Activities of Robert ROCHEFORT related to 2008/0196(COD)
Plenary speeches (2)
Explanations of vote
Consumer rights (debate)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on consumer rights PDF (1 MB) DOC (1 MB)
Amendments (137)
Amendment 213 #
Proposal for a directive
Citation 1
Citation 1
Having regard to the Treaty establishon the Functioning of the European CommunityUnion, and in particular Article 95114 thereof,
Amendment 214 #
Proposal for a directive
Citation 4
Citation 4
Acting in accordance with the procedure laid down in Article 251 of the Treaty3ordinary legislative procedure,
Amendment 215 #
Proposal for a directive
Recital 2
Recital 2
(2) Those Directives have been reviewed in the light of experience with a view to simplifying and updating the applicable rules, removing inconsistencies and closing unwanted gaps in the rules. That review has shown that it is appropriate to replace those four Directives by this single Directive. This Directive should accordingly lay down standard rules for the common aspects and move away from the minimum harmonisation approach in the former Directives under which Member States could maintain or adopt stricter national rules.
Amendment 218 #
Proposal for a directive
Recital 3
Recital 3
(3) Article 15369(1) and (32)(a) of the Treaty on the Functioning of the European Union provides that the CommunityUnion is to contribute to the attainment of a high level of consumer protection by the measures it adopts pursuant to Article 95114 thereof.
Amendment 220 #
Proposal for a directive
Recital 4
Recital 4
(4) In accordance with Article 14(2)26 of the Treaty on the Functioning of the European Union, the internal market comprises an area without internal frontiers in which the free movement of goods and services and freedom of establishment are ensured. The harmonisation of certain aspects of consumer contract law is necessary for the promotion of a real consumer internal market striking the right balance between a high level of consumer protection and the competitiveness of enterprises, while ensuring the respect of the principle of subsidiarity.
Amendment 224 #
Proposal for a directive
Recital 5
Recital 5
(5) The cross-border potential of distance selling which should be one of the main tangible results of the internal market is not fully exploited by consumers. Compared with the significant growth of domestic distance sales over the last few years, the growth in cross-border distance sales has been limited. This discrepancy is particularly significant for Internet sales for which the potential of further growth is high. The cross-border potential of contracts negotiated away from business premises (direct selling) is constrained by a number of factors including the different national consumer protection rules imposed upon the industry. Compared with the growth of domestic direct selling over the last few years, in particular in the services sector (e.g. utilities), the number of consumers using this channel for cross- border purchases has remained flat. Responding to increased business opportunities in many Member States, small and medium size enterprises (including individual entrepreneurs) or agents of direct selling companies should be more inclined to seek business opportunities in other Member States, in particular in border regions. Therefore the full harmonisation of certain aspects of consumer information and of the right of withdrawal in distance and off- premises contracts will contribute to thea high level of consumer protection and better functioning of the business to consumer internal market.
Amendment 226 #
Proposal for a directive
Recital 6
Recital 6
Amendment 229 #
Proposal for a directive
Recital 7
Recital 7
(7) These disparitiesCertain disparities in the Member States’ legislation in the field of consumer contracts, particularly contracts concluded at a distance or away from business premises, create significant internal market barriers affecting business and consumers. They increase compliance costs to business wishing to engage in cross border sale of goods or provision of services. FInappropriate fragmentation also undermines consumer confidence in the internal market. The negative effect on consumer confidence is strengthened by an uneven level of consumer protection across the Community. This problem is particularly acute in the light of new market developments.
Amendment 233 #
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 basedUnless otherwise specified and in accordance with Article 169 of the Treaty on the Functioning of the European Union, the measures laid out in this Directive shall not prevent Member States from maintaining or introducing more stringent measures providing for a higher level onf 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 eliminatonsumer protection. However, full harmonisation of some key regulatory aspects is justified, in respect of distance and off-premises contracts, with a view to ensuring a consistent framework of consumer protection across the European Union and considerably increasing legal certainty for both consumers and business. In the fields to be harmonised, by establishing uniform rules at Community level. Furthermore consumers will enjoy a high common leveloth consumers and business will be able to rely on a clearer regulatory framework based on well-defined legal concepts regulating certain aspects of distance and off- protectionemises business-to-consumer contracts across the CommunityUnion.
Amendment 240 #
Proposal for a directive
Recital 9
Recital 9
(9) The field harmonised by this Directive should cover certain aspects of business to consumer contracts. These are rules on information to be provided before conclusion and during performance of thedistance and off-premises contracts, the right of withdrawal for distance and off- premises contracts, consumer rights specific to contracts of sale and unfair contract terms in consumer contracts; certain consumer rights specific to contracts of sale and certain provisions relating to unfair contract terms in consumer contracts must also be harmonised.
Amendment 241 #
Proposal for a directive
Recital 9 a (new)
Recital 9 a (new)
(9a) The provision of pre-contractual information on business premises lies outside the scope of this Directive, since Member States retain the right to maintain or introduce national rules on consumer information at points of sale, concerning inter alia: – the main characteristics of the goods or services; – the price of the goods or services; – the conditions of sale or service; and – any limits on the trader’s liability.
Amendment 259 #
Proposal for a directive
Recital 12
Recital 12
(12) The new definition of distance contract should cover all cases where sales and service contracts are concluded without the simultaneous physical presence of the parties, using exclusively one or more means of distance communication (such as mail order, Internet, telephone or fax). This should create a level playing field for all distance traders. It should also improve legal certainty as compared to the current definition requiring the presence of an organised distance selling scheme run by the trader up to the conclusion of the contract.
