32 Amendments of Lucy ANDERSON related to 2016/0152(COD)
Amendment 51 #
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 for now excluded from the scope of this Regulation, pending a comprehensive review of the legislation. Access to retail financial services, including payment services, should therefore also be excluded, notwithstanding the provisions of this Regulation regarding non-discrimination in payments.
Amendment 86 #
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 freedoms. That occurs where traders operating in one Member State block or limit the access to their online interfaces, such as websites and apps, of custoonsumers 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 custoonsumers from other Member States, both online and offline. Whereas there may sometimes be objective justifications 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 commercialunjustified reasons.
Amendment 126 #
Proposal for a regulation
Recital 9
Recital 9
Amendment 131 #
Proposal for a regulation
Recital 10
Recital 10
(10) This Regulation should not affect acts of Union law concerningintroduce additional rules on judicial cooperation in civil matters, notably the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 of the European Parliament and of the Council24 and (EU) 1215/2012 of the European Parliament and of the Council25 , including the application of those acts and provisions in individual cases. In particular, the mere fact that a trader acts in accordance with the provisions of this Regulation should not be construed as implying that he directs his activities to the consumer's Member State for the purpose of such application. __________________ 24 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6). 25 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).
Amendment 134 #
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, pending a comprehensive review of the legislation affecting those services and provided that the trader has the requisite rights for the relevant territories.
Amendment 137 #
Proposal for a regulation
Recital 10 a (new)
Recital 10 a (new)
(10a) The mere fact that a trader acts in accordance with the provisions of this Regulation should not be interpreted as a sign that he is directing his activities to the Member State of the consumer within the meaning of Regulation (EC) No 593/2008 and Regulation (EU) No 1215/2012, in accordance with the well established case-law of the Court of Justice of the European Union.
Amendment 140 #
Proposal for a regulation
Recital 10 b (new)
Recital 10 b (new)
(10b) Where applicable, rules on precontractual information, the right of withdrawal, its exercise and its effects, delivery, and the passing of risk should be governed by Directive 2011/83/EU of the European Parliament and of the Council1a. _______________ 1aDirective 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ L 304, 22.11.2011, p. 64).
Amendment 142 #
Proposal for a regulation
Recital 11
Recital 11
(11) The discriminatory practices that this Regulation seeks to address typically take place through general terms, conditions and other information set and applied by or on behalf of the trader concerned, as a precondition for obtaining access to the goods or services in question, and that are made available to the public at large. Such general conditions of access include inter alia prices, payment conditions and delivery conditions. They can be made available to the public at large by or on behalf of the trader through various means, such as information published in advertisements, on websites or pre-contractual or contractual documentation. Such conditions apply in the absence of an individually negotiated agreement to the contrary entered into directly between the trader and the custoonsumer. Terms and conditions that are individually negotiated between the trader and the custoonsumers should not be considered general conditions of access for the purposes of this Regulation.
Amendment 165 #
Proposal for a regulation
Recital 15
Recital 15
(15) Certain traders operate different versions of their online interfaces, targeting custoonsumers from different Member States. While this should remain possible, redirecting a custoonsumer from one version of the online interface to another version without his or her prior explicit consent should be prohibited. All versions of the online interface should remain easily accessible to the custoonsumer at all times.
Amendment 176 #
Proposal for a regulation
Recital 17
Recital 17
(17) In a number of specific situations, any differences in the treatment of custoonsumers through the application of general conditions of access, including outright refusals to sell goods or to provide services, for reasons related to the custoonsumers's nationality, or place of residence or place of establishment cannot be objectively justified. In those situations, all such discrimination should be prohibited and custoonsumers should consequently be entitled, under the specific conditions laid down in this Regulation, to engage in commercial transactions under the same conditions as a local custoonsumer and have full and equal access to any of the different goods or services offered irrespective of their nationality, or place of residence or place of establishment. Where necessary, traders should therefore take measures to ensure compliance with that prohibition of discrimination if otherwise the customers concerned would be precluded from having such full and equal access. However, the prohibition applicable in those situations should not be understood as precluding traders from directing their activities at different Member States or certain groups of custoonsumers with targeted offers and differing terms and conditions, including through the setting-up of country-Member State specific online interfaces, possibly offering different prices.
