22 Amendments of Olga SEHNALOVÁ related to 2015/0287(COD)
Amendment 79 #
Proposal for a directive
Recital 1 a (new)
Recital 1 a (new)
(1 a) Article 169(1) and point (a) of Article 169(2) of the Treaty on the Functioning of the European Union (TFEU) provide that the Union is to contribute to the attainment of a high level of consumer protection through measures adopted pursuant to Article 114 TFEU.
Amendment 110 #
Proposal for a directive
Recital 5
Recital 5
(5) In order to remedy these problems, both businesses and consumers should be able to rely on fully harmonised rulehigh common standards for the supply of digital content and digital services setting out Union-wide contractual rights which are essential for this type of transactioncreate an equal playing field for various actors.
Amendment 120 #
Proposal for a directive
Recital 6
Recital 6
(6) Fully harmonised consumer contract law rules in all Member States will make it easier for businesses to offer digital content cross-border. They will have a stable contract law environment when selling online and otherwise at a distance to other Member States. Fully harmonised rules specific for digital content throughout the EUMinimum standards on a high level of consumer protection will premove the complexity caused by the different national rules that currently apply to contracts for the supply of digital content. They will also prevent legal fragmentation that otherwise would arise fvent obstructions of the four freedoms in the area of the supply of digital content and digital services while leaving room newfor national legisldeviations regulating specifically digital content matters and without endangering the harmony of national contractual law.
Amendment 168 #
Proposal for a directive
Recital 12
Recital 12
(12) In order to meet the expectations of consumers and ensure a clear-cut and simple legal framework for suppliers of digital content offered on a duratangible medium, in relation to conformity requirements and remedies available to consumers for non-conformity, this Directive should apply to goods such as DVDs and CDs, incorporatingdigital content integrated in goods such as household appliances, toys and storage devices where that digital content is embedded in such a way that the goods function only as a carrier of the digital content. Theit operates as an integral part of the goods and cannot easily be un- installed by the consumer, unless the seller proves that the lack of conformity lies in the hardware of the good. To the same avail, this Directive should also apply to the digital content supplied on a durable medium, independently whether it is soldgoods such as DVDs and CDs, incorporating digital content in such a way that the goods function only ats a distance or in face-to-face situations, so as to avoid fragmentation between the different distribution channels. Thecarrier of the digital content, unless the seller proves that the lack of conformity lies in the hardware of the good. Directive 2011/83 should continue to apply to those goods, including tohe obligations related to the delivery of goods, remedies in case of the failure to deliver and the nature of the contract under which those goods are supplied. Theis Directive is also without prejudice to the distribution right applicable to theose goods under copyright law.
Amendment 272 #
Proposal for a directive
Recital 34
Recital 34
(34) The supplier should be liable to the consumer for the lack of conformity with the contract and for any failure to supply the digitalany failure to supply the digital content or a digital service and for the lack of conformity with the contenract. Moreover, given that digital content or digital services may be supplied over a period of time, it is justified that the supplier should be liable for any lack of conformity which occurs during that period.
Amendment 280 #
Proposal for a directive
Recital 35
Recital 35
(35) A failure ofWhere the supplier fails to supply the digital content or a digital service to the consumer in accordance with the contract is a serious breach of the main contractual obligatthe consumer should call to make the supply within an additional and appropriate periond of the supplier, whichime. Any failure to supply within this additional period of time should allow the consumer to immediately terminate the contract. Where the supplier has initially not failed to supply the digital content or digital services, interruptions of the supply making the digital content or digital services not available or accessible to the consumer over a short period of time should be treated as non-conformity with the contract, and not a failure to supply. In particular, the requirement of proper continuity of the digital content should also cover more than negligible short term interruptions of the supply.
Amendment 290 #
Proposal for a directive
Recital 36 a (new)
Recital 36 a (new)
(36 a) This Directive should grant consumers throughout the European Union a new and unrivalled freedom in choosing remedies. A consumer should be able to require the seller to bring the digital content or digital service into conformity with the contract either through repair of the defects in the digital content or digital service or the smart good in which they are embedded or through replacement of the defective good with a conforming one. But more importantly, the consumer should be able to turn down any offer by the supplier to cure so as to require price reduction or termination of the contract. The consumer should be able to decide whether or not to give the supplier a chance to cure the defects, and in which way the supplier should cure the defects, according to his own preference. Repair or replacement might be preferable if a consumer thinks the value of the defective product is great, for example because the products are unique or the market prices of the products have gone up.
Amendment 364 #
Proposal for a directive
Recital 54 a (new)
Recital 54 a (new)
Amendment 369 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
This Directive lays down certain requiremene purpose of this Directive is the approximation of the laws, regulations and administrative provisions of the Member States on certain aspects concerning contracts for the supply of digital content or digital services to consumers, in particular rules on conformity of digital content with the contract, remedies in case of the lack of such conformity and the modalities for the exercise of those remedies as well as on modification and termination of such contracts.
Amendment 452 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. This Directive shall apply to any contract where the supplier supplies digital content to the consumer or undertakes to do so and, in exchange, a price is to be paidor undertakes to supply digital content or a digital service to the consumer in exchange for payment of a price and/or personal data or othe consumer actively provides counter-pr data provided by the consumerf ormance other than money in the form of personal data or any other data collected by the supplier or a third party.
