26 Amendments of Angelo CIOCCA related to 2016/0152(COD)
Amendment 46 #
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 customers from ojust barriers between Member States that should be abolished. However, Article 18 TFEU makes prohibiting discrimination on grounds of nationality a requirement solely for ther Member States wishing to engage in cross-border commercial transactions (a practice known as geo-blocking). They also occur through other actions by certain traders involving the application of different general conditions of access to their goods and services witand their bodies; such a requirement should not apply to private parties, in the light of the freedom to choose an occupation and the freedom to conduct a business, which arespect to such customers 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 enshrined in the Charter of Fundamental Rights of the European Union. Furthermore, sometimes the differential treatment on grounds of nationality applied by traders in cross- border commercial transactions access to goods or services, or apply different conditions in this regard, for purely commercial reasoncan be justified by objective factors.
Amendment 51 #
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 discriminatory practices are an important factor contributing to the relatively low level ofClarifying the circumstances in which differential treatment of this kind cannot be applied should bring clarity and legal certainty for all participants in cross-border commercial transactions within the Union, including in the sector of electronic commerce, which prevents the full growth potential of the internal market from being realised. Clarifying in which situations there can band should ensure that rules on non-discrimination can be effectively applied and enforced across the internal market. It is necessary to avert a situation in which enterprises have nto adjustification for differen their logistical treatment of this kind should bring clarity and legal certainty for all participants insystems and to deal with all guarantee cases and cases of withdrawal from cross-‐ border transactions and should ensure that rules on non-discrimination can be effectively applied and enforced across the internal marketcontracts, since this would reduce the number of traders from among SMEs and have a counter-productive effect on commercial transactions within the Union, and particularly in the e- commerce sector, thus preventing the full growth potential of the internal market from being realised.
Amendment 78 #
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 should notbe able, through the use of technological measures or otherwise, to choose not to 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, 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 86 #
Proposal for a regulation
Recital 17
Recital 17
(17) In a number of specific situations, any differences in the treatment of customers through the application of general conditions of access, including outright refusals to sell goods or to provide services, for reasons related to the customers’ nationality, place of residence or place of establishment canmight not be objectively justified. In those situations, all such discrimination should be prohibited and customers shcould consequently be entitled, under the specific conditions laid down in this Regulation, to engage in commercial transactions under the same conditions as a local customer and have full and equal access to any of the different goods or services offered irrespective of their nationality, 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 customers with targeted offers and differing terms and conditions, including through the setting-up of country-specific online interfaces.
Amendment 90 #
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 customer resides. In that situation the customer shcould be able to purchase goods, under exactly the same conditions, including price and conditions relating to the delivery of the goods, as similar customers who are residents of the Member State of the trader. That may mean that a foreign customer 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, 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 goods.
Amendment 92 #
Proposal for a regulation
Recital 20
Recital 20
(20) Finally, in the situation where the trader provides services and those services are received by the customer in the premises of or at a location chosen by the trader and different from the Member State of which the customer is a national or in which the customer has his or her place of residence or place of establishment, it may be that the application of different general conditions of access for reasons related to such criteria shouldare also not be justified either. Those situations concern, as the case may be, the provision of services such as hotel accommodation, sport events, car rental, and entry tickets to music festivals or leisure parks. In those situations, the trader does not have to register for VAT in another Member State nor arrange for cross-border delivery of goods.
Amendment 93 #
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 consuustomer or does not direct his activities there, or where the customer is not a consumer, compliance with this Regulation does not implyshould not entail any additional costs for the trader associated with jurisdiction or differences in applicable law. Where, in contrast, a trader does pursue his activities in the consuustomer’s Member State or does direct his activities there, the trader has manifested itshis or her intention to establish commercial relations with consuustomers from that Member State and has thus been able to take account of any such costs.
Amendment 96 #
Proposal for a regulation
Recital 25
Recital 25
(25) Directive 2015/2366/EU of the European Parliament and of the Council28 introduced strict security requirements for the initiation and processing of electronic payments, which reduced the risk of fraud for all new and more traditional means of payment, especially online payments. Payment service providers are obliged to apply so-called strong customer authentication, an authentication process that validates the identity of the user of a payment service or of the payment transaction. For remote transactions, such as online payments, the security requirements go even further, requiring a dynamic link to the amount of the transaction and the account of the payee, to further protect the user by minimising the risks in case of mistakes or fraudulent attacks. As a result of these provisions, the risk of payment fraud in national and cross- border purchases is brought to an equal level and should not be used as an argument to refuse or discriminate any commercial transactions within the Union. The possibility of traders charging for the cost of using a payment instrument should be subject to the limitations set out in Article 62 of that Directive. _________________ 28 Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35– 127).