Amendment 260 #
Proposal for a directive
Recital 12 a (new)
Recital 12 a (new)
(12a) European markets feature an increasing amount of online digital content, and a growing number of new products are intertwined combinations of physical product and digital content and services; it should be clear, therefore, that the goods covered by this Directive also include digital products (such as downloads and software), where consumers acquire permanent use of those products or a form of use that is comparable to the physical possession of goods.
Amendment 272 #
Proposal for a directive
Recital 14
Recital 14
(14) An off-premises contract should be defined as a contract concluded with the simultaneous physical presence of the trader and the consumer, away from business premises, for example at the consumer's home or workplace. In an off- premises context, consumers are under psychological pressureContracts concluded away from the trader’s business premises are characterised by the fact that consumers are unprepared for contract negotiations and are temporarily in a special situation both from a psychological point of view and in terms of comparing items and prices, no matter whether they have solicited the trader's visit or not. Furthermore, in order to prevent circumventions of rules when consumers are approached away from business premises, a contract negotiated, for example at the consumer's home but concluded in a shop should be regarded as an off-premises contract.
Amendment 281 #
Proposal for a directive
Recital 15
Recital 15
(15) Business premises should include premises in whatever form (such as shops, taxis or lorries) which serve as a permanent place of business for the trader. Market stalls and fair stands should be treated as business premises even though they may be used by the trader on a temporary basis. Other premises which are rented for a short time only and where the trader is not established (such as hotels, restaurants, conference centres, cinemas rented by traders who are not established there) should not be regarded as business premises. Similarly, all public spaces including public transport or facilities as well as private homes or workplaces should not be regarded as business premises.
Amendment 300 #
Proposal for a directive
Recital 17
Recital 17
(17) Consumers should be entitled to receive information before the conclusion of the contract. However traders should not have to provide the information when already apparent from the context. For example in an on-premises transaction, the main characteristics of a product, the identity of the trader and the arrangements for delivery may be apparent from the context. In distance and off-premises transactions, the trader should always provide the information on arrangements for payment, delivery, performance and the complaint handling policy, since these might not be apparent from the context.
Amendment 303 #
Proposal for a directive
Recital 19
Recital 19
Amendment 307 #
Proposal for a directive
Recital 22
Recital 22
(22) Since in the case of distance sales, the consumer is not able to see the good before concluding the contract he should have a right of withdrawal, which allows him to ascertain the nature, quality and functioning of the goods.
Amendment 317 #
Proposal for a directive
Recital 27
Recital 27
(27) If the trader has not informed the consumer onwhether or not he has the right of withdrawal prior to the conclusion of a distance or off- premises contract, the withdrawal period should be extended. However, in order to ensure legal certainty over time, a three- month limitation period should be introduced, provided that the trader has fully performed his contractual obligations. The trader should be regarded as having fully performed his obligations when he has delivered the goods or has fully provided the services ordered by the consumer by 12 months.
Amendment 329 #
Proposal for a directive
Recital 34
Recital 34
(34) Furthermore, in case of distance or off-premises 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 loses his right of withdrawal when performance begins with his prior express agreement, provided that it is a case of informed consent, ie that the consumer has been informed of the consequences of this decision in terms of losing his right of withdrawal.
Amendment 337 #
Proposal for a directive
Recital 38
Recital 38
(38) IGiven that in the context of consumer sales, the delivery of goods can take place in various ways. Only a rule which may be freely derogated from will allow the necessary flexibility to take into account those variation (either immediately or at a later date), where delivery is not immediate the trader must indicate a deadline by which he undertakes to deliver the goods. The consumer should be protected against any risk of loss or damage of the goods occurring during the transport arranged or carried out by the trader. The rule introduced on the passing of risk should not apply where the consumer unduly delays taking possession of the goods (for example, when the goods are not collected by the consumer from the post-office within the deadline fixed by the latter). In those circumstances, the consumer should bear the risk of loss or deterioration after the time of delivery as agreed with the trader.
Amendment 338 #
Proposal for a directive
Recital 38 a (new)
Recital 38 a (new)
(38a) As regards delivery, it should be stipulated that if the trader exceeds the scheduled delivery date by more than seven days, the consumer is entitled to terminate the contract and demand the reimbursement of all sums paid in application of the contract. In such cases, the contract is deemed to be terminated on the date the trader receives a letter from the consumer informing him of this decision, provided that the delivery has not taken place in the meantime. The trader is required to reimburse all sums paid in application of the contract as soon as possible, and no more than seven days after receiving the letter terminating the contract.
Amendment 339 #
Proposal for a directive
Recital 38 b (new)
Recital 38 b (new)
(38b) A single, common concept of conformity with contracts, which provides a high level of consumer protection, will provide businesses and consumers with greater legal certainty.
Amendment 341 #
Proposal for a directive
Recital 40
Recital 40
(40) If the good is not in conformity with the contract, firstly, the consumer should have the possibility to require the trader to repair the goods or to replace them at the trader's choice unless the trader proves that those remedies are unlawful, impossible or causes the trader disproportionate effort. 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 conformitymust be able to choose freely between the various forms of redress (repair, replacement, a discount or termination of the contract). However, the consumer may only rescind the contract if the lack of conformity is not minor. Moreover, the consumer cannot demand that the goods be repaired or replaced if the trader shows that this would be illegal, impossible or cause him disproportionate effort. The 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 354 #
Proposal for a directive
Recital 42
Recital 42
(42) WhenIf the trader has either refused or has more than once failed to remedy the lack of conformity the consumer should be entitled to choose freely any of the available remedies. The trader's refusal can be either explicit or implicit, meaning in the latter case that the trader does not respremedy chosen for the lack of conformity is repair or replacement, it should be made clear in which cases the consumer can nevertheless seek the cancellationd or ignores the consumer's request to remedy the lack of conformityf the contract or a reduction in the price.
