Next event: Commission response to text adopted in plenary 2019/07/30 more...
- Draft final act 2019/05/22
- Final act published in Official Journal 2019/05/22
- Final act signed 2019/05/20
- End of procedure in Parliament 2019/05/20
- Act adopted by Council after Parliament's 1st reading 2019/04/15
- Council Meeting 2019/04/15
- Results of vote in Parliament 2019/03/26
- Debate in Parliament 2019/03/26
- Decision by Parliament, 1st reading 2019/03/26
- Approval in committee of the text agreed at 1st reading interinstitutional negotiations 2019/02/19
- Coreper letter confirming interinstitutional agreement 2019/02/06
- Text agreed during interinstitutional negotiations 2019/02/06
- Council Meeting 2018/12/07
- Debate in Council 2018/06/05
- Council Meeting 2018/06/05
- Contribution 2018/03/01
- Committee decision to enter into interinstitutional negotiations confirmed by plenary (Rule 71) 2017/12/11
- Committee decision to enter into interinstitutional negotiations announced in plenary (Rule 71) 2017/11/29
- Committee report tabled for plenary, 1st reading 2017/11/27
- Vote in committee, 1st reading 2017/11/21
- Committee decision to open interinstitutional negotiations with report adopted in committee 2017/11/21
- Council Meeting 2017/06/08
- Debate in Council 2017/03/28
- Council Meeting 2017/03/28
- Document attached to the procedure 2017/03/14
Progress: Procedure completed
Role | Committee | Rapporteur | Shadows |
---|---|---|---|
Joint Responsible Committee | ['IMCO', 'JURI'] | VOSS Axel ( PPE), GEBHARDT Evelyne ( S&D) | MAYDELL Eva ( PPE), ROZIÈRE Virginie ( S&D), DZHAMBAZKI Angel ( ECR), CAVADA Jean-Marie ( ALDE), LØKKEGAARD Morten ( ALDE), REDA Felix ( Verts/ALE), FERRARA Laura ( EFDD), ZULLO Marco ( EFDD), TROSZCZYNSKI Mylène ( ENF) |
Committee Opinion | CULT | ||
Committee Opinion | LIBE | LAURISTIN Marju ( S&D) | Jan Philipp ALBRECHT ( Verts/ALE), Michał BONI ( PPE), Daniel DALTON ( ECR), Marek JUREK ( ECR) |
Committee Opinion | ITRE |
Lead committee dossier:
Legal Basis:
RoP 58, TFEU 114
Legal Basis:
RoP 58, TFEU 114Subjects
Events
PURPOSE: to introduce new rules to make it easier and safer for consumers and businesses to buy and sell digital content across borders.
LEGISLATIVE ACT: Directive (EU) 2019/770 of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content and digital services.
CONTENT: the Directive establishes common rules on certain requirements concerning contracts concluded between professionals and consumers for the provision of digital content or services, including rules on:
- the conformity of digital content or a digital service with the contract,
- remedies in the event of lack of conformity or lack of supply and the procedures for exercising such remedies, and
- the modification of digital content or a digital service.
This Digital Content Directive is part of a package of measures which also includes a Directive on contracts for the sale of goods (Directive on the sale of goods). The objective is to ensure a high level of protection and legal certainty for European consumers, in particular when making cross-border purchases, and to facilitate EU-wide sales operations by businesses, in particular small and medium-sized enterprises (SMEs).
Scope The Directive introduces a high level of protection for consumers who pay for a service, but also for those who provide data in exchange for that service.
It covers, inter alia , computer programmes, applications, video files, audio files, music files, digital games, e-books or other e-publications, as well as digital services that allow the creation of, processing of, accessing or storage of data in digital form, including software-as-a-service, such as video and audio sharing and other file hosting, word processing or games offered in the cloud computing environment and social media.
Liability of the trader
Under the new rules, the trader shall be liable for any failure to provide the digital content or service. The supplier's period of responsibility in the event of lack of conformity may not be less than two years. Where the contract provides for a continuous supply for a certain period of time, the trader shall be liable for any lack of conformity that occurs during the period during which the digital content or service is provided under the contract.
The burden of proof shall be on the trader in the case of a lack of conformity which becomes apparent within a period of one year from the date of supply of the digital content. This rule shall not apply where the trader demonstrates that the consumer's digital environment is not compatible with the technical requirements of the digital content or service and the trader has clearly informed the consumer of these requirements before the conclusion of the contract.
Remedies for lack of conformity
In the case of lack of conformity, the consumer shall be entitled to have the digital content or service brought into conformity, to benefit from a proportional reduction in the price, or to terminate the contract. He shall have the right to obtain compliance of digital content, unless this is impossible or would impose disproportionate costs on the trader.
In the event of termination of the contract, the trader shall reimburse the consumer for all sums received under the contract. Any reimbursement to which the trader is liable to the consumer as a result of a price reduction or termination of the contract shall in any event be made within 14 days of the day on which the trader is informed of the consumer's decision to exercise his right to a price reduction or termination of the contract. There shall be no charge to the consumer for the refund.
Modification of digital content or service
For a subscription to digital content for a given period of time, the buyer could modify such content only if the contract so permits, and if the consumer is given reasonable advance notice and is given the opportunity to cancel the contract within at least 30 days of notification.
Review
The Commission shall report on the application of the Directive by 12 June 2024 at the latest. The report shall assess, inter alia , the need to harmonise the rules applicable to contracts for the provision of digital content or digital services other than those covered by the Directive, including the provision in exchange for advertising.
ENTRY INTO FORCE: 11.6.2019.
TRANSPOSITION: no later than 1.7.2021.
APPLICATION: from 1.7.2022.
The European Parliament adopted by 598 votes to 34 with 26 abstentions a legislative resolution on the proposal for a directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content.
The position of the European Parliament adopted at first reading under the ordinary legislative procedure has amended the Commission proposal as follows:
Objective and scope
The directive would aim to ensure a high level of consumer protection by establishing common rules on certain requirements concerning contracts concluded between professionals and consumers for the provision of digital content or services, in particular rules on:
- the conformity of digital content or a digital service with the contract,
- the remedies in the event of lack of conformity or lack of supply and the procedures for exercising these remedies, and
- the modification of digital content or a digital service.
The directive would apply to any contract by which the trader provides or undertakes to provide digital content or a digital service to the consumer and the consumer pays or undertakes to pay a price.
It would cover, among other things, computer programs, applications, video files, audio files, music files, digital games, electronic books or other electronic publications, as well as digital services that enable the creation, processing, storage or access to data in digital form, including on-demand software, such as video and audio sharing and other forms of file hosting, word processing or games offered in the cloud computing environment and social media.
Conformity
In order to comply with the contract, the digital content or service should, where applicable, include
- correspond to the description, quantity and quality and present the functionality, compatibility, interoperability and other characteristics provided for in the contract;
- be adapted to the specific purpose sought by the consumer, which the consumer has brought to the attention of the trader at the latest at the time of conclusion of the contract and which the trader has accepted;
- be provided with all accessories, instructions, including installation instructions, and customer support as provided for in the contract; and
- be updated as provided for in the contract;
- have the qualities and performance characteristics, in particular with regard to functionality, compatibility, accessibility, continuity and security, that are normal for digital content or services of the same type and that the consumer can reasonably expect.
Liability of the trader
The trader should be responsible for any failure to provide the digital content or service. The amended text provides that the supplier's period of responsibility in the event of lack of conformity may not be less than two years. Where the contract provides for continuous supply over a period of time, the trader shall be liable for a lack of conformity that occurs or becomes apparent within the period of time during which the digital content or digital service is to be supplied under the contract.
