33 Amendments of Othmar KARAS related to 2018/0090(COD)
Amendment 55 #
Proposal for a directive
Recital 2
Recital 2
(2) Consumer protection legislation should be applied effectively throughout the Union. Yet, the comprehensive Fitness Check of consumer and marketing law directives carried out by the Commission in 2016 and 2017 in the framework of the Regulatory Fitness and Performance (REFIT) programme concluded that the effectiveness of the Union consumer legislation is compromised by lack of awareness both among traders and consumers and by insufficient enforcement and limited consumer redress possibilitiesthe fact that existing means of redress are not sufficiently used.
Amendment 56 #
Proposal for a directive
Recital 3
Recital 3
(3) The Union has already taken a number of measures to improve awareness among consumers, traders and legal practitioners about consumer rights and to improve enforcement of consumer rights and consumer redress. However, there are remaining gaps, most notably the absence in national laws of truly effective and proportionate penalties to deter and sanction infringements, insufficient individual remedies for consumers harmed by breaches of national legislation transposing Directive 2005/29/EC36 and shortcomings of the injunctions procedure under Directive 2009/22/EC37. Revision of the injunctions procedure should be addressed by a separate instrument amending and replacing Directive 2009/22/EC. __________________ 36 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to- consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ L 149, 11.6.2005, p. 22). 37 Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers' interests (OJ L 110, 1.5.2009, p. 30).Directive 2009/22/EC of the European
Amendment 57 #
Proposal for a directive
Recital 4
Recital 4
(4) Directives 98/6/EC38, 2005/29/EC and 2011/83/EU39 include requirements for Member States to provide for effective, proportionate and dissuasive penalties to address infringements of national provisions transposing these directives. Furthermore, Article 21 of Regulation (EU) 2017/239440 on consumer protection cooperation (CPC) requires Member States to take enforcement measures, including imposition of penalties, in an effective, efficient and coordinated manner to bring about the cessation or prohibition of widespread infringements or widespread infringements with a Union dimension. Directives 98/6/EC, 2005/29/EC and 2011/83/EU include requirements for Member States to provide for effective, proportionate and dissuasive penalties to address infringements of national provisions transposing these directives. Furthermore, Article 21 of Regulation (EU) 2017/2394 on consumer protection cooperation (CPC) requires Member States to take enforcement measures, including imposition of penalties, in an effective, efficient and coordinated manner to bring about the cessation or prohibition of widespread infringements or widespread infringements with a Union dimension. It should be noted that Member States should continue to be free to use private law enforcement through injunctions instead of penalties, in accordance with their national laws and enforcement systems, and with due regard for the hierarchy of remedies. It should be noted that the results of the Consumer Scoreboard fail to reveal any direct link between the level of sanctions and the effectiveness of enforcement of consumer protection rules. Member States with no or light penalties perform very well in the Consumer Scoreboard's enforcement and compliance indicator. __________________ 38 Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers (OJ L 80, 18.3.1998, p. 27). 39 Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ L 304, 22.11.2011, p. 64). 40 Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004 (OJ L 345, 27.12.2017, p. 1).
Amendment 58 #
Proposal for a directive
Recital 5
Recital 5
(5) Current national rules on penalties differ significantly across the Union. In particular not all Member States ensure that effective, proportionate and dissuasive fines can be imposed on infringing traders for widespread infringements or widespread infringements with a Union dimension. For reasons of consistency between the different DirectivesIt is therefore appropriate, from the point of view of the principle of subsidiarity, to preserve diversity and not to oblige Member States to establish a parallel public law enforcement system. It should also be recognised that some national legal systems consider that the immediate penalising onf consumer protection, penalties shouldmmercial practices and contractual clauses, whose unfairness can only be addrssessed ion a horizontal manner by revising the existing rules on penalties of Directives 98/6/EC, 2005/29/EC and 2011/83/EU and by introducing new rules on penalties in Directive 93/13/EEC41. __________________ 41 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29)case- by-case basis on the basis of general clauses, is difficult to reconcile with the criminal law principle of a requirement of certainty and therefore only provide for penalties in those cases where a ban specifically imposed by a court or an authority is violated.