Amendment 358 #
Proposal for a directive
Recital 42 a (new)
Recital 42 a (new)
(42a) It should be stipulated that in certain cases the trader may be held liable for a lack of conformity which existed at the time the risk was transferred to the consumer, even if the lack of conformity becomes apparent only subsequently.
Amendment 360 #
Proposal for a directive
Recital 42 b (new)
Recital 42 b (new)
(42b) It should be stipulated that those Member States which so wish should have the possibility of maintaining in their national law provisions in force when this Directive is adopted which provide that the trader becomes liable as from the time the lack of conformity is discovered by the consumer.
Amendment 364 #
Proposal for a directive
Recital 44
Recital 44
(44) Some traders or producers offer consumers commercial guarantees. In order to ensure that consumers are not misled, the commercial guarantees should include certain information, including their duration, territorial scope and a statement that the commercial guarantee does not affect the consumer's legal rights under the national provisions in force and those laid down by this Directive.
Amendment 369 #
Proposal for a directive
Recital 47
Recital 47
(47) Consumer contracts should be drafted in plain, intelligible language and be legible. Traders should be free to choose the font type or size in which the contract terms areconfirmed in textual form on a duraftedble medium. The consumer should be given an opportunity to read the terms before concluding the contract. This opportunity could be given to the consumer by providing him with the terms on request (for on-premises contracts) or making those terms otherwise available (e.g.where the consumer might reasonably expect to find them (e.g. placed prominently on the trader's website in respect of distance contracts) or attaching standard terms to the order form (in respect of off-premises contracts). The trader should seek the consumer's express prior consent to any payment in addition to the remuneration for the trader's main contractual obligation. Inferring consent by using opt-out systems, such as pre-ticked boxes online, should be prohibited.
Amendment 377 #
Proposal for a directive
Recital 50
Recital 50
(50) In order to ensure legal certainty and improve the functioning of the internal market, the Directive should contain two non-exhaustive lists of unfair terms. Annex II contains a list of terms which should in all circumstances be considered unfair. Annex III contains a list of terms which should be deemed unfair unless the trader proves otherwise. These same lists should apply in all Member States. As these lists are non-exhaustive, they may be supplemented by the Member States, which may maintain or adopt provisions that are more protective of consumer interests, in order to give a greater number of contract terms the status of terms that are deemed unfair in all circumstances.
Amendment 397 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
The purpose of this Directive is to achieve a high level of consumer protection and contribute to the proper functioning of the internal market and achieve a high level of consumer protection by approximating certain aspects of the laws, regulations and administrative provisions of the Member States concerning contracts between consumers and traders.
Amendment 404 #
Proposal for a directive
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
(1) 'consumer' means any natural person who, in contracts covered by this Directive, is acting primarily for purposes which are outsidenot related to his trade, business, craft or profession;. Member States may extend the scope of the rules laid down in this Directive to cover natural or legal persons who are not consumers within the meaning of this Directive.
Amendment 414 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
(2) 'trader' means any natural or legal person, whether publicly or privately owned, who, in contracts covered by this Directive, is acting for purposes relating to his trade, business, craft or profession and anyone acting in the name of or on behalf of a trader;
Amendment 421 #
Proposal for a directive
Article 2 – paragraph 1 – point 3
Article 2 – paragraph 1 – point 3
(3) 'sales contract' means any contract for the sale of goods by the trader to the consumer including any mixed-purpose contract having as its object botransfer of ownership of goods, either immediately on conclusion of the contract or at a later date, by means of which the trader undertakes to deliver the goods and servto the consumer, with the latter undertaking to pay the relevant prices;
Amendment 426 #
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, whether - intangible, if the consumer can make use of the item on a permanent basis or in a manner which can be equated with physical possession; - or tangible, with the exception of:
Amendment 445 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
(5) 'service contract' means any contract other than a sales contract whereby a service is provided by thefor the provision of a service by a trader to thea consumer;
Amendment 449 #
Proposal for a directive
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
(6) 'distance contract' means any sales or service contract where the tradconcluded between a trader and a consumer where the parties are not simultaneously physically present and where, for the conclusion of the contract, they makes exclusive use of one or more means of distance communication;
Amendment 457 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 – point a
Article 2 – paragraph 1 – point 8 – point a
(a) any sales or service contract concluded away from business premises with the simultaneous physical presence of the trader and the consumer or any sales or service contract for which an offer was made by the consumer in the same circumstances, even if preceded by an offer from the consumer, or
Amendment 489 #
Proposal for a directive
Article 2 – paragraph 1 – point 9 – point b
Article 2 – paragraph 1 – point 9 – point b
(b) market stalls and fair stands where the trader carries on his activity on a regular or temporary basis;
Amendment 492 #
Proposal for a directive
Article 2 – paragraph 1 – point 16
Article 2 – paragraph 1 – point 16
(16) 'public auction' means a method of sale where goods are offered by the tradera third party, acting as the trader's agent, offers goods or services to consumers, who attend or are given the possibility to attend the auction in person, through a transparent competitive bidding procedure run by an auctioneer and where the highest bidder is bound to purchase the goods;. The third party acting as agent intervenes in the conclusion of the sales or service contract by knocking down the goods or services to the highest bidder on completion of the procedure.