The burden of proof with regard to whether the supplied digital content or digital service was in conformity at the time of supply shall be on the trader for a lack of conformity which becomes apparent within a period of one year from the time when the digital content or digital service was supplied.
Remedies for lack of conformity
In the case of lack of conformity, the consumer would be entitled to have the digital content or service brought into conformity, to benefit from a proportional reduction in the price, or to terminate the contract. He would have the right to obtain compliance of digital content, unless this is impossible or would impose disproportionate costs on the trader.
In the event of termination of the contract, the trader should reimburse the consumer for all sums received under the contract. Any reimbursement to which the trader is liable to the consumer as a result of a price reduction or termination of the contract should in any event be made within 14 days of the day on which the trader is informed of the consumer's decision to exercise his right to a price reduction or termination of the contract. There should be no charge to the consumer for the refund.
Modification of digital content or service
For a subscription to digital content for a given period of time, the buyer could modify such content only if the contract so permits, and if the consumer is given reasonable advance notice and is given the opportunity to cancel the contract within at least 30 days of notification.
The Committee on the Internal Market and Consumer Protection, together with the Committee on Legal Affairs, adopted the report prepared by co-rapporteurs Evelyne GEBHARDT (S&D, DE) and Axel VOSS (EPP, DE) on the proposal for a directive of the European Parliament and of the Council on certain aspects concerning contracts for the supply of digital content.
The parliamentary committees recommended that the European Parliament’s position adopted at first reading under the ordinary legislative procedure should amend the Commission proposal as follows.
Digital content and services : Members believe that the Directive should cover not only digital content as defined in Directive 2011/83/EU of the European Parliament and of the Council on consumer rights but also services, such as cloud storage or file hosting service, social media, instant messaging services, video or audio sharing websites or platform.
It is therefore proposed to create a separate category for ‘digital services’ to clearly distinguish digital content from digital services.
This Directive shall also cover embedded digital content or embedded digital services (meaning digital content or a digital service pre-installed in a good). As regards goods with embedded digital content or embedded digital services, the trader shall be liable under this Directive to the consumer for meeting his obligations only in respect of the embedded digital content or digital service.
Information requirements : before the consumer is bound by a contract for the provision of digital content or a digital service, the trader shall give the consumer the information required under the Directive 2011/83/EU in a clear and comprehensible form.
Conformity with the contract : Members proposed assessing conformity through both objective and subjective criteria laid down in the Directive. In addition to complying with any conformity requirements included in the contract, the digital content shall be fit for the purposes for which digital content of the same description would normally be used and shall possess the qualities, including its functionality, interoperability and other performance features such as accessibility, continuity and security , which consumers may reasonably expect and in line with any public statement made by or on behalf of the trader , the producer or his representative, particularly in advertising or on labelling. Digital content or digital services shall be supplied in conformity with the most recent version of the digital content or digital service which was available at the time of conclusion of the contract.
During a reasonable period of time, the trader shall provide the consumer with updates, including security updates, in order to keep the digital content or digital service in conformity with the contract.
Any commercial guarantee shall be binding on the guarantor under the conditions laid down in the pre-contractual information provided by the trader, advertising available at the time of or before the conclusion of the contract; and the guarantee statement which shall be made available in writing or in another durable medium and drafted in plain, intelligible language.
Burden of proof : the burden of proving that a lack of conformity existed shall be on the trader, when a lack of conformity with the contract becomes apparent during the following periods:
within two years of the date of supply of the digital content or digital service; within one year of the date of delivery of the embedded digital content or digital service; within the duration of the contract , where the contract provides for continuous supply of digital content or digital service or delivery of embedded digital content or digital service over a period of time.
Methods of compensation : where the trader has failed to supply the digital content or digital service, the consumer shall call upon the trader to supply the digital content or digital service. If the trader fails to supply the digital content or digital service without undue delay, or within an additional period of time as expressly agreed to by the parties, the consumer shall be entitled to terminate the contract . 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, or to receive a proportionate reduction in the price, or to terminate the contract.
In the case of a lack of security, the consumer shall be entitled to have the digital content or digital service brought into conformity with the contract free of charge.
Terminate : the termination of the contract shall become effective 14 days after the notification, or on a later date indicated by the consumer. In the event of termination of the contract the trader shall reimburse to the consumer all sums paid under the contract .
The trader shall make every effort that he can be expected to make to refrain from the use of any user-generated content to the extent that it does not constitute personal data, which was provided or created by the consumer when using the digital content or digital service supplied by the trader.
Use of data as a counter performance and data protection issues : Members believe that in no case should the Directive give the impression that it encourages a practice of monetising personal data.
As regards the provision of digital content and digital services supplied not in exchange for a price but when personal data is provided, this Directive shall apply to contracts where the trader requests and the consumer provides personal data , such as for example, a name and email address or photos, or the IP address.
However, this Directive shall not apply to situations where the supplier collects data that are exclusively used by the supplier in order for the digital content to function, or for the sole purpose of meeting legal requirements.
In general, this Directive shall comply with the general rules of the new General Data Protection Regulation ( 2016/679 ) in the supply of safe and secure digital content.
Modification of the digital content : as a rule, the supplier may not alter the functionality, interoperability and other main performance features of the digital content or digital service to the extent that those alternations adversely affect access to or use of the digital service by the consumer.
However, the report maintains exceptions to the rule and includes additional guarantees in the interest of the consumer.
The consumer shall be entitled to terminate the contract if the modification negatively impacts the access to or the use of the digital content or digital service by the consumer, unless such negative impact is only minor.
PURPOSE: to contribute to faster growth of the digital single market, by eliminating the key barriers related to contract law hindering cross-border trade in the digital environment.
PROPOSED ACT: Directive of the European Parliament and of the Council.
ROLE OF THE EUROPEAN PARLIAMENT: Parliament decides in accordance with the ordinary legislative procedure and on an equal footing with Council.
BACKGROUND: the growth potential of e-commerce has not yet been fully exploited. Differences in national consumer contract law rules and a lack of clear contract law rules are among the key obstacles that hinder the development of the supply of digital content.
Only 18% of consumers who used the Internet for private purposes in 2014 purchased online from another EU country while 55% did so domestically. Consumers suffer detriment due to lack of clear contractual rights for faulty digital content. Different national contract law rules have created one-off costs for retailers selling to consumers of approximately EUR 4 billion . These costs mostly affect micro and small- and medium-sized enterprises (SMEs).
The Digital Single Market Strategy adopted by the Commission on 6 May 2015 announced a legislative initiative on harmonised rules for the supply of digital content and online sales of goods.
This initiative is composed of (i) a proposal on certain aspects concerning contracts for the supply of digital content, and (ii) a proposal on certain aspects concerning contracts for the online and other distance sales of goods.
By eliminating the key barriers related to contract law hindering cross-border trade, the rules put forward in the proposals will reduce the uncertainty faced by businesses and consumers that is due to the complexity of the legal framework and the costs incurred by businesses resulting from differences in contract law between Member States.
Drawing on the experience acquired during the negotiations for a Regulation on a Common European Sales Law , they no longer follow the approach of an optional regime and a comprehensive set of rules. Instead, the proposals contain a targeted and focused set of fully harmonised rules.
IMPACT ASSESSMENT: the impact assessment examined 5 policy alternatives , and concluded that fully harmonised rules for digital content and goods would best meet the policy objectives. This option will reduce contract law-related costs for traders and facilitate cross-border e-commerce. Businesses will be able to rely largely on their own law when selling cross-border, as the main rules, which are relevant for cross-border trade, will be the same in all Member States.
