Activities of Antonio MASIP HIDALGO related to 2008/0196(COD)
Plenary speeches (1)
Consumer rights (debate)
Amendments (51)
Amendment 140 #
Proposal for a directive
Recital 60 a (new)
Recital 60 a (new)
(60a) Digital goods transmitted to the consumer in a digital format, where the consumer obtains the possibility of use on a permanent basis or in a way similar to the physical possession of a good with the possibility to store it on his computer, should be treated as goods for the application of the provisions applying to sales contracts. The format in which a product is presented or purchased should not matter in terms of consumer protection and consumers should be equally protected on line and off-line.
Amendment 148 #
Proposal for a directive
Article 2 – paragraph 1 – point 4 – introductory part
Article 2 – paragraph 1 – point 4 – introductory part
(4) "goods' means any tangible movable item, with the exception of: (a) otherwise by authority of law, (b) put up for sale in a limited volume or set quantity, (c)or intangible item. goods sold by way of execution or water and gas where they are not electricity;
Amendment 172 #
Proposal for a directive
Article 4 – title
Article 4 – title
Amendment 174 #
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.
Amendment 213 #
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)7 and 9 shall be given or made available to the consumer prior to thehis conclusion of the contractractual statement, in plain and intelligible language and in so far as this information is made available in writing, it shall be legible, in a way appropriate to the means of distance communication used. and it should be easily, directly and permanently accessible
Amendment 215 #
Proposal for a directive
Article 11 – paragraph 2
Article 11 – paragraph 2
2. If, in conformity with the national law applicable, the trader makes a telephone call to the consumer with a view to concluding a distance contract by telephone, the trader shall disclose his identity and, where applicable the identity of the person on whose behalf he makes the call and the commercial purpose of the call at the beginning of the conversation with the consumer.
Amendment 216 #
Proposal for a directive
Article 11 – paragraph 2 a (new)
Article 11 – paragraph 2 a (new)
2a. In case the contract places the consumer under the obligation to make a payment, the trader shall display this obligation clearly and prominently to the consumer, prior to the consumers’ contractual statement. The order shall be binding only if the consumer has confirmed to be aware of this obligation.
Amendment 217 #
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 trader shall provide at least the information regarding the main characteristics of the product and the total pricefinal price, the duration of the contract and if the contract is open-ended, the conditions for terminating the contract 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 trader to the consumer in an appropriate way in accordance with paragraph 1 and the consumer shall be informed thereof on a durable medium prior to the conclusion of such a contract.
Amendment 220 #
Proposal for a directive
Article 11 – paragraph 4
Article 11 – paragraph 4
Amendment 222 #
Proposal for a directive
Article 11 – paragraph 5
Article 11 – paragraph 5
Amendment 227 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. In the case of an off-premises contract, the withdrawal period shall begin from the day when the consumer signs the order form or in cases where the order form is not on paper, when the consumer receives a copy of the order form on another durable medium. In the case of a distancThe withdrawal period ends fourteen days after the latest of the following times: (a) the time of conclusion of the contract; (b) the time when the entitled party receives from the other party adequate information on the right to withdrawal; or (c) if the subject-matter of the contract foris the saledelivery 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 time when the goods are received. (d) if the subject-matterial possession of each of the goods ordered. In the case of a distance contract for the provision of of the contract is a mixed-contract (both goods and services,) the withdrawal period shall begin from the day of the conclutime when the latest event takes place (delivery of the good or provision of the contract.service)
Amendment 229 #
Proposal for a directive
Article 12 – paragraph 2 – subparagraph 1
Article 12 – paragraph 2 – subparagraph 1
Amendment 231 #
Proposal for a directive
Article 12 – paragraph 2 – subparagraph 2
Article 12 – paragraph 2 – subparagraph 2
Amendment 233 #
Proposal for a directive
Article 12 – paragraph 2 – subparagraph 3
Article 12 – paragraph 2 – subparagraph 3
Amendment 236 #
Proposal for a directive
Article 12 – paragraph 4
Article 12 – paragraph 4
4. The Member States shall notcan maintain national provisions prohibiting the parties from performing their obligations under the contract during the right of withdrawal period.
