BETA

Activities of Pascal DURAND related to 2015/0288(COD)

Legal basis opinions (0)

Amendments (39)

Proposal for a directive
Recital 5

(5) The Union rules applicable to the online and other distance sales of goods are still fragmented although rules on pre-contractual information requirements, the right of withdrawal 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 subject to minimum harmonisation in Directive 1999/44/EC of the European Parliament and of the Council39 . Member States have been allowed to go beyond the Union standards and introduce rules that ensure even higher level of consumer protection. Having done so, they have acted on different elements and to different extents. Thus, national provisions transposing the Union legislation on consumer contract law significantly diverge today on essential elements of 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. _________________ 39 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.deleted

2017/01/25
Committee: IMCO

Proposal for a directive
Recital 7

(7) While consumers enjoy a high level of protection when they purchase online or otherwise at a distance from abroad as a result of the application of Regulation (EC) No 593/2008, fragmentation also impacts negatively on consumers’ levels of confidence in e- commerce. While several factors contribute to this mistrust, uncertainty about key contractual rights ranks prominently among consumers’ concerns. This uncertainty exists independently of whether or not consumers are protected by the mandatory consumer contract law provisions of their own Member State in the case where a seller directs his cross- border activities to them or whether or not consumers conclude cross-border contracts with a seller without the respective seller pursuing commercial activities in the consumer's Member State.deleted

2017/01/25
Committee: IMCO

Proposal for a directive
Recital 8

(8) In order to remedy those problems, businesses and consumers should be able to rely on a set of fully harmonised, targeted rules for the online and other distance 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.deleted

2017/01/25
Committee: IMCO

Proposal for a directive
Recital 9

(9) Fully harmonised consumer contract law rules will make it easier for traders to offer their products in other Member States. Businesses will have reduced costs as they will no longer need to take account of different consumer mandatory rules. They will enjoy more legal certainty when selling at a distance to other Member States through a stable contract law environment.deleted

2017/01/25
Committee: IMCO

Proposal for a directive
Recital 11

(11) This Directive covers rules applicable to the online and other distance sales of goods only in relation to key contract elements needed to provide for a high level of consumer protection and to overcome contract-law related barriers in the Digital Single Market. For this purpose, rules on conformity requirements, remedies available to consumers for lack of conformity of the goods with the contract and modalities for their exercise should be fully harmonised and the level of consumer protection as compared to Directive 1999/44/EC, should be increased.

2017/01/25
Committee: IMCO

Proposal for a directive
Recital 19

(19) In order to provide clarity as to what a consumer can expect from the goods and what the seller would be liable for in case of failure to deliver what is expected, it is essential to ~~fully~~ harmonise rules for determining the conformity with the contract. Applying ~~a combination of subjective and objective~~ criteria should safeguard legitimate interests of both parties to a sales contract. Conformity with the contract should be assessed by taking into account not only requirements which have actually been set in the contract - including in pre-contractual information which forms an integral part of the contract - but also certain objective requirements which constitute the standards normally expected for goods, in particular in terms of fitness for the purpose, durability, packaging, installation instructions and normal qualities and performance capabilities.

2017/01/25
Committee: IMCO

Proposal for a directive
Recital 22

(22) While freedom of contract with regard to the criteria of conformity with the contract should be ensured, in order to avoid circumvention of the liability for lack of conformity and ensure a high level of consumer protection, any derogation from the mandatory rules on criteria of conformity and incorrect installation, which is detrimental to the interests of the consumer, shall be valid only if the consumer has been expressly informed and has expressly consented to it when concluding the contract. The fact that the consumer has accepted the seller's terms and conditions of sale contained in the contract or has been presented with a default option which the consumer would be required to reject in order to demonstrate a lack of acceptance should not be considered as express consent.

