Activities of Antanas GUOGA related to 2015/0287(COD)
Plenary speeches (1)
Contracts for the supply of digital content and digital services - Contracts for the sale of goods (debate)
Amendments (88)
Amendment 32 #
Proposal for a directive
Recital 10
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 to the extent not covered by the Directive, or rules which provide for the consequences of termination of the contract which apply in addition to restitution rules regulated by this Directive.
Amendment 33 #
Proposal for a directive
Recital 11
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. However this Directive should not apply to digital content which is embedded in goods in such a way that it operates as an integral part of the goods and its functions are subordinate to the main functionalities of the goods. _________________ 30_________________ 30 OJ L 304, 22.11.2011, p.64. OJ L 304, 22.11.2011, p.64.
Amendment 36 #
Proposal for a directive
Recital 12
Recital 12
(12) In order to meet the expectations of consumers and ensure a clear-cut and simple legal framework for suppliers of digital content offered on a durable medium, in relation to conformity requirements and remedies available to consumers for non-conformity, this Directive should apply to goods such as DVDs and CDs, incorporating digital content in such a way that the goods function only as a carrier of the digital content. The Directive should apply to the digital content supplied on a durable medium, independently whether it is sold at a distance or in face-to-face situations, so as to avoid fragmentation between the different distribution channels. The Directive 2011/83 should continue to apply to those goods, including to obligations related to the delivery of goods, remedies in case of the failure to deliver and the nature of the contract under which those goods are suppliedThe Directive should apply to the digital content supplied on a durable medium, independently whether it is sold at a distance or in face-to-face situations, so as to avoid fragmentation between the different distribution channels. The Directive is also without prejudice to the distribution right applicable to these goods under copyright law.
Amendment 40 #
Proposal for a directive
Recital 13
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. Those specific business models apply in different forms in a considerable part of the market. Introducing a differentiation depending on the nature of the counter-performance would discriminate between different business models; it would provide an unjustified incentive for businesses to move towards offering digital content against data. A level playing field should be ensured. In addition, defects of the performance features of the digital content supplied against counter-performance other than money may have an impact on the economic interests of consumers. Therefore the applicability of the rules of this Directive should not depend on whether a price is paid for the specific digital content in question.
Amendment 46 #
Proposal for a directive
Recital 14
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 55 #
Proposal for a directive
Recital 23
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 immediatwithout undue delay, unless the parties decide to agree otherwise in order to cater for other supply models.
Amendment 76 #
Proposal for a directive
Recital 39
Recital 39
Amendment 78 #
Proposal for a directive
Recital 40
Recital 40
Amendment 81 #
Proposal for a directive
Recital 44
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 doConsumers should 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 necessarily put the consumer as nearly as possible into the position in which the consumer would have been if the digital content had been duly supplied and been in conformity with the contract.
Amendment 85 #
Proposal for a directive
Recital 46
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, produced by the consumer with the use of the digital content or generated through the consumer's use of the digital content. However, it is also important to protect existing investments and the trust in concluded contracts. Therefore consumers should be given the right to terminate long- term contracts under certain balanced conditions. This does not preclude that consumer contracts may be concluded for longer contractual periods. However, the consumer should be entitled to terminate any contractual relation that altogether lasts for a period longer than 12 months. In order to prevent any circumvention of this right it should cover any contract which results in the consumer being bound by the contract for more than 12 months, irrespective of whether the contract is of indeterminate duration or is extended automatically or following a subsequent agreement by the parties.
Amendment 87 #
Proposal for a directive
Recital 2
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 suppliers.
Amendment 89 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
5. 'damages' means a sum of money to which consumers may be entitled as compensation for economic damage to their digital environmentharm caused ;
Amendment 90 #
Proposal for a directive
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
Amendment 91 #
Proposal for a directive
Article 2 – paragraph 1 – point 6
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 93 #
Proposal for a directive
Article 2 – paragraph 1 – point 9
Article 2 – paragraph 1 – point 9
9. 'interoperability' means the ability of digital content to perform all its functionalities in interaction with a concrete digitalstandard hardware and software environment;
Amendment 95 #
Proposal for a directive
Article 2 – paragraph 1 – point 11 a (new)
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 100 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. This Directive shall apply to any contract where the supplier supplies digital content to the consumer or undertakes to do so and, in exchange, a price is to be paid or the consumer actively provides counter- performance other than money in the form of personal data or any other data.