Amendment 240 #
Proposal for a directive
Article 13
Article 13
If the trader has not provided the consumer with the information on the right of withdrawal in breach of Articles 9(b), 10(1) and 11(4), the withdrawal period shall expire three monthsone year after the trader has fully performed his other contractual obligations.
Amendment 251 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
Amendment 256 #
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 costs of returning of the goods unless the trader has agreed to bear that cost shall be borne by the trader if the price of the good to be returned is more than EUR 50.
Amendment 258 #
Proposal for a directive
Article 17 – paragraph 2
Article 17 – paragraph 2
2. The consumer shall only be liable for any diminisis not required to pay for: (a) any diminution in thed 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 trader 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 periodanything received under the contract caused by inspection and testing; (b) any destruction, or loss of, or damage to, anything received under the contract, provided that the consumer used reasonable care to prevent such destruction, loss or damage.
Amendment 260 #
Proposal for a directive
Article 17 – paragraph 2 a (new)
Article 17 – paragraph 2 a (new)
2a. For services contracts, the consumer is liable for any costs incurred up to the point of withdrawal only when he expressly requested the early performance of the contract. Such costs should be reasonable and proportionate to the extent of the service already provided up to the point of withdrawal.
Amendment 275 #
Proposal for a directive
Article 19 – paragraph 1 – point f
Article 19 – paragraph 1 – point f
(f) the supply of newspapers, periodicals and magazines with the exception of subscription contracts;
Amendment 277 #
Proposal for a directive
Article 19 – paragraph 1 – point g
Article 19 – paragraph 1 – point g
(g) gamingcontracts with organisers of bets and lottery servicies;
Amendment 278 #
Proposal for a directive
Article 19 – paragraph 1 – point h
Article 19 – paragraph 1 – point h
(h) contracts concluded at an auction, with the exception of contracts concluded at internet auctions.
Amendment 287 #
Proposal for a directive
Article 22 – paragraph 1
Article 22 – paragraph 1
1. Unless the parties have agreed otherwise, the trader shall deliver the goods by transferring the material possession of the goods 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 290 #
Proposal for a directive
Article 22 – paragraph 2
Article 22 – paragraph 2
2. Where the trader has failed to fulfil his obligations to deliver, the consumer shall be entitled to a refund of any sums paid within seven days from the date of delivery provided for in paragraph 1 in time in accordance with paragraph 1, the consumer shall be entitled, in accordance with the applicable national law, to terminate the contract and request a refund. The trader shall refund any sums paid or other considerations provided by the consumer as soon as possible and in no case later than seven days from the date when he was informed about the consumer’s decision to terminate the contract.
Amendment 294 #
Proposal for a directive
Article 22 – paragraph 2 a (new)
Article 22 – paragraph 2 a (new)
2 a. In addition to the termination of the contract in accordance with paragraph 2, the consumer may have recourse to other remedies provided by national law.
Amendment 305 #
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 308 #
Proposal for a directive
Article 24 – paragraph 2 – point d
Article 24 – paragraph 2 – point d
(d) they show the quality and performance which are normal in goods of the same type including the consideration of the purpose, the appearance and finish, the freedom from minor defects and the durability of the product, availability of after-sales services and of spare parts, the conformity to legal requirements regarding the safety of goods, and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the trader, the producer or his representative, particularly in advertising or on labelling.
Amendment 310 #
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 if, at the time the contract was concluded, the consumer was aware, or should reasonably have been aware of, the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer.
Amendment 314 #
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 by the same means and in due time before;
Amendment 324 #
Proposal for a directive
Article 26 – paragraph 2
Article 26 – paragraph 2
2. The trader shall remedy the lack of conformity by eitherIn case of lack of conformity, the consumer is able to choose between free repair orand replacement according to his choice.
