30 Amendments of Morten LØKKEGAARD related to 2016/0152(COD)
Amendment 82 #
Proposal for a regulation
Title
Title
Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on addressing unjustified geo-blocking and other forms of discrimination based on customers' nationality, place of residence or temporary location, or place of establishment within the internal market and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Text with EEA relevance)
Amendment 96 #
Proposal for a regulation
Recital 3
Recital 3
(3) Pursuant to Article 20 of Directive 2006/123/EC of the European Parliament and of the Council17 , Member States are to ensure that service providers established in the Union do not treat recipients of services differently on the basis of their nationality or place of residence. However, that provision has not been fully effective in combatting discrimination and it has not sufficiently reduced legal uncertainty, particularly because of the possibility to justify the differences in treatment for which it allows and the corresponding difficulties in enforcing it in practice. Moreover, geo-blocking and other forms of discrimination based on nationality, place of residence or temporary location, or place of establishment can also arise as a consequence of actions by traders established in third countries, which fall outside the scope of that Directive. __________________ 17 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36).
Amendment 106 #
Proposal for a regulation
Recital 5
Recital 5
(5) This Regulation aims at preventing discrimination based on customers' nationality, place of residence or place of establishment, including geo-blocking, in cross-border commercial transactions between traders and customers relating to the sales of goods and the provision of services within the Union. It seeks to address direct as well as indirect discrimination, thus also covering unjustified differences of treatment on the basis of other distinguishing criteria which lead to the same result as the application of criteria directly based on customers' nationality, place of residence or temporary location, or place of establishment. Such other criteria can be applied, in particular, on the basis of information indicating the physical location of customers, such as the IP address used when accessing an online interface, the address submitted for the delivery of goods, the choice language made or the Member State where the customer's payment instrument has been issued.
Amendment 113 #
Proposal for a regulation
Recital 6
Recital 6
(6) Considering that some regulatory and administrative barriers for traders have been removed across the Union in certain services sectors as a result of the implementation of Directive 2006/123/EC, in terms of material scope, consistency should be ensured between this Regulation and Directive 2006/123/EC. As a consequence, the provisions of this Regulation should apply inter alia to non- audio-visual electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, subject however to the specific exclusion provided for in Article 4 and the subsequent evaluation of that exclusion as provided for in Article 9. Audio-visual services, including services the main feature of which is the provision of access to broadcasts of sports events and which are provided on the basis of exclusive territorial licenses, are excluded from the scope of this Regulation where appropriate. Access to retail financial services, including payment services, should therefore also be excluded, notwithstanding the provisions of this Regulation regarding non-discrimination in payments. Or. en (see amendment to Article 1.3 and the scope of the Regulation)
Amendment 122 #
Proposal for a regulation
Recital 7
Recital 7
(7) Discrimination can also occur in relation to services in the field of transport, in particular with respect to the sales of tickets for the transport of passengers. However, in that regard Regulation (EC) No 1008/2008 of the European Parliament and of the Council18 , Regulation (EU) No 1177/2010 of the European Parliament and of the Council19 and Regulation (EU) No 181/2011 of the European Parliament and of the Council20 already contain broad prohibitions of discriminations covering all discriminatory practices that the present Regulation seeks to address. Furthermore, it is intended that Regulation (EC) No 1371/2007 of the European Parliament and of the Council21 will be amended to that effect in near future. Therefore, and in order to ensure consistency with the scope of application of Directive 2006/123/EC, services in the field of transport should remain outside the scope of this Regulation. __________________ 18Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ L 293, 31.10.2008, p. 3). 19 Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 (OJ L 334, 17.12.2010, p. 1). 20Regulation (EU) No 181/2011 of the European Parliament, therefore the provisions of this Regulation should also apply to these services. Or. en (see amendment to Article 1.3 and of the Council of 16 February 2011 on the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004 (OJ L 55, 28.2.2011, p. 1). 21 Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations (OJ L 315, 3.12.2007, p. 14). scope of the Regulation)