Amendment 494 #
Proposal for a directive
Article 2 – paragraph 1 – point 18
Article 2 – paragraph 1 – point 18
(18) 'commercial guarantee' 'commercial guarantee' means any undertaking by the trader or producer (the 'guarantor') to the consumer, in addition to his legal obligations relating to the guarantee of conformity, to reimburse the price paid or to replace, repair or service goods in any way if they do not meet the specifications or any other requirement not related to conformity set out in the guarantee statement or in the relevant advertising available at the time of, or before the conclusion of the contract;
Amendment 495 #
Proposal for a directive
Article 2 – paragraph 1 – point 20
Article 2 – paragraph 1 – point 20
(20) 'ancillary contract' means a contract by which the consumer acquires goods or services related to a distance contract or an off-premises contract concluded as a principal contract and these goods or services are provided by the trader or a third party on the basis of an arrangement between that third party and the trader.
Amendment 501 #
Proposal for a directive
Article 3 – paragraph 1 a (new)
Article 3 – paragraph 1 a (new)
1a. This Directive shall not apply to contracts concluded by means of public auctions.
Amendment 502 #
Proposal for a directive
Article 3 – paragraph 1 b (new)
Article 3 – paragraph 1 b (new)
1b. This Directive shall not apply to contracts concluded before notaries or members of equivalent professions.
Amendment 503 #
Proposal for a directive
Article 3 – paragraph 1 c (new)
Article 3 – paragraph 1 c (new)
1c. This Directive shall not apply to health or pharmaceutical services.
Amendment 511 #
Proposal for a directive
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2a. This Directive shall be without prejudice to the provisions contained in European Union legislation concerning special contracts or sectors.
Amendment 519 #
Proposal for a directive
Article 3 – paragraph 3 a (new)
Article 3 – paragraph 3 a (new)
3a. Insofar as it is not harmonised by them, the rules laid down in this directive do not affect national law in the area of general contract law.
Amendment 522 #
Proposal for a directive
Article 3 – paragraph 4
Article 3 – paragraph 4
4. Articles 5, 7, 9 and 11This Directive shall be without prejudice to the provisions concerning information requirements contained in Directive 2006/123/EC of the European Parliament and of the Council[1] and Directive 2000/31/EC of the European Parliament and of the Council.[2].
Amendment 539 #
Proposal for a directive
Article 4 – title
Article 4 – title
Amendment 544 #
Proposal for a directive
Article 4 – paragraph 1 and paragraph 1 a (new)
Article 4 – paragraph 1 and paragraph 1 a (new)
1. Except where provided for in paragraph 2, Member States may adopt or maintain in force more stringent provisions, in the field covered by this Directive, in order to ensure a higher level of consumer protection. Member States shall ensure that such provisions are compatible with the Treaties. 1a. Member States may not maintain or introduce, in their national law, provisions diverging from those laid down in Articles 2, 3, 5, 12(1) to (3), 13 to 18, 22, 23, 24(1) and (2) and 31(1) to (3) of this Directive, including more or less stringent provisions to ensure a different level of consumer protection.
Amendment 556 #
Proposal for a directive
Chapter 2 – title
Chapter 2 – title
Consumer information and withdrawal right for distance and off-premises contracts
Amendment 560 #
Proposal for a directive
Article - 5 (new)
Article - 5 (new)
Article - 5 Except as otherwise provided in this chapter with regard to consumer information and the right of withdrawal for distance and off-premises contracts, Member States may not maintain or introduce, in their national law, provisions diverging from those laid down in this Chapter.
Amendment 564 #
Proposal for a directive
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
1. Prior to the conclusion of any sales or serviceIn good time and at all events prior to the conclusion of the distance or off- premises contract, the trader shall providecommunicate to the consumer with the following information, if not already apparent from the contextn a clear and precise manner and in comprehensible language:
Amendment 580 #
Proposal for a directive
Article 5 – paragraph 1 – point b a (new)
Article 5 – paragraph 1 – point b a (new)
(ba) contact details including the telephone number or any other means of distance communication (fax, e-mail, etc.) enabling the consumer in practice to contact and communicate with the trader rapidly and directly;
Amendment 585 #
Proposal for a directive
Article 5 – paragraph 1 – point c
Article 5 – paragraph 1 – point c
(c) the final price inclusive of taxes, or where the nature of the productgoods or service means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;
Amendment 599 #
Proposal for a directive
Article 5 – paragraph 1 – point d
Article 5 – paragraph 1 – point d
(d) the arrangements for payment, delivery, performance and, the complaint handling policy, if they depart from the requirements of professional diligence and the geographical address to which the consumer may address any complaint;
Amendment 609 #
Proposal for a directive
Article 5 – paragraph 1 – point e
Article 5 – paragraph 1 – point e
(e) the existence or the absence of a right of withdrawal, and, where applicable, the conditions and procedures for exercising that right pursuant to Annex I, including the withdrawal period and the name and address of the trader to whom the withdrawal is to be communicated;
Amendment 620 #
Proposal for a directive
Article 5 – paragraph 1 – point e a (new)
Article 5 – paragraph 1 – point e a (new)
(ea) Where a right of withdrawal does not apply on account of an explicit request for performance of the service during the withdrawal period, in accordance with Article 19, the information that the consumer will not benefit from a right of withdrawal, as a result of that request;
Amendment 621 #
Proposal for a directive
Article 5 – paragraph 1 – point e b (new)
Article 5 – paragraph 1 – point e b (new)
(eb) the date by which the trader undertakes to deliver the goods or to perform the service;
Amendment 631 #
Proposal for a directive
Article 5 – paragraph 1 – point f
Article 5 – paragraph 1 – point f
(f) in addition to a reminder of the existence of a legal guarantee of conformity for goods, the existence and the conditions of after-sales services and commercial guarantees, where applicable;
Amendment 640 #
Proposal for a directive
Article 5 – paragraph 1 – point g
Article 5 – paragraph 1 – point g
(g) the duration of the contract where applicable or if the contract is open-ended or to be extended automatically, the conditions for terminating the contract;
Amendment 649 #
Proposal for a directive
Article 5 – paragraph 1 – point i a (new)
Article 5 – paragraph 1 – point i a (new)
(ia) where appropriate, the application of technical protection measures for digital products and the interoperability of digital products with hardware and software, in the light of what the trader knows or should reasonably have known (including non-interoperability).
