[ParlTrack]

Proposal for a directive
Recital 8

(8) These common non-exhaustive criteria for the application of penalties may not be relevant in deciding on penalties regarding every infringement, in particular regarding non-serious infringements. ~~Member States should also take account of other general principles of law applicable to the imposition of penalties, such as the principle of non bis in idem.~~ In such a case of a non-serious infringement or if the penalties likely to be imposed would constitute a disproportionate burden to the trader, a reprimand may be issued instead of a fine. The imposition of penalties should be subject to appropriate procedural safeguards in accordance with the general principles of Union law - such as the principle of non bis in idem - and the Charter, including effective judicial protection and due process.

2018/10/01
Committee: IMCO

Pascal ARIMONT, Carlos COELHO

Proposal for a directive
Recital 9

(9) To ensure that Member State authorities can impose effective, proportionate and dissuasive penalties in relation to widespread infringements of consumer law and to widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394, fines should be introduced as a mandatory element of penalties for such infringements. In order to ensure deterrence of the fines, Member States should set in their national law the maximum fine for such infringements at a level that is ~~at least~~up to 10 000 000 EUR or 4% of the trader's total worldwide annual turnover inof the ~~Member State concerned~~preceding financial year, whichever is higher.

2018/10/01
Committee: IMCO

Pascal ARIMONT, Carlos COELHO

Proposal for a directive
Recital 10

(10) Where, as a result of the coordination mechanism under Regulation (EU) 2017/2394, a single national competent authority within the meaning of that Regulation imposes a fine on the trader responsible for the widespread infringement or the widespread infringement with a Union dimension, it should be able to impose a fine ~~of at least 4 % of the trader’s annual turnover in all Member States concerned by the coordinated enforcement action~~up to 10 000 000 EUR or 4 % of the trader’s total worldwide annual turnover, whichever is higher.

2018/10/01
Committee: IMCO

Pascal ARIMONT, Eva MAYDELL, Carlos COELHO

Proposal for a directive
Recital 15

(15) Member States should ensure that remedies are available for consumers harmed by unfair commercial practices in order to eliminate all the effects of those unfair practices. In order to meet that objective, Member States should make both contractual and non-contractual remedies available. As a minimum, the contractual remedies provided by the Member States should include the right to price reduction or to contract termination. Non-contractual remedies provided under national law should, as a minimum, include the right to compensation for damages. Member States would not be prevented from maintaining or introducing rights to additional remedies for consumers harmed by unfair commercial practices in order to ensure full removal of the effects of such practices.

2018/10/01
Committee: IMCO

Pascal ARIMONT, Carlos COELHO

Proposal for a directive
Recital 19

(19) Specific transparency requirements for online marketplaces should therefore be provided in Directive 2011/83/EU to inform consumers using online marketplaces about the main parameters determining ranking of offers and the relative importance of those main parameters as opposed to other parameters, whether they enter into a contract with a trader or a non-trader (such as another consumer), whether consumer protection law applies and which trader is responsible for the performance of the contract and for ensuring consumer rights when these rights apply. This information should be provided in a clear, unambiguous and comprehensible manner and not only through a reference in the standard Terms and Conditions or similar contractual document. The information requirements for online marketplaces should be proportionate and need to strike a balance between a high level of consumer protection and the competitiveness of online marketplaces. Online marketplaces should not be required to list specific consumer rights when informing consumers about their applicability or non- applicability. The information to be provided about the responsibility for ensuring consumer rights depends on the contractual arrangements between the online marketplace and the relevant third party traders. Online marketplace may refer to the third party trader as being solely responsible for ensuring consumer rights or describe its specific responsibilities where it assumes the responsibility for certain aspects of the contract, for example, delivery or the exercise of the right of withdrawal. The obligation to provide information about the main parameters determining ranking of search results and about the relative importance of those main parameters as opposed to other parameters is without prejudice to any trade secrets regarding the underlying algorithms. This information should explain the main default parameters used by the marketplace but does not have to be presented in a customized manner for each individual search query.