Amendment 128 #
Proposal for a regulation
Recital 10
Recital 10
(10) This Regulation should not affect acts ofall be without prejudice to Union law concerning judicial cooperation in civil matters, notably the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 of the European Parliament and of the Council24 and (EU) 1215/2012 of the European Parliament and of the Council25 , including the application of those acts and provisions in individual cases. In particular, the mere fact that a trader acts in accordanccomplies with this Regulation shall not be construed as implying that the trader directs his or her activities to the Member State where the consumer has its habitual residence or domicile within the provisions of this Regulation should not be construed as implying that hemeaning of Article 6(1)(b) of Regulation (EC) No 593/2008, and of Article 17(1)(c) of Regulation (EU) 1215/2012. Therefore, a trader, in accordance with this Regulation, who does not block or limit access to his or her online interfaces for customers from another Member State, apply different general conditions of access when selling goods or services in the specific situations laid down in this Regulation, or different conditions for payment transactions within the range of payment means he or she accepts, should not, on these grounds alone, be considered as directsing his or her activities to the consumer's Member State for the purpose of such applicaMember State in which the consumer has habitual residence or domicile, for the purpose of determining the applicable law and jurisdiction. __________________ 24 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6). 25 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).
Amendment 143 #
Proposal for a regulation
Recital 11
Recital 11
(11) The discriminatory practices that this Regulation seeks to address typically take place through general terms, conditions and other information set and applied by or on behalf of the trader concerned, as a precondition for obtaining access to the goods or services in question, and that are made available to the public at large. Such general conditions of access include inter alia prices, requirements based on telephone prefixes, payment conditions and delivery conditions. They can be made available to the public at large by or on behalf of the trader through various means, such as information published in advertisements, or on websites, or may form part of pre- contractual or contractual documentinformation. Such conditions apply in the absence of an individually negotiated agreement to the contrary entered into directlyterms and conditions between the trader and the customer. Terms and conditions that are individually negotiated between the trader and the customers should not be considered general conditions of access for the purposes of this Regulation. However, the possibility of individually negotiating terms and conditions or agreeing individually upon additional rights or obligations should not result in geo- blocking or other unjustified forms of discrimination addressed by this Regulation.
Amendment 149 #
Proposal for a regulation
Recital 12
Recital 12
(12) Both consumers and undertakings should be safeguarded fromWhen purchasing goods or services as end-users under general conditions of access, consumers and undertakings, in particular microenterprises, small and medium enterprises, are often in a similar position. Hence, both consumers and undertakings should be protected against discrimination for reasons related to their nationality, place of residence or place of establishment when acting as customers for the purposes of this Regulation. However, that protection should not extend to customers purchasing a good or a service for resale,subsequent resale, transformation, processing or renting because it would affect widely used distribution schemes between undertakings in a business to business context, often negotiated bilaterally and directly linked to the commercial strategies at downstream and upstream level, such as selective and exclusive distribution, which generally allow for manufacturers to select their retailers, subject to compliance with the rules on competition. Or. en (text of the Council General approach)
Amendment 173 #
Proposal for a regulation
Recital 16
Recital 16
(16) In certain cases, blocking, limiting of access or redirection without the customer's consent to an alternative version of an online interface for reasons related to the customer's nationality, place or residence or temporary location, or place of establishment might be necessary in order to ensure compliance with a legal requirement in Union law or in the laws of Member States in accordance with Union law. Such laws can limit customers' access to certain goods or services, for instance by prohibiting the display of specific content in certain Member States. Traders should not be prevented from complying with such requirements and thus be able to block, limit the access or redirect certain customers or customers in certain territories to an online interface, insofar as that is necessary for that reason.
