Activities of Malcolm HARBOUR related to 2008/0196(COD)
Plenary speeches (1)
Consumer rights (debate)
Amendments (41)
Amendment 235 #
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 Community. 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 Community level. Furthermore consumers will enjoy a high common level of protection across the Community. However the regulatory aspects concern only contracts concluded between traders and consumers. Therefore, among others, contracts relating to employment, contracts relating to succession rights, contracts relating to family law and contracts relating to the incorporation and organisation of companies or partnership agreements should be excluded from the Directive.
Amendment 246 #
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 cover contracts relating to financial services only inso relation to unfair as this is necessary to fill the regulatory gapsterms in such consumer contracts and allow for more stringent national rules to be applied in that field.
Amendment 249 #
Proposal for a directive
Recital 11 c (new)
Recital 11 c (new)
(11c) In case of overlap between this Directive and Directive 2006/123/EC or Directive 2000/31/EC of the European Parliament and of the Council, this Directive should take precedence.
Amendment 250 #
Proposal for a directive
Recital 11 d (new)
Recital 11 d (new)
(11d) This Directive should apply only in so far as there are no specific provisions with the same objective, nature or effect in other existing or future Union legislation such as in the fields of transport or energy supply. The corresponding provisions of this Directive should not therefore apply in the areas covered by such specific provisions.
Amendment 251 #
Proposal for a directive
Recital 11 e (new)
Recital 11 e (new)
(11e) This Directive should not affect the possibility of the Member States to adopt or maintain national provisions under other Union minimum harmonisation legislation.
Amendment 295 #
Proposal for a directive
Recital 16
Recital 16
(16) The definition of a durable medium should include, in particular, documents on paper, USB sticks, CD-ROMsS, DVDs, memory cards and the hard drive of the computer on which the electronic mail or a pdf file is storedcomputer file is stored. The question of how long is adequate for storage of a message depends on the nature of the good or service in question. Where a trader or consumer is under an obligation to provide information on a durable medium providing that information on a durable medium should be satisfied by providing it in a properly addressed e- mail.
Amendment 331 #
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 agreement. In contrast, because of the potential for psychological pressure in the case of off premises contracts for the provision of services (including where goods are provided as part of the transaction) the consumer should retain his right of withdrawal in cases where performance begins during the withdrawal period at the consumer’s express request on a durable medium. However, it would be unfair to allow the consumer to withdraw without the consumer being obliged to pay a reasonable amount to the trader to reflect services provided and goods provided as part of the transaction prior to withdrawal, provided that the trader informed the consumer of the obligation to pay, on a durable medium prior to conclusion of the contract.
Amendment 332 #
Proposal for a directive
Recital 35 a (new)
Recital 35 a (new)
(35a) It would not be proportionate to apply the rules in Chapter 3 to very low value off premises contracts.
Amendment 347 #
Proposal for a directive
Recital 40
Recital 40
(40) If the good is not in conformity with the contract, firstly,at his choice the consumer should have the possibility to require the trader to repair the goodsis entitled to have the goods repaired or to replace them at the trader's choiced, unless the trader proves that those remedies are unlawful, impossible or causes the trader disproportionate effort. In addition the consumer may, normally for a period of 30 days from the delivery of the goods, terminate the contract and have the price refunded in full. The trader'’s effort should be determined objectively considering costs incurred by the trader when remedying the lack of conformity, the value of the goods, and the significance of the lack of conformity. TheA lack of spare parts should not be a valid ground to justify the trader'’s failure to remedy the lack of conformity within a reasonable time or without a disproportionate effort.
Amendment 357 #
Proposal for a directive
Recital 42
Recital 42
(42) When various circumstances are relevant the consumer should be entitled to choose freely any of the available remedies. This would be the case in particular where the trader has either refused or has more than oncefailed or will failed to remedy the lack of conformity or the consumer should be entitled to choose freely any of the available remediestrader has in remedying the defect caused significant inconvenience or will do so. The trader'’s refusal can be either explicit or implicit, meaning in the latter case that the trader does not respond or ignores the consumer'’s request to remedy the lack of conformity. The question of whether a trader will cause significant inconvenience in remedying a defect or is likely to fail to be able to remedy a defect is to be judged on objective grounds, such as, the poor after sale service that has been provided to the consumer.
Amendment 499 #
Proposal for a directive
Article 2 – paragraph 1 a (new)
Article 2 – paragraph 1 a (new)
An obligation in this Directive to provide information on a durable medium is satisfied, where the consumer or trader has provided the other party with an e- mail address, by providing the information in an e-mail to that address.