Amendment 184 #
Proposal for a regulation
Recital 18
Recital 18
(18) The first of those situations is where the trader sells goods and there is no cross-border delivery of those goods by or on behalf of the trader to the Member State where the custoonsumer resides. In that situation the custoonsumer should be able to purchase goods, under exactly the same conditions, including price and conditions relating to the delivery of the goods, as similar custoonsumers who are residents of the Member State of the trader. That may mean that a foreign custoconsumer will have to pick up the good in that Member State, or in a different Member State to which the trader delivers. In this situation, in accordance with Directive 2006/112/EC, there is no need to register for value added tax ("VAT") in the Member State of the customer, nor arrange for the cross- border delivery of goodsonsumer.
Amendment 199 #
Proposal for a regulation
Recital 21
Recital 21
(21) In all those situations, by virtue of the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 and (EU) 1215/2012, where a trader does not pursue his activities in the Member State of the consumer or does not direct his activities there, or where the customer is not a consumer, compliance with this Regulation does not imply any additional costsobligation for the trader associated with jurisdiction or differences in applicable law. Where, in contrast, a trader does pursue his activities in the consumer's Member State or does direct his activities there, the trader has manifested its intention to establish commercial relations with consumers from that Member State and thus been able to take account of any such costs.
Amendment 215 #
Proposal for a regulation
Recital 24
Recital 24
(24) Under Union law, traders are in principle free to decide which means of payment they wish to accept, including payment brands. In accordance with the rules laid down in Regulation (EU) 2015/751 and Directive (EU) 2015/2366, traders who accept payment instruments linked to a card of a certain brand and category are not required to accept payment instruments linked to a card of the same category but of another mark. However, once this choice has been made, in view of the existing legal framework for payment services, there are no reasons for traders to traders should not discriminate custoonsumers within the Union by refusing certain commercial transactions, or by otherwise applying certain different conditions of payment in respect of those transactions, for reasons related to the nationality, or place of residence or place of establishment of the custoonsumer. In this particular context, such unjustified unequal treatment for reasons related to the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union should be expressly prohibited as well. It should be further recalled that Regulation (EU) No 260/2012 already prohibits all payees, including traders, from requiring bank accounts to be located in a certain Member State for a payment in euro to be accepted.
Amendment 223 #
Proposal for a regulation
Recital 26
Recital 26
(26) This Regulation should not affect the application of the rules on competition, and in particular Articles 101 and 102 TFEU. Agreements imposing on traders obligations not to engage in passive sales within the meaning of Commission Regulation (EU) No 330/201029 to certain custospecific group of consumers or to custoonsumers in certain territories are generally considered restrictive of competition and cannot normally be exempted from the prohibition laid down in Article 101(1) TFEU. Even whenHowever, in certain exceptional cases, theyse agre not caught by Article 101 TFEU, in the context of the application of this Regulements may be considered to comply with Article 101 TFEU. This applies in particular to agreements restricting passive sales because of economic justifications, they disrupt the proper functioning of the internal market and they may be used to circumvent the provisions of this Regulation. The relevant provisions of such agreements and of other agreements in respect of passive sales requiring the trader to act in violation of this Regulation should therefore be automatically void. However, tfor example in order to allow innovations in the field of new products. In these duly justified cases, the trader should not be deemed to act in breach of this Regulation when they abstain from making passive sales. The application of this Regulation should not affect those agreements. This Regulation, and in particular its provisions on access to goods or services, should not affect agreements restricting active sales within the meaning of Regulation (EU) No 330/2010. __________________ 29 Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (OJ L 102, 23.4.2010, p. 1).
Amendment 236 #
Proposal for a regulation
Recital 30
Recital 30
(30) With a view to facilitating the effective enforcement of the rules laid down in this Regulation, the mechanisms to ensure cross-border cooperation among competent authorities provided for in Regulation (EC) No 2006/2004 of the European Parliament and of the Council30 should also be available in relation to those rules. However, as Regulation (EC) No 2006/2004 only applies with respect to laws that protect consumers' interests, those measures should be available only when the customer is a consumer. Regulation (EC) No 2006/2004 should therefore be amended accordingly. __________________ 30 Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (the Regulation on consumer protection cooperation) (OJ L 364, 9.12.2004, p. 1).
Amendment 240 #
Proposal for a regulation
Recital 32
Recital 32
(32) Traders, public authorities and other interested parties should have sufficient time to adapt to, and ensure compliance with, the provisions of this Regulation. In light of the particular characteristics of electronically supplied services, other than services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, it is appropriate to apply the prohibition of Article 4(1)(b) only from a later date with respect to the provision of those services.