Amendment 102 #
Proposal for a directive
Article 3 – paragraph 4
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 the processing of which is strictly necessary for the performance of the contract or for meeting legal requirements and the supplier does not further process them in a way incompatible with this purpose. It shall equally not apply to any other data the supplier requests the consumer to provide for the purpose of ensuring that the digital content is in conformity with the contract or of meeting legal requirements, and the supplier does not use that data for commercial purposes.
Amendment 107 #
Proposal for a directive
Article 3 – paragraph 8
Article 3 – paragraph 8
Amendment 114 #
Proposal for a directive
Article 5 – paragraph 1 – point b
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 116 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. The supplier shall supply the digital content immediatwithout undue delay after the conclusion of the contract, unless the parties have agreed otherwise. 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.
Amendment 140 #
Proposal for a directive
Recital 8
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 such conformity ofr a failure to supply 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 143 #
Proposal for a directive
Article 13 – paragraph 2 – point b
Article 13 – paragraph 2 – point b
(b) the supplier shall take all measures which could be expected in order to refrain from the use of the counter-performance other than money which the consumer has provided in exchange for the digital content and any other data collected by the supplier in relation to the supply of the digital content including any content provided by the consumer with the exception of the content which has been generated jointly by the consumer and others who continue to make use of the contentIn respect of personal data and data other than personal data of the consumer, the supplier shall comply with the obligations applicable under Regulation 2016/679;
Amendment 147 #
Proposal for a directive
Article 13 – paragraph 2 – point c
Article 13 – paragraph 2 – point c
Amendment 151 #
Proposal for a directive
Article 13 – paragraph 3
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, without prejudice to point (c) of paragraph 2.
Amendment 152 #
Proposal for a directive
Article 13 – paragraph 6
Article 13 – paragraph 6
6. Where the consumer terminates a part of the contract in accordance with paragraph 5, paragraph 2 shall apply, with the exception of point (b) in regards to the period during which the digital content was in conformity with the contract. The supplier shall reimburse to the consumer the part of the price paid corresponding to the period of time when the digital content was not in conformity with the contract.
Amendment 153 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. The supplier shall be liable to the consumer for any economic damage to the digital environment of the consumerdamage caused by a lack of conformity with the contract or a failure to supply the digital content. Damages shall put the consumer as nearly as possible into the position in which the consumer would have been if the digital content had been duly supplied and been in conformity with the contract.
Amendment 161 #
Proposal for a directive
Recital 11
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. However this Directive should not apply to digital content which is embedded in goods in such a way that it operates as an integral part of the goods and its functions are subordinate to the main functionalities of the goods. _________________ 30 OJ L 304, 22.11.2011, p.64.
Amendment 164 #
Proposal for a directive
Recital 12
Recital 12
(12) In order to meet the expectations of consumers and ensure a clear-cut and simple legal framework for suppliers of digital content offered on a durable medium, in relation to conformity requirements and remedies available to consumers for non-conformity, this Directive should apply to goods such as DVDs and CDs, incorporating digital content in such a way that the goods function only as a carrier of the digital content. The Directive should apply to the digital content supplied on a durable medium, independently whether it is sold at a distance or in face-to-face situations, so as to avoid fragmentation between the different distribution channels. The Directive 2011/83 should continue to apply to those goods, including to obligations related to the delivery of goods, remedies in case of the failure to deliver and the nature of the contract under which those goods are suppliedThe Directive should apply to the digital content supplied on a durable medium, independently whether it is sold at a distance or in face-to-face situations, so as to avoid fragmentation between the different distribution channels. The Directive is also without prejudice to the distribution right applicable to these goods under copyright law.
Amendment 165 #
Proposal for a directive
Article 16 – paragraph 4 – point a
Article 16 – paragraph 4 – point a
(a) the supplier shall take all measures which could be expected in order to refrain from the use of other counter-performance than money which the consumer has provided in exchange for the digitIn respect of personal data and data other than personal data, the supplier shall content and any other data collected by the supplier in relation to the supply of the digital content including any content provided by the consumermply with the obligations applicable under Regulation 2016/678;
Amendment 167 #
Proposal for a directive
Article 16 – paragraph 4 – point b
Article 16 – paragraph 4 – point b
Amendment 176 #
Proposal for a directive
Article 22 – paragraph 1
Article 22 – paragraph 1
The Commission shall, not later than on [the date of fivthree 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 case for harmonisation of rules applicable to contracts for the supply of digital content against counter-performance other than money that covered by this Directive, in particular supplied against advertisement or indirect collection of data.