Amendment 177 #
Proposal for a regulation
Recital 17
Recital 17
(17) In a number of specific situations, any differences in the treatment of customers through the application of general conditions of access, including outright refusals to sell goods or to provide services, for reasons related to the customers' nationality, place of residence or temporary location, or place of establishment cannot be objectively justified. In those situations, all such discrimination should be prohibited and customers should consequently be entitled, under the specific conditions laid down in this Regulation, to engage in commercial transactions under the same conditions as a local customer and should have full and equal access to any of the different goods or services offered, irrespective of their nationality, place of residence or temporary location, or place of establishment. Where necessary, a traders should therefore take measures to ensure compliance with that prohibition of discrimination if otherwise the customers concerned would be precluded from having such full and equal access. However, the prohibition applicable in those situations should not be understood as precluding traders from directing their activities at different Member States or certain groups of customers with targeted offers and differing terms andgeneral conditions of access, including through the setting-up of country-specific online interfaces which may include different prices.
Amendment 182 #
Proposal for a regulation
Recital 18
Recital 18
(18) The first of those situations is where the trader sells goods and there is no cross-border goods are delivered to a Member State to which the trader offers delivery ofin those goods by or on behalf ofeneral conditions of access or are collected at a location agreed upon between the trader toand the Member State where the customer resideconsumer in a Member State in which the trader offers such option in his general conditions of access. In that situation the custoonsumer should be able to purchase goods, under exactly the same conditions, including price and conditions relating to the delivery of the goods, as similar custoonsumers who are residents of the Member State of the traderin which the goods are delivered or in which the goods are collected. That may mean that a foreign custoonsumer will have to pick up the good in that Member State, or in a different Member State to which the trader delivers. This does not entail that traders should change their online interfaces, set-up new pickup stations, comply with national legal requirements or accordingly inform consumers about these when a trader does not pursue or direct his or her activities towards the Member State of the consumer. In these specific situations it is the consumer who undertakes responsibility for ensuring that the goods or services meet national requirements in his or her Member State. In this situation, there is no need to register for value added tax ("VAT") in the Member State of the customer, nor arrange for the cross-border delivery of goods.
Amendment 201 #
Proposal for a regulation
Recital 21 a (new)
Recital 21 a (new)
(21a) The prohibition to discriminate the customer's access to goods and services in those situations does not affect the application of any territorial limitations on after-sale assistance or after-sales services offered by the trader to the customer. Nor does it entail an obligation for traders to cover any additional costs of postage and transport beyond the contractually agreed place of delivery i.e. where the consumer or a third party carrier acting on behalf of the consumer picked up the good, where pursuant to Directive 1999/44/EC of the European Parliament and of the Council1a the trader is to provide for, free of charge, repair or replacement of a defective good, or an obligation for traders to bear additional costs when consumers exercises the right of withdrawal pursuant to Directive 2011/83/EU of the European Parliament and of the Council1b. Furthermore, this Regulation neither provide for an obligation to deliver goods cross-border to a Member State, where the trader does not offer delivery in his or her general conditions of access, nor for an obligation to accept to take back goods or bear additional costs in this regard outside the areas where the trader operates according to his general conditions of access. _______________ 1a Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ L 171, 7.7.1999, p. 12). 1bDirective 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).
Amendment 208 #
Proposal for a regulation
Recital 23
Recital 23
(23) In all those situations, traders may in some cases be prevented from selling goods or providing services to certain custoonsumers or to custoonsumers in certain territoriMember States, for reasons related to the nationality, place of residence or place of establishment of the custoonsumer, as a consequence of a specific prohibition or a requirement laid down in Union law or in the laws of Member States in accordance with Union law. Laws of Member States may also require, in accordance with Union law, tradeIt is, however, the consumer that bears tohe respect certain rules on the pricing of books. Traders should not be prevented from complying with such laws in as far as necessaryonsibility of ensuring that the products or services are legal in his or her Member State.