2018/10/01
Committee: IMCO

Pascal ARIMONT, Carlos COELHO, Philippe JUVIN

Proposal for a directive
Recital 19 a (new)

(19a) Transparency requirements for online marketplaces need to be robust to protect the consumer even after the consumer is bound by a distance or off- premises contract, or any corresponding offer if additional essential information becomes available after the sale. Consumers should be protected from buying or using illegal content, which may pose a threat to their health and safety, and be allowed to exercise any available remedies, including through alternative dispute resolution mechanisms provided for in Directive 2013/11/EU of the European Parliament and of the Council1a. They should therefore be informed when they have bought an illegal product or service, or in the event the offer was misleading. Online marketplaces do not always know when an offer or a product is illegal. However, when they become aware of such information after the sale, they should share it not only with the traders but also with the consumers. Such a requirement is in line with Directive 2000/31/EC, since it would only apply once an online marketplace has received a notice, confirmed its validity, and proceeded with the takedown of the illegal offer, product or service. _____________ 1a Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) (OJ L 165, 18.6.2013, p. 63).

2018/10/01
Committee: IMCO

Pascal ARIMONT, Carlos COELHO

Proposal for a directive
Recital 33

(33) Directive 2011/83/EU provides fully harmonised rules regarding the right of withdrawal from distance and off- premises contracts. In this context, two concrete obligations have been shown to constitute disproportionate burdens on traders and should be deleted.

2018/10/01
Committee: IMCO

Pascal ARIMONT, Carlos COELHO

Proposal for a directive
Recital 34

(34) The first relates to the consumer right to withdraw from sales contracts concluded at a distance or off-premises even after using goods more than necessary to establish their nature, characteristics and functioning. According to Article 14(2) of Directive 2011/83/EU, a consumer is still able to withdraw from the online/off-premises purchase even if he or she has used the good more than allowed; however, in such a case, the consumer can be held liable for any diminished value of the good.deleted

2018/10/01
Committee: IMCO

Pascal ARIMONT, Carlos COELHO

Proposal for a directive
Recital 35

(35) The obligation to accept the return of such goods creates difficulties for traders who are required to assess the ‘diminished value’ of the returned goods and to resell them as second-hand goods or to discard them. It distorts the balance between a high level of consumer protection and the competitiveness of enterprises pursued by Directive 2011/83/EU. The right for consumers to return goods in such situations should therefore be deleted. Annex I of Directive 2011/83/EU 'Information concerning the exercise of the right of withdrawal' should also be adjusted in accordance with this amendment.deleted

2018/10/01
Committee: IMCO

Pascal ARIMONT

Proposal for a directive
Recital 36

(36) The second obligation concerns Article 13 of Directive 2011/83/EU, according to which traders can withhold the reimbursement until they have received the goods back, or until the consumer has supplied evidence of having sent them back, whichever is the earliest. The latter option may, in some circumstances, effectively require traders to reimburse consumers before having received back the returned goods and having had the possibility to inspect them. It distorts the balance between a high level of consumer protection and the competitiveness of enterprises pursued by Directive 2011/83/EU. Therefore, the obligation for traders to reimburse the consumer on the mere basis of the proof that the goods have been sent back to the trader should be deleted. Annex I of Directive 2011/83/EU 'Information concerning the exercise of the right of withdrawal' should also be adjusted in accordance with this amendment.deleted

2018/10/01
Committee: IMCO

Pascal ARIMONT, Inese VAIDERE, Carlos COELHO, Jiří POSPÍŠIL

Proposal for a directive
Recital 41

(41) Article 16 of the Charter of Fundamental Rights of the EU guarantees the freedom to conduct a business in accordance with Union law and national laws and practices. However, the marketing ~~across Member States of products as be~~of a product with seemingly identical ~~when, in reality, they have a significantly~~presentation to another product, which is marketed under the same brand but presents differentces in composition or ~~characteristics~~sensory profile may mislead consumers and cause them to take a transactional decision that they would not have taken otherwise.