CONTENT: the proposed directive aims to fully harmonise a set of key rules concerning contracts for the supply of digital content. It includes rules on: (i) conformity of the digital content, (ii) remedies available to consumers in cases of lack of conformity of digital content with the contract, as well as (iii) certain aspects concerning the right to terminate a long term contract and the modification of the digital content.
Definitions: some definitions stem from the current acquis, such as the definition of a consumer, while others reflect the specificity of digital content. The definition of digital content is deliberately broad and encompasses all types of digital content, including downloaded or web streamed movies, cloud storage, social media or visual modelling files for 3D printing, in order to be future-proof and to avoid distortions of competition and to create a level playing field.
Scope: the proposal covers only business-to-consumer transactions, and the supply of all types of digital content. It also covers digital content supplied not only for a monetary payment but also in exchange for (personal and other) data provided by consumers, except where the data have been collected for the sole purpose of meeting legal requirements.
Excluded from the scope of the proposal are services performed with a significant element of human intervention or contracts governing specific sectorial services such as healthcare, gambling or financial services. In case of conflict between the Directive and another EU act, the other EU act takes precedence.
Full harmonisation : the proposal precludes Member States from adopting or maintaining laws remaining below or going beyond the requirements of the Directive.
Supply of digital content: the digital content must be supplied to the consumer or to a third party which operates a physical or virtual facility allowing processing of, access to or transmission of digital content to the final consumer and with which the consumer is in a contractual relation. As a default rule, the digital content should be supplied instantly unless the parties agree otherwise.
Conformity of digital content with contract: the digital content must primarily conform to what was promised in the contract. In the absence of such explicit benchmarks, the conformity of the digital content must be assessed according to an objective criterion, i.e. it must be fit for the purpose for which digital content of the same description would normally be used.
The proposal also stipulates that:
when the digital content is supplied over a period of time, it must be in conformity with the contract throughout the duration of the contract; the version of digital content supplied to the consumer must also be the most recent version available at the time of the conclusion of contract; a lack of conformity of the digital content resulting from an incorrect integration into the consumer's hardware and software should be equal to a lack of conformity of the digital content itself if the reasons for the incorrect integration are in the sphere of the supplier; the digital content must be cleared from any third-party rights, including those based on intellectual property.
Burden of proof : the burden of proof for the absence of lack of conformity is imposed on the supplier, unless the consumer's digital environment is not compatible with the digital content. This reversal of the burden of proof is not limited in time.
Liability of the supplier : the proposal sets out the cases of liability of the supplier towards the consumer, namely where the digital content is not in conformity with the contract or the supplier failed to supply the digital content altogether. Given that digital content may be supplied over a period of time, the supplier should also be liable for any lack of conformity that occurs during that period.
Termination, damages, and right of redress : the proposal:
gives the right to the consumer to terminate the contract immediately when the supplier failed to supply the digital content altogether. The supplier shall reimburse the price or, if the counter-performance consisted of data, refrain from using these data and any other information which the consumer has provided in exchange for the digital content; lists the remedies available to the consumer in case of any failure to supply or lack of conformity of the digital content: (i) in a first step, the consumer shall be entitled to have the digital content brought to conformity within a reasonable time, without significant inconvenience and without incurring any costs; (ii) in a second step, the consumer shall be entitled to have the price reduced or the contract terminated if the lack of conformity relates to main performance features; establishes a right to damages restricted to cases where damage has been done to the digital content and hardware of the consumer. However, Member States should lay down the detailed conditions for the exercise of the right to damages; lists the conditions under which the supplier can modify the contract for the supply of digital content as regards main performance features; establishes the conditions under which the consumer has a right to terminate contracts concluded for an indeterminate duration or for duration exceeding 12 months and thereby is able to switch provider; provides the supplier with a right to redress in case of an act or omission by a person in earlier links of the chain of transactions that triggered the supplier's liability for lack of conformity or a failure to supply towards the consumer.
Lastly, the proposal requires Member States to ensure that adequate and effective means exist to ensure compliance with this Directive.
Documents
- Commission response to text adopted in plenary: SP(2019)437
- Draft final act: 00026/2019/LEX
- Final act published in Official Journal: Directive 2019/770
- Final act published in Official Journal: OJ L 136 22.05.2019, p. 0001
- Results of vote in Parliament: Results of vote in Parliament
- Debate in Parliament: Debate in Parliament
- Decision by Parliament, 1st reading: T8-0232/2019
- Approval in committee of the text agreed at 1st reading interinstitutional negotiations: PE637.352
- Approval in committee of the text agreed at 1st reading interinstitutional negotiations: GEDA/A/(2019)003707
- Coreper letter confirming interinstitutional agreement: GEDA/A/(2019)003707
- Text agreed during interinstitutional negotiations: PE637.352
- Debate in Council: 3622
- Contribution: COM(2015)0634
- Committee report tabled for plenary, 1st reading: A8-0375/2017
- Debate in Council: 3528
- Document attached to the procedure: N8-0045/2017
- Document attached to the procedure: OJ C 200 23.06.2017, p. 0010
- Debate in Council: 3508
- Committee opinion: PE582.370
- Debate in Council: 3473
- Contribution: COM(2015)0634
- Economic and Social Committee: opinion, report: CES6292/2015
- Contribution: COM(2015)0634
- Contribution: COM(2015)0634
- Contribution: COM(2015)0634
- Contribution: COM(2015)0634
- Contribution: COM(2015)0634
- Contribution: COM(2015)0634
- Contribution: COM(2015)0634
- Contribution: COM(2015)0634
- Debate in Council: 3455
- Document attached to the procedure: EUR-Lex
- Document attached to the procedure: SWD(2015)0274
- Document attached to the procedure: EUR-Lex
- Document attached to the procedure: SWD(2015)0275
- Legislative proposal published: COM(2015)0634
- Legislative proposal published: EUR-Lex
- Document attached to the procedure: EUR-Lex SWD(2015)0274
- Document attached to the procedure: EUR-Lex SWD(2015)0275
- Economic and Social Committee: opinion, report: CES6292/2015
- Committee opinion: PE582.370
- Document attached to the procedure: N8-0045/2017 OJ C 200 23.06.2017, p. 0010
- Coreper letter confirming interinstitutional agreement: GEDA/A/(2019)003707
- Text agreed during interinstitutional negotiations: PE637.352
- Draft final act: 00026/2019/LEX
- Commission response to text adopted in plenary: SP(2019)437
- Contribution: COM(2015)0634
- Contribution: COM(2015)0634
- Contribution: COM(2015)0634
- Contribution: COM(2015)0634
- Contribution: COM(2015)0634
- Contribution: COM(2015)0634
- Contribution: COM(2015)0634
- Contribution: COM(2015)0634
- Contribution: COM(2015)0634
- Contribution: COM(2015)0634
Activities
- Lucy ANDERSON
Plenary Speeches (1)
- Daniel DALTON
Plenary Speeches (1)
- Lidia Joanna GERINGER DE OEDENBERG
Plenary Speeches (1)
- Antanas GUOGA
Plenary Speeches (1)
- Dariusz ROSATI
Plenary Speeches (1)
- Virginie ROZIÈRE
Plenary Speeches (1)
- Mylène TROSZCZYNSKI
Plenary Speeches (1)
Amendments | Dossier |
156 |
2015/0287(COD)
2016/09/01
LIBE
156 amendments...
Amendment 100 #
Proposal for a directive 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 paid or the consumer actively provides counter- performance other than money in the form of personal
Amendment 101 #
Proposal for a directive Article 3 – paragraph 1 a (new) 1 a. It shall also apply to contracts where personal data, as defined in Article 4(1) of Regulation (EU) 2016/679, are consciously provided by the consumer as a counter-performance other than money. The contract shall explicitly indicate which data are exchanged for the content supplied.