Amendment 97 #
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 customers or to customers 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 when they are not caught by Article 101 TFEU, in the context of the application of this Regulation, 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, tThis 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 101 #
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, should not be subject to that evaluation.
Amendment 103 #
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 15, 16 and 17 thereof,
Amendment 121 #
Proposal for a regulation
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Traders shall notbe able, through the use of technological measures or otherwise, not to block or limit customers’ access to their online interface for reasons related to the nationality, place of residence or place of establishment of the customer.
Amendment 122 #
Proposal for a regulation
Article 3 – paragraph 2 – subparagraph 1
Article 3 – paragraph 2 – subparagraph 1
Traders shall notbe able, for reasons related to the nationality, place of residence or place of establishment of the customer, not to redirect customers to a version of their online interface that is different from the online interface which the customer originally sought to access, by virtue of its layout, use of language or other characteristics that make it specific to customers with a particular nationality, place of residence or place establishment, unless the customer gives his or her explicit consent prior to such redirection.
Amendment 125 #
Proposal for a regulation
Article 3 – paragraph 3
Article 3 – paragraph 3
3. The prohibitions set out in pParagraphs 1 and 2 shall not apply where the blocking, limitation of access or redirection with respect to certain customers or to customers 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.
Amendment 128 #
Proposal for a regulation
Article 3 – paragraph 4
Article 3 – paragraph 4
4. Where a trader blocks or limits access of customers to an online interface or redirects customers to a different version of the online interface in compliance with paragraph 43, the trader shall provide a clear justification. That justification shall be given in the language of the online interface that the customer originally sought to access. (Correction of a material error in the text proposed by the Commission)
Amendment 131 #
Proposal for a regulation
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
1. Traders shall not apply differentmay apply equal general conditions of access to their goods or services, for reasons related to the nationality, place of residence or place of establishment of the customer, in the in the following situations:
Amendment 135 #
Proposal for a regulation
Article 4 – paragraph 3 – subparagraph 1
Article 4 – paragraph 3 – subparagraph 1
Amendment 136 #
Proposal for a regulation
Article 4 – paragraph 3 – subparagraph 2
Article 4 – paragraph 3 – subparagraph 2
With respect to sales of books, the prohibitvisions set out in paragraph 1 shall not preclude traders from applying different prices to customers in certain territories in so far as they are required to do so under the laws of Member States in accordance with Union law.
Amendment 137 #
Proposal for a regulation
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
1. Traders shall not, for reasons related to the nationality, place of residence or place of establishment of the customer, 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 differentmay apply equal conditions of payment for any sales of goods or provision of services, where:
Amendment 138 #
Proposal for a regulation
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) the payeetrader can request strong customer authentication by the payer pursuant to the Directive (EU) 2015/2366; and
Amendment 140 #
Proposal for a regulation
Article 5 – paragraph 1 – point c
Article 5 – paragraph 1 – point c
(c) the payments are in a currency that the payeetrader accepts.
Amendment 142 #
Proposal for a regulation
Article 5 – paragraph 2
Article 5 – paragraph 2
2. The prohibitWithout prejudice to any national laws adopted pursuant to Article 62(5) of Directive (EU) 2015/2366, the provisions set out in paragraph 1 shall not preclude traders' 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 costs borne by the trader for the use of the payment instrument.
Amendment 143 #
Proposal for a regulation
Article 6
Article 6
Agreements imposing on traders obligations, in respectrticle 6 deleted Agreements ofn passive sales, to act in violation of this Regulation shall be automatically void.
Amendment 160 #
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 applyextension of the prohibition of discrimination set out in 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, shall not be subject to the evaluation referred to in paragraph 1, in particular, provided that the trader has the requisite rights for the relevant territories.
Amendment 162 #
Proposal for a regulation
Article 11 – paragraph 2
Article 11 – paragraph 2
It shall apply from [date: six monthsone year following the day of its publication].
Amendment 164 #
Proposal for a regulation
Article 11 – paragraph 3
Article 11 – paragraph 3
However, point (b) of Article 4(1) shall apply from 1 July 2018[date: two years after the date of entry into force of this Regulation].