19 Amendments of Isabella ADINOLFI related to 2016/0152(COD)
Amendment 36 #
Proposal for a regulation
Recital 1
Recital 1
(1) In order to realise the objective of ensuring good functioning of the internal market, as an area without internal frontiers in which the free movement of inter alia goods and services is ensured, it is not sufficient to abolish, as between Member States, only State barriers. Such abolition can be undermined by private parties putting in place obstacles inconsistent with internal market freedomsadministrative, procedural and conceptual obstacles inconsistent with the principles and goals of the internal market freedoms. Such obstacles risk in particular to hamper the possibility to freely and easily disseminate, and access, culture and knowledge within the internal market. That occurs where traders operating in one Member State block or, or agents acting on their behalf, block or otherwise limit the access to their online interfaces, such as websites and apps, of customers from other Member States wishing to engage in cross-border commercial transactions (a practice known as geo- blocking). It also occurs through other actions by certain traders involving the application of different general conditions of access to their goods and services with respect to such customers from other Member States, both online and offline. Whereas there may sometimes be objective justifications in exceptional cases for such differential treatment, in other cases traders deny consumers wishing to engage in cross- border commercial transactions access to goods or services, or apply different conditions in this regard, for purely commercial reasons. As a result, customers feel frustrated, since they become aware that the guarantees of the internal market already regularly applied for physical transactions are not always respected in the online environment. This can become in turn highly detrimental for the proper development of the digital single market; as a consequence, the whole European economy, including the cultural sector, cannot grasp the full opportunities offered by the promise of a single market.
Amendment 40 #
Proposal for a regulation
Recital 2
Recital 2
(2) In this manner certain traders artificially segment the internal market along internal frontiers and hamper the free movement of goods and services, thus restricting the rights of customers and preventing them from benefitting from a wider choice and optimal conditions. Such anticompetitive discriminatory practices are an important factor contributing to the relatively low level of cross-border commercial transactions within the Union, including in the sector of electronic commerce, which prevents the full growthdevelopment potential of the internal market from being realised. Clarifying in which situations there can be no justification for differential treatment of this kind should bring clarity and legal certainty for all participants in cross-border transactions and should ensure that rules on non-discrimination can be effectively applied and enforced across the internal market.
Amendment 41 #
Proposal for a regulation
Recital 3
Recital 3
(3) Pursuant to Article 20 of Directive 2006/123/EC of the European Parliament and of the Council17 , Member States are to ensure that service providers established in the Union do not treat recipients of services differently on the basis of their nationality or place of residence. However, that provision has not been fully effective in combatting discrimination anddissuading certain service providers from obtaining short-term profits through targeted discrimination of some EU customers, driving prices up. Neither it has not sufficiently reduced legal uncertainty, particularly because of the possibility to justify the differences in treatment for which it allows and the corresponding difficulties in enforcing it in practice. Moreover, geo-blocking and other forms of discrimination based on nationality, place of residence or place of establishment can also arise as a consequence of actions by traders established in third countries, which fall outside the scope of that Directive. Moreover, it must be considered that such discrimination has often taken place with the informal consensus of administrative and regulatory authorities, which have been fully aware of this practice but have deliberately chosen not to act against it. In order to develop the full potential of the Digital Single Market and achieve an effective competition amongst market actors such attitude should be overcome. _________________ 17 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36).
Amendment 44 #
Proposal for a regulation
Recital 3 a (new)
Recital 3 a (new)
(3a) Here, as in other fields where the law should have provided a guarantee, the legal formula designed to provide protection, i.e. "where those differences are directly justified by objective criteria", has proved to be a relative failure. Once and again, its letter has been used to circumvent its spirit, and sometimes it has been used to justify plain discrimination against the very same individuals it intended to protect. Clearer, crisper legal concepts and definitions, strongly rooted in widely accepted social and policy principles, should provide the basis for improved, more effective legal guarantees that can substitute successfully the above mentioned formula.
Amendment 46 #
Proposal for a regulation
Recital 5
Recital 5
(5) This Regulation aims at preventing discrimination based on customers' nationality, place of residence or place of establishment, including geo-blocking, in cross-border commercial transactions between traders and customers relating to the sales of goods and the provision of services within the Union. It seeks to addressprevent direct as well as indirect discrimination, thus also covering unjustified differences of treatment on the basis of other distinguishing criteria which lead to the same result as the application of criteria directly based on: by indirect discrimination it is understood the application of distinguishing criteria other the customers's nationality, place of residence or place of establishment which lead either deterministically or statistically to the same result as the direct application of those same criteria. Such other criteria can be applied, in particular, on the basis of information indicating the physical location of customers, such as the IP address used when accessing an online interface, the address submitted for the delivery of goods, the choice language madechosen for placing an order or even for operating the electronic device from which the order is placed, or the Member State where the customer's payment instrument has been issued.
Amendment 49 #
Proposal for a regulation
Recital 6
Recital 6
(6) Considering that some regulatory and administrative barriers for traders have been removed across the Union in certain services sectors as a result of the implementation of Directive 2006/123/EC, in terms of material scope, consistency should be ensured between this Regulation and Directive 2006/123/EC. As a consequence, the provisions of this Regulation should apply inter alia to non- audio-visual electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, subject however to the specific exclusion provided for in Article 4 and the subsequent evaluation of that exclusion as provided for in Article 9. Audio-visual services, including services the main feature of which is the provision of access to broadcasts of sports events and which are provided on the basis of exclusive territorial licenses, are excluded from the scope of this Regulation. Access to retail financial services, including payment services, should therefore also be excluded, notwithstanding the provisions of this Regulation regarding non-discrimination in payments. As a standard of proof for demonstrating such individual negotiation, regulatory authorities should request evidence of substantially personalised contractual terms and conditions. The trader should bear the burden of proving that personalised contractual terms and conditions have been effectively negotiated and applied.
