[ParlTrack]

Proposal for a directive
Recital 32 a (new)

(32a) Contracts for individual deliveries of non-network energy should be exempted from the right of withdrawal. Due to the fluctuations in market prices, the entrepreneur would otherwise incur an incalculable resale risk.

2018/10/01
Committee: IMCO

Andreas SCHWAB

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

Andreas SCHWAB

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

Andreas SCHWAB

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

Andreas SCHWAB

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

Andreas SCHWAB

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

Andreas SCHWAB

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

Directive 2005/29/EC
Article 3

(1) Article 3 is amended as follows: (a) 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 5 is replaced by the Paragraph 6 is replaced by the

2018/10/01
Committee: IMCO

Andreas SCHWAB

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

Directive 2005/29/EC
Article 11 a – paragraph 1

1. ~~In addition to the requirement to ensure adequate and effective means to enforce compliance in Article 11,~~ Member States shall ensure that contractual and non-contractual remedies are ~~also~~ available for consumers harmed by unfair commercial practices in ~~order to eliminate all the effects of those unfair commercial practices in~~ accordance with their national law.

2018/10/01
Committee: IMCO

Andreas SCHWAB

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 unilaterally terminate the contract.~~deleted

2018/10/01
Committee: IMCO

Andreas SCHWAB

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

Directive 2005/29/EC
Article 11 a – paragraph 3

~~3. Non-contractual remedies shall include, as a minimum, the possibility of compensation for damages suffered by the consumer.~~deleted

2018/10/01
Committee: IMCO

Andreas SCHWAB

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

Directive 2005/29/EC
Article 13 – paragraph 2 – introductory part

2. If Member States impose a fine, they shall ensure that, when deciding on whether to impose a ~~penalty~~fine and on its level, the administrative authorities or courts shall give due regard to the following criteria where relevant:

2018/10/01
Committee: IMCO

Andreas SCHWAB

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, t~~The infringing trader’s annual turnover and net profits 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~~the level of penalty.

2018/10/01
Committee: IMCO

Andreas SCHWAB

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 existence of a possible remuneration link between the online market place and the third party;

2018/10/01
Committee: IMCO

Andreas SCHWAB

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

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

(aa) where applicable, the existence of a control of the customer reviews’ reliability, and its main characteristics;

2018/10/01
Committee: IMCO

Andreas SCHWAB

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

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

(da) the calculation basis for any price reduction for the product or service shown in the search query on the online marketplace;

2018/10/01
Committee: IMCO

Andreas SCHWAB

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

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

(db) the official classification, categorisation or quality grade of a product, where applicable.

2018/10/01
Committee: IMCO

Andreas SCHWAB

Proposal for a directive
Article 2 – paragraph 1 – point 4 a (new)

Directive 2011/83/EU
Article 6 b (new)

(4a) The following Article is inserted: “Article 4b Information requirements on illegal offers When a product or service is removed by the online marketplace because it is proven illegal, the online marketplace shall inform the customers who have purchased this product or who have accepted an illegal offer.”

2018/10/01
Committee: IMCO

Andreas SCHWAB

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

Andreas SCHWAB, Werner LANGEN

Proposal for a directive
Article 2 – paragraph 1 – point 9 – point 1 a (new)

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

(1a) point b of Article 16(1) is amended as follows: ‘(b) the supply of goods or, services or non-network energy for which the price is dependent on fluctuations in the financial market, commodity market or energy market which cannot be controlled by the trader and which may occur within the withdrawal period; ’ Or. de (https://eur-lex.europa.eu/legal- content/EN/TXT/HTML/?uri=CELEX:32011L0083&qid=1537955310239&from=FR)

2018/10/01
Committee: IMCO

Andreas SCHWAB

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

Directive 2011/83/EC
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

20 Amendments of Andreas SCHWAB related to 2018/0090(COD)

ParlTrack - 2011-2024