Amendment 663 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
Amendment 664 #
Proposal for a directive
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
2a. Member States shall not provide for any other formal requirements applicable to the standard information on withdrawal besides those referred to in Annex I(A) and (A) a.
Amendment 686 #
Proposal for a directive
Article 6 – paragraph -1 (new)
Article 6 – paragraph -1 (new)
-1. Member States may maintain or adopt in their national law stricter provisions than those set out in this article with a view to guaranteeing a higher level of consumer protection.
Amendment 689 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
2. Without prejudice to Articles 7(2), 13 and 42, the consequences of any breach of Article 5, shall be determined in accordance with the applicable national law. Member States shall provide in their national laws for effective contract lawfor effective remedies for any breach of Article 5.
Amendment 693 #
Proposal for a directive
Article 7
Article 7
Amendment 700 #
Proposal for a directive
Article 8
Article 8
Amendment 702 #
Proposal for a directive
Article 9
Article 9
Amendment 733 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. With respect to off-premises contracts, the information provided for in Article 9 5 shall be given in the order formsupplied to the consumer in the order form. Such information shall be legible and worded in plain and intelligible language and be legible. The order form shall include the standard withdrawal form set out in Annex I(B). It shall be forwarded to the consumer in good time, and at any event before the conclusion of the off-premises contract. Where the order form is not on paper, the consumer shall receive a copy of the order form on another durable medium of his choice. Accordingly the consumer shall in any event have the option of requesting a paper document.
Amendment 743 #
Proposal for a directive
Article 10 – paragraph -1 (new)
Article 10 – paragraph -1 (new)
-1. Member States may maintain or adopt in their national law stricter provisions than those set out in this article with a view to guaranteeing a higher level of consumer protection.
Amendment 748 #
Proposal for a directive
Article 10 – paragraph 2
Article 10 – paragraph 2
2. An off-premises contract shall only be valid only if the consumer signs an order form and in cases where the order form is not on paper, receives a copy of the order form on another durable mediuthe order form.
Amendment 756 #
Proposal for a directive
Article 10 – paragraph 3
Article 10 – paragraph 3
Amendment 770 #
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) 5 shall be given or made available to the consumer prior toin good time and at any event before the conclusion of the contract, in plain and intelligible language and be legible, in a way appropriate to the means of distance communication used.
Amendment 782 #
Proposal for a directive
Article 11 – paragraph - 1 (new)
Article 11 – paragraph - 1 (new)
-1. Member States may maintain or adopt in their national law stricter provisions than those set out in this article with a view to guaranteeing a higher level of consumer protection.
Amendment 786 #
Proposal for a directive
Article 11 – paragraph 2
Article 11 – paragraph 2
2. If the trader makes a telephone call to the consumer with a view to concluding a distance contract,: - he shall disclose his identity - and where appropriate the identity of the person on whose behalf he is making the call - and the commercial purpose of the call at the beginning of the telephone conversation ; - he shall send the consumer a confirmation of his offer, in writh the consumering or on a durable medium, including the information referred to in Article 5; - the consumer shall not be bound by the contract unless or until he has signed it.
Amendment 795 #
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, on that particular medium prior to the conclusion of such a contract, the information regarding the main characteristics of the product andor service, the total price referred to in Articles 5(1)(a) and (c) on that particular medium prior to the conclusion of such a contract, the duration of the contract and, if the contract is open- ended, the conditions for terminating the contract referred to in Article 5(1)(a), (c) and (g). 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.
Amendment 805 #
Proposal for a directive
Article 11 – paragraph 4
Article 11 – paragraph 4
Amendment 809 #
Proposal for a directive
Article 11 – paragraph 4 a (new)
Article 11 – paragraph 4 a (new)
4a. In order for the distance contract to be validly concluded, the consumer must have had the opportunity to verify the full details of his order and its total price and to correct any errors before confirming the order and thereby validly expressing his acceptance.
Amendment 816 #
Proposal for a directive
Article 11 – paragraph 5
Article 11 – paragraph 5
Amendment 835 #
Proposal for a directive
Article 12 – paragraph 2 – subparagraph 1
Article 12 – paragraph 2 – subparagraph 1
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 of his choice.
Amendment 854 #
Proposal for a directive
Article 12 – paragraph 3 a (new)
Article 12 – paragraph 3 a (new)
3a. In the case of distance contracts, the Member States shall not prohibit the parties from performing their obligations as laid down in this Directive during the withdrawal period. In the case of off-premises contracts, this Article shall be without prejudice to any rule of national law establishing, within the withdrawal period, a period of time during which the performance of the contract may not begin.