2018/10/01
Committee: IMCO

Pascal ARIMONT, Inese VAIDERE, Eva MAYDELL, Carlos COELHO, Jiří POSPÍŠIL

Proposal for a directive
Recital 42

(42) Such a practice can therefore be qualified as contrary to Directive 2005/29/EC based on a case by case assessment of relevant elements. In order to facilitate the application of existing law by Member States' consumer and food authorities, guidance on the application of current EU rules to situations of dual quality of food products was provided in the Commission Notice of 26.9.2017 'on the application of EU food and consumer protection law to issues of Dual Quality of products – The specific case of food'.46 In this context, the Commission's Joint Research Centre ~~is currently developing a common approach to the comparative te~~has developed an EU harmonised testing methodology to comparatively assess quality related characteristingcs of food products. __________________ 46 C(2017)6532.

2018/10/01
Committee: IMCO

Pascal ARIMONT, Inese VAIDERE, Eva MAYDELL, Carlos COELHO

Proposal for a directive
Recital 43

(43) However, the enforcement experience has shown that it may be unclear to consumers, traders and national competent authorities which commercial practices could be contrary to the Directive 2005/29/EC in the absence of an explicit provision. Therefore, Directive 2005/29/EC should be amended to ensure legal certainty both for traders and enforcement authorities by addressing explicitly the marketing of a product ~~as be~~with seemingly identical ~~to the same product marketed in several other Member States, where those products have significantly different composition or characteristics~~presentation to another product, which is marketed under the same brand but presents differences in composition or sensory profile, as defined by the EU harmonised testing methodology developed by the Commission's Joint Research Centre. Competent authorities should assess and address on a case by case basis such practices according to the provisions of the Directive. In undertaking its assessment the competent authority should take into account whether such differentiation is easily identifiable by consumers, a trader's right to adapt products of the same brand for different geographical markets due to legitimate factors, such as availability or seasonality of raw materials, defined consumer preferences or voluntary strategies aimed at improving access to healthy and nutritious food as well as the traders' right to offer products of the same brand in packages of different weight or volume in different geographical markets, and the recommendations on common interpretation defined by the High Level Forum for Better Functioning of the Supply Chain of found differences based on the EU harmonised testing methodology developed by the Commission's Joint Research Centre.

2018/10/01
Committee: IMCO

Pascal ARIMONT, Antonio LÓPEZ-ISTÚRIZ WHITE, Eva MAYDELL, Anna Maria CORAZZA BILDT

Proposal for a directive
Recital 44

(44) While off-premises sales constitute a legitimate and well-established sales channel, like sales at a trader's business premises and distance–selling, some particularly aggressive or misleading marketing practices in the context of visits to the consumer's home without the consumer's prior agreement or during commercial excursions can put consumers under pressure to make purchases of goods they would not otherwise buy and/or purchases at excessive prices, often involving immediate payment. Such practices often target elderly or other vulnerable consumers. Some Member States consider those practices undesirable and deem it necessary to restrict certain forms and aspects of off-premises sales within the meaning of Directive 2011/83/EU, such as aggressive and misleading marketing or selling of a product in the context of unsolicited visits to a consumer's home or commercial excursions, on grounds of public policy or the respect for consumers’ private life protected by Article 7 of the Charter of Fundamental Rights of the EU. In accordance with the principle of subsidiarity and in order to facilitate enforcement, it should therefore be clarified that Directive 2005/29/EC is without prejudice to Member States' freedom to make arrangements without the need for a case-by-case assessment of the specific practice, to protect the legitimate interests of consumers with regard to unsolicited visits at their private home by a trader in order to offer or sell products or in relation to commercial excursions organised by a trader with the aim or effect of promoting or selling products to consumers where such arrangements are justified on grounds of public policy or the protection of private life. Any such provisions should be proportionate and not discriminatory. Member States should be required to notify any national provisions adopted in this regard to the Commission so that the Commission can make this information available to all interested parties and monitor the proportionate nature and legality of those measures.deleted