Amendment 102 #
Proposal for a directive Article 3 – paragraph 4 4. This Directive shall not apply to digital content provided against counter- performance other than money to the extent the supplier requests the consumer to provide personal data
Amendment 103 #
Proposal for a directive Article 3 – paragraph 4 4. This Directive shall not apply to
Amendment 104 #
Proposal for a directive Article 3 – paragraph 4 4. This Directive shall not apply to
Amendment 105 #
Proposal for a directive Article 3 – paragraph 4 4. This Directive shall not apply to digital content provided
Amendment 106 #
Proposal for a directive Article 3 – paragraph 7 7. If any provision of this Directive conflicts with a provision of another Union act
Amendment 107 #
Proposal for a directive Article 3 – paragraph 8 Amendment 108 #
Proposal for a directive Article 3 – paragraph 8 8.
Amendment 109 #
Proposal for a directive Article 3 – paragraph 8 8. This Directive is without prejudice to the protection of individuals with regard to the processing of personal data as laid out in Regulation (EU) 2016/679 of the European Parliament and the Council and in Directive 2002/58 of the European Parliament and the Council.
Amendment 110 #
Proposal for a directive Article 3 – paragraph 8 8. This Directive is without prejudice to the protection of individuals with regard to the processing of personal data as per Regulation 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data.
Amendment 111 #
Proposal for a directive Article 3 – paragraph 8 8. This Directive is without prejudice to the protection of individuals with regard to the processing of personal data as laid out in Regulation (EU) 2016/679 of the European Parliament and the Council and in Directive 2002/58 of the European Parliament and the Council.
Amendment 112 #
Proposal for a directive Article 3 – paragraph 9 a (new) 9 a. Where, in the context of supplying digital content within the scope of this Directive, the law of another Member State than the one of the consumer's permanent residence applies, the supplier shall inform the consumer accordingly before entering into the contract.
Amendment 113 #
Proposal for a directive Article 4 – paragraph 1 Member States shall not maintain or introduce provisions less stringent in respect of consumer protection diverging from those laid down in this Directive,
Amendment 114 #
Proposal for a directive Article 5 – paragraph 1 – point b (b) a third party chosen by the consumer, which operates a physical or virtual facility making the digital content available to the consumer or allowing the consumer to access it and which has been chosen by the consumer for receiving the digital content.
Amendment 115 #
Proposal for a directive Article 5 – paragraph 2 2. The supplier shall supply the digital content immediately after the conclusion of the contract, unless the parties have agreed otherwise, and without prejudice to Article 16(m) of Directive 2011/83/EU of the European Parliament and the Council1a. The supply shall be deemed to take place when the digital content is supplied to the consumer or, where point (b) of paragraph 1 applies, to the third party chosen by the consumer, whichever is the earlier. _________________ 1a OJ L304, 22/11/2011, p. 64-88
Amendment 116 #
Proposal for a directive Article 5 – paragraph 2 2. The supplier shall supply the digital content
Amendment 117 #
Proposal for a directive Article 5 – paragraph 2 2. The supplier shall supply the digital content immediately after the conclusion of the contract, unless the parties have agreed otherwise. The supply shall be deemed to take place when the agreed-upon digital content is supplied to the consumer or, where point (b) of paragraph 1 applies, to the third party chosen by the consumer, whichever is the earlier.
Amendment 118 #
Proposal for a directive Article 6 – paragraph 1 – introductory part 1. The contract shall include all relevant characteristics for the assessment of the conformitity of the digital content, as well as all relevant information regarding the processing of personal data in compliance with the obligation under Regulation (EU) 2016/679. In order to conform with the contract, the digital content shall, where relevant:
Amendment 119 #
Proposal for a directive Article 6 – paragraph 1 – introductory part 1. In order to conform with the contract, the digital content shall
Amendment 120 #
Proposal for a directive Article 6 – paragraph 1 – introductory part 1. In order to conform with the contract, the digital content shall
Amendment 121 #
Proposal for a directive Article 6 – paragraph 1 – point b (b) be fit for any particular purpose for which the consumer requires it and which the consumer made known to the supplier at the time of the conclusion of the contract and which the supplier accepted, or any particular purpose which the consumer could reasonably expect;
Amendment 122 #
Proposal for a directive Article 6 – paragraph 1 – point b (b) be fit for any particular purpose for which the consumer requires it and which the consumer made known to the supplier at the time of the conclusion of the contract and which the supplier accepted, or any particular purpose that the consumer can reasonably expect;
Amendment 123 #
Proposal for a directive Article 6 – paragraph 1 – point d (d) be updated as stipulated by the contract or as necessary to guarantee the characteristics provided for in points (a) and (b), in particular continuity and security.
Amendment 124 #
Proposal for a directive Article 6 – paragraph 1 – point d (d) be updated as stipulated by the contract or as necessary to guarantee the characteristics provided for in points (a) and (b), in particular continuity and security.
Amendment 125 #
Proposal for a directive Article 6 – paragraph 2 – introductory part 2. To the extent that the contract does not stipulate, where relevant, in a clear and comprehensive manner, the requirements for the digital content under paragraph 1, the digital content shall be fit for the purposes for which digital content of the same description would normally be used and in line with the legitimately expected technical standards, including its functionality, interoperability and other performance features such as accessibility, continuity and security, taking into account:
Amendment 126 #
Proposal for a directive Article 6 – paragraph 2 – introductory part 2. To the extent that the contract does not stipulate,
Amendment 127 #
Proposal for a directive Article 6 – paragraph 2 – point a (a) whether the digital content is supplied in exchange for a price or other counter-performance than money, by providing personal data or any other data;
Amendment 128 #
Proposal for a directive Article 6 – paragraph 2 – point b (b)
Amendment 129 #
Proposal for a directive Article 6 – paragraph 2 – point b (b)
Amendment 130 #
Proposal for a directive Article 6 – paragraph 2 – point b a (new) (b a) any existing models of best practices with a view to security of information systems and digital environments;
Amendment 131 #
Proposal for a directive Article 6 – paragraph 2 – point b a (new) (b a) any existing security best practices for information systems and digital environments;
Amendment 132 #
Proposal for a directive Article 6 – paragraph 3 3. Where the contract stipulates that the digital content shall be supplied over a period of time, the digital content shall be in conformity with the contract throughout the duration of that period, including, where necessary, security updates to be provided by the supplier.
Amendment 133 #
Proposal for a directive Article 6 – paragraph 5 a (new) 5 a. The contract shall include all relevant elements enabling the conformity of the digital content to be assessed, as well as all relevant information regarding the processing of personal data, in particular as provided for in Articles 12 and 13 of Regulation (EU) 2016(679), to be provided in a concise, transparent, intelligible and easily accessible form, using clear and plain language. Information on the processing of personal data shall be accompanied by the standardised icons pursuant to Article 12(8) of Regulation (EU) 2016/679.
Amendment 134 #
Proposal for a directive Article 6 – paragraph 5 a (new) 5 a. In order to be in conformity with the contract the digital content or digital service shall respect the principles of "privacy by design" and "privacy by default" set out in Article 25 of Regulation (EU) 2016/679.
Amendment 135 #
Proposal for a directive Article 9 – paragraph 3 3. The consumer shall cooperate with the supplier to the extent possible and necessary to determine the consumer's digital environment. The obligation to cooperate shall be limited to the technically available means which are the least intrusive for the consumer. Where the consumer fails to cooperate, the burden of proof with respect to the non-conformity with the contract shall be on the consumer. The consumer shall not have to cooperate where the supplier requests access to private or personal information and communication.
