110 Amendments of Marco ZULLO related to 2015/0287(COD)
Amendment 72 #
Proposal for a directive
Title 1
Title 1
Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on certain aspects concerning contracts for the supply of digital content and digital services (Text with EEA relevance)
Amendment 78 #
Proposal for a directive
Recital 1
Recital 1
(1) The growth potential of e- commerce has not yet been fully exploited. Theis Digital Single Market Strategy for Europe29 tackles in a holistic manner thrective tackles some major obstacles to the development of cross- border e-commerce in the Union in order to unleash this potential. Ensuring better access for consumers to digital content and services and facilitating businesses to supply digital content and digital services is necessary to boost the Union’'s digital economy and stimulate overall growth. _________________ 29COM (2015) 192 final.
Amendment 89 #
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 or services, taking as a base a high level of consumer protection, is necessary.
Amendment 97 #
Proposal for a directive
Recital 3
Recital 3
(3) Differences in national mandatory consumer contract law rules and a lack of clear contract law rules are among the key obstacles which hinder the development of the supply of digital content and digital services, as very few tailor-made rules exist at Union level. Businesses face additional costs stemming from differences in national mandatory consumer contract law rules and legal uncertainty when sellupplying digital content or digital services across borders. Businesses also face costs when adapting their contracts to specific mandatory rules for the supply of digital content or digital services that are already emerging in several Member States, creating differences in scope and content between specific national rules governing these contracts. In those Member States where there are not yet specific rules for the supply of digital content or digital services, traders willing to sellupply such content or services cross-border face uncertainty, as they will often not know which rules apply to the digital content or digital service in the Member State in which they want to export tosupply this, nor the content of those rules and whether they are mandatory.
Amendment 106 #
Proposal for a directive
Recital 4
Recital 4
(4) Consumers are not confident when buying cross border and especially online. One of the major factors for this lack of confidence is uncertainty about their key contractual rights and the lack of a clear contractual framework for digital content and digital services. Many consumers of digital content or digital services experience problems related to the quality of, or access to, digital content or digital services. For instance, they receive wrong or faulty digital content or digital services, or they are not able to access the digital content or digital services in question. As a result, consumers suffer financial and non- financial detriment.
Amendment 117 #
Proposal for a directive
Recital 5
Recital 5
(5) In order to remedy these problems, both businesses and consumers should be able to rely on fully harmonised rules for the supply of digital content or digital services setting out Union-wide contractual rights which are essential for this type of transactions.
Amendment 126 #
Proposal for a directive
Recital 6
Recital 6
(6) Fully harmonised consumer contract law rules in all Member States will make it easier for businesses to offer digital content and digital services cross-border. They will have a stable contract law environment when selling online and otherwise at a distance to other Member States. Fully harmonised rules specific for digital content and digital services throughout the EU will remove the complexity caused by the different national rules that currently apply to contracts for the supply of digital content and digital services. They will also prevent legal fragmentation that otherwise would arise from new national legislations regulating specifically digital content and digital services.
Amendment 133 #
Proposal for a directive
Recital 7
Recital 7
(7) Consumers will benefit from fully harmonised rights for digital content and digital services at a high level of protection. They will have clear rights when they receive or access digital content or digital services from anywhere in the EU. This will increase their confidence in buying digital content and digital services. This will also contribute to reducing the detriment consumers currently suffer, since there will be a set of clear rights that will enable them to address problems they face with digital content and digital services.
Amendment 143 #
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 and digital services, remedies available to consumers in cases of lack of conformity of digital content or digital services 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 or digital services.
Amendment 158 #
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 developdigital services and their supply. In order to ensure Directive 2011/83/EU of the European Parliaments and to maintain the future-proof nature ofof the Council30 is applied properly, 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' should refer to it and include, for example computer programmes, applications, games, music, videos or texts. The Directive should furthermore cover digital services which allow the creation, processing or storage of data, such as cloud services or file hosting services, digital services allowing data sharing such as social media, video or audio-sharing platforms, instant messaging services. While there are numerous ways for digital content or digital services 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 or digital services independently of the medium used for itstheir 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 and digital services 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. OJ L 304, 22.11.2011, p. 64
Amendment 167 #
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 contentin which digital content is embedded and forms an integral part of the good and cannot easily be de-installed, or is necessary for the conformity of the good with the contract, unless the supplier proves that the defect lies in the hardware of the good. 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 supplied. The Directive is also without prejudice to the distribution right applicable to these goods under copyright law.