2018/10/01
Committee: IMCO

Pascal ARIMONT, Antonio LÓPEZ-ISTÚRIZ WHITE, Anna Maria CORAZZA BILDT, Eva MAYDELL

Proposal for a directive
Article 1 – paragraph 1 – point 1

Directive 2005/29/EC
Article 3 – paragraph 5

(1) Article 3 is amended as follows: (a) Paragraph 5 is replaced by the following: “This Directive does not prevent Member States from adopting provisions to protect the legitimate interests of consumers with regard to aggressive or misleading marketing or selling practices in the context of unsolicited visits by a trader to a consumer's home, or with regard to commercial excursions organised by a trader with the aim or effect of promoting or selling products to consumers, provided that such provisions are justified on grounds of public policy or the protection of the respect for private life.” (b) following: “Member States shall notify the Commission without delay of any national provisions applied on the basis of paragraph 5 as well as of any subsequent changes. The Commission shall make this information easily accessible to consumers and traders on a dedicated website.”deleted Paragraph 6 is replaced by the

2018/10/01
Committee: IMCO

Pascal ARIMONT, Antonio LÓPEZ-ISTÚRIZ WHITE, Inese VAIDERE, Eva MAYDELL, Jiří POSPÍŠIL

Proposal for a directive
Article 1 – paragraph 1 – point 2

Directive 2005/29/EC
Article 6 – paragraph 2 – point c

(c) Aany marketing of a product ~~as be~~with seemingly identical ~~to the same product marketed in several other Member States, while those products have significantly~~presentation to another product, which is marketed under the same brand but presents differentces in composition or ~~characteristics~~sensory profile;

2018/10/01
Committee: IMCO

Pascal ARIMONT, Antonio LÓPEZ-ISTÚRIZ WHITE, Anna Maria CORAZZA BILDT, Eva MAYDELL, Carlos COELHO

Proposal for a directive
Article 1 – paragraph 1 – point 4

Directive 2005/29/EC
Article 11 a – paragraph 2

2. Contractual remedies shall include, as a minimum, the possibility for the consumer to obtain a price reduction or to unilaterally terminate the contract.

2018/10/01
Committee: IMCO

Pascal ARIMONT, Antonio LÓPEZ-ISTÚRIZ WHITE, Carlos COELHO

Proposal for a directive
Article 1 – paragraph 1 – point 5

Directive 2005/29/EC
Article 13 – paragraph 3

3. Where the penalty to be imposed is a fine, the infringing trader’s annual turnover and net profits of the preceding financial year, as well as any fines imposed for the same or other infringements of this Directive in other Member States shall also be taken into account in the determination of its amount.

2018/10/01
Committee: IMCO

Pascal ARIMONT, Carlos COELHO

Proposal for a directive
Article 1 – paragraph 1 – point 5

Directive 2005/29/EC
Article 13 – paragraph 4

4. Member States shall ensure that the penalties for widespread infringements and widespread infringements with a Union dimension within the meaning of Regulation (EU) No 2017/29394 include the possibility to impose fines, the maximum amount of which shall be ~~at least~~up to 10 000 000 EUR or 4 % of the trader's total worldwide annual turnover inof the ~~Member State or Member States concerned~~preceding financial year, whichever is higher.

2018/10/01
Committee: IMCO

Pascal ARIMONT, Carlos COELHO

Proposal for a directive
Article 1 – paragraph 1 – point 6

Directive 2005/29/EC
Annex I – point 11

11. Using editorial content in the media, or providing information to a consumer’s online search query, to promote a product or service where a trader has p~~aid for the promotion~~rovided direct or indirect remuneration for a promotion or prominent placement without making that clear in the content or search results or by images or sounds clearly identifiable by the consumer in a concise, transparent and intelligible form (advertorial; paid placement or paid inclusion). This is without prejudice to Directive 2010/13/EU48. __________________ 48 Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95, 15.4.2010, p. 1).