Amendment 279 #
Proposal for a regulation
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
2a. This Regulation does not apply to purely internal situations which have no extraneous elements.
Amendment 283 #
Proposal for a regulation
Article 1 – paragraph 3 a (new)
Article 1 – paragraph 3 a (new)
3a. This Regulation shall be without prejudice to the applicable rules on copyright and related rights, in particular Directive 2001/29/EC of the European Parliament and of the Council1a. _______________ 1aDirective 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167, 22.6.2001, p. 10).
Amendment 300 #
Proposal for a regulation
Article 2 – paragraph 2 – point c
Article 2 – paragraph 2 – point c
Amendment 304 #
Proposal for a regulation
Article 2 – paragraph 2 – point d
Article 2 – paragraph 2 – point d
(d) 'general conditions of access' means all terms, conditions and other information, including net sale prices, regulating the access of custoonsumers to goods or services offered for sale by a trader, which are set, applied and made available to the public at large by or on behalf of the trader and which apply in the absence of an individually negotiated agreement between the trader and the custoonsumer;
Amendment 309 #
Proposal for a regulation
Article 2 – paragraph 2 – point f
Article 2 – paragraph 2 – point f
(f) 'online interface' means any software, including all or part of a website and applications, operated by or on behalf of a trader, which serves to give custoonsumers access to the trader's goods or services with a view to engaging in a commercial transaction with respect to those goods or services;
Amendment 327 #
Proposal for a regulation
Article 3 – paragraph 2 – subparagraph 2
Article 3 – paragraph 2 – subparagraph 2
In the event of such redirection with the custoonsumer's explicit prior consent, the original version of the online interface the consumer originally sought to access shall remain easily accessible for that custoonsumer.
Amendment 332 #
Proposal for a regulation
Article 3 – paragraph 3
Article 3 – paragraph 3
3. The prohibitions set out in paragraphs 1 and 2 shall not apply where the blocking, limitation of access or redirection with respect to certain custospecific group of consumers or to custoonsumers in certain territories is necessary in order to ensure compliance with a legal requirement in Union law or in the laws of Member States in accordance with Union law, to which the trader's activities apply.
Amendment 339 #
Proposal for a regulation
Article 3 – paragraph 4
Article 3 – paragraph 4
4. Where athe trader blocks or limits access of custothe consumers to an online interface or redirects custothe consumers to a different version of the online interface in compliance with paragraph 4, the trader shall provide a clear and explicit justification. That justification shall be given in the language of the online interface that the custoonsumer originally sought to access.
Amendment 359 #
Proposal for a regulation
Article 4 – paragraph 1 – point b
Article 4 – paragraph 1 – point b
(b) where the trader provides electronically supplied services, other than services the main feature of which is the provision of access to andor use of copyright protected works or other protected subject matter, or sells copyright protected works or protected subject matter in an intangible form;
Amendment 384 #
Proposal for a regulation
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
1. The traders shall not, for reasons related to the nationality, or place of residence or place of establishment of the custoonsumer, the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union, apply different conditions of payment for any sales of goods or provision of serviceswhen using credit transfers, direct debits or a card-based payment instrument of a specific payment brand and category, where:
Amendment 391 #
Proposal for a regulation
Article 5 – paragraph 1 – point a
Article 5 – paragraph 1 – point a
Amendment 392 #
Proposal for a regulation
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) the payee can requestidentity of the payer or the validity of the use of the payment instrument is verifiable by strong custoonsumer authentication by the payer pursuant to the Directive (EU) 2015/2366; and
Amendment 402 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
2. The prohibition set out in paragraph 1 shall not preclude the traders's possibility to request charges for the use of a card- based payment instrument for which interchanges fees are not regulated under Chapter II of Regulation (EU) 2015/751 and for those payment services to which Regulation (EU) No 260/2012 does not apply. Those charges shall not exceed the direct costs borne by the trader for the use of the payment instrument.
Amendment 406 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1
Amendment 412 #
Proposal for a regulation
Article 6 – paragraph 1 a (new)
Article 6 – paragraph 1 a (new)
The prohibitions provided for in Articles 3, 4 and 5 of this Regulation shall not apply in cases where the trader is bound by an agreement obliging him or her to restrict his or her passive sales and that these restrictions are in conformity with Article 101 TFEU and Regulation (EU) No 330/2010.
Amendment 432 #
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, or the selling of copyright protected works or protected subject matter in an intangible form, provided that the trader has the requisite rights for the relevant territories.