Amendment 178 #
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 isand digital services are 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 such as for example photographs, poems, songs or other items produced by the user. 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 and digital services 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, such as the supply of personal data, 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 or digital service in question.
Amendment 193 #
Proposal for a directive
Recital 14
Recital 14
(14) As regards digital content or digital services 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 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 or digital service 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 205 #
Proposal for a directive
Recital 16
Recital 16
(16) In order to ensure a common set of rights for consumers and a level playing field for business, consumers should have the same remedies for digital content or services which isare not in conformity with the contract irrespective of the way the content has been developed. Consequently the Directive should apply to contracts for the development of digital content and services tailor made to the specific requirements of the consumer including tailor made software. This Directive should also apply to the supply of visual modelling files required in the context of 3D printing. However this Directive should not regulate goods produced with the use of 3D printing technology or the damage caused to them.
Amendment 210 #
Proposal for a directive
Recital 17
Recital 17
(17) Digital content isand services are highly relevant in the context of the Internet of Things. However it is opportune to address specific issues of liability related to the Internet of Things, including the liability for data and machine-to-machine contracts, in a separate way.
Amendment 223 #
Proposal for a directive
Recital 22
Recital 22
(22) The protection of individuals with regard to the processing of personal data is provided for by Article 8 of the Charter of Fundamental Rights of the European Union and governed by Directive 95/46/EC of the European Parliament and of the Council31 and by Directive 2002/58/EC of the European Parliament and of the Council32 which are fully applicable in the context of contracts for the supply of digital content. Those Directives already establish a legal framework in the field of personal data in the Union. The implementation and application of this Directive should be made in full compliance with that legal framework. _________________ 31 OJ L 281, 23/11/1995, p. 31 - 50) [to be replaced by the General Data Protection Regulation, once adopted]. 32 OJ L 201, 31.7.2002, p. 37–47. OJ L 201, 31.7.2002, p. 37–47.
Amendment 227 #
Proposal for a directive
Recital 23
Recital 23
(23) There are various ways for digital content and digital services 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 or service to this third party. With regard to the time of supply, in line with market practices and technical possibilities, the digital content or service should be supplied immediatelywithin one month from the conclusion of the contract, unless the parties decide to agree otherwise in order to cater for other supply models.
Amendment 235 #
Proposal for a directive
Recital 24
Recital 24
(24) In order to promote innovation in the Digital Single Market and cater for technological developments reflected in the fast changing characteristics of digital content, it is justified for the digital content or service to be, above all, in conformity with what was agreed in the contract.
Amendment 239 #
Proposal for a directive
Recital 25
Recital 25
(25) In cases where tThe contract does notshould stipulate sufficiently clear and comprehensive benchmarks to ascertain the conformity of the digital content or service with the contract, it is necessary to set objective conformity criteria to ensure that consumers are not deprived of their rights. In such cases the conformity with the contract should be assessed considering the purpose for which digital content or services of the same description would normally be used, taking into account the nature of the content and service and, if applicable, public statements made by or on behalf of the supplier or other persons in previous links of the commercial transaction chain.
Amendment 244 #
Proposal for a directive
Recital 26
Recital 26
(26) Due to itstheir nature, digital content and services needs to interact with other digital equipment to function properly; interoperability should therefore form a part of the conformity criteria. In particular it needs, the digital content and services need to interact with hardware including processor speed and graphics card features and software including a specific version of the operating system or specific multi- media player. The notion of functionality should refer to the ways in which digital content and digital services can be used; it should also refer to the absence or presence of any technical restrictions such as protection via Digital Rights Management or regional coding.