Amendment 857 #
Proposal for a directive
Article 12 – paragraph 4
Article 12 – paragraph 4
Amendment 864 #
Proposal for a directive
Article 13
Article 13
If the trader has not provided the consumer with the information on the right of withdrawal (or the fact that he does not have the right of withdrawal) in breach of Articles 9(b5(1)(e)), 10(1) and 11(4), the withdrawal period shall expire three months after the trader has fully performed his other contractual obligationsbe extended by twelve months from the day referred to in Article 12.
Amendment 870 #
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 ofprovided for in Article 5 or in accordance with the arrangements provided for in Articles 9(b), 10(1) and 11(4), the withdrawal period shall expire three months after the trader has fully performed his other contractual obligationsbe extended by three months from the day referred to in Article 12.
Amendment 896 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. The trader shall reimburse any payment received from the consumer without delay, and in any event within thirty days from the day on which he receives the communication of withdrawal. Reimbursement shall in principle be made by any means of payment. However, consumers who have exercised their right of withdrawal may, at the proposal of the trader, opt for a different method of reimbursement.
Amendment 959 #
Proposal for a directive
Article 19 – paragraph 1 a (new)
Article 19 – paragraph 1 a (new)
-1. Member States may maintain or introduce, in their national law, more stringent provisions than those laid down in this Article, in order to ensure a higher level of consumer protection.
Amendment 966 #
Proposal for a directive
Article 19 – paragraph 1 – point a
Article 19 – paragraph 1 – point a
a) services where performance has begun, with the consumer's prior express consent, before the end of the fourteen day period referred to in Article 12, with the consumer's prior express consent on a durable medium; in such cases, the consent should also extend to waiving his right of withdrawal;
Amendment 979 #
Proposal for a directive
Article 19 – paragraph 1 – point c a (new)
Article 19 – paragraph 1 – point c a (new)
(ca) the supply of foodstuffs, beverages or other hygienically sensitive goods whose packaging or sealing has already been opened by the consumer and the supply of products which might pose a health risk if returned within the fourteen-day right of withdrawal period;
Amendment 1052 #
Proposal for a directive
Article 20 – paragraph -1 (new)
Article 20 – paragraph -1 (new)
-1. Member States may maintain or introduce, in their national law, more stringent provisions than those laid down in this Article, in order to ensure a higher level of consumer protection.
Amendment 1061 #
Proposal for a directive
Article 21 – paragraph 1
Article 21 – paragraph 1
1. This Chapter shall apply to sales contracts. Without prejudice to Article 24(5), where the contract is aArticle 26(1)(c) shall also apply to mixed- purpose contracts having as itstheir object both goods and services, this Chapter. 1a. Articles 23a and 23b shall onlyalso apply to the goods. service contracts and mixed-purpose contracts having as their object both goods and services.
Amendment 1063 #
Proposal for a directive
Article 20 a (new) (after the title ‘Chapter IV – Other consumer rights specific to sales contracts’)
Article 20 a (new) (after the title ‘Chapter IV – Other consumer rights specific to sales contracts’)
Article 20a Unless otherwise provided for in this chapter, Member States may maintain or introduce in their national law more stringent provisions than those laid down in this chapter, in order to ensure a higher level of consumer protection.
Amendment 1066 #
Proposal for a directive
Article 21 – paragraph 2
Article 21 – paragraph 2
2. This Chapter shall also apply toFor the purposes of this Directive, contracts for the supply of goods to be manufactured or produced shall also be defined as sales contracts.
Amendment 1069 #
Proposal for a directive
Article 21 – paragraph 2 a (new)
Article 21 – paragraph 2 a (new)
2a. This chapter shall apply without prejudice to any rights which an injured party may have according to a special liability system existing in national law.
Amendment 1086 #
Proposal for a directive
Article 22 – paragraph 1
Article 22 – paragraph 1
1. Unless the parties have agreed otherwise, tThe 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 of. Where delivery is not immediate, the trader shall indicate the deadline within which he undertakes to deliver the goods. Member States may not maintain or introduce in theirty days from the day of the conclusion of the contract national law provisions diverging from those laid down in this article, including more or less stringent provisions in order to ensure a different level of consumer protection.
Amendment 1096 #
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 1delivery does not take place within seven days of the delivery date indicated by the trader in accordance with paragraph 1, the consumer shall be entitled to rescind the contract and claim a refund of any sums paid under the contract. The contract shall be deemed to be terminated on the date the trader receives a letter from the consumer informing him of his decision, if the delivery has not taken place in the meantime. The trader shall be required to reimburse all sums paid under the contract as soon as possible, and no more than seven days after receiving the letter rescinding the contract. This paragraph shall be without prejudice to the rights of the consumer to claim damages. Member States may not maintain or introduce in their national law provisions diverging from those laid down in this article, including more or less stringent provisions in order to ensure a different level of consumer protection.
Amendment 1121 #
Proposal for a directive
Article 23 – paragraph -1 (new)
Article 23 – paragraph -1 (new)
-1. Member States may not maintain or introduce in their national law provisions diverging from those laid down in this article, including more or less stringent provisions in order to ensure a different level of consumer protection.