Amendment 331 #
Proposal for a directive
Article 26 – paragraph 4 – point c
Article 26 – paragraph 4 – point c
(c) the trader has tried to remedy the lack of conformity, causinga remedy would be a significant inconvenience to the consumer;
Amendment 335 #
Proposal for a directive
Article 26 – paragraph 4 – point d a (new)
Article 26 – paragraph 4 – point d a (new)
(da) due to significant reasons, which are concerned with the supplier, a remedy is unreasonable.
Amendment 351 #
Proposal for a directive
Article 28 – paragraph 4
Article 28 – paragraph 4
4. In order to benefit from his rights under Article 25, the consumer shall inform the trader of the lack of conformity within two months from the date on which he detected the lack of conformity. A breach of this term will not entail a loss of the relevant right of remedy and the consumer, nevertheless, will be liable for any loss or damage effectively caused by a delayed notification. Unless otherwise proven, it will be understood that the consumer and user’s notification has taken place within the term established.
Amendment 352 #
Proposal for a directive
Article 28 – paragraph 5
Article 28 – paragraph 5
5. Unless proved otherwise, any lack of conformity which becomes apparent within six monthtwo years of the time when the risk passed to the consumer, shall be presumed to have existed at that time unless this presumption is incompatible with the nature of the goods and the nature of the lack of conformity.
Amendment 356 #
Proposal for a directive
Article 29 a (new)
Article 29 a (new)
Amendment 361 #
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,include the information that the commercial guarantee cannot be transferred to a subsequent buyer.
Amendment 365 #
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 trader or a third party, which the consumer agreed to without having the possibility of influencing their content, in particular where such contract terms are part of a pre- formulated standard contract. The supplier has to prove that the contract clauses have been individually negotiated.
Amendment 370 #
Proposal for a directive
Article 31 – paragraph 1
Article 31 – paragraph 1
1. Contract terms shall be expressed in plain, intelligible language and be legible easily and permanently accessible; they should be provided in the language in which the contract is concluded.
Amendment 374 #
Proposal for a directive
Article 31 – paragraph 3 a (new)
Article 31 – paragraph 3 a (new)
3a. The contract terms shall be presented at a place where a consumer reasonably expects to find them.
Amendment 375 #
Proposal for a directive
Article 31 – paragraph 4
Article 31 – paragraph 4
Amendment 380 #
Proposal for a directive
Article 32 – paragraph 1
Article 32 – paragraph 1
1. Where a contract term is not included in Annex II or III, Member States shall ensure that ita contract clause is regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
Amendment 381 #
Proposal for a directive
Article 32 – paragraph 2
Article 32 – paragraph 2
2. Without prejudice to Articles 34 and 38, tThe 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 386 #
Proposal for a directive
Article 32 – paragraph 3 a (new)
Article 32 – paragraph 3 a (new)
3a. The Annex contains a non-exhaustive list of clauses, which may be been declared as being unfair and which can serve as a reference.
Amendment 387 #
Proposal for a directive
Article 32 – paragraph 3 a (new)
Article 32 – paragraph 3 a (new)
3a. Where the contract is concluded for the acquisition of digital goods, the terms of use are not considered as the subject matter of the contract
Amendment 388 #
Proposal for a directive
Article 33
Article 33
Amendment 390 #
Proposal for a directive
Article 34
Article 34
Amendment 392 #
Proposal for a directive
Article 35
Article 35
Amendment 394 #
Proposal for a directive
Article 36 – paragraph 1
Article 36 – paragraph 1
1. The Member States will ensure that a contract clause is also considered to be unfair if it has not been written in plain and intelligible language. Where there is doubt about the meaning of a term, the interpretation most favourable to the consumer shall prevail.
Amendment 399 #
Proposal for a directive
Article 40
Article 40
Amendment 413 #
Proposal for a directive
Annex 3 – paragraph 1 – point d a (new)
Annex 3 – paragraph 1 – point d a (new)
(da) excluding or hindering the consumer’s right to instruct and authorise a third party to conclude a contract between the consumer and the trader and/or to take steps which are meant to lead to, or facilitate, the conclusion of a contract between the consumer and the trader.