Amendment 59 #
Proposal for a directive
Recital 6
Recital 6
(6) To facilitate more consistent application of penalties, for infringements directly against the national provisions adopted pursuant to this Directive and / or against a judicial or administrative decision ordering the termination of an existing or the prohibition of an imminent infringement, in particular in intra-Union infringements, widespread infringements and widespread infringements with a Union dimension referred to in Regulation (EU) 2017/2394, common non-exhaustive criteria should be introduced for the application of fines. These criteria should include the cross- border nature of the infringement, namely; account may also be taken whether the infringement has actually harmed consumers also in other Member States. Any redress provided by the trader to consumers for the harm caused should also be taken into account. Repeated infringements by the same perpetrator shows a propensity to commit such infringements and is therefore a significant indication of the gravity of the conduct and, accordingly, of the need to increase the level of the penalty to achieve effective deterrence. The criterion of financial benefits gained, or losses avoided, due to the infringement is especially relevant where the national law provides for fines as penalties and sets the maximum fine as percentage of the trader’s turnover and where the infringement concerns only one or some of the markets in which the trader is operating.
Amendment 62 #
Proposal for a directive
Recital 7
Recital 7
(7) Furthermore, any fines imposed as penalties should take into account the annual turnover and profits of the infringing trader andTraders have to respect not only consumer protection requirements, but numerous other legal provisions - which also often change rapidly - from a wide variety of areas in the exercise of their entrepreneurial activity. Violations are frequently not committed deliberately. It should therefore be possible for Member States - or they should be encouraged - to act on the principle of ‘advise rather than punish’. Fines should only be imposed as penalties as a last resort and should take into account any fines that have been imposed on the trader in other Member States for the same infringement in, particular, in the context of the widespread infringements of consumer law and widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394.
Amendment 84 #
Proposal for a directive
Recital 12
Recital 12
(12) When deciding for which purpose the revenues from fines are used, Member States should take into account the ultimate objective of consumer legislation and its enforcement which is the protection of the general interest of consumers. Member States should therefore consider allocating at least part of the revenues from fines to enhance consumer protection within their jurisdictions, such as supporting consumer movement or activities aimed at empowering consumers.
Amendment 88 #
Proposal for a directive
Recital 13
Recital 13
Amendment 89 #
Proposal for a directive
Recital 14
Recital 14
(14) National rules on individual remedies for consumers harmed by unfair commercial practices are admittedly diverging. The current situation, where to a large extent it is left to the Member States to determine if and how remedies should be available, keeps Directive 2005/29/EC from being fully effective. Therefore, that Directive still has potential to fully reach its dual purpose, which is to contribute to the proper functioning of the InternREFIT Review has shown that, in principle, it is possible in all Market and achieve a high level of consumer protection. Despite the existing possibilities for remedies under national law, the Fitness Check did not identify significant examples of case law where victims of unfair commercial practices had claimed remedies. This contrasts with the fact that unfair commercial practices are the most frequent consumer rights- related problem across Europe. It indicates that the existing possibilities for remedies do not ensure that consumers can solve problems when their rights under that Directive have been breached. Accordingly, introducing a clear framework for individual remedies would facilitate private enforcement and be complementary to the existing requirement for Member States to ensure that adequate and effective means exist to enforce compliance with that Directive. It would also be in line with the approach to individual remedies in other consumer protection Directives, such as Directive 93/13/EEC and Directive 1999/44/EC ensuring a more coherent and consistent application of the consumer acquisember States to resort to remedies under national civil law in the event of unfair commercial practices. In order to improve access to individual remedies for consumers harmed by unfair commercial practices, Member States should designate specific authorities which provide consumers with information.
Amendment 90 #
Proposal for a directive
Recital 15
Recital 15
(15) Member States should ensure that remedies are available for consumers harmed as regards their property or physical integrity 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, taking into account the hierarchy of remedies and with due respect for their civil law and, in particular, also their liability systems, and the conditions laid down therein. As a minimum, the contractual remedies provided by the Member States should include the right 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.
Amendment 177 #
Proposal for a directive
Recital 42
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 testing of food products. __________________ 46, which has an application as a Union-wide, harmonised methodology. __________________ 46 C(2017) 6532. C(2017) 6532.
Amendment 182 #
Proposal for a directive
Recital 43
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 being identical to the same product marketed in several other Member States, where those products have significantly different composition or characteristics, following an examination based on a Union-wide harmonised methodology, such as that currently being developed by the Commission’s Joint Research Centre, have significantly different composition or characteristics following assessment in accordance with a European-wide harmonised methodology, such as the one being prepared 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, the use of local raw materials or production sites, consideration of national legislation (e.g. taxes, generally accepted national standards of food composition), 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.