2018/10/01
Committee: IMCO

Pascal ARIMONT, Anna Maria CORAZZA BILDT, Eva MAYDELL, Carlos COELHO

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point d

Directive 2011/83/EU
Article 2 – paragraph 1 – point 16

(16) ‘contract for the supply of digital content which is not supplied on tangible medium’ means a contract under which a trader supplies or undertakes to supply ~~specific~~ digital content to the consumer and the consumer pays or undertakes to pay the price ~~thereof~~. This also includes contracts where the consumer provides or undertakes to provide personal data to the trader, except where the personal data provided by the consumer is exclusively processed by the trader for the purpose of supplying the digital content, or for the trader to comply with legal requirements to which the trader is subject, and the trader does not process this data for any other purpose;

2018/10/01
Committee: IMCO

Pascal ARIMONT, Eva MAYDELL

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point d

Directive 2011/83/EU
Article 2 – paragraph 1 – point 17

(17) ‘digital service’ means (a) a service that allow~~ing~~s the consumer theo creat~~ion~~e, process~~ing or~~, storage ~~of,~~ or access ~~to,~~ data in digital form; or (b) a service that allow~~ing~~s the sharing of or any other interaction with data in digital form uploaded or created by the consumer and other users of that service~~, including video and audio sharing and other file hosting, word processing or games offered in the cloud computing environment and social media~~.

2018/10/01
Committee: IMCO

Pascal ARIMONT, Anna Maria CORAZZA BILDT, Eva MAYDELL, Carlos COELHO

Proposal for a directive
Article 2 – paragraph 1 – point 1 – point d

Directive 2011/83/EU
Article 2 – paragraph 1 – point 18

(18) ‘digital service contract’ means a contract under which a trader supplies or undertakes to supply a digital service to the consumer and the consumer pays or undertakes to pay the price ~~thereof~~. This also includes contracts where the consumer provides or undertakes to provide personal data to the trader, except where the personal data provided by the consumer is exclusively processed by the trader for the purpose of supplying the digital service, or for the trader to comply with legal requirements to which the trader is subject, and the trader does not process this data for any other purpose;

2018/10/01
Committee: IMCO

Pascal ARIMONT, Anna Maria CORAZZA BILDT, Eva MAYDELL

Proposal for a directive
Article 2 – paragraph 1 – point 2

Directive 2011/83/EU
Article 5 – paragraph 1 – point h

(h) where applicable, any relevant interoperability of digital content and digital services with hardware and software ~~that the trader is aware of or can reasonably be expected to have been aware of~~different from the ones with which digital content or services of the same type are normally used.

2018/10/01
Committee: IMCO

Pascal ARIMONT, Anna Maria CORAZZA BILDT, Eva MAYDELL

Proposal for a directive
Article 2 – paragraph 1 – point 3

Directive 2011/83/EU
Article 6 – paragraph 1 – point s

(s) where applicable, any relevant interoperability of digital content and digital services with hardware and software ~~that the trader is aware of or can reasonably be expected to have been aware of~~different from the ones with which digital content or services of the same type are normally used.

2018/10/01
Committee: IMCO

Pascal ARIMONT, Anna Maria CORAZZA BILDT, Carlos COELHO

Proposal for a directive
Article 2 – paragraph 1 – point 4

Directive 2011/83/EU
Article 6 a – paragraph 1 – point a

(a) the main parameters determining ranking of offers presented to the consumer as result of his search query on the online marketplace and the reason for the relative importance of those main parameters as opposed to other parameters;

2018/10/01
Committee: IMCO

Pascal ARIMONT, Anna Maria CORAZZA BILDT, Carlos COELHO

Proposal for a directive
Article 2 – paragraph 1 – point 4

Directive 2011/83/EU
Article 6 a – paragraph 1 – point a a (new)

(aa) whether the user reviews related to the offered product or service have been subject to a control of their authenticity, and if so, a description of the main characteristics of such control;

2018/10/01
Committee: IMCO

Pascal ARIMONT, Anna Maria CORAZZA BILDT, Carlos COELHO, Philippe JUVIN

Proposal for a directive
Article 2 – paragraph 1 – point 4

Directive 2011/83/EU
Article 6 a – paragraph 1 a (new)

After the consumer is bound by a distance or off-premises contract, or any corresponding offer, on an online marketplace, and where the offer for the good or service that has been sold was notified to and removed by the online marketplace on grounds that it is illegal, the online marketplace shall promptly provide the following information to the consumer in a clear and comprehensible manner: (a) that the product or service sold or the offer thereof is illegal or apparently illegal and was removed; (b) the identity of the trader that placed the offer, which was removed; (c) the reason why the offer was removed.