Amendment 136 #
Proposal for a directive Article 10 – paragraph 1 – point b (b) any lack of conformity which exists at the time the digital content is supplied;
Amendment 137 #
Proposal for a directive Article 10 – paragraph 1 – point b a (new) (b a) any lack of security which was known to the supplier or could reasonably have been known to it according to security best practices for information systems and digital environments; and
Amendment 138 #
Proposal for a directive Article 10 – paragraph 1 – point b a (new) (b a) any lack of security according to best practices for security of information systems;
Amendment 139 #
Proposal for a directive Article 12 – paragraph 2 2. The supplier shall bring the digital content in conformity with the contract pursuant to paragraph 1 with
Amendment 140 #
Proposal for a directive Article 12 – paragraph 5 5.
Amendment 141 #
Proposal for a directive Article 12 – paragraph 5 5. The consumer may terminate the contract
Amendment 142 #
Proposal for a directive Article 13 – paragraph 1 a (new) 1 a. Where Article 3(1a) applies, a withdrawal of the consent to the processing of personal data pursuant to Article 7(3) of Regulation (EU) 2016/679 shall imply a termination of the contract by the consumer.
Amendment 143 #
Proposal for a directive Article 13 – paragraph 2 – point b (b)
Amendment 144 #
Proposal for a directive Article 13 – paragraph 2 – point b (b) the supplier shall
Amendment 145 #
Proposal for a directive Article 13 – paragraph 2 – point b (b) the supplier shall take all
Amendment 146 #
Proposal for a directive Article 13 – paragraph 2 – point b (b) the supplier shall
Amendment 147 #
Proposal for a directive Article 13 – paragraph 2 – point c Amendment 148 #
Proposal for a directive Article 13 – paragraph 2 – point c (c) the supplier shall provide the consumer with technical means to retrieve all content provided by the consumer and any other data produced or generated through the consumer's use of the digital content to the extent that data has been retained by the supplier. The consumer shall be entitled to retrieve the content free of charge, without
Amendment 149 #
Proposal for a directive Article 13 – paragraph 2 – point c (c) the supplier, on request made by the consumer, shall provide the consumer with technical means to retrieve all content provided by the consumer and any other data produced or generated through the consumer's use of the digital content to the extent that data has been retained by the supplier. The consumer shall be entitled to retrieve the content free of charge, without significant inconvenience, in reasonable time and in a commonly used
Amendment 150 #
Proposal for a directive Article 13 – paragraph 2 – point c (c) the supplier shall provide the consumer with technical means to retrieve all content provided by the consumer and any other data produced or generated through the consumer's use of the digital content to the extent that data has been retained by the supplier. The consumer shall be entitled to retrieve the content free of charge, without significant inconvenience, in reasonable time and in a structured, commonly used and machine- readable data format;
Amendment 151 #
Proposal for a directive Article 13 – paragraph 3 3. Upon termination, the supplier may prevent any further use of the digital content by the consumer, in particular by making the digital content not accessible to the consumer or disabling the user account of the consumer
Amendment 152 #
Proposal for a directive Article 13 – paragraph 6 6. Where the consumer terminates a part of the contract in accordance with paragraph 5, paragraph 2 shall apply
Amendment 153 #
Proposal for a directive Article 14 – paragraph 1 1. The supplier shall be liable to the consumer for any
Amendment 154 #
Proposal for a directive Article 14 – paragraph 1 1. The supplier shall be liable to the consumer for any economic damage to the
Amendment 155 #
Proposal for a directive Article 14 – paragraph 1 1. The supplier shall be liable to the consumer for any economic damage to the
Amendment 156 #
Proposal for a directive Article 14 – paragraph 2 2. The Member States shall lay down detailed rules for the exercise of the right to damages. When laying down those rules, Member States may provide for a reduced or increased degree of liability for damages based on objecitve criteria for assessing the efforts made by the supplier to avoid non-conformity of the digital content and the occurrence of the damage, such as security best practices or the state of the art of technology.
Amendment 157 #
Proposal for a directive Article 15 – paragraph 1 – introductory part 1. Where the contract provides that the digital content shall be supplied over the period of time stipulated in the contract, the supplier may alter functionality, interoperability and other main performance features of the digital content such as its
Amendment 158 #
Proposal for a directive Article 15 – paragraph 1 – introductory part 1. Where the contract provides that the digital content shall be supplied over the period of time stipulated in the contract, the supplier may alter functionality, interoperability and other main performance features of the digital content such as its accessibility, and continuity
Amendment 159 #
Proposal for a directive Article 15 – paragraph 1 – point a a (new) (a a) it is necessary for the security of the content in line with best practices;
Amendment 160 #
Proposal for a directive Article 15 – paragraph 1 – point b (b) the consumer is notified reasonably in advance of the modification by an explicit notice
Amendment 161 #
Proposal for a directive Article 15 – paragraph 1 – point b (b) the consumer is notified reasonably in advance of the modification by an explicit notice
Amendment 162 #
Proposal for a directive Article 15 – paragraph 1 – point d (d) upon termination of the contract in accordance with point (c), the consumer is provided with technical means to retrieve all content provided in accordance with Article 13(2)(c) or Article 16(4)(a).
Amendment 163 #
Proposal for a directive Article 16 – paragraph 4 – point a (a) the supplier shall
Amendment 164 #
Proposal for a directive Article 16 – paragraph 4 – point a (a) the supplier shall take all
Amendment 165 #
Proposal for a directive Article 16 – paragraph 4 – point a (a)
Amendment 166 #
Proposal for a directive Article 16 – paragraph 4 – point a (a) the supplier shall
Amendment 167 #
Proposal for a directive Article 16 – paragraph 4 – point b Amendment 168 #
Proposal for a directive Article 16 – paragraph 4 – point b (b) the supplier shall provide the consumer with technical means to retrieve all any content provided by the consumer and any other data produced or generated through the consumer's use of the digital content to the extent this data has been retained by the supplier. The consumer shall be entitled to retrieve the content and data without significant inconvenience, in reasonable time and in a structured, commonly used
Amendment 169 #
Proposal for a directive Article 16 – paragraph 4 – point b (b) the supplier, on request made by the consumer, shall provide the consumer with technical means to retrieve all any content provided by the consumer and any other data produced or generated through the consumer's use of the digital content to the extent this data has been retained by the supplier. The consumer shall be entitled to retrieve the content without significant inconvenience, in reasonable time and in a commonly used
Amendment 170 #
Proposal for a directive Article 16 – paragraph 4 – point b (b) the supplier shall provide the consumer with technical means to retrieve all any content provided by the consumer and any other data produced or generated through the consumer's use of the digital content to the extent this data has been retained by the supplier. The consumer shall be entitled to retrieve the content without significant inconvenience, in reasonable time and in a structured, commonly used and machine-readable data format; and
Amendment 171 #
Proposal for a directive Article 18 – paragraph 2 – point b a (new) (b a) organisations whose aim is the protection of the rights to privacy and the protection of personal data.
Amendment 172 #
Proposal for a directive Article 18 – paragraph 2 – point c a (new) (c a) organisations which are active in the field of the protection of data subjects' rights and freedoms with regard to the protection of their personal.
Amendment 173 #
Proposal for a directive Article 19 a (new) Article 19 a Data Protection Processing of personal data carried out in the context of activities conducted pursuant to this Directive shall comply with the obligations under Regulation (EU) 2016/679 and Directive 2002/58/EC.
Amendment 174 #
Proposal for a directive Article 20 – paragraph 3 a (new) 3 a. In Annex to Directive 93/13/EC Terms referred to in Article 3(3) the following point is added: " 1. (r) limiting the consumer's rights afforded to the consumer as a data subject under Regulation (EU) 2016/679, including any term defining the functionality and other performance features of the digital content or digital service in a way that is not in conformity with Article 25 of Regulation (EU) 2016/679."