Amendment 249 #
Proposal for a directive
Recital 29
Recital 29
(29) Many types of digital content are supplied over a period of time. For instance, consumers access cloud services over a period of time. It is therefore important to ensure that the digital content is in conformity with the contract throughout the duration of the contract. Moreover, given the frequent improvement of digital content, notably by updates, the version ofconformity of the digital content or service supplied to the consumer should bewith the contract should be assessed on the basis of the most recent versione available at the time of the conclusion of the contract.
Amendment 262 #
Proposal for a directive
Recital 32
Recital 32
(32) Due to the specific nature of digital content with its high complexity as well as the supplier's better knowledge and access to know how, technical information and high-tech assistance, it is the supplier who is in a better position than the consumer to know the reasons for the digital content or service not being in conformity with the contract. The supplier is also in a better position to assess whether the lack of conformity with the contract is due to incompatibility of the consumer's digital environment with the technical requirements for the digital content. Therefore in case of a dispute it should be for the supplier to prove that the digital content or service is in conformity with the contract, unless the supplier proves that the consumer's digital environment is not compatible with the digital content or service. Only where the supplier proves that the consumer's digital environment is not compatible with the interoperability and other technical requirements, it should be for the consumer to prove that the digital content or service is not in conformity with the contract.
Amendment 268 #
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. 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 or service is not in conformity with the contract.
Amendment 274 #
Proposal for a directive
Recital 34
Recital 34
(34) The supplier should be liable to the consumer for the lack of conformity with the contract and for any failure to supply the digital content or service. Moreover, given that digital content or services may be supplied over a period of time, it is justified that the supplier should be liable for any lack of conformity which occurs during that period.
Amendment 282 #
Proposal for a directive
Recital 35
Recital 35
(35) A failure of the supplier to supply the digital content or service to the consumer in accordance with the contract is a serious breach of the main contractual obligation of the supplier, which should allow the consumer to immediately terminate the contract. Where the supplier has initially not failed to supply the digital content, interruptions of the supply making the digital content not available or accessible to the consumer over a short period of time should be treated as non- conformity with the contract, and not a failure to supply. In particular, the requirement of proper continuity of the digital content or service should also cover more than negligible short term interruptions of the supply.
Amendment 288 #
Proposal for a directive
Recital 36
Recital 36
(36) In the case of non-conformity with the contract, consumers should as a first step be entitled to have the digital content or service brought to conformity with the contract. Depending on technical characteristics of the digital content, the supplier may select a specific way of bringing the digital content or service to conformity with the contract, for example by issuing updates or requiring the consumer to access a new copy of the digital content. Given the diversity of digital content and services, it is not appropriate to set fixed deadlines for the exercise of rights or the fulfilling of obligations related to that digital content or service. Such deadlines may not capture this diversity and be either too short or too long, depending on the case. It is therefore more appropriate to refer to reasonable deadlines. The digital content or service should be brought into conformity with the contract within a reasonable time and free of any costs; in particular the consumer should not incur any costs associated with the development of an update for the digital content or service.
Amendment 298 #
Proposal for a directive
Recital 37
Recital 37
(37) As a second step, the consumer should be entitled to have the price reduced or the contract terminated. The right of a consumer to have the contract terminated should be limited to those cases where for instance bringing the digital content or service to conformity is not possible and the non- conformity impairs the main performance features of the digital content. Where the consumer terminates the contract, the supplier should reimburse the price paid by the consumer or, where the digital content or service is supplied not in exchange for a price but against access to data provided by the consumer, the supplier should refrain from using it, from transferring that data to third parties or allowing third parties to access it after termination of the contract. Fulfilling the obligation to refrain from using data should mean in the case when the counter- performance consists of personal data, that the supplier should take all measures in order to comply with data protection rules by deleting it or rendering it anonymous in such a way that the consumer cannot be identified by any means likely reasonably to be used either by the supplier or by any other person. Without prejudice to obligations of a controller under Directive 95/46/EC the supplier should not be obliged to undertake any further steps in relation to data which the supplier has lawfully provided to third parties in the course of the duration of the contract for the supply of the digital content.