Amendment 212 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2005/29/EC
Article 6 – paragraph 2 – point c
Article 6 – paragraph 2 – point c
(c) Any marketing of a product as being identical to the same product marketed in several other Member States, while those products have significantly different composition or characteristics - differences which cannot be objectively justified;
Amendment 231 #
Proposal for a directive
Article 1 – paragraph 1 – point 4
Article 1 – paragraph 1 – point 4
Directive 2005/29/EC
Article 11 a – paragraph 1
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 as regards their property or physically in order to eliminate all thethe harmful effects of those unfair commercial practices in accordance with their national lawwhile respecting their collective civil law and, in particular, liability systems and the conditions set out therein, in accordance with their national law and while respecting the hierarchy of warranty remedies.
Amendment 239 #
Proposal for a directive
Article 1 – paragraph 1 – point 4
Article 1 – paragraph 1 – point 4
Directive 2005/29/EC
Article 11 a – paragraph 2
Article 11 a – paragraph 2
(2) Contractual remedies shall include, as a minimum, the possibility for the consumer to unilaterally terminate the contract, while respecting hierarchy of remedies.
Amendment 243 #
Proposal for a directive
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Directive 2005/0029/EC
Article 13 – paragraph 1
Article 13 – paragraph 1
(1) Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and/or of a judicial or administrative decision ordering the termination of an infringement that has already occurred or the prohibition of an imminent infringement and shall take all necessary measures to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.
Amendment 244 #
Proposal for a directive
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Directive 2005/0029/EC
Article 13 – paragraph 2 – introductory part
Article 13 – paragraph 2 – introductory part
(2) Member States shall ensure that, when deciding on whether to impose a penalty and on its level, for a breach of the national rules adopted pursuant to this Directive and/or failure to comply with a decision terminating an infringement that has already taken place or prohibiting an imminent infringement, the administrative authorities or courts shall give due regard to the following criteria where relevant:
Amendment 246 #
Proposal for a directive
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Directive 2005/0029/EC
Article 13 – paragraph 2 – point b
Article 13 – paragraph 2 – point b
(b) the number of consumers affectctually harmed, including those actually harmed in other Member State(s);
Amendment 249 #
Proposal for a directive
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Directive 2005/29/EC
Article 13 – paragraph 2 – point f
Article 13 – paragraph 2 – point f
(f) the financial benefits gained or losses avoided by the trader due to the infringement;
Amendment 254 #
Proposal for a directive
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Directive 2005/29/EC
Article 13 – paragraph 3
Article 13 – paragraph 3
(3) Where the penalty to be imposed is a fine, 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. Member States may provide that in the event of a breach of the national provisions adopted pursuant to this Directive, the trader shall be advised by the authority with a view to the most efficient possible termination and urged to comply with the law, and no sanction shall be imposed if the request is acted on in time. They shall specify the detailed conditions for such a procedure.
Amendment 266 #
Proposal for a directive
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Directive 2005/29/EC
Article 13 – paragraph 4
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 2017/2934 in the case of activities that are actively pursued with a cross-border orientation by the trader include the possibility to impose fines, the maximum amount of which shall be at least 4 % of the trader's annual turnover in the Member State or Member States concerned.
Amendment 267 #
Proposal for a directive
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Directive 2005/29/EC
Article 13 – paragraph 5
Article 13 – paragraph 5
Amendment 312 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 a (new)
Article 2 – paragraph 1 – point 1 a (new)
Directive 2011/83/EU
Article 3 – paragraph 3 – point e
Article 3 – paragraph 3 – point e
(1a) Point (e) of Article 3(3) is replaced by the following: “(e) for the creation, acquisition or transfer of immovable property or of rights in immovable property; , including agency services;” Or. de (https://eur-lex.europa.eu/legal- content/EN/TXT/HTML/?uri=CELEX:32011L0083&qid=1537779997635&from=EN)
Amendment 313 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 b (new)
Article 2 – paragraph 1 – point 1 b (new)
Directive 2011/83/EU
Article 3 – paragraph 3 – point f
Article 3 – paragraph 3 – point f
(1b) Point (f) of Article 3(3) is replaced by the following: “(f) for the construction of new buildings, the substantial conversion of existing buildings and for rental of accommodation for residential purposes; , including agency services, for residential purposes;” Or. de (https://eur-lex.europa.eu/legal- content/EN/TXT/HTML/?uri=CELEX:32011L0083&qid=1537797342987&from=EN)
Amendment 315 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 c (new)
Article 2 – paragraph 1 – point 1 c (new)
Directive 2011/83/EU
Article 3 – paragraph 4 a (new)
Article 3 – paragraph 4 a (new)
(1c) The following paragraph 4a is inserted in Article 3: Article 3 - paragraph 4a The Member States may stipulate that a contract concluded in accordance with Article 2(8)(a) and (b) shall not be considered an off-premises contract if the consumer themselves initiated business with the trader with the purpose of concluding the contract. Member States which make use of this option shall inform the Commission directly. The Commission shall make this information available to consumers and traders in an easily accessible manner on a special website.