2018/10/01
Committee: IMCO

Pascal ARIMONT, Carlos COELHO

Proposal for a directive
Article 2 – paragraph 1 – point 7 – point a

Directive 2011/83/EU
Article 13 – paragraph 3

~~(a) paragraph 3 is replaced by the following: “3. collect the goods himself, with regard to sales contracts, the trader may withhold the reimbursement until he has received the goods back.”~~deleted Unless the trader has offered to

2018/10/01
Committee: IMCO

Pascal ARIMONT, Eva MAYDELL

Proposal for a directive
Article 2 – paragraph 1 – point 8 – point 1

Directive 2011/83/EU
Article 14 – paragraph 2

(1) paragraph 2 is replaced by the following: “After the termination of the contract, the consumer shall refrain from using the digital content or digital service and from making it available to third parties.”deleted

2018/10/01
Committee: IMCO

Pascal ARIMONT, Eva MAYDELL

Proposal for a directive
Article 2 – paragraph 1 – point 8 – point 1 a (new)

Directive 2011/83/EU
Article 14 – paragraph 2 a (new)

1a. The following paragraph is inserted: “2a. After the termination of the contract, the consumer shall refrain from using the digital content or digital service and from making it available to third parties.”

2018/10/01
Committee: IMCO

Pascal ARIMONT

Proposal for a directive
Article 2 – paragraph 1 – point 9 – point 3

Directive 2011/83/EU
Article 16 – paragraph 1– point n

(3) the following point is added: “(n) the supply of goods that the consumer has handled, during the right of withdrawal period, other than what is necessary to establish the nature, characteristics and functioning of the goods.”deleted

2018/10/01
Committee: IMCO

Pascal ARIMONT, Carlos COELHO

Proposal for a directive
Article 2 – paragraph 1 – point 10

Directive 2011/83/EU
Article 24 – paragraph 4

4. Member States shall ensure that the penalties for widespread infringements and widespread infringements with a Union dimension within the meaning of Regulation (EU) No 2017/29394 include the possibility to impose fines, the maximum amount of which shall be ~~at least~~up to 10 000 000 EUR or 4% of the trader’s total worldwide annual turnover inof the ~~Member State or Member States concerned~~preceding financial year, whichever is higher.

2018/10/01
Committee: IMCO

Pascal ARIMONT, Carlos COELHO

Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1

Directive 1993/13/EEC
Article 8 b – paragraph 4

4. Member States shall ensure that the penalties for widespread infringements and widespread infringements with a Union dimension within the meaning of Regulation (EU) No 2017/29394 include the possibility to impose fines, the maximum amount of which shall be ~~at least~~up to 10 000 000 EUR or 4% of the trader’s total worldwide annual turnover inof the ~~Member State or Member States concerned.~~ preceding financial year, whichever is higher.

2018/10/01
Committee: IMCO

Pascal ARIMONT, Carlos COELHO

Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1

Directive 1998/06/EC
Article 8 – paragraph 4

4. Member States shall ensure that the penalties for widespread infringements and widespread infringements with a Union dimension within the meaning of Regulation (EU) No 2017/29394 include the possibility to impose fines, the maximum amount of which shall be ~~at least~~up to 10 000 000 EUR or 4 % of the trader’s total worldwide annual turnover inof the ~~Member State or Member States concerned~~preceding financial year, whichever is higher.

2018/10/01
Committee: IMCO

35 Amendments of Pascal ARIMONT related to 2018/0090(COD)

ParlTrack - 2011-2024