Amendment 316 #
Proposal for a directive
Recital 39
Recital 39
(39) In order to ensure that the consumer benefits from effective protection in relation to the right to terminate the contract, the supplier should allow the consumer to retrieve all data uploaded by the consumer, actively produced by the consumer with the use of the digital content or service or generated through the consumer's use of the digital content or service. This obligation should extend to data which the supplier is obliged to retain under the contract for the supply of the digital content or service as well as to data which the supplier has effectively retained in relation to the contract.
Amendment 324 #
Proposal for a directive
Recital 41
Recital 41
(41) Where the contract is terminated, the consumer should not be required to pay for the use of digital content or a digital service which is not in conformity with the contract because that would deprive the consumer of effective protection.
Amendment 327 #
Proposal for a directive
Recital 42
Recital 42
(42) Considering the need to balance legitimate interests of consumers and suppliers, where the digital content or service provided over a period of time in exchange for a payment of a price, gives rise to the right to terminate, the consumer should be entitled to terminate only the part of the contract which corresponds to the time when the digital content or service was not in conformity with the contract. However where the digital content or service is provided against a counter- performance other than money partial termination is not feasible because it is impossible to proportionally apportion a counter-performance other than money.
Amendment 333 #
Proposal for a directive
Recital 43
Recital 43
(43) Due to its nature the digital content or service is not subject to wear and tear while being used and it is often supplied over a period of time rather than as a one- off supply. It is, therefore, justified not to provide a period during which the supplier should be held liable for any lack of conformity which exists at the time of the supply of the digital content. Consequently Member States should refrain from maintaining or introducing such a period. Member States should remain free to rely on national prescription rules in order to ensure legal certainty in relation to claims based on the lack of conformity of digital content.
Amendment 341 #
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 or a digital service. In order to increase consumers' trust in digital content and services 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 or services which isare 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 or service. 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 or service had been duly supplied and been in conformity with the contract.
Amendment 346 #
(45) Due to technological or other reasons the supplier might be compelled to change features of the digital content or service supplied over a period of time. These changes are often to the advantage of the consumer as they improve the digital content or service. Consequently, the parties to the contract may include respective clauses in the contract which allow the supplier to undertake modifications. However, where such modifications negatively affect the way the consumer benefits from main performance features of the digital content or service, they may disturb the balance of the contract or the nature of the performance due under the contract to an extent that the consumer may not have concluded such a contract. Therefore, in such cases these modifications should be subject to certain conditions.
Amendment 352 #
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 service or generated through the consumer's use of the digital content or service. 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 371 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
This Directive lays down certain requirements concerning contracts for the supply of digital content or a digital service to consumers, in particular rules on conformity of the digital content or service with the contract, remedies in case of the lack of such conformity and the modalities for the exercise of those remedies as well as on modification and termination of such contracts.
Amendment 380 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point b
Article 2 – paragraph 1 – point 1 – point b
Amendment 385 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point c
Article 2 – paragraph 1 – point 1 – point c
Amendment 388 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 a (new)
Article 2 – paragraph 1 – point 1 a (new)
1a. 'digital service' means (a) a service allowing the creation, processing or storage of data in digital form, where such data is provided by the consumer, for example cloud storage or file hosting services, and (b) a service allowing sharing of and any other interaction with data in digital form provided by other users of the service, for example social media, instant messaging services, websites and video or audio- sharing platforms which fall outside the scope of electronic communication services;
Amendment 395 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
2. 'integration' means linking together differentfull interoperability between the digital content or service provided and the various components of a digital environment to act as a coordinated whole in conformity with its intended purpose;
Amendment 414 #
Proposal for a directive
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
6. 'price' means money that is due in exchange for digital content or a digital service supplied;
Amendment 421 #
Proposal for a directive
Article 2 – paragraph 1 – point 8
Article 2 – paragraph 1 – point 8
8. 'digital environment' means hardware, digital content and services and any network connection to the extent that they are within the control of the user;
Amendment 430 #
Proposal for a directive
Article 2 – paragraph 1 – point 9
Article 2 – paragraph 1 – point 9
9. 'interoperability' means the ability of digital content or a digital service to perform all its functionalities in interaction with a concrete digital environment;
Amendment 438 #
Proposal for a directive
Article 2 – paragraph 1 – point 10
Article 2 – paragraph 1 – point 10
10. 'supply' means providing access to digital content or a digital service or making digital content or a digital service available;
Amendment 450 #
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 or a digital service to the consumer or undertakes to do so and, in exchange, a price is to be paid and/or the consumer actively provides counter- performance other than money in the form of personal data or any other data.