Amendment 177 #
Proposal for a directive
Recital 13
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. Those specific business models apply in different forms in a considerable part of the market. Introducing a differentiation depending on the nature of the counter-performance would discriminate between different business models; it would provide an unjustified incentive for businesses to move towards offering digital content against data. A level playing field should be ensured. In addition, defects of the performance features of the digital content supplied against counter-performance other than money may have an impact on the economic interests of consumers. Therefore the applicability of the rules of this Directive should not depend on whether a price is paid for the specific digital content in question.
Amendment 191 #
Proposal for a directive
Recital 14
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 201 #
Proposal for a directive
Recital 15
Recital 15
(15) CDigital 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. CDigital 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 214 #
Proposal for a directive
Recital 19
Recital 19
(19) This Directive should apply only to those services whose main subject matter is providing digital content. Therefore, the Directive should not apply to services, which are performed personally by the supplier and where the digital means are only used for access or delivery purposes, such as a translation offered by a person or other professional advice services where only the output of the service is delivered to the consumer by digital means and the supplier does not further process them.
Amendment 231 #
Proposal for a directive
Recital 23
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 immediatwithout undue delay, unless the parties decide to agree otherwise in order to cater for other supply models.
Amendment 253 #
Proposal for a directive
Recital 30
Recital 30
(30) In order to work properly, digital content needs to be correctly integrated into the consumer's hardware and software of digital environment. Where a lack of conformity with the contract of the digital content results from an incorrect integration, it should be regarded as a lack of conformity with the contract of the digital content itself, where it was integrated by the supplier or under its control, or by the consumer following supplier's instructions for integration and the incorrect integration was due to shortcomings in the required integration instructions. In such scenarios the origin of the lack of conformity stems from the sphere of the supplier.
Amendment 267 #
Proposal for a directive
Recital 33
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 for determining whether the lack of conformity existed at the time of the supply of digital content. 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. However, where the consumer does not cooperate with the supplier, it should be for the consumer to prove that the digital content is not in conformity with the contract.
Amendment 309 #
Proposal for a directive
Recital 39
Recital 39
Amendment 340 #
Proposal for a directive
Recital 44
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 doConsumers should 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 necessarily put the consumer as nearly as possible into the position in which the consumer would have been if the digital content had been duly supplied and been in conformity with the contract.
Amendment 342 #
Proposal for a directive
Recital 44
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 necessarily put the consumer as nearly as possible into the position in which the consumer would have been if the digital content had been duly supplied and been in conformity with the contract.
Amendment 367 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
This Directive lays down certain requirements concerning contracte purpose of this Directive is to contribute to the proper functioning of the internal market and achieve a high level of consumer protection by laying down common requirements concerning certain rules for the contracts between suppliers and consumers for the supply of digital content to consumers, in particularand/or digital services, rules on conformity of digital content with the contract, remedies in case of the lack of such conformity or a failure to supply and the modalities for the exercise of those remedies as well as on modification and termination of such contracts.
Amendment 375 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point a
Article 2 – paragraph 1 – point 1 – point a
(a) data which is produced and supplied in digital form, for example video, audio, applications, digital games and any other software,;
Amendment 382 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point b
Article 2 – paragraph 1 – point 1 – point b
(b) adigital service allowing the creation, processing or storage of data in digital form, where such data is provided by the consumer, and
Amendment 387 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point c
Article 2 – paragraph 1 – point 1 – point c
(c) adigital service allowing sharing of and any other interaction with data in digital form provided by other users of the service;
Amendment 396 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
2. 'integration' means linking and incorporating together different components of a digital environment to act as a coordinated whole in conformity with its intended purposedigital content components with the components of digital environment to use digital content in accordance with the contract;
Amendment 401 #
Proposal for a directive
Article 2 – paragraph 1 – point 3
Article 2 – paragraph 1 – point 3
3. 'supplier' means any natural or legal person, irrespective of whether privately or publicly owned, who is acting, including through any other person acting in his name or on his behalf, for purposes relating to that person’his trade, business, craft, or profession in relation to contracts covered by this Directive;
Amendment 404 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
4. 'consumer' means any natural person who in relation to contracts covered by this Directive, is acting for purposes which are outside that person's trade, business, craft, or profession;
Amendment 408 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
5. 'damages' means a sum of money to which consumers may be entitled as compensation for economic damage to their digital environmentthe harm caused;
Amendment 413 #
Proposal for a directive
Article 2 – paragraph 1 – point 6
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 418 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
6 a. 'personal data' means personal data as defined by Article 4(1) of Regulation (EU) 2016/679
Amendment 422 #
Proposal for a directive
Article 2 – paragraph 1 – point 8
Article 2 – paragraph 1 – point 8
8. 'digital environment' means hardware, digital contentsoftware and any network connection to the extent that they are within the control of the usused by the consumer;
Amendment 431 #
Proposal for a directive
Article 2 – paragraph 1 – point 9
Article 2 – paragraph 1 – point 9
9. 'interoperability' means the ability of digital content to perform all its functionalities in interaction with a concrete digitalstandard hardware and software environment;
Amendment 454 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. This Directive shall apply to any contract where the supplier supplies digital content to the consumer or undertakes to do so and, in exchange, a price is to be paid or the consumer actively provides counter- performance other than money in the form of personal data or any other data.