Amendment 1124 #
Proposal for a directive
Article 23 – paragraph 2
Article 23 – paragraph 2
2. The risk referred to in paragraph 1 shall pass to the consumer at the time of delivery as agreed by the parties, if the consumer or a third party, other than the carrier and indicated by the consumer has manifestly failed to take reasonable steps to acquire the material possession of the goods.
Amendment 1131 #
Proposal for a directive
Article 23 a (new)
Article 23 a (new)
Amendment 1133 #
Proposal for a directive
Article 23 b (new)
Article 23 b (new)
Amendment 1140 #
Proposal for a directive
Article 24 – paragraph 2 – introductory part
Article 24 – paragraph 2 – introductory part
2. Delivered goods shall be presumed to be in conformity with the contract if they satisfy the following conditions: (-a) they possess the characteristics, in particular as regards quality and quantity, that were jointly agreed upon by the parties; (a) they comply with the description given by the trader and possess the qualities of the goods which the trader has presented to the consumer as a sample or model; (b) they are fit for any particular purpose for which the consumer requires them and which he made known to the trader at the time of the conclusion of the contract and which the trader has accepted; (c) they are fit for the purposes for which goods of the same type arewould normally be used or ; (dc) they show the quality and performance which are normal in goods of the same type 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. (A new point (a) has been inserted before the current point (a) in the Commission proposal. There was also a need for clarification: the new points (b) and (c) are slightly amended versions of the current points (c) and (d) in the Commission proposal, concerning conditionsthat have to be met in all circumstances.)
Amendment 1142 #
Proposal for a directive
Article 24 – paragraph 2 – point a
Article 24 – paragraph 2 – point a
(a) they comply with the description given by the trader and possess the qualities of the goods which the trader has presented to the consumer as a sample or model;
Amendment 1144 #
Proposal for a directive
Article 24 – paragraph 2 – point -a (new)
Article 24 – paragraph 2 – point -a (new)
Amendment 1145 #
Proposal for a directive
Article 24 – paragraph 2 – point b
Article 24 – paragraph 2 – point b
(b) they arbe fit for any particular purpose for which the consumer requires them and which hewas made known to the trader at the time of the conclusion of the contract and which the trader has accepted;
Amendment 1147 #
Proposal for a directive
Article 24 – paragraph 2 – point c
Article 24 – paragraph 2 – point c
Amendment 1152 #
Proposal for a directive
Article 24 – paragraph 2 – point d
Article 24 – paragraph 2 – point d
Amendment 1171 #
Proposal for a directive
Article 24 – paragraph 5
Article 24 – paragraph 5
5. Any lack of conformity resulting from the incorrect installation of the goods shall be considered as a lack of conformity of the goods where the installation forms part of the sales contract and the goods were installed by the trader or under his responsibility. The same shall apply equally if the goods, intended to be installed by the consumer, are installed by the consumer and the incorrect installation is due to a shortcoming in the installation insThe trader shall be liable for lack of conformity arising as a result of the packaging, the installation instructions and of the installation, when the trader is responsible for this under the terms of the contruactions.
Amendment 1173 #
Proposal for a directive
Article 24 – paragraph 5 b (new)
Article 24 – paragraph 5 b (new)
5b. Member States may not maintain or introduce in their national law provisions diverging from those laid down in paragraphs 1 and 2, including more or less stringent provisions in order to ensure a different level of consumer protection.
Amendment 1188 #
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, where the goods do not conform to the contract, the consumer is entitled toWhen the goods present a lack of conformity, the consumer may, under the terms of paragraphs 2 to 5, choose between the following remedies:
Amendment 1202 #
Proposal for a directive
Article 26 – paragraph 1 – point a
Article 26 – paragraph 1 – point a
(a) haveing the lack of conformity remedied by repair or replacementgoods repaired,
Amendment 1208 #
Proposal for a directive
Article 26 – paragraph 1 – point a c (new)
Article 26 – paragraph 1 – point a c (new)
(ac) having the goods replaced,
Amendment 1214 #
Proposal for a directive
Article 26 – paragraph 1 – point b
Article 26 – paragraph 1 – point b
(b) haveing the price reduced,
Amendment 1222 #
Proposal for a directive
Article 26 – paragraph 1 – point c
Article 26 – paragraph 1 – point c
(c) haveing the contract rescinded.
Amendment 1228 #
Proposal for a directive
Article 26 – paragraph 1 b (new)
Article 26 – paragraph 1 b (new)
1b. The consumer may only rescind the contract if the lack of conformity is not minor.
Amendment 1233 #
Proposal for a directive
Article 26 – paragraph 2
Article 26 – paragraph 2
Amendment 1248 #
Proposal for a directive
Article 26 – paragraph 3 – subparagraph 1
Article 26 – paragraph 3 – subparagraph 1
Amendment 1255 #
Proposal for a directive
Article 26 – paragraph 3 – subparagraph 2
Article 26 – paragraph 3 – subparagraph 2
Amendment 1264 #
Proposal for a directive
Article 26 – paragraph 4 – introductory part
Article 26 – paragraph 4 – introductory part
4. The consumer may resort to any remedy available under paragraph 1,When the remedy chosen is repair or replacement, the consumer may resort to having the contract rescinded or the price reduced wheren one of the following situations exists:
Amendment 1287 #
Proposal for a directive
Article 26 – paragraph 4 – point d
Article 26 – paragraph 4 – point d
d) tThe same defect has reappeared more than once within a short period of tim a fresh defect has appeared after the goods have already been repaired or replaced once.
