13 Amendments of Sergio GUTIÉRREZ PRIETO related to 2015/0288(COD)
Amendment 418 #
Proposal for a directive
Recital 2
Recital 2
(2) For the good functioning of the internal market, the harmonisation of certain aspects concerning contracts for sales of goods, taking as a base a high level of consumer protection, is necessarywhile recognising Member States’ competences, is justifiable. Keeping in mind the evolving and complex European case law on this subject matter, and in order to provide a greater degree of legal certainty to businesses and consumers alike, Member States should be able to maintain or introduce more stringent provisions for the protection of consumers in so far as provided for, or not expressly regulated otherwise in this Directive.
Amendment 419 #
Proposal for a directive
Recital 3
Recital 3
(3) E-commerce is one of the maina key drivers for growth within the internal market. However its growth potential is far from being fully exploited. In order to strengthen Union competiveness and to boost growth, the Union needs to act swiftly and encourage economic actors to unleash the full potential offered by the internal market. The full potential of the internal market can only be unleashed if all market participants enjoy smooth access to cross-border sales of goods, including in e- commerce transactions. Contracts are an indispensable legal tool for most economic transactions. The contract law rules on the basis of which market participants conclude transactions are among the key factors shaping business’ decisions whether to offer goods cross- border. Those rules also influence consumers’ willingness to embrace and trust this type of purchase.
Amendment 420 #
Proposal for a directive
Recital 4
Recital 4
(4) TheCertain Union rules applicable to the sales of goods are still fragmented althoughhave already been harmonised, including rules on pre- contractual information requirements, the right of withdrawal for distance contracts and delivery conditions have already been fully harmonised. Other key contractual elements such as the conformity criteria, the remedies and modalities for their exercise for goods which do not conform to the contract are currently subject to minimum harmonisation inregulated at a minimum level by Directive 1999/44/EC of the European Parliament and of the Council46. Member States have been allowed to go beyond the Union standards and introduce rules that ensure even higher levelIn practice, therefore, national provisions transposing the Union legislation ofn consumer protection. Having done so, they have acted on different elements and to different extents. Thus, national provisions transposingcontract law, in particular Directive 1999/44/EC, significantly diverge today on essential elements of what constitutes a sales contract, such as the absence or existence of a hierarchy of remedies, the period of the legal guarantee, the period of the reversal of the burden of proof, or the notification of the defect to the seller. __________________ 46 Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees OJ L 171, 7.7.1999, p.12.
Amendment 421 #
Proposal for a directive
Recital 7
Recital 7
(7) While online sales of goods constitute the vast majority of cross-border sales in the Union, differences in national contract laws equally affect retailers using distance sales channels and retailers selling face-to-face and prevent them from expanding across borders. This Directive should cover all sales channels, in order to create a level playing field for all businesses selling goods to consumers. By laying down uniform rules across sales channels, this Directive should avoid any divergence that would create disproportionate burdens for the growing number of omni-channel retailers in the Union. The need for retaining consistent rules on sales and guarantees for all sales channels was confirmed in the Fitness Check of EU consumer and marketing law, which also covered Directive 1999/44/EC.48 __________________ 48 Commission Staff Working Document{SWD(2017) 208 final}, Report of the Fitness Check on Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’); Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts; Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers; Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees; Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers' interests; Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertisingAt the same time, this Directive should also ensure a very high level of consumer protection in accordance with Union law in order to provide consumers with the confidence to buy cross-border and in order to enhance the functioning of the internal market.
Amendment 422 #
Proposal for a directive
Recital 8
Recital 8
(8) In order to remedy those problems that are due to the fragmentation of national rules, businesses and consumers should be able to rely on a set of fully harmonised, targeted rules for the sales of goods. Uniform rules are necessary in relation to several essential elements of consumer contract law which under the current minimum harmonisation approach led to disparities and trade barriers across the Union. Therefore, this Directive should repeal the minimum harmonisation Directive 1999/44/EC and introduce fully harmonised rules on contracts for theonline and other distance sales of goods. This Directive should establish a set of clear, common rules that provide for the contractual rights of consumers when buying goods and help to provide a stable trading environment for sellers. Those rules should recognise that consumers and sellers are not on an equal footing and that, therefore, the legal framework needs to be just and fair in order to ensure that there is a high level of consumer protection, whilst continuing to recognise the concerns of businesses, including smales of goodl businesses.