Amendment 457 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
2. This Directive shall apply to any contract for the supply of digital productcontent or a digital service developed according to the consumer's specifications.
Amendment 462 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
Amendment 469 #
Proposal for a directive
Article 3 – paragraph 3 a (new)
Article 3 – paragraph 3 a (new)
3a. This Directive shall apply to goods in which digital content is embedded unless the supplier proves that the lack of conformity does not lie in the hardware of the good.
Amendment 475 #
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, such as photographs, poems, songs and other user-produced items, 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 478 #
Proposal for a directive
Article 3 – paragraph 4
Article 3 – paragraph 4
4. This Directive shall not apply to digital content or services 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 481 #
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 carrierother than the supply of digital content or services;
Amendment 498 #
Proposal for a directive
Article 3 – paragraph 6
Article 3 – paragraph 6
6. Where a contract includes elements in addition to the supply of digital content or a digital service, this Directive shall only apply to the obligations and remedies of the parties as supplier and consumer of the digital content.
Amendment 515 #
Proposal for a directive
Article 4 a (new)
Article 4 a (new)
Article 4a Contract terms detrimental to the consumer’s data protection rights A contract term that concerns the processing of personal data provided by the consumer to the supplier or collected by the supplier or a third party in the interest of the supplier in the context of the conclusion or performance of the contract, and which violates any right afforded to the consumer as a data subject under Directive 95/46/EC and Regulation (EU) 2016/679, including any term defining the functionality, interoperability and other performance features of the digital content or digital service in a way that is not in conformity with Directive 95/46/EC and Regulation (EU) 2016/679, shall not be binding upon the consumer. The contract shall continue to bind the parties as regards the rest of its terms if it is capable of continuing in existence without the non-binding term.
Amendment 520 #
Proposal for a directive
Article 5 – title
Article 5 – title
Supply of the digital content or digital service
Amendment 523 #
Proposal for a directive
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
1. When performing the contract for the supply of the digital content or digital service, the supplier shall supply the digital content or digital service to
Amendment 529 #
Proposal for a directive
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) a third party which operates a physical or virtual facility making the digital content or digital service available to the consumer or allowing the consumer to access it and which has been chosen by the consumer for receiving the digital content or digital service.
Amendment 530 #
Proposal for a directive
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) a third party 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.; or
Amendment 531 #
Proposal for a directive
Article 5 – paragraph 1 – point b a (new)
Article 5 – paragraph 1 – point b a (new)
(ba) a third party chosen by the consumer.
Amendment 536 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. The supplier shall supply the digital content immediately after the conclusion of the contractor digital service within one month of the contract being concluded, unless the parties have agreed otherwise. The supply shall be deemed to take place when the digital content is suppliedor digital service is made accessible to the consumer or, where point (b) of paragraph 1 applies, to the third party chosen by the consumer, whichever is the earlier.
Amendment 544 #
Proposal for a directive
Article 6 – title
Article 6 – title
Conformity of the digital content or digital service with the contract
Amendment 550 #
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 or digital service shall, where relevant:
Amendment 553 #
Proposal for a directive
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
(a) be of the quantity, quality, duration and version and shall possess functionality, interoperability and other performance features such as accessibility, continuity and security, as required by the contract, including in any pre-contractual information which formsforming an integral part of the contract or in any advertising communication attributable to the supplier, unless the supplier proves it had not been informed thereof;
Amendment 565 #
Proposal for a directive
Article 6 – paragraph 1 – point c
Article 6 – paragraph 1 – point c
(c) be supplied along with all the accessories, installationy instructions and customer assistance as stipulated by the contract; and
Amendment 570 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
Amendment 587 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
3. Where the contract stipulates that the digital content shall be supplied over a period of time, the digital content or digital service shall be in conformity with the contract throughout the duration of that period.