Amendment 175 #
Proposal for a directive 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. The report shall examine, inter alia, the interaction and compliance with the application of Regulation (EU) 2016/679, and 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.
Amendment 176 #
Proposal for a directive Article 22 – paragraph 1 The Commission shall, not later than on [the date of
Amendment 21 #
Proposal for a directive Recital 1 (1) The growth potential of e- commerce has not yet been fully exploited. The Digital Single Market Strategy for Europe29 tackles in a holistic manner the major obstacles to the development of cross-border e-commerce in the Union in order to unleash this potential. Ensuring better access for consumers to digital content and facilitating businesses to supply digital content is necessary to boost the Union’s digital economy, remove any barriers which still exist, especially in respect of the disabled, and stimulate overall growth. _________________ 29 [COM
Amendment 22 #
Proposal for a directive Recital 1 (1) The growth potential of e- commerce has not yet been fully exploited. The Digital Single Market Strategy for Europe29
Amendment 23 #
Proposal for a directive Recital 2 (2) For the achievement of a genuine digital single market, the harmonisation of certain aspects concerning contracts for supply of digital content, taking as a base a high level of consumer protection, is necessary, as well as legal certainty for digital content providers.
Amendment 24 #
Proposal for a directive Recital 2 (2) For the achievement of a genuine digital single market, the harmonisation of certain aspects concerning contracts for supply of digital content, taking as a base a high level of consumer protection and the need to improve accessibility, is necessary.
Amendment 25 #
Proposal for a directive Recital 3 (3) Differences in national mandatory consumer contract law rules and a lack of clear contract law rules are among the key obstacles which hinder the development of the supply of digital content and cross- border sales, as very few tailor-made rules exist at Union level.
Amendment 26 #
Proposal for a directive Recital 4 (4) Consumers are not confident when buying cross border and especially online. One of the major factors for this lack of confidence is uncertainty about their key contractual rights and the lack of a clear contractual framework for digital content. Many consumers of digital content experience problems related to the quality of, or access to, digital content, owing in particular to the lack of harmonisation of improved accessibility potentials. For instance, they receive wrong or faulty digital content, or they are not able to access the digital content in question. As a result, consumers suffer financial and non- financial detriment.
Amendment 27 #
Proposal for a directive Recital 7 (7) Consumers will benefit from fully harmonised rights for digital content at a high level of protection, especially as regards personal data protection. They will have clear rights when they receive or access digital content from anywhere in the EU. This will increase their confidence in buying digital content. This will also contribute to reducing the detriment consumers currently suffer, since there will be a set of clear rights that will enable them to address problems they face with digital content.
Amendment 28 #
Proposal for a directive Recital 7 (7) Consumers will benefit from fully harmonised rights for digital content at a high level of protection. They will have clear rights when they receive or access digital content from anywhere in the EU. This will increase their confidence in buying digital content. This will also contribute to reducing the detriment consumers currently suffer, since there will be a set of clear rights that will enable them to address problems they face with digital content and its accessibility.
Amendment 29 #
Proposal for a directive Recital 8 (8) This Directive should fully harmonise a set of key rules that are so far not regulated at Union level. It should include therefore rules on conformity of the digital content, remedies available to consumers in cases of lack of conformity of digital content with the contract and certain modalities for the exercise of those remedies, such as full harmonisation of accessibility mechanisms for persons with disabilities. This Directive should also harmonise certain aspects concerning the right to terminate a long term contract, as well as certain aspects concerning the modification of the digital content.
Amendment 30 #
Proposal for a directive Recital 8 (8) This Directive should fully harmonise a set of key rules that are so far not regulated at Union level so as to achieve better consumer protection through development of the digital sector. It should include therefore rules on conformity of the digital content, remedies available to consumers in cases of lack of conformity of digital content with the contract and certain modalities for the exercise of those remedies. This Directive should also harmonise certain aspects concerning the right to terminate a long term contract, as well as certain aspects concerning the modification of the digital content.
Amendment 31 #
Proposal for a directive Recital 10 (10) This Directive should not affect national laws
Amendment 32 #
Proposal for a directive Recital 10 (10) This Directive should not affect national laws to the extent that the topics concerned are not regulated by this Directive, such as national rules providing for obligations of the consumer towards the supplier of digital content or regulating the qualification, formation and validity of contracts or the legality of the content. Member States should also remain free to provide rules for the detailed conditions for the exercise of rights, such as the right to damages
Amendment 33 #
Proposal for a directive Recital 11 (11) The Directive should address problems across different categories of digital content and its supply. In order to cater for fast technological developments and to maintain the future-proof nature of the notion of digital content, this notion as used in this Directive should be broader than in Directive 2011/83/EU of the European Parliament and of the Council.30 In particular it should cover services which allow the creation, processing or storage of data. While there are numerous ways for digital content to be supplied, such as transmission on a durable medium, downloading by consumers on their devices, web-streaming, allowing access to storage capabilities of digital content or access to the use of social media, this Directive should apply to all digital content independently of the medium used for its transmission. Differentiating between different categories in this technologically fast changing market is not desirable because it would hardly be possible to avoid discriminations between suppliers. A level-playing field between suppliers of different categories of digital content should be ensured.
Amendment 34 #
Proposal for a directive Recital 11 (11) The Directive should address problems across different categories of digital content and its supply. In order to cater for fast technological developments and to maintain the future-proof nature of the notion of digital content, this notion as used in this Directive should be broader than in Directive 2011/83/EU of the European Parliament and of the Council
Amendment 35 #
Proposal for a directive Recital 11 (11) The Directive should address problems across
Amendment 36 #
Proposal for a directive Recital 12 (12)
Amendment 37 #
Proposal for a directive Recital 13 (13)
Amendment 38 #
Proposal for a directive Recital 13 (13) In the digital economy, information about individuals is often and increasingly seen by market participants as having a value comparable to money. Digital content is often supplied not in exchange for a price but against counter-performance other than money i.e. by giving access to personal data or other data or by the supplier collecting and processing such data. Those specific business models apply in different forms in a considerable part of the market
Amendment 39 #
Proposal for a directive Recital 13 (13) In the digital economy, information about individuals is often and increasingly seen by market participants as having a value comparable to money. Digital content is often supplied not in exchange for a price but against counter-performance other than money i.e. by the supplier collecting and processing personal data or by the consumer giving access to personal data or other data. Those specific business models apply in different forms in a considerable part of the market
Amendment 40 #
Proposal for a directive Recital 13 (13) In the digital economy, information about individuals is often and increasingly seen by market participants as having a value comparable to money. Digital content is often supplied not in exchange for a price but against counter-performance other than money i.e. by giving access to personal
Amendment 41 #
Proposal for a directive Recital 13 a (new) (13 a) Terms not individually negotiated and that concern the processing of personal data or any other data provided by the consumer to the supplier in the context of the conclusion or performance of the contract, including data generated by the consumer's use of any digital content or services supplied, should be subject to unfairness control under the national provisions implementing Directive 93/13/EC and should be construed as not defining the main subject matter of the contract within the meaning of Article 4(2) of Directive 93/13/EC. Any standard term that would reduce or undermine any right afforded to the consumer as a data subject under Regulation (EU) 2016/679, including any term defining the functionality and other performance features of the digital content or digital service in a way that is not in conformity with Article 25 of Regulation (EU) 2016/679, should always be regarded as unfair within the meaning of Article 3(1) of Directive 93/13/EC.