Amendment 510 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
2. This Directive shall only apply to financial services as regards certain off- premises contracts as provided for by Articles 8 to 20, unfair contract terms as provided for by Articles 30 to 39 and general provisions as provided for by Articles 40 to 46, read in conjunction with Article 4 on full harmonisationthe relevant definitions in Article 2. Member States may maintain or introduce in their national law provisions in relation to financial services which are more stringent than those in Articles 30 to 39.
Amendment 516 #
Proposal for a directive
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2a. The Directive shall not affect the general contract law of Member States, insofar as this is not harmonised, within the scope of the Directive.
Amendment 523 #
Proposal for a directive
Article 3 – paragraph 4
Article 3 – paragraph 4
4. Articles 5, 7, 9 and 11 shall be without prejudice to the provisions concerning information requirements containThis Directive shall apply to contracts covered inby Directive 2006/123/EC of the European Parliament and of the Council14 and Directive 2000/31/EC of the European Parliament and of the Council15 .
Amendment 536 #
Proposal for a directive
Article 3 – paragraph 4 a (new)
Article 3 – paragraph 4 a (new)
Amendment 537 #
Proposal for a directive
Article 3 – paragraph 4 b (new)
Article 3 – paragraph 4 b (new)
4b. Member States, in accordance with Union law, may maintain or introduce appropriate and proportionate additional information or presentation requirements adopted as a result of an investigation or a study of a sector of the economy which demonstrates consumer detriment, or a failure of competition, in that sector.
Amendment 547 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
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 provided otherwise in this Directive.
Amendment 727 #
Proposal for a directive
Article 9 – paragraph 1 – point f a (new)
Article 9 – paragraph 1 – point f a (new)
(fa) with respect to an off premises contract for the provision of services (including where goods are provided as part of the transaction), that the consumer would be liable to pay the trader a reasonable amount calculated according to Article 17(4), in the event of exercising the right of withdrawal after having made a request pursuant to Article 10(2a).
Amendment 753 #
Proposal for a directive
Article 10 – paragraph 2 a (new)
Article 10 – paragraph 2 a (new)
2a. Where a consumer wishes the provision of services (including where goods are provided as part of the transaction), to begin during the withdrawal period provided for in Article 12(1a), the trader shall require that the consumer makes such a request on a durable medium.
Amendment 942 #
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 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 period.
Amendment 952 #
Proposal for a directive
Article 17 – paragraph 2 a (new)
Article 17 – paragraph 2 a (new)
2a. In relation to an off premises contract for the provision of services (including where goods are provided as part of the transaction), subject to a right of withdrawal where the trader has failed to provide information in accordance with Article 9(1)(b), (g) or failed to require a request from the consumer in accordance with Article10(2a), the consumer shall bear no cost for services performed or for goods provided as part of the transaction, in full or in part, during the withdrawal period.
Amendment 953 #
Proposal for a directive
Article 17 – paragraph 2 b (new)
Article 17 – paragraph 2 b (new)
2b. Where the consumer exercises the right of withdrawal after having made a request in accordance with Article 10(2a), the consumer shall pay the trader a reasonable amount: (a) which shall not exceed an amount which is in proportion to the extent of the services provided until the time the consumer has informed the trader of the exercise of the right of withdrawn, in comparison with those required under the contract; (b) for any diminished value of any goods supplied in connection with the service performance in accordance with paragraph 2.
Amendment 1015 #
Proposal for a directive
Article 19 – paragraph 2 – point b
Article 19 – paragraph 2 – point b
Amendment 1017 #
Proposal for a directive
Article 19 – paragraph 2 – point c
Article 19 – paragraph 2 – point c
Amendment 1044 #
Proposal for a directive
Article 20 – paragraph 2 – point c a (new)
Article 20 – paragraph 2 – point c a (new)
(ca) an off premises contract or off premises contracts entered into on the same occasion, the value or aggregate value of which is less than EUR 100.
Amendment 1051 #
Proposal for a directive
Article 8 – paragraph 1 a (new)
Article 8 – paragraph 1 a (new)
1a. Member States may decide that this Chapter shall not apply to an off premises contract the value of which, or the aggregate value of such contracts entered into on the same occasion, is up to Euro 100.