Amendment 595 #
Proposal for a directive
Article 6 – paragraph 5
Article 6 – paragraph 5
5. In order to conform with the contract the digital content must also meet the requirements of Articles 6a, 7 and 8.
Amendment 600 #
Proposal for a directive
Article 6 a (new)
Article 6 a (new)
Amendment 603 #
Proposal for a directive
Article 7 – paragraph 1 – introductory part
Article 7 – paragraph 1 – introductory part
Where the digital content or digital service is incorrectly integrated into the consumer's digital environment, any lack of conformity resulting from the incorrect integration shall be regarded as lack of conformity of the digital content or digital service if:
Amendment 608 #
Proposal for a directive
Article 7 – paragraph 1 – point a
Article 7 – paragraph 1 – point a
(a) the digital content or digital service was integrated by the supplier or under the supplier’s responsibility; or
Amendment 612 #
Proposal for a directive
Article 7 – paragraph 1 – point b
Article 7 – paragraph 1 – point b
(b) the digital content or digital service was intended to be integrated by the consumer and the incorrect integration was due to shortcomings in the integration instructions where those instructions were supplied in accordance with point (c) of Article 6(1) or should have been supplied in accordance with Article 6(2).
Amendment 619 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
1. At the time the digital contenit is supplied to the consumer, the digital content or digital service shall be free of any right of a third party, including based on intellectual property, so that the digital contenit can be used in accordance with the contract.
Amendment 626 #
Proposal for a directive
Article 8 – paragraph 2
Article 8 – paragraph 2
2. Where the digital content or digital service is supplied over a period of time, the supplier shall, for the duration of that period, keep the digital contenit supplied to the consumer free of any right of a third party, including that based on intellectual property, so that the digital contenit can be used in accordance with the contract.
Amendment 631 #
Proposal for a directive
Article 8 a (new)
Article 8 a (new)
Amendment 652 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. Paragraph 1 shall not apply where the supplier shows that the digital environment of the consumer is not compatible with interoperability and other technical requirements of the digital content or digital service and where the supplier informed the consumer of such requirements before the conclusion of the contract.
Amendment 660 #
Proposal for a directive
Article 9 a (new)
Article 9 a (new)
Article 9a Replacement of the digital content or service 1. Where the supplier remedies the lack of conformity with the contract by replacement, the supplier shall take back the replaced digital content or service at the supplier's expense unless the parties have agreed otherwise after the lack of conformity with the contract has been brought to the supplier's attention by the consumer. 2. Where the consumer had installed the digital content or service in a manner consistent with the nature and purpose of that digital content or service, before the lack of conformity with the contract became apparent, the obligation to take back the replaced digital content or service shall include the removal of the non-conforming digital content or service and the installation of replacement digital content or a replacement digital service, or bearing the costs thereof. 3. The consumer shall not be liable to pay for any use made of the replaced digital content or service in the period prior to the replacement.
Amendment 666 #
Proposal for a directive
Article 10 – paragraph 1 – point a
Article 10 – paragraph 1 – point a
(a) any failure to supply the digital content or service;
Amendment 672 #
Proposal for a directive
Article 10 – paragraph 1 – point b
Article 10 – paragraph 1 – point b
(b) any lack of conformity which exists at the time the digital content or service is supplied; and
Amendment 677 #
Proposal for a directive
Article 10 – paragraph 1 – point c
Article 10 – paragraph 1 – point c
(c) where the contract provides that the digital content or service shall be supplied over a period of time, any lack of conformity which occurs during the duration of that period.
Amendment 692 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
Where the supplier has failed to supply the digital content or service in accordance with Article 5 the consumer shall be entitled to terminate the contract immediately under Article 13.
Amendment 702 #
Proposal for a directive
Article 12 – title
Article 12 – title
Amendment 707 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1
Article 12 – paragraph 1 – subparagraph 1
In the case of a lack of conformity with the contract, the consumer shall be entitled to have the digital content or service brought into conformity with the contract free of charge, unless this is impossible, disproportionate or unlawful.