Amendment 57 #
Proposal for a regulation
Recital 12
Recital 12
(12) Both consumers and undertakings should be safeguarded from discrimination for reasons related to their nationality, place of residence or place of establishment when acting as customers for the purposes of this Regulation. However, that protection should not extend to customers purchasing a good or a service for resalewithin the framework of a business model that aims to resell, rent, transform or process on a commercial scale the purchased goods or services, because it would affect widely used distribution schemes between undertakings in a business to business context, such as selective and exclusive distribution, which generally allow for manufacturers to select their retailers, subject to compliance with the rules on competition.
Amendment 62 #
Proposal for a regulation
Recital 14
Recital 14
(14) In order to increase the possibility for customers to access information related to the sales of goods and the provision of services on the internal market and to increase transparency, including with respect to prices, traders but not limited to them, traders or any other parties acting on their behalf should not, through the use of technological measures or otherwise, prevent customers from having full and equal access to online interfaces on the basis of their nationality, place of residence or place of establishment. Such technological measures can encompass, in particular, any technologies used to determine the physical location of the customer, including the tracking of that by means of IP address, web-surfing history and/or patterns, GSM tracking or localisation, coordinates obtained through a global navigation satellite system or data related to a payment transaction. However, that prohibition of discrimination with respect to access to online interfaces should not be understood as creating an obligation for the trader to engage in commercial transactions with customers.
Amendment 63 #
Proposal for a regulation
Recital 14 a (new)
Recital 14 a (new)
(14a) Any trader using technologies enabling it to carry out geo-marketing could be requested by the authorities to demonstrate that it is not using neither such technologies, nor information collected through them, in order to apply discriminatory practices. Neither traders, nor those parties acting on their behalf should be allowed to prevent or otherwise limit the access to their online interfaces to customers using virtual private networks or anonimised services.
Amendment 76 #
Proposal for a regulation
Recital 25 a (new)
Recital 25 a (new)
(25a) Data and metadata generated by e- commerce and online transactions should conform to the legislative framework on traffic and location of data, data retention, data protection and data analysis, ensuring full compliance with Union law. Beyond that minimum requirement, companies engaging in e- commerce should be stimulated to develop and compete developing innovative business models that make use of the least possible data, collect the minimum data necessary for their legitimate scope, and store them for the shortest possible period of time.
Amendment 82 #
Proposal for a regulation
Recital 29
Recital 29
(29) This Regulation should be regularly evaluated, with a view to proposing amendments where necessary. The first evaluation should concentrate, in particular, on the possible extension of the prohibition of Article 4(1)(b) to electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, provided that the trader has the requisite rights for the relevant territories. The evaluation should take into due account the goal of guaranteeing the public interest of disseminating culture and knowledge within a well-functioning Digital Single Market, encompassing all goods and services that can be supplied to the public through digital vectors.
Amendment 84 #
Proposal for a regulation
Recital 29 a (new)
Recital 29 a (new)
(29a) The inclusion of audiovisual electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, including services basically conceived for providing access to broadcasts of sports events and which are provided on the basis of exclusive territorial licenses, designed in order to maximise the profit of the supplier rather than the competition in the market, should be evaluated in light of the full and effective completion the Digital Single Market, considering the Union as a single geographical entity.
Amendment 88 #
Proposal for a regulation
Recital 33
Recital 33
(33) In order to achieve the objective of effectively addresspreventing direct and indirect discrimination based on the nationality, place of residence or place of establishment of customers, and of providing effective means of redress to those customers who would consider themselves affected by it, it is appropriate to adopt a Regulation, which directly applies in all Member States. This is necessary in order to guarantee the uniform application of the non- discrimination rules across the Union and their entering into force at the same time. Only a Regulation ensures the degree of clarity, uniformity and legal certainty which is necessary in order to enable customers to fully benefit from those rules.
Amendment 92 #
Proposal for a regulation
Recital 35
Recital 35
(35) This Regulation respects fundamental rights and observes the principle recognised in the Charter of Fundamental Rights of the European Union. In particular this Regulation seeks to ensure full respect of Articles 8, 13, 16 and 17 thereof,
Amendment 96 #
Proposal for a regulation
Article 2 – paragraph 2 – point c
Article 2 – paragraph 2 – point c
(c) 'customer' means a consumer who, or an undertaking which, is a national of a Member State or has his or her place of residence or place of establishment in a Member State, and intends to purchase or purchases a good or a service within the Union, other than for resale, rental, transformation on processing on a commercial scale;
Amendment 110 #
Proposal for a regulation
Article 5 – paragraph 1 – point c
Article 5 – paragraph 1 – point c
(c) the payments are in a currency of a Member States of the European Union, or in any other currency that the payee accepts.
Amendment 113 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. Each Member State shall designate a public body or bodies responsible for the enforcement of this Regulation. Member States shall ensure that adequate and effective means exist with the public body or bodies designated in order to enforce compliance with this Regulation.
Amendment 115 #
Proposal for a regulation
Article 8 – paragraph 1
Article 8 – paragraph 1
1. Each Member State shall confer responsibility for providing practical assistance to consumers to a public body or bodies in case of a dispute between a consumer and a trader arising from the application of this Regulation. Each Member State shall designate a public body or bodies responsible for that task.
Amendment 121 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
2. The first evaluation referred to in paragraph 1 shall be carried out, in particular, with a view to assessing whether the prohibition of Article 4(1)(b) should also apply to electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, provided that the trader has the requisite rights for the relevant territories. The evaluation shall take into due account the goal of guaranteeing the public interest of disseminating culture and knowledge within a well-functioning Digital Single Market.