdraw from the contract) – To– To: (Business' name, business address and, where appropriate, e-mail address)(*) – I/We* (**)hereby give notice that I/We* withdraw from my/our* contract of sale of the following goods*/provision of the following service* – Ordered on*/received on*with you – Ordered on(***) – Name of consumer(s) (***) – Address of consumer(s) – Signature of consumer(s) ((***) – Consumer('s )Signature of (required only if thise form is notified in writing) – Date *Delete as appropriate.sent on paper ) (***) – Date(***) (*) To be filled in by the business before providing the form to the consumer. (**) Delete where non-applicable. (***) To be filled in by the consumer(s) if this form is used for withdrawal from the contract
Amendment 407 #
Proposal for a directive
Annex II – paragraph 1 – point a a (new)
Annex II – paragraph 1 – point a a (new)
(aa) excluding or limiting the liability of the business for damage on the property of the consumer caused deliberately or as a result of gross negligence through an act or omission by the business;
Amendment 408 #
Proposal for a directive
Annex 2 – paragraph 1 – point b
Annex 2 – paragraph 1 – point b
(b) limiting the trader'sbusiness' obligation to respect commitments undertaken by hits agents or making hits commitments subject to compliance with a particular condition, the fulfilment of which depends exclusively on the traderbusiness;
Amendment 409 #
Proposal for a directive
Annex 2 – paragraph 1 – point c a (new)
Annex 2 – paragraph 1 – point c a (new)
(ca) conferring exclusive jurisdiction for all disputes arising under the contract to the place where the business is domiciled unless the chosen court is also the court for the place where the consumer is domiciled;
Amendment 410 #
Proposal for a directive
Annex 3 – paragraph 1 – point a a (new)
Annex 3 – paragraph 1 – point a a (new)
(aa) makes binding on the consumer an obligation which is subject to a condition the fulfilment of which depends solely on the intention of the business;
Amendment 414 #
Proposal for a directive
Annex 3 – paragraph 1 – point e
Annex 3 – paragraph 1 – point e
(e) enabling the traderbusiness to terminate an open-ended contract contractual relationship of indeterminate duration without reasonable notice, except where the consumer has committed a serioure are serious grounds for doing so; this does not affect terms in financial services contracts where there is a valid reason, provided the supplier is breach of contractquired to inform the other contracting party thereof immediately;
Amendment 415 #
Proposal for a directive
Annex 3 – paragraph 1 – point g
Annex 3 – paragraph 1 – point g
(g) allowing the traderproviding that the price of goods or other assets is to be determined at the time of delivery or supply or allowing the business to increase the price agreed with the consumer when the contract was concluded without giving the consumer the right to terminate the contract if the increased price is too high in relation to the price agreed at the conclusion of the contract; this does not affect price- indexation clauses, where lawful, provided that the method by which prices vary is explicitly described;
Amendment 416 #
Proposal for a directive
Annex 3 – paragraph 1 – point k
Annex 3 – paragraph 1 – point k
(k) enabling the traderbusiness to unilaterally alter the terms of the contract including the characteristics of the product or service without a valid reason which is specified in the contract; this does not affect terms under which a supplier of financial services reserves the right to change the rate of interest to be paid by, or to, the consumer, or the amount of other charges for financial services without notice where there is a valid reason, provided that the supplier is required to inform the consumer at the earliest opportunity and that the consumer is free to terminate the contractual relationship with immediate effect; neither does it affect terms under which a business reserves the right to alter unilaterally the conditions of a contract of indeterminate duration, provided that the business is required to inform the consumer with reasonable notice, and that the consumer is free to terminate the contractual relationship;
Amendment 417 #
Proposal for a directive
Annex 3 – paragraph 1 – point l a (new)
Annex 3 – paragraph 1 – point l a (new)
(la) allowing a business, where what has been ordered is unavailable, to supply an equivalent without having expressly informed the consumer of this possibility and of the fact that the business must bear the cost of returning what the consumer has received under the contract if the consumer exercises a right to withdraw.
Amendment 418 #
Proposal for a directive
Annex 3 – paragraph 2
Annex 3 – paragraph 2
Amendment 419 #
Proposal for a directive
Annex 3 – paragraph 3 – point c a (new)
Annex 3 – paragraph 3 – point c a (new)
(ca) package travel contracts regulated by Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours.
Amendment 420 #
Proposal for a directive
Annex 3 – paragraph 4 – introductory part
Annex 3 – paragraph 4 – introductory part
4. Point 1(e), (g) and (k) shall not apply to
Amendment 421 #
Proposal for a directive
Annex 3 – paragraph 4 – point a
Annex 3 – paragraph 4 – point a
Amendment 422 #
Proposal for a directive
Annex 3 – paragraph 4 – point d
Annex 3 – paragraph 4 – point d