Amendment 711 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2 – introductory part
Article 12 – paragraph 1 – subparagraph 2 – introductory part
Bringing the digital content or service into conformity with the contract shall be deemed to be disproportionate where the costs it imposes on the supplier are unreasonable. The following shall be taken into account when deciding whether the costs are unreasonable:
Amendment 716 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2 – point a
Article 12 – paragraph 1 – subparagraph 2 – point a
(a) the value the digital content or service would have if it were in conformity with the contract; and
Amendment 723 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2 – point b
Article 12 – paragraph 1 – subparagraph 2 – point b
(b) the significance of the lack of conformity with the contract for attaining the purpose for which the digital content or service of the same description would normally be used.
Amendment 729 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. The supplier shall bring the digital content or service in conformity with the contract pursuant to paragraph 1 within a reasonable time fromone month of the time the supplier hwas been informed by the consumer about the lack of conformity with the contract and without any significant inconvenience to the consumer, taking account of the nature of digital content and the purpose for which the consumer required thisat digital content.
Amendment 733 #
Proposal for a directive
Article 12 – paragraph 3
Article 12 – paragraph 3
Amendment 749 #
Proposal for a directive
Article 12 – paragraph 4
Article 12 – paragraph 4
Amendment 762 #
Proposal for a directive
Article 12 – paragraph 5
Article 12 – paragraph 5
5. The consumer may terminate the contract only if the lack of conformity with the contract impairs functionality, interoperability and other main performance features of the digital content such as its accessibility, continuity and security where required by Article 6 paragraphs (1) and (2). The burden of proof that the lack of conformity with the contract does not impair functionality, interoperability and other main performance features of the digital content or service shall be on the supplier.
Amendment 767 #
Proposal for a directive
Article 12 a (new)
Article 12 a (new)
Article 12a Price reduction 1. The consumer shall be entitled to either a proportionate reduction of the price in the manner set out in paragraph 4 where the digital content or service is supplied in exchange for a payment of a price, or terminate the contract under paragraph 5 and Article 13, where (a) the remedy to bring the digital content or service in conformity is impossible, disproportionate or unlawful; (b) the supplier has not completed the remedy within the time specified in paragraph 2; (c) the remedy to bring the digital content or service in conformity would cause significant inconvenience to the consumer; or (d) the supplier has declared, or it is equally clear from the circumstances, that the supplier will not bring the digital content or service in conformity with the contract. 2. The reduction in price shall be proportionate to the decrease in the value of the digital content or service which was received by the consumer compared to the value of the digital content or service that is in conformity with the contract.
Amendment 771 #
Proposal for a directive
Article 13 – title
Article 13 – title
Terminationhe consumer's right to terminate the contract
Amendment 781 #
Proposal for a directive
Article 13 – paragraph 1 a (new)
Article 13 – paragraph 1 a (new)
1a. Where the lack of conformity with the contract relates to only some of the digital content or services delivered under the contract and there is a ground for termination of a contract pursuant to Article 12, the consumer may terminate the contract only in relation to that digital content or those digital services and any other digital content or services which the consumer acquired as an accessory to the non-conforming digital content or services.
Amendment 796 #
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 or service and any other data, such as photographs, poems, songs and other user-produced items, collected by the supplier in relation to the supply of the digital content or service including any content or service 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 content;
Amendment 808 #
Proposal for a directive
Article 13 – paragraph 2 – point c
Article 13 – paragraph 2 – point c
(c) the supplier shall provide the consumer with technical means to retrieve all content provided by the consumer and any other data produced or generated through the consumer's use of the digital content, such as photographs, poems, songs and other user-produced items, to the extent that data has been retained by the supplier. The consumer shall be entitled to retrieve the content free of charge, without significant inconvenience, in reasonable time and in a commonly used data format;
Amendment 827 #
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 or service 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 833 #
Proposal for a directive
Article 13 – paragraph 4
Article 13 – paragraph 4
4. The consumer shall not be liable to pay for any use made of the digital content or service in the period prior to the termination of the contract.