Amendment 1298 #
Proposal for a directive
Article 26 – paragraph 5 a (new)
Article 26 – paragraph 5 a (new)
5a. The Member States shall have the power to maintain or to adopt national provisions allowing greater consumer choice between the remedies set out in paragraph 1 in case of lack of conformity, so as to guarantee a higher level of consumer protection.
Amendment 1327 #
Proposal for a directive
Article 28 – paragraph 1
Article 28 – paragraph 1
1. The trader shall be held liable under Article 25 where the lack of conformity becomes apparent within two years as from the time the risk passed to the consumer. However, those Member States which so wish may maintain the national legal provisions in force at the time the Directive is adopted, which make the trader liable under Article 25 from the time the lack of conformity is ascertained by the consumer.
Amendment 1339 #
Proposal for a directive
Article 28 – paragraph 2
Article 28 – paragraph 2
2. When the trader has remedied the lack of conformity by replacement, the shall be held liable under Article 25 where the lack of conformity becomes apparent within two yearsperiod stipulated in paragraph 1 starts to run again as from the time the consumer or a third party indicated by the consumer has acquired the material possession of the replaced goods and only for defective elements which have been replaced, unless the trader agrees to extend the guarantee to the replaced goods in their entirety..
Amendment 1363 #
Proposal for a directive
Article 28 – paragraph 5
Article 28 – paragraph 5
5. Unless proved otherwise, any lack of conformity which becomes apparent within sixtwelve months 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 1373 #
Proposal for a directive
Article 28 – paragraph 5 a (new)
Article 28 – paragraph 5 a (new)
Amendment 1393 #
Proposal for a directive
Article 29 – paragraph 2 – point a
Article 29 – paragraph 2 – point a
a) legal rights of the consumer, both under the national legislation in force and as provided for in Article 26, and a clear statement that those rights are not affected by the commercial guarantee,
Amendment 1404 #
Proposal for a directive
Article 29 – paragraph 3
Article 29 – paragraph 3
3. IAt the request of the consumer so requests, the trader shall make the guarantee statement available in a durable medium of his choice.
Amendment 1417 #
Proposal for a directive
Article 30 – paragraph 1
Article 30 – paragraph 1
1. This Cchapter shall apply to, in contract terms drafted in advance by the trader or a third party, which the consumer agreed to without havs between traders and consumers, to contract terms which have not been the subject of individual negotiation. A contract term is deemed not to have been the subject of individual negotiation when it has been drafted in advance and the consumer has not been able to influence its content, specifically withing the possibility of influencframework of pre-formulated standard contract. Contract terms which have been the subject of individual negotiation do not fall withing their content, in particular where such contract terms are part of a pre-formulated standard contract scope of this Chapter. The Member States may therefore maintain or introduce national rules concerning such contract terms and decide that this Chapter also applies to them.
Amendment 1422 #
Proposal for a directive
Article 30 – paragraph 1 a (new)
Article 30 – paragraph 1 a (new)
1 a. Saving contrary provisions established in this Chapter, the Member States may maintain or introduce, in their national legislation, provisions stricter than those laid down in this Chapter of the Directive so as to ensure higher levels of consumer protection.
Amendment 1440 #
Proposal for a directive
Article 31 – paragraph 1 b (new)
Article 31 – paragraph 1 b (new)
1b. Member States may not maintain or introduce in their national law provisions diverging from those laid down in paragraphs 1, 2 and 3, including more or less stringent provisions in order to ensure a different level of consumer protection. (This article should be placed between the title of Article 31 and paragraph 21 of Article 1, in order to refer to the first three paragraphs of Article 31.)
Amendment 1453 #
Proposal for a directive
Article 31 – paragraph 4
Article 31 – paragraph 4
Amendment 1462 #
Proposal for a directive
Article 31 – paragraph 4 b (new)
Article 31 – paragraph 4 b (new)
4b. Member States may, in order to provide for a higher level of consumer protection, maintain or introduce additional formal and presentational requirements as to the way the contract terms are expressed or made available to the consumer.
Amendment 1465 #
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 it 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 1487 #
Proposal for a directive
Article 34 – paragraph 1
Article 34 – paragraph 1
Member States shall ensure that contract terms, as set out in the non-exhaustive list in Annex II, are considered unfair in all circumstances. That list of contract terms shall apply in all Member States and may only be amended in accordance with Articles 39(2) and 40. . r.fr
Amendment 1493 #
Proposal for a directive
Article 34 a (new)
Article 34 a (new)
Article 34 a As the list of terms in Annex II to this directive is not exhaustive, it may be supplemented by the Member States, which may maintain or adopt provisions that are more protective of consumer interests, in order to give a greater number of contract terms the status of terms that are unfair in all circumstances.
Amendment 1495 #
Proposal for a directive
Article 35 – paragraph 1
Article 35 – paragraph 1
Member States shall ensure thate contract terms, as set out in the non-exhaustive list in point 1 of Annex III, are considered unfair, unless the trader has proved that such contract terms are fair in accordance with Article 32. That list of contract terms shall apply in all Member States and may only be amended in accordance with Articles 39(2) and 40.
Amendment 1499 #
Proposal for a directive
Article 35 – paragraph 1 a (new)
Article 35 – paragraph 1 a (new)
As the list of terms in Annex II to this directive is not exhaustive, it may be supplemented by the Member States, which may maintain or adopt provisions that are more protective of consumer interests, in order to give a greater number of contract terms the status of terms that are presumed to be unfair.
Amendment 1536 #
Proposal for a directive
Annex 1 – heading 1 a (new)
Annex 1 – heading 1 a (new)