Amendment 465 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
3. With the exception of Articles 5 and 11, this Directive shall apply to any durable medium incorporating digital content where the durable medium has been used exclusively as carrier of digital contentThis Directive shall apply to goods in which digital content is embedded unless the supplier proves that the lack of conformity lies in the hardware of the good.
Amendment 472 #
Proposal for a directive
Article 3 – paragraph 4
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 the processing of which is strictly necessary for the performance of the contract or for meeting legal requirements and the supplier does not further process them in a way incompatible with this purpose. It shall equally not apply to any other data the supplier requests the consumer to provide for the purpose of ensuring that the digital content is in conformity with the contract or of meeting legal requirements, and the supplier does not use that data for commercial purposes.
Amendment 485 #
Proposal for a directive
Article 3 – paragraph 5 – point a
Article 3 – paragraph 5 – point a
(a) services performed with a predominant element of human intervention by the supplier where the digital format is used mainly as a carrier or for making such service available;
Amendment 496 #
Proposal for a directive
Article 3 – paragraph 6
Article 3 – paragraph 6
6. Where a contract includes elementfor the supply of digital content includes additional contractual obligations in addition to the supply of digital content, this Directive shall only apply to the obligations and remedies of the parties as supplier and consumer of the digital content.
Amendment 501 #
Proposal for a directive
Article 3 – paragraph 7
Article 3 – paragraph 7
7. If any provision of this Directive conflicts with a provision of another Union act governing a specific sector or subject matter, the provision of that other Union act shall take precedence over this Directiveprevail.
Amendment 506 #
Proposal for a directive
Article 3 – paragraph 8
Article 3 – paragraph 8
8. This Directive is without prejudice to the protection of individuals with regard to the processing of personal datapersonal data as provided for by Regulation (EU) 2016/679.
Amendment 537 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. The supplier shall supply the digital content immediatwithout undue delay after the conclusion of the contract, unless the parties have agreed otherwise. 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.
Amendment 551 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. In order to conform with the contract, the digital content shall, where relevantapplicable:
Amendment 573 #
Proposal for a directive
Article 6 – paragraph 2 – introductory part
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 that consumers could reasonably expect or for which digital content of the same description would normally be used including its functionality, interoperability and other performance features such as accessibility, continuity and security, taking into account:
Amendment 576 #
Proposal for a directive
Article 6 – paragraph 2 – point a
Article 6 – paragraph 2 – point a
Amendment 645 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. The burden of proof with respect to the conformity with the contract at the time indicated inwhether the digital content was supplied in accordance with Article 105 shall be on the supplier.
Amendment 658 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
3. The consumer shall cooperate with the supplier to the extent possible and necessary to determine the consumer'sallow the supplier to ascertain the consumer's digital environment to the extent possible for determining whether the lack of conformity existed at the time of the supply of digital envirconmtent. The obligation to cooperate shall be limited to the technically availableIn particular, the consumer shall tolerate the use of the least intrusive technical means, which are the least intrusive for the consumerat the disposal of both parties. Where the consumer fails to cooperate, the burden of proof with respect to the non-conformity with the contract shall be on the consumer.
Amendment 665 #
Proposal for a directive
Article 10 – paragraph 1 – point a
Article 10 – paragraph 1 – point a
(a) any failure to supply the digital content in accordance with Article 5;
Amendment 680 #
Proposal for a directive
Article 10 – paragraph 1 – point c – point 1 (new)
Article 10 – paragraph 1 – point c – point 1 (new)
1) The rights of the consumer laid down in Article 12 shall be subject to a prescription period of 2 years. The prescription period shall begin to run from the time when the consumer has become , or could be expected to have become, aware of the lack of conformity.