Amendment 407 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 – point 2
Article 2 – paragraph 1 – point 8 – point 2
(2) paragraph 4(b) is amended as follows: (a) ‘(ii) the consumer has not acknowledged that he loses his right of withdrawal when giving his consent’; (b)deleted. Point (ii) is amended as follows: Point (iii) is deleted.
Amendment 410 #
Proposal for a directive
Article 2 – paragraph 1 – point 9 – point 1
Article 2 – paragraph 1 – point 9 – point 1
Directive 2011/83/EU
Article 16 – paragraph 1 – point a
Article 16 – paragraph 1 – point a
(a) service contracts after the service has been fupartially performed if the performance has begun with the consumer’s prior express consent’;
Amendment 411 #
Proposal for a directive
Article 2 – paragraph 1 – point 9 – point 1
Article 2 – paragraph 1 – point 9 – point 1
(a) service contracts after the service has been fully performed if the performance has begun with the consumer’s prior express consent;
Amendment 413 #
Proposal for a directive
Article 2 – paragraph 1 – point 9 – point 1 a (new)
Article 2 – paragraph 1 – point 9 – point 1 a (new)
Directive 2011/83/EU
Article 16 – paragraph 1 – point h
Article 16 – paragraph 1 – point h
(1a) point (h) is replaced by the following: ‘(h) contracts where the consumer has specifically requested a visit from the trader for the purpose of carrying out urgent repairs or maintenance or performing other urgent services required at short notice. If, on the occasion of such visit, the trader provides services in addition to those specifically requested by the consumer or goods other than replacement parts necessarily used in carrying out the maintenance or in making the repairs, the right of withdrawal shall apply to those additional services or goods; content/EN/TXT/HTML/?uri=CELEX:32011L0083&qid=1537446850688&from=EN)’ Or. de (https://eur-lex.europa.eu/legal-
Amendment 424 #
Proposal for a directive
Article 2 – paragraph 1 – point 10
Article 2 – paragraph 1 – point 10
Directive 2011/83/EU
Article 24 – paragraph 1
Article 24 – paragraph 1
1. Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and/or of court or administrative decisions intended to end an existing infringement or prevent an impending infringement and shall take all necessary measures to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.
Amendment 442 #
Proposal for a directive
Article 2 – paragraph 1 – point 11 – point 1 – point a a (new)
Article 2 – paragraph 1 – point 11 – point 1 – point a a (new)
Directive 2011/83/EU
Annex I – part A – Instructions for completion – point 1 – point b
Annex I – part A – Instructions for completion – point 1 – point b
(b) in the case of a sales contractaa) point (b) is replaced by the following: ‘(b) in the case of a sales contract or in the case of a contract for several goods ordered as part of a single order and delivered separately or in the case of a contract for the delivery of one item in multiple part consignments or pieces: ‘…on which you acquire, or a third party other than the carrier and indicated by you acquires, physical possession of the goods.’; content/EN/TXT/HTML/?uri=CELEX:32011L0083&qid=1537955310239&from=FR)item or, in the case of separate delivery of goods ordered in a single order, the final item or final part consignment.’; Or. de (https://eur-lex.europa.eu/legal-
Amendment 454 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1
Article 3 – paragraph 1 – subparagraph 1
Directive 1993/13/EEC
Article 8 b – paragraph 1
Article 8 b – paragraph 1
1. Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and/or of court or administrative decisions intended to end an existing infringement or prevent an impending infringement and shall take all necessary measures to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.
Amendment 470 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1
Article 4 – paragraph 1 – subparagraph 1
Directive 1998/06/EC
Article 8 – paragraph 1
Article 8 – paragraph 1
1. Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and/or of court or administrative decisions intended to end an existing infringement or prevent an impending infringement and shall take all necessary measures to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.