2017/01/25
Committee: IMCO

Proposal for a directive
Recital 23

(23) Ensuring longer durability of ~~consumer~~ goods is important for achieving more sustainable consumption patterns and a circular economy. Similarly, keeping non-compliant products out of the Union market by strengthening market surveillance and providing the right incentives to economic operators is essential to increase trust in the single market. For these purposes, product specific Union legislation is the most appropriate approach to introduce durability and other product related requirements in relation to specific types or groups of products, using for this purpose adapted criteria. This Directive should Therefore sellers should inform consumers of the minimum expected lifespan of a product, and clearly indicate if they guarantee that lifespan. Consumers should be entitled to a remedy for the lack of conformity with the contract of the goods where the lack of conformity becomes apparent within the lifespan of the goods consumers can reasonably expect. Furtherefmore be complementary to the objectives followed in this Union sector specific legislation. In so far as specific durability information is indicated in any pre-contractual statement which forms part of the sales contract, the consumer should be able to rely on them as a part of the criteria for conformity, sellers should inform the consumer about the availability of spare parts which are essential to the use of the product.

2017/01/25
Committee: IMCO

Proposal for a directive
Recital 23 a (new)

(23 a) Similarly, keeping non-compliant goods out of the Union market by strengthening market surveillance and providing the right incentives to sellers is essential to increase trust in the single market. For those purposes, product- specific Union legislation should be used to introduce durability and other product- related requirements in relation to specific types or groups of goods, using for that purpose adapted criteria. This Directive should therefore be complementary to the objectives followed in this Union sector- specific legislation. In so far as specific durability information is indicated in any pre-contractual statement which forms part of the sales contract, the consumer should be able to rely on them as a part of the criteria for conformity.

2017/01/25
Committee: IMCO

Proposal for a directive
Recital 26

(26) In order to allow businesses to rely on a single set of rules across the Union, it is necessary to ~~fully~~ 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 order to benefit from the presumption of lack of conformity, the consumer should only establish that the good is not conforming, without needing to demonstrate that the lack of conformity actually existed at the relevant time for establishing conformity. In order to increase legal certainty in relation to available remedies for lack of conformity with the contract ~~and in order to eliminate one of the major obstacles inhibiting the Digital Single Market, a fully harmonised order in which~~the principle of free choice of remedies should be harmonised. The consumer should enjoy a free choice of remedies can be exercised should be provided 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 repaird should therefore be able to require the seller to repair the defect or replace the defective good with a good that is in conformity with the contract, reduce the price or terminate the contract which should help in maintaining the contractual relation and mutual trust. In any case, consumers should be enabled to request repair through the availability of spare parts and the labour required to install them. This should encourage a sustainable consumption and could contribute to a greater durability of products.

2017/01/25
Committee: IMCO

Proposal for a directive
Recital 27

(27) The consumer's free choice ~~between repair and replacement~~of remedies should only be limited where the option chosen would be disproportionate compared to the other option available, impossible or unlawful. For instance, it might be disproportionate to request the replacement of goods because of a minor scratch where this replacement would create significant costs while, at the same time, the scratch could easily be repairedis impossible or unlawful.

2017/01/25
Committee: IMCO

Proposal for a directive
Recital 28

(28) Where the seller has not remedied the lack of conformity through repair or replacement without significant inconvenience for the consumer and within a reasonable time, the consumer should be entitled to a price reduction or to terminate the contract. In particular any repair or replacement needs to be successfully accomplished within this reasonable period. What is a reasonable time should be objectively ascertained considering the nature of the goods and the lack of conformity. If upon the laps of the reasonable period, the seller has failed to successfully remedy the lack of conformity, the consumer should not be obliged to accept any further attempts by the seller in relation to the same lack of conformitchoose another remedy.

2017/01/25
Committee: IMCO

Proposal for a directive
Recital 29

(29) Considering that the right to terminate the contract due to the lack of conformity is an important remedy applicable where repair or replacement are not feasible or have failed, the consumer should also enjoy the right to terminate the contract in cases where the lack of conformity is minor. This would provide a strong incentive to remedy all cases of a lack of conformity at an early stage. In order to make the right to terminate effective for consumers, in situations where the consumer acquires multiple goods, some being an accessory to the main item which the consumer would not have acquired without the main item, and the lack of conformity impacts that main item, the consumer should have the right to terminate the contract also in relation to the accessory elements, even if the latter are in conformity with the contract.