Amendment 423 #
Proposal for a directive
Recital 14
Recital 14
(14) This Directive should not affect contract laws of Member States in areas not regulated by this Directive. In addition, its implementation should under no circumstances constitute grounds for reducing the level of protection afforded to consumers in fields that fall within the scope of Union law. Furthermore, in certain areas regulated by this Directive Member States should also be free to lay down rules in relation to those aspects which are not regulated in this Directive: this concerns limitation periods for exercising the consumers' rights and commercial guarantees. Finally, in relation to the right of redress of the seller, Member States should be free to provide more detailed conditions on the exercise of such right.
Amendment 425 #
Proposal for a directive
Recital 26
Recital 26
(26) In order to allow businesses to rely on a single set of rules across the Union, it is necessary to fully and to provide a high level of consumer protection, it is justified to harmonise the period of time during which the burden of proof for the lack of conformity is reversed in favour of the consumer. Within the first two years, in addition to a short-term right to reject goods, the consumer should, in order to benefit from the presumption of lack of conformity, the consumer should onlyonly have to demonstrate that the good is not conforming, without also needing to demonstrate that the lack of conformity actually existed at the relevant time for establishing conformity. In addition, in order to increase legal certainty in relation to the available remedies for lack of conformity with the contract and in order to eliminate one of the major obstacles inhibiting the internal market, a fully harmonised order in which remedies can be exercised, provision should be provimaded for. In particular, the consumer should enjoy a choice between repair or replacement as a first remedy which should help in maintaining the contractual relation and mutual trust. Moreover, enabling consumers to require repair should encourage a sustainable consumption and could contribute to a greater durability of product harmonised rules that enshrine the principle of a free choice of remedies.
Amendment 426 #
Proposal for a directive
Recital 34
Recital 34
(34) In order to ensure transparency, certain transparency requirements for commercial guarantees should be provided. Moreover in order to improve legal certainty and to avoid that consumers are misled, this Directive should provide that where commercial guarantee conditions contained in advertisements or pre- contractual information are more favourable to the consumer than those included in the guarantee statement the more advantageous conditions should prevail. Finally, this Directive should provide rules on the content of the guarantee statement and the way it should be made available to consumers. Member States should be free to lay down rules on other aspects of commercial guarantees not covered by this Directive, provided that those rules do not deprive consumers of the protection afforded to them by the fully harmonised provisions of this Directive on commercial guarantees. This Directive should ensure that consumers continue to enjoy a high degree of consumer protection in accordance with Union law with regard to commercial guarantees.
Amendment 427 #
Proposal for a directive
Article 1 – paragraph 4
Article 1 – paragraph 4
Amendment 428 #
Proposal for a directive
Article 2 – paragraph 1 – point d
Article 2 – paragraph 1 – point d
(d) ‘producer’, in relation to goods, means the manufacturer of goodsa product, the importer of goods into the Union or, the producer of any raw material or the manufacturer of a component part, as well as any person purporting to be a producer by placing their name, trade mark or other distinctive sign on the goods;
Amendment 429 #
Proposal for a directive
Article 2 – paragraph 1 – point i
Article 2 – paragraph 1 – point i
(i) ‘free of charge’ means free of the necessaryusual costs incurred in order to bring the goods into conformity, particularly the cost of postage, labour and materials
Amendment 430 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
Amendment 432 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. A repair or replacement shall be completed within a reasonable time, and in any event within 30 days from the moment the seller has acquired physical possession of the goods or the consumer has handed over the goods to the carrier chosen by the seller. Such repair or replacement shall be without any significant inconvenience to the consumer, taking account of the nature of the goods and the purpose for which the consumer required the goods.