Amendment 691 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
Where the supplier has failed to supply the digital content in accordance with Article 5 the consumer shall be entitled to terminate the contract immediately under Article 13, unless the supplier, upon the request of the consumer, supplies the digital content without undue delay.
Amendment 778 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. The consumer shall exercise the right to terminate the contract by notice to the supplier given by any meansmaking any unequivocal notice setting out his decision to terminate the contract.
Amendment 787 #
Proposal for a directive
Article 13 – paragraph 2 – point a
Article 13 – paragraph 2 – point a
(a) the supplier shall reimburse to the consumer the price paid without undue delay and in any event not later than 14 days from receipt of the noticeusing the same means of payments, unless agreed otherwise, as the consumer used to pay for the digital content in any event not later than 14 days from receipt of the notice. The supplier shall not impose any fee on the consumer in respect of the refund;
Amendment 792 #
Proposal for a directive
Article 13 – paragraph 2 – point b
Article 13 – paragraph 2 – point b
(b) the supplier shall take all measures which could be expected in order to refrain from the use of the counter-performance other than money which the consumer has provided in exchange for the digital content and any other data collected by the supplier in relation to the supply of the digital content including any content provided by the consumer with the exception of the content which has been generated jointly by the consumer and others who continue to make use of the contentIn respect of personal data and data other than personal data of the consumer, the supplier shall comply with the obligations applicable under Regulation (EU) 2016/679;
Amendment 800 #
Proposal for a directive
Article 13 – paragraph 2 – point c
Article 13 – paragraph 2 – point c
Amendment 828 #
Proposal for a directive
Article 13 – paragraph 3
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, without prejudice to point (c) of paragraph 2.
Amendment 842 #
Proposal for a directive
Article 13 – paragraph 6
Article 13 – paragraph 6
6. Where the consumer terminates a part of the contract in accordance with paragraph 5, paragraph 2 shall apply, with the exception of point (b) in regards to the period during which the digital content was in conformity with the contract. The supplier shall reimburse to the consumer the part of the price paid corresponding to the period of time when the digital content was not in conformity with the contract.
Amendment 861 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. The supplier shall be liable to the consumer for any economic damage to the digital environment of the consumerdamage caused by a lack of conformity with the contract or a failure to supply the digital content. Damages shall put the consumer as nearly as possible into the position in which the consumer would have been if the digital content had been duly supplied and been in conformity with the contract.
Amendment 884 #
Proposal for a directive
Article 15 – paragraph 1 – point b
Article 15 – paragraph 1 – point b
(b) the consumer is notified reasonably in advance of the modification by an explicit noticeinformed of the modification and his right to terminate the contract free of charge, reasonably in advance in a clear and comprehensible manner on a durable medium;
Amendment 890 #
Proposal for a directive
Article 15 – paragraph 1 – point c
Article 15 – paragraph 1 – point c
(c) the consumer is allowed to terminate the contract free of any charges within no less than 30 days from the receipt of the noticeday on which the consumer is informed of the modification; and
Amendment 899 #
Proposal for a directive
Article 15 – paragraph 2 – point b
Article 15 – paragraph 2 – point b
Amendment 925 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. The consumer shall exercise the right to terminate the contract by notice to the supplier given by any meansin accordance with Article 13. The termination shall become effective 14 days after the receipt of the notice.
Amendment 931 #
Proposal for a directive
Article 16 – paragraph 4
Article 16 – paragraph 4
Amendment 934 #
Proposal for a directive
Article 16 – paragraph 4 – point a
Article 16 – paragraph 4 – point a
Amendment 942 #
Proposal for a directive
Article 16 – paragraph 4 – point b
Article 16 – paragraph 4 – point b
Amendment 952 #
Proposal for a directive
Article 16 – paragraph 4 – point c
Article 16 – paragraph 4 – point c
Amendment 956 #
Proposal for a directive
Article 16 – paragraph 4 a (new)
Article 16 – paragraph 4 a (new)
4 a. Where the consumer terminates the contract in accordance with this Article, Article 13 shall apply accordingly.
Amendment 962 #
Proposal for a directive
Article 16 – paragraph 5
Article 16 – paragraph 5
5. 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, without prejudice to paragraph (4) point (b)Regulation (EU) 2016/679.
Amendment 986 #
Proposal for a directive
Article 22 – paragraph 1
Article 22 – paragraph 1
The Commission shall, not later than on [the date of five years after entry into force] review the application of this Directive and submit a report to the European Parliament and the Council. The report shall examine, inter alia, the interaction and compliance with the application of Regulation (EU) 2016/679, and the 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.