Amendment 1197 #
Proposal for a directive
Article 26 – paragraph 1 – introductory part
Article 26 – paragraph 1 – introductory part
1. As provided for in paragraphs 2 to 5, wWhere the goods do not conform to the contract, the consumer is entitled to have the lack of conformity remedied by:
Amendment 1205 #
Proposal for a directive
Article 26 – paragraph 1 – point a
Article 26 – paragraph 1 – point a
(a) have the lack of conformity remedied by repair or replacement,;
Amendment 1216 #
Proposal for a directive
Article 26 – paragraph 1 – point b
Article 26 – paragraph 1 – point b
(b) haveing the price reduced,;
Amendment 1224 #
Proposal for a directive
Article 26 – paragraph 1 – point c
Article 26 – paragraph 1 – point c
(c) haveing the contract rescindedterminated and receiving a full refund of the price.
Amendment 1240 #
Proposal for a directive
Article 26 – paragraph 2
Article 26 – paragraph 2
2. The trader shall remedy the lack of conformity by either repair or replacement according to his choice. the choice of the consumer. During a period of thirty days from the day risk passes to the consumer, he may instead terminate the contract and receive a full refund, except where the lack of conformity is trivial. The period of thirty days shall be reduced where: (a) the goods are perishable; or (b) the consumer should have discovered the lack of conformity before carrying out an act inconsistent with returning the goods.
Amendment 1242 #
Proposal for a directive
Article 26 – paragraph 2 a (new)
Article 26 – paragraph 2 a (new)
2a. Where the consumer agrees that the lack of conformity should be remedied by repair or replacement, the period referred to in paragraph 2 is suspended until the repair is successfully completed or found not to be possible, or the consumer has acquired material possession of the replacement good.
Amendment 1251 #
Proposal for a directive
Article 26 – paragraph 3 – subparagraph 1
Article 26 – paragraph 3 – subparagraph 1
Where the remedy chosen by the consumer is repair or replacement and the trader has proved that remedying the lack of conformity by repair or replacementaccording to the choice of the consumer is unlawful, impossible or would cause the trader a disproportionate effort, the consumer may choose to have the price reduced or the contract rescinded. A trader's effort is disproportionate if it imposes costs on him which, in comparison with the price reduction or the rescission of the contract, are excessive, taking into account the value of the goods if there was no lack of conformity and the significance of the lack of conformityshall be offered the other of those two remedies.
Amendment 1252 #
Proposal for a directive
Article 26 – paragraph 3 – subparagraph 1 a (new)
Article 26 – paragraph 3 – subparagraph 1 a (new)
A trader's effort is disproportionate if it imposes costs on him which, in comparison with the other remedy, are excessive, taking into account the value of the goods if there was no lack of conformity and the significance of the lack of conformity.
Amendment 1253 #
Proposal for a directive
Article 26 – paragraph 3 – subparagraph 1 b (new)
Article 26 – paragraph 3 – subparagraph 1 b (new)
In the event that both of those remedies are unlawful, impossible or would cause the trader a disproportionate effort, the consumer may choose freely between having the price reduced or the contract terminated.
Amendment 1278 #
Proposal for a directive
Article 26 – paragraph 4 – point b
Article 26 – paragraph 4 – point b
(b) the trader has failed, or according to objective circumstances is likely to fail, to remedy the lack of conformity within a reasonable time;
Amendment 1283 #
Proposal for a directive
Article 26 – paragraph 4 – point c
Article 26 – paragraph 4 – point c
(c) the trader has triedremedied the lack of conformity, causing significant inconvenience to the consumer, or if the trader, according to objective circumstances, will not be able to remedy the lack of conformity, without causing significant inconvenience to the consumer;
Amendment 1293 #
Proposal for a directive
Article 26 – paragraph 4 – point d
Article 26 – paragraph 4 – point d
(d) the same defect has reappeared more than onceafter repair, a defect appears within a short period of time.;
Amendment 1294 #
Proposal for a directive
Article 26 – paragraph 4 – point d a (new)
Article 26 – paragraph 4 – point d a (new)
(da) the consumer has grounds to believe that the goods are dangerous.
Amendment 1301 #
Proposal for a directive
Article 26 – paragraph 5 d (new)
Article 26 – paragraph 5 d (new)
5d. Member States may adopt or maintain provisions of national law giving consumers, in the event of lack of conformity, the right for a short period to terminate the contract and receive a full refund or a free choice from among the remedies referred to in paragraph 1, in order to ensure a higher level of protection for consumers.
Amendment 1377 #
Proposal for a directive
Article 28 – paragraph 5 e (new)
Article 28 – paragraph 5 e (new)
5e. Member States may adopt or maintain provisions of national law providing for a longer liability period, in order to ensure a higher level of protection for the consumer.