2017/01/25
Committee: IMCO

Proposal for a directive
Recital 33

(33) In order to ensure higher awareness of consumers and easier enforcement of the Union rules on consumer's rights in relation to non-conforming goods, this Directive should align the period of time of a minimum of two years during which the burden of proof is reversed in favour of the consumer with the period during which the seller is held liable for any lack of conformity.

2017/01/25
Committee: IMCO

Proposal for a directive
Recital 42 a (new)

(42 a) The Commission should report on the implementation of this Directive by 31 December 2020. That report should focus inter alia on the functioning of the remedies and lifespan guarantees, including the need to introduce legislation providing for mandatory minimum lifespan guarantees.

2017/01/25
Committee: IMCO

Proposal for a directive
Article 2 – paragraph 1 – point b

(b) ‘'consumer’' means any natural person who, in contracts covered by this Directive, is acting for purposes which are primarily outside his trade, business, craft or profession;

2017/01/25
Committee: IMCO

Proposal for a directive
Article 2 – paragraph 1 – point c a (new)

(c a) 'producer' means the manufacturer of goods, the importer of goods into the territory of the Union or any person purporting to be a producer by placing his name, trade mark or other distinctive sign on the goods;

2017/01/25
Committee: IMCO

Proposal for a directive
Article 3 – paragraph 1

Member States ~~shall not~~may maintain or introduce provisions diverging from those laid down in this Directive, including more ~~or less~~ stringent provisions to ensure a ~~different~~higher level of consumer protection.

2017/01/25
Committee: IMCO

Proposal for a directive
Article 4 – paragraph 1 – point a

(a) be of the quantity, quality, durability and description required by the contract, which includes that where the seller shows a sample or a model to the consumer, the goods shall possess the quality of and correspond to the description of this sample or model;

2017/01/25
Committee: IMCO

Proposal for a directive
Article 4 – paragraph 3 – subparagraph 1 (new)

A consumer shall not be deemed to have expressly accepted the specific condition of the goods if: (a) the consumer has generally accepted the seller's terms and conditions of sale contained in the contract; or (b) the consumer has been presented with a default option which he would be required to reject in order to demonstrate his lack of acceptance.

2017/01/25
Committee: IMCO

Proposal for a directive
Article 5 – paragraph 1 – introductory part

The goods shall~~, where relevant~~:

2017/01/25
Committee: IMCO

Proposal for a directive
Article 5 – paragraph 1 – point b

(b) be delivered along with such accessories, including packaging, installation instructions or any other instructions, as the consumer may expect to receive; and

2017/01/25
Committee: IMCO

Pascal DURAND, Claude TURMES

Proposal for a directive
Article 5 – paragraph 1 – point c – introductory part

(c) possess qualities, durability and performance capabilities which are normal in goods of the same type and which the consumer ~~may~~can expect given the nature of the goods and taking into account any public statement made by or on behalf of the seller or other persons in earlier links of the chain of transactions, including the producer, unless the seller shows that:

2017/01/25
Committee: IMCO

Proposal for a directive
Article 5 – paragraph 1 – point c – point ii

(ii) by the time of conclusion of the contract the statement had been corrected and the consumer had been made explicitly aware by the seller of that correction; or

2017/01/25
Committee: IMCO

Proposal for a directive
Article 8 – paragraph 2

2. In cases where the goods were installed by the seller or under the seller’'s responsibility, the time when the installation is complete shall be considered as the time when the consumer has acquired ~~the~~ physical possession of the goods. In a case where the goods were intended to be installed by the consumer, the time when the consumer had reasonable time for the installation, b~~ut in any case~~eing not later than 30 days after the time indicated in paragraph 1, shall be considered as the time when the consumer has acquired ~~the~~ physical possession of the goods, save where the complexity of the installation requires a longer time.