Amendment 217 #
Proposal for a regulation
Recital 24
Recital 24
(24) Under Union law, traders are in principle free to decide which means of payment they wish to accept, including payment brands. However, once this choice has been made, in view of the existing legal framework for payment services, there are no reasons for traders to discriminate customers within the Union by refusing certain commercial transactions, or by otherwise applying certain different conditions of payment in respect of those transactions, for reasons related to the nationality, place of residence or temporary location, or place of establishment of the customer. In this particular context, such unjustified unequal treatment for reasons related to the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union should be expressly prohibited as well. It should be further recalled that Regulation (EU) No 260/2012 already prohibits all payees, including traders, from requiring bank accounts to be located in a certain Member State for a payment in euro to be accepted.
Amendment 219 #
Proposal for a regulation
Recital 25
Recital 25
(25) Directive 2015/2366/EU of the European Parliament and of the Council28 introduced strict security requirements for the initiation and processing of electronic payments, which reduced the risk of fraud for all new and more traditional means of payment, especially online payments. Payment service providers are obliged to apply so-called strong customer authentication, an authentication process that validates the identity of the user of a payment service or of the payment transaction. For remote transactions, such as online payments, the security requirements go even further, requiring a dynamic link to the amount of the transaction and the account of the payee, to further protect the user by minimising the risks in case of mistakes or fraudulent attacks. As a result of these provisions, the risk of payment fraud in national and cross- border purchases is brought to an equal level and should not be used as an argument to refuse or discriminate any commercial transactions within the Union. However, in situations where there are no other means available to the trader to reduce the risk of default by the customer, including in particular difficulties related to assessing the creditworthiness of the customer, traders should be allowed to withhold the goods or the service until they receive a confirmation that the payment transaction was properly initiated. Different treatment, however, should be based only on objective and well justified reasons. __________________ 28 Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35– 127). Or. en (text of the Council General approach)
Amendment 244 #
Proposal for a regulation
Recital 33
Recital 33
(33) In order to achieve the objective of effectively addressing direct and indirect discrimination based on the nationality, place of residence or temporary location, or place of establishment of customers, it is appropriate to adopt a Regulation, which directly applies in all Member States. This is necessary in order to guarantee the uniform application of the non- discrimination rules across the Union and their entering into force at the same time. Only a Regulation ensures the degree of clarity, uniformity and legal certainty which is necessary in order to enable customers to fully benefit from those rules.
Amendment 248 #
Proposal for a regulation
Recital 34
Recital 34
(34) Since the objective of this Regulation, namely the prevention of direct and indirect discrimination based on nationality, place of residence or temporary location, or place of establishment of customers, including geo- blocking, in commercial transactions with traders within the Union, cannot be sufficiently achieved by Member States, due to the cross-border nature of the problem and the insufficient clarity of the existing legal framework, but can rather, by reason of its scale and potential effect on trade in the internal market be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.
Amendment 254 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Regulation seeks to contribute to the proper functioning of the internal market by preventing discrimination based, directly or indirectly, on the nationality, place of residence, temporary location or place of establishment of customers and to further supplement Article 20 of Directive 2006/123/EC.
Amendment 259 #
Proposal for a regulation
Article 1 – paragraph 2 – introductory part
Article 1 – paragraph 2 – introductory part
2. This Regulation applies to the following situations:does not apply to purely internal situations, where all the relevant elements of the transaction are confined within a single Member State.