Amendment 42 #
Proposal for a directive Recital 14 (14) As regards digital content supplied not in exchange for a price but against counter-performance other than money, th
Amendment 43 #
Proposal for a directive Recital 14 (14) As regards digital content supplied not in exchange for a price but against counter-performance other than money, this Directive should also apply only to contracts where the supplier requests and the consumer actively provides data
Amendment 44 #
Proposal for a directive Recital 14 (14) As regards digital content supplied not in exchange for a price but against counter-performance other than money, this Directive should apply only to contracts where the supplier requests and the consumer
Amendment 45 #
Proposal for a directive Recital 14 (14) As regards digital content supplied not in exchange for a price but against counter-performance other than money, this Directive should apply only to contracts where the supplier requests
Amendment 46 #
Proposal for a directive Recital 14 (14) As regards digital content supplied not in exchange for a price but against counter-performance other than money, this Directive should apply only to contracts where the supplier requests and the consumer actively provides personal data, such as name and e-mail address or photos, directly or indirectly to the supplier for example through individual registration or on the basis of a contract which allows access to consumers' photos. This Directive should not apply to situations where the supplier collects data necessary for the digital content to function in conformity with the contract, for example geographical location where necessary for a mobile application to function properly, or for the sole purpose of meeting legal requirements, for instance where the registration of the consumer is required for security and identification purposes by applicable laws. This Directive should also not apply to situations where the supplier collects information, including personal data, such as the IP address, or other automatically generated information such as information collected and transmitted by a cookie, without the consumer actively supplying it, even if the consumer accepts the cookie. It should also not apply to situations where the consumer is exposed to advertisements exclusively in order to gain access to digital content.
Amendment 47 #
Proposal for a directive Recital 15 (15) Content generated by consumers should be treated on the same basis as any other digital content that the consumer provides or stores throughout the period of duration of the contract such as music and video files, pictures, games or applications and should be subject to personal data protection rules. Content generated by consumers comprises a wide range of examples including digital images, video and audio files, blogs, discussion forums, text-based collaboration formats, posts, chats, tweets, logs, podcasting, content created on mobile devices, content created in the context of online virtual environments, ratings and collections of links referring to online content.
Amendment 48 #
(
Amendment 49 #
Proposal for a directive Recital 17 Amendment 50 #
Proposal for a directive Recital 17 Amendment 51 #
Proposal for a directive Recital 18 (18) Contracts may include general terms and conditions of the supplier that need to be accepted by the consumer. For some digital content, suppliers often describe the service and measurable service targets in a service level agreement. These service level agreements are generally appended to the main contract and form an important component of the contractual relationship between the supplier and the consumer. They should be covered by the definition of a contract under this Directive, and should thus comply with the rules laid down therein. In cases where consent to the processing of personal data is given as a counter-performance other than money, the contract should contain the information about the processing pursuant to Regulation (EU) 2016/679, but clearly distinguishable from other elements of the contract. In addition, easily understandable icons should illustrate the main elements of the processing of personal data.
Amendment 52 #
Proposal for a directive Recital 21 (21)
Amendment 53 #
Proposal for a directive Recital 22 (22) The protection of individuals with regard to the processing of personal data is governed by
Amendment 54 #
Proposal for a directive Recital 22 (22) The protection of individuals with regard to the processing of personal data is governed by
Amendment 55 #
Proposal for a directive Recital 23 (23) There are various ways for digital content to reach consumers. It is opportune to set simple and clear rules as to the modalities and the time for performing the supplier's main contractual obligation to supply digital content to the consumer. Considering that the supplier is not in principle responsible for acts or omissions of an internet provider or an electronic platform which the consumer selected for receiving the digital content, it should be sufficient for the supplier to supply the digital content to this third party. With regard to the time of supply, in line with market practices and technical possibilities, the digital content should be supplied
Amendment 56 #
Proposal for a directive Recital 25 (25) In cases where the contract does not stipulate sufficiently clear and comprehensive benchmarks, adjusted to the consumers it is dedicated for, to ascertain the conformity of the digital content with the contract, it is necessary to set objective conformity criteria to ensure that consumers are not deprived of their rights. In such cases the conformity with the contract should be assessed considering the purpose for which digital content of the same description would normally be used and the legitimately expected technical standards which digital content of the same description would normally have.
Amendment 57 #
Proposal for a directive Recital 25 (25) In cases where the contract does not stipulate sufficiently clear and comprehensive benchmarks to ascertain the conformity of the digital content with the contract, and therefore it cannot be assumed that consumers could sufficiently comprehend and assess those benchmarks, it is necessary to set objective conformity criteria to ensure that consumers are not deprived of their rights. In such cases the conformity with the contract should be assessed considering the purpose for which digital content of the same description would normally be used.
Amendment 58 #
Proposal for a directive Recital 25 (25) In cases where the contract does not stipulate sufficiently clear and comprehensive benchmarks to ascertain the conformity of the digital content with the contract, it is necessary to set objective conformity criteria to ensure that consumers are not deprived of their rights. In such cases the conformity with the contract should be assessed considering the legitimate expectations of consumers and the purpose for which digital content of the same description would normally be used.
Amendment 59 #
Proposal for a directive Recital 25 (25) In cases where the contract is ambiguous to the consumer and does not stipulate sufficiently clear and comprehensive benchmarks to ascertain the conformity of the digital content with the contract, it is necessary to set objective conformity criteria to ensure that consumers are not deprived of their rights. In such cases the conformity with the contract should be assessed considering the purpose for which digital content of the same description would normally be used.
Amendment 60 #
Proposal for a directive Recital 25 (25) In cases where the contract does not stipulate sufficiently clear and comprehensive benchmarks to ascertain the conformity of the digital content with the contract, it is
Amendment 61 #
Proposal for a directive Recital 27 (27) While data-driven services and technologies bring significant benefits, they also create some vulnerabilities. As recognised by the Digital Single Market Strategy a high level of network and information security is essential across the European Union to ensure respect of fundamental rights such as the right to privacy and personal data, to increase user confidence and strengthen their trust in the digital economy.
Amendment 62 #
Proposal for a directive Recital 27 (27) While data-driven services and technologies bring significant benefits, they also create some vulnerabilities. As recognised by the Digital Single Market Strategy a high level of network and information security is essential across the European Union to ensure respect of fundamental rights such as the right to privacy and
Amendment 63 #
Proposal for a directive Recital 28 (28) When applying the rules of this Directive, suppliers
Amendment 64 #
Proposal for a directive Recital 29 (29) Many types of digital content are supplied over a period of time. For instance, consumers access cloud services over a period of time. It is therefore
Amendment 65 #
Proposal for a directive Recital 30 (30) In order to work properly, digital content
Amendment 66 #
Proposal for a directive Recital 33 (33) Without prejudice to the fundamental rights to the protection of private life, including confidentiality of communications, and the protection of personal data of the consumer, the consumer should cooperate with the supplier in order to allow the supplier to ascertain the consumer's digital environment
Amendment 67 #
Proposal for a directive Recital 33 (33) Without prejudice to the fundamental rights to the protection of private life, including confidentiality of communications, and the protection of personal data of the consumer, the consumer should cooperate with the supplier in order to allow the supplier to ascertain the consumer's digital environment with the use of the least intrusive means which are at the disposal of both parties in the circumstances. This may often be done for instance by providing the supplier with automatically generated incident reports or details of the consumer's internet connection. Only in exceptional and duly justified circumstances where with the best use of all other means there is no other way possible, this may also be done by allowing virtual access to the consumer's digital environment.