2017/01/25
Committee: IMCO

Pascal DURAND, Claude TURMES

Proposal for a directive
Article 8 – paragraph 3

3. Any lack of conformity with the contract which becomes apparent within two years from the time indicated in paragraphs 1 and 2 ishall be presumed to have existed at the time indicated in paragraphs 1 and 2 unless this is incompatible with the nature of the goods or with the nature of the lack of conformity. Where a consumer can reasonably expect the lifespan of the goods to be longer than two years, and the lack of conformity becomes apparent within that period, that lack of conformity shall be presumed to have existed at the time indicated in paragraphs 1 and 2 unless this is incompatible with the nature of the goods or with the nature of the lack of conformity.

2017/01/25
Committee: IMCO

Proposal for a directive
Article 9 – paragraph 1

1. In the case of a lack of conformity with the contract, the consumer shall be entitled to ~~have~~a free choice of the following remedies in accordance with Articles 10 to 13: (a) having the goods brought into conformity by the seller, free of charge, by repair or replacement ~~in accordance with Article 11~~; (b) being granted a price reduction; (c) terminating the contract. If the option chosen is unlawful or impossible, the consumer may choose another remedy.

2017/01/25
Committee: IMCO

Proposal for a directive
Article 9 – paragraph 2

2. A repair or replacement shall be completed within a reasonable time, and in any case within 30 days from the moment the seller has acquired physical posession of the goods, and 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.

2017/01/25
Committee: IMCO

Proposal for a directive
Article 9 – paragraph 3

3. The consumer shall be entitled to a proportionate reduction of the price in accordance with Article 12 or to terminate the contract in accordance with Article 13 where: (a) a repair or replacement are impossible or unlawful; (b) the seller has not completed repair or replacement within a reasonable time; (c) a repair or replacement would cause significant inconvenience to the consumer; or (d) the seller has declared, or it is equally clear from the circumstances, that the seller will not bring the goods in conformity with the contract within a reasonable time.deleted

2017/01/25
Committee: IMCO

Pascal DURAND, Claude TURMES

Proposal for a directive
Article 10 – paragraph 1

1. Where the seller remedies the lack of conformity with the contract by replacement, the seller shall take back the replaced goods at the seller's expense ~~unless the parties have agreed otherwise~~ after the lack of conformity with the contract has been brought to the seller's attention by the consumer.

2017/01/25
Committee: IMCO

Proposal for a directive
Article 11

Consumer's choice between repair and The consumer may choose between repair and replacement unless the option chosen would be impossible, unlawful or, compared to the other option, would impose costs on the seller that would be disproportionate, taking into account all circumstances, including: (a) the value the goods would have if there were no lack of conformity with the contract; (b) the significance of the lack of conformity with the contract; (c) whether the alternative remedy could be completed without significant inconvenience to the consumer.Article 11 deleted replacement

2017/01/25
Committee: IMCO

Proposal for a directive
Article 13 – paragraph 2

2. Where the lack of conformity with the contract relates to only some of the goods delivered under the contract and there is a ground for termination of a contract pursuant to Article 9, the consumer may terminate the contract only in relation to those goods and any other goods, which the consumer ~~acquired as an accessory to the non-conforming~~would not have acquired without those goods.

2017/01/25
Committee: IMCO

Pascal DURAND, Claude TURMES

Proposal for a directive
Article 14 – paragraph 1

The consumer shall be entitled to a remedy for the lack of conformity with the contract of the goods where the lack of conformity becomes apparent within two years as from the relevant time for establishing conformity. Where the consumer can reasonably expect that the lifespan of a product is longer than two years, and the lack of conformity becomes apparent within that lifespan, the consumer shall also be entitled to a remedy for that lack of conformity. In order to determine the lifespan of a product which is reasonable for the consumer to expect, all circumstances shall be taken into account, including in particular: (a) durability requirements laid down by product-specific legislation, or (b) durability information indicated in any pre-contractual or public statement made by the seller, or, where relevant, by other persons in earlier links of the chain of transactions, including the producer. If, under national legislation, the rights laid down in Article 9 are subject to a limitation period, that period shall not be shorter than t~~wo years from the relevant time for establishing conformity with the contract~~he time limit specified in the first subparagraph of this paragraph.