Amendment 291 #
Proposal for a regulation
Article 1 – paragraph 5
Article 1 – paragraph 5
5. This Regulation shall not affect acts ofbe without prejudice to Union law concerning judicial cooperation in civil matters. Compliance with this Regulation shall not be construed as implying that a trader directs his or her activities to the Member State where the consumer has the habitual residence or domicile within the meaning of point (b) of Article 6(1) of Regulation (EC) No 593/2008, and point (c) of Article 17(1) of Regulation (EU) 1215/2012. In particular, where a trader acting, in accordance with Articles 3, 4 and 5, does not block or limit customers' access to his or her online interface, does not redirect customers to a version of his or her online interface that is different from the online interface to which the customer first sought access, regardless of their nationality or place of residence or place of establishment, does not apply different general conditions of access when selling goods or providing services in situations laid down in this Regulation or where the trader accepts payments instruments issued in another Member State on a non-discriminatory basis, that trader shall not be, on those grounds alone, considered as directing his or her activities to the Member State where the consumer has the habitual residence or domicile. (This amendment should fall if suggestion for Article 4.3b (new) is adopted)
Amendment 302 #
Proposal for a regulation
Article 2 – paragraph 2 – point c
Article 2 – paragraph 2 – point c
(c) 'customer' means a consumer who, or an undertaking which, is a national of a Member State or has his or her place of residence or place of establishment in a Member State, and intends to purchase or purchases under general conditions of access a good or a service within the Union, other than for resnly for end use and excluding resale, rental, or transformation or processing on a commercial scale;
Amendment 317 #
Proposal for a regulation
Article 3 – paragraph 1
Article 3 – paragraph 1
1. TA traders and an online marketplace shall not, through the use of technological measures or otherwise, block or limit customers' access to their online interface for reasons related to the nationality, place of residence or temporary location, or place of establishment of the customer.
Amendment 321 #
Proposal for a regulation
Article 3 – paragraph 2 – subparagraph 1
Article 3 – paragraph 2 – subparagraph 1
Traders shall not, for reasons related to the nationality, place of residence or temporary location, or place of establishment of the customer, redirect customers to a version of their online interface that is different from the online interface to which the customer originallyfirst sought to access, by virtue of its layout, use of language or other characteristics that make it specific to customers with a particular nationality, place of residence or temporary location, or place of establishment, unless the customer has givesn his or her explicit consent prior to such redirection.
Amendment 329 #
Proposal for a regulation
Article 3 – paragraph 2 – subparagraph 2
Article 3 – paragraph 2 – subparagraph 2
In the event of such redirection with the customer's explicit consent, the original version of the online interface to which the customer first sought access, shall remain easily accessible for that customer.
Amendment 353 #
Proposal for a regulation
Article 4 – paragraph 1 – point a
Article 4 – paragraph 1 – point a
(a) where the trader sells goods and those goods are not delivered cross-bordbuy goods and the trader offers in his or her general conditions of access delivery of those goods to a location in a Member State other tohan the Member State of the customer by the trader or on his or her behalf, including the option to collect the goods at a location to be agreed upon between the customer and the trader;
Amendment 366 #
Proposal for a regulation
Article 4 – paragraph 1 – point c
Article 4 – paragraph 1 – point c
(c) where the trader provides services, other than those covered by point (b), and those services are supplied to the customer in the premises of the trader or in a physical location where the trader operates, receive services from the trader other than electronically supplied services and those services are supplied to the customer in a physical location within a Member State otwher than that of which the customer is a national or in which the customer has the place of residence or the place of establishmente the trader operates.
Amendment 374 #
Proposal for a regulation
Article 4 – paragraph 1 a (new)
Article 4 – paragraph 1 a (new)
1a. The prohibition set out in paragraph 1 does not entail an obligation for a trader to comply with national legal requirements or to inform customers about these requirements when a trader does not pursue or direct his or her activities to the specific Member State.
Amendment 381 #
Proposal for a regulation
Article 4 – paragraph 3 a (new)
Article 4 – paragraph 3 a (new)
3a. Traders shall indicate the general conditions of access and possible restrictions in accordance with this Regulation at the latest at the beginning of the ordering process in accordance with Article 8 of Directive 2011/83/EU of the European Parliament and of the Council1a. _______________ 1aDirective 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).
Amendment 388 #
Proposal for a regulation
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
1. TA traders shall not, for reasons related to the nationality, place of residence or temporary location, or place of establishment of the customer, the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union, apply different conditions ofor a payment for any sales of goods or provision of servicestransaction, where:
Amendment 408 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1