Amendment 68 #
Proposal for a directive Recital 35 (35) A failure of the supplier to supply the digital content to the consumer in accordance with the contract is a serious breach of the main contractual obligation of the supplier, which should allow the consumer to immediately terminate the contract and avail himself of all legal rights to damages. Where the supplier has initially not failed to supply the digital content, interruptions of the supply making the digital content not available or accessible to the consumer over a short period of time should be treated as non- conformity with the contract, a
Amendment 69 #
Proposal for a directive Recital 36 (36) In the case of non-conformity with the contract, consumers should as a first step be entitled to have the digital content brought to conformity with the contract. Depending on technical characteristics of the digital content, the supplier may select a specific way of bringing the digital content to conformity with the contract, for example by issuing updates or
Amendment 70 #
Proposal for a directive Recital 37 (37) As a second step, the consumer should be entitled to have the price reduced or the contract terminated.
Amendment 71 #
Proposal for a directive Recital 37 (37) As a second step, the consumer should be entitled to have the price reduced or the contract terminated. The right of a consumer to have the contract terminated should be limited to those cases where for instance bringing the digital content to conformity is not possible and the non- conformity impairs the main performance features of the digital content. Where the consumer terminates the contract, the supplier should reimburse the price paid by the consumer or, where the digital content is supplied not in exchange for a price but against access to data provided by the consumer as a counter-performance for the digital content supplied or data produced by the consumer during the duration of the contract, the supplier should refrain from using it, from transferring that data to third parties or allowing third parties to access it after termination of the contract. Fulfilling the obligation to refrain from using data should mean in the case when the counter- performance consists of personal data, that the supplier should take all measures in order to comply with data protection rules by deleting it or rendering it anonymous in such a way that the consumer cannot be identified by any means likely reasonably to be used either by the supplier or by any other person. If personal data protection technics, such as pseudonimisation, as prescribed in the Regulation (EU) 2016/679 are used by the supplier, only after the request made by the consumer, the supplier should refrain from using these data. Without prejudice to obligations of a controller under
Amendment 72 #
Proposal for a directive Recital 37 (37) As a second step, the consumer should be entitled to have the price reduced or the contract terminated. The right of a consumer to have the contract terminated should be limited to those cases where for instance bringing the digital content to conformity is not possible and the non- conformity impairs the main performance features of the digital content. Where the consumer terminates the contract, the supplier should reimburse the price paid by the consumer or, where the digital content is supplied not in exchange for a price but against access to data provided by the consumer, the supplier should refrain from using it, from transferring that data to third parties or allowing third parties to access it after termination of the contract. Fulfilling the obligation to refrain from using data should mean in the case when the counter- performance consists of personal data, that the supplier should take all measures in order to comply with data protection rules by deleting it or rendering it anonymous in such a way that the consumer cannot be identified by any means likely reasonably to be used either by the supplier or by any other person. Without prejudice to obligations of a controller under
Amendment 73 #
Proposal for a directive Recital 37 (37) As a second step, the consumer should be entitled to have the price reduced or the contract terminated. The right of a consumer to have the contract terminated should be limited to those cases where for instance bringing the digital content to conformity is not possible and the non- conformity impairs the main performance features of the digital content. Where the consumer terminates the contract, the supplier should reimburse the price paid by the consumer or, where the digital content is supplied not in exchange for a price but against access to data provided by the consumer, the supplier should refrain from using it, from transferring that data to third parties or allowing third parties to access it after termination of the contract. Fulfilling the obligation to refrain from using data should mean in the case when the counter- performance consists of personal data, that the supplier should take all measures in order to comply with data protection rules by deleting it or rendering it anonymous in such a way that the consumer cannot be identified by any means likely reasonably to be used either by the supplier or by any other person. Without prejudice to obligations of a controller under
Amendment 74 #
Proposal for a directive Recital 38 (38) Upon termination the supplier should also refrain from using the content generated by the consumer.
Amendment 75 #
Proposal for a directive Recital 38 (38) Upon termination the supplier should also refrain from using the content
Amendment 76 #
Proposal for a directive Recital 39 Amendment 77 #
Proposal for a directive Recital 39 (39) In order to ensure that the consumer benefits from effective protection in relation to the right to terminate the contract, the supplier, on request made by the consumer, should allow the consumer to retrieve all data uploaded by the consumer
Amendment 78 #
Proposal for a directive Recital 40 Amendment 79 #
Proposal for a directive Recital 42 Amendment 80 #
Proposal for a directive Recital 43 Amendment 81 #
Proposal for a directive Recital 44 (44) The principle of the supplier's liability for damages is an essential element of the contracts for supply of digital content.
Amendment 82 #
Proposal for a directive Recital 44 (44) The principle of the supplier's liability for damages is an essential element of the contracts for supply of digital content. In order to increase consumers' trust in digital content this principle should thus be regulated at Union level to ensure that consumers do not suffer a detriment if their hardware or software is damaged by digital content which is not in conformity with the contract. Therefore, consumers should be entitled to a compensation for damages caused to the consumer's digital environment by a lack of conformity with the contract or a failure to supply the digital content. However, it should be for Member States to lay down the detailed conditions for the exercise of the right to damages while taking into account that discounts on prices for future supplies of the digital content, especially when offered by suppliers as an exclusive compensation for losses, do not
Amendment 83 #
Proposal for a directive Recital 45 (45)
Amendment 84 #
Proposal for a directive Recital 46 (46)
Amendment 85 #
Proposal for a directive Recital 46 (46) Competition is an important element for a well-functioning digital single market. In order to stimulate such a competition, consumers should be enabled to respond to competitive offers and to switch between suppliers. In order to make this work in practice, they should be able to do so without being hindered by legal, technical or practical obstacles, including contractual conditions or lack of means for retrieving all data uploaded by the consumer
Amendment 86 #
Proposal for a directive Recital 54 (54) Since the objectives of this Directive, namely to contribute to the smooth functioning of the internal market and European economic invigoration by tackling in a consistent manner contract law-related obstacles for the supply of digital content while preventing legal fragmentation cannot be sufficiently achieved by the Member States but can rather, by reasons of ensuring the overall coherence of the national legislations through harmonised contract law rules which would also facilitate coordinated enforcement actions, 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 Directive does not go beyond what is necessary in order to achieve those objectives.
Amendment 87 #
Proposal for a directive Recital 55 (55) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union and specifically Article 7, 8, 16, 38 and 47 thereof.
Amendment 88 #
Proposal for a directive Article 2 – paragraph 1 – point 1 – point a (a) data which is produced and supplied in digital form
Amendment 89 #
Proposal for a directive Article 2 – paragraph 1 – point 5 5. 'damages' means a sum of money to which consumers may be entitled as compensation for
Amendment 90 #
Proposal for a directive Article 2 – paragraph 1 – point 6 Amendment 91 #
Proposal for a directive Article 2 – paragraph 1 – point 6 6. 'price' means money or any other type of representation of value that is due in exchange for digital content supplied;
Amendment 92 #
Proposal for a directive Article 2 – paragraph 1 – point 6 a (new) 6 a. 'personal data' has the meaning of Regulation (EU) 2016/679.
Amendment 93 #
Proposal for a directive Article 2 – paragraph 1 – point 9 9. 'interoperability' means the ability of digital content to perform all its functionalities in interaction with a
Amendment 94 #
Proposal for a directive Article 2 – paragraph 1 – point 11 a (new) 11 a. 'personal data' means any information relating to an identified or identifiable natural person ('data subject'); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
Amendment 95 #
Proposal for a directive Article 2 – paragraph 1 – point 11 a (new) 11 a. 'personal data' means personal data as defined by Article 4(1) of Regulation (EU) 2016/679
Amendment 96 #
Proposal for a directive 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 paid or the consumer
Amendment 97 #
Proposal for a directive 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 paid or the consumer
Amendment 98 #
Proposal for a directive 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 paid
Amendment 99 #
Proposal for a directive Article 3 – paragraph 1 1. This Directive shall apply to any contract
source: 587.642
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