Amendment 464 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
3. With the exception of Articles 5 and 11, this Directive shall apply to any durable medium incorporating digital content where the durable medium has been used exclusively as carrier of digital contentgoods in which a digital content is embedded unless the supplier proves that the lack of conformity lies in the hardware of the good. This Directive shall also apply to tangible media which serve exclusively as carrier of digital content, unless the supplier proves that the lack of conformity lies in the tangible medium.
Amendment 617 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
1. At the time tThe digital content is supplied to the consumer, theor digital contentservice shall be free ofrom any restriction resulting from any right of a third party, including based on intellectual property, so that rights, that may prevent the consumer using the digital content can be usedor digital service in accordance with the contract.
Amendment 635 #
Proposal for a directive
Article 8 b (new)
Article 8 b (new)
Article 8 b Commercial guarantees for lifespan 1. The producer of a technical good in which digital content or a digital service is embedded shall guarantee to the consumer the fitness of the product for its foreseeable minimum life span and indicate how long this life span is. The indicated timeframe shall not be shorter than the legal prescription period of the Member State where the consumer has his habitual residence and shall reflect the expectations of a reasonable and typical consumer. 2. When the producer does not fulfil his obligations according to paragraph 1, he shall have the same obligations to the consumer as the supplier.
Amendment 699 #
Proposal for a directive
Article 11 a (new)
Article 11 a (new)
Article 11 a In the case of a lack of conformity of the digital content or digital service with the contract, the consumer shall be entitled to choose between the following remedies: (a) have the digital content or digital service brought into conformity with the contract, in accordance with Article 12a; (b) be entitled to a price reduction, in accordance with Article 12b; (c) terminate the contract, in accordance with Articles 13, 13a and 13b.
Amendment 700 #
Proposal for a directive
Article 12 – title
Article 12 – title
Amendment 706 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1
Article 12 – paragraph 1 – subparagraph 1
In the case of a lack of conformity with the contract, the consumer shall be entitled to have the digital content or digital service brought into conformity with the contract free of charge, unless this is factually or legally impossible, disproportionate or unlawful.
Amendment 769 #
Proposal for a directive
Article 12 b (new)
Article 12 b (new)
Article 12 b Price reduction 1. As an alternative remedy to bringing into conformity, in the case of a lack of conformity of the digital content or digital service with the contract, the consumer shall be entitled to an appropriate reduction of the price in the manner set out in paragraph 2 where the digital content is supplied in exchange for a payment of a price. 2. The reduction in price shall be proportionate to the decrease in the value of the digital content or digital service which was received by the consumer compared to the value of the digital content or digital service would have if it were to be in conformity with the contract. 3. Where the digital content or digital service is to be supplied over a period of time, and for a certain period the digital content or digital service did not conform to the contract, the consumer shall be entitled to a price reduction proportionate to the period during which the digital content or digital service did not work conform to the contract. 4. The supplier shall reimburse the consumer without undue delay, and in any event within 14 days from the day on which the supplier was informed of the consumer's decision to invoke his right for a price reduction. The supplier shall give the refund using the same means of payment as the consumer used to pay for the digital content or digital service, unless the consumer expressly agrees otherwise. The supplier shall not impose any fee on the consumer in respect of the refund.
Amendment 770 #
Proposal for a directive
Article 13 – title
Article 13 – title
Termination of the contract for lack of conformity
Amendment 772 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. The consumer shall exercise the right to terminate the contract by notice to the supplier given by any meansAs an alternative remedy to bringing into conformity or price reduction, in the case of a lack of conformity of the digital content or digital service with the contract, the consumer shall be entitled to terminate the contract if the lack of conformity with the contract is not minor and causes or may cause a substantial effect on the consumer's use or enjoyment of the digital content or digital service. The burden of proof that the lack of conformity with the contract does not have substantial effect on the consumer's use or enjoyment of the digital content or digital service shall be on the supplier.
Amendment 786 #
Proposal for a directive
Article 13 – paragraph 2 – point a
Article 13 – paragraph 2 – point a
Amendment 969 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
1. Member States shall ensure that adequate and effective means exist to ensure compliance with this Directive, taking account in particular of the need for consumers to be informed about, enabled and facilitated to enforce their rights in practice. Such means shall include legal mechanisms to enable two or more natural persons or their representative entities to claim remedies collectively where appropriate.
Amendment 982 #
Proposal for a directive
Article 22 – paragraph 1
Article 22 – paragraph 1
The Commission shall, not later than on [the date of five years after entry into force] review the application of this Directive and submit a report to the European Parliament and the Council and the European Economic and Social Committee taking full account of the process of scrutiny and review on the application and implementation of this Directive. The review process shall include meaningful and detailed consultation and involvement with Member States and consumer, legal and business organisations at Union level. The report shall examine, inter alia, the case for harmonisation of rules applicable to contracts for the supply of digital content against counter-performance other than that covered by this Directive, in particular supplied against advertisement or indirect collection of data.