Amendment 838 #
Proposal for a directive
Article 13 – paragraph 5
Article 13 – paragraph 5
5. Where the digital content or service has been supplied in exchange for a payment of a price and over the period of time stipulated in the contract, the consumer may terminate the contract only in relation to that part of the period of time where the digital content or service has not been in conformity with the contract.
Amendment 843 #
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 or service was not in conformity with the contract.
Amendment 860 #
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 consumer caused by a lack of conformity with the contract or a failure to supply the digital content or service. Damages shall put the consumer as nearly as possible into the position in which the consumer would have been if the digital content or service had been duly supplied and been in conformity with the contract.
Amendment 871 #
Proposal for a directive
Article 14 a (new)
Article 14 a (new)
Article 14a Time limits The consumer shall not be denied a remedy for the lack of conformity with the contract of the digital content or service where the lack of conformity becomes apparent within two years as from the relevant time for establishing conformity unless a longer period is stipulated under national law. If, under national legislation, the rights laid down in Article 12 are subject to a limitation period, that period shall not be shorter than two years from the relevant time for establishing conformity with the contract.
Amendment 872 #
Proposal for a directive
Article 14 b (new)
Article 14 b (new)
Amendment 873 #
Proposal for a directive
Article 15 – title
Article 15 – title
Modification of the digital content or service
Amendment 877 #
Proposal for a directive
Article 15 – paragraph 1 – introductory part
Article 15 – paragraph 1 – introductory part
1. Where the contract provides that the digital content or service shall be supplied over the period of time stipulated in the contract, the supplier may alter functionality, interoperability and other main performance features of the digital content or service such as its accessibility, continuity and security, to the extent those alternations adversely affect access to or use of the digital content or service by the consumer, only if:
Amendment 898 #
Proposal for a directive
Article 15 – paragraph 2 – point a
Article 15 – paragraph 2 – point a
(a) the supplier shall reimburse to the consumer the part of the price paid corresponding to the period of time after modification of the digital content or service;
Amendment 902 #
Proposal for a directive
Article 15 – paragraph 2 – point b
Article 15 – paragraph 2 – point b
(b) the supplier shall refrain from the use of the counter-performance other than money which the consumer has provided in exchange for the digital content or service and any other data collected by the supplier in relation to the supply of the digital content, such as photographs, poems, songs and other user-produced items, including any content provided by the consumer.
Amendment 915 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Where the contract provides for the supply of the digital content or service for an indeterminate period or where the initial contract duration or any combination of renewal periods exceed 12 months, the consumer shall be entitled to terminate the contract any time after the expiration of the first 12 months period.
Amendment 929 #
Proposal for a directive
Article 16 – paragraph 3
Article 16 – paragraph 3
3. Where the digital content or service is supplied in exchange for a payment of a price, the consumer remains liable to pay the part of the price for the digital content or service supplied corresponding to the period of time before the termination becomes effective.
Amendment 938 #
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 digital content or service and any other data collected by the supplier in relation to the supply of the digital content, such as photographs, poems, songs and other user-produced items, including any content provided by the consumer;
Amendment 949 #
Proposal for a directive
Article 16 – paragraph 4 – point b
Article 16 – paragraph 4 – point b
(b) the supplier shall provide the consumer with technical means to retrieve all any content provided by the consumer and any other data produced or generated through the consumer's use of the digital contentcollected by the supplier in relation to the supply of the digital content, such as photographs, poems, songs and other user-produced items, to the extent thisat data has been retained by the supplier. The consumer shall be entitled to retrieve the content without significant inconvenience, in reasonable time and in a commonly used data format; and
Amendment 954 #
Proposal for a directive
Article 16 – paragraph 4 – point c
Article 16 – paragraph 4 – point c
(c) where applicable, the consumer shall delete any usable copy of the digital content or service, render it unintelligible or otherwise refrain from using it including by making it available to a third party.
Amendment 960 #
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 or service 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).
Amendment 966 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – paragraph 1
Where the supplier is liable to the consumer because of any failure to supply the digital content or service or 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 supplier shall be entitled to pursue remedies against the person or persons liable in the chain of transactions. The person against whom the supplier may pursue remedies and the relevant actions and conditions of exercise, shall be determined by national law.