2017/01/25
Committee: IMCO

Proposal for a directive
Article 15 a (new)

Article 15 a Commercial guarantees for lifespan 1. The seller of a technical product shall inform the consumer of the foreseeable minimum lifespan of the product. The seller shall also: (a) guarantee to the consumer that the product is fit for its intended purpose for its foreseeable minimum lifespan and shall indicate the duration of that lifespan; or (b) clearly indicate that he does not guarantee the fitness of the product during its lifespan. This information shall be made available to the consumer before or at the time when the consumer concludes the contract. The seller shall inform the consumer whether the guaranteed lifespan is shorter or longer than the limitation period specified in Article 14. Article 15 shall continue to apply.

2017/01/25
Committee: IMCO

Lucy ANDERSON, Maria GRAPINI, Christel SCHALDEMOSE, Evelyne GEBHARDT, Mary HONEYBALL, Maria ARENA, Victor NEGRESCU, Marc TARABELLA, Afzal KHAN, Pascal DURAND

Proposal for a directive
Article 16 – paragraph 1

Where the seller is liable to the consumer because of a lack of conformity with the contract resulting from an act or omission by a person in earlier links of the chain of transactions, the seller shall be entitled to pursue remedies against the person or persons liable in the chain of transactions. The person against whom the seller may pursue remedies, and the relevant actions and conditions of exercise, shall be determined by national law. However, the seller shall be entitled to pursue remedies for at least the duration of the legal guarantee period, and the period during which a presumption exists that any lack of conformity with the contract already existed at the time indicated in Article 8(1) and (2) shall be no shorter than as provided for in Article 8(3).

2017/01/25
Committee: IMCO

Proposal for a directive
Article 16 a (new)

Article 16 a Spare parts 1. The seller shall inform the consumer in a clear and intelligible manner of the period during which or the date up until which spare parts essential to the use of goods are available on the market. Member States shall encourage producers to develop clear labelling which informs consumers of the existence of spare parts and for how long those spare parts shall be available on the market. 2. Such spare parts shall be available for a reasonable price, proportionate to their value in the complete good, and shall be made available within a reasonable length of time.

2017/01/25
Committee: IMCO

Proposal for a directive
Article 18 – paragraph 1

Any contractual agreement which, to the detriment of the consumer, excludes the application of national measures transposing this Directive, derogates from them or varies their effect before the lack of conformity with the contract of the goods is brought to the seller's attention by the consumer shall not be binding on the consumer ~~unless parties to the contract exclude, derogate from or vary the effects of the requirements of Articles 5 and 6 in accordance with Article 4 (3)~~.

2017/01/25
Committee: IMCO

Proposal for a directive
Article 19 a (new)

Article 19 a Direct producer liability 1. The producer shall be liable, vis-à- vis the consumer, to repair or replace the goods for any lack of conformity. Article 14 applies mutatis mutandis. 2. The producer shall repair or replace the goods, at his choice, within a reasonable time, and in any case within 30 days from the moment he has acquired physical possession of the goods.

2017/01/25
Committee: IMCO

Proposal for a directive
Article 20 a (new)

Article 20 a Reporting by the Commission and review By 31 December 2020, the Commission shall submit a report on the application of this Directive to the European Parliament and the Council. That report shall include in particular an evaluation of the provisions of this Directive regarding remedies, the functioning of lifespan guarantees and the relationship with the Directive on certain aspects concerning contracts for the supply of digital content. That report shall be accompanied, where necessary, by legislative proposals to adapt this Directive to developments in the field of consumer rights.

2017/01/25
Committee: IMCO