26 Amendments of Carlos COELHO related to 2018/0090(COD)
Amendment 68 #
Proposal for a directive
Recital 8
Recital 8
(8) These common non-exhaustive criteria for the application of penalties may not be relevant in decidingPenalties should be proportionate and appropriate to the nature of the breach of Union consumer protection legislation and the actual onr penalties regarding every infringemeotential overall harm. These common criteria may not be relevant, in particular regarding non-serious infringements. Member Statthe case of less serious infringements. The competent authorities should also take account of other general principles of law applicable to the imposition of penalties, such as the principle of non bis in idemall facts and circumstances of the case and choose the most appropriate penalties essential to address the infringement. Those measures should be proportionate, effective and dissuasive.
Amendment 71 #
Proposal for a directive
Recital 9
Recital 9
(9) To ensure that Member State authorities can impose effective, proportionate and dissuasive penalties in relation to widespread infringements of consumer law and to widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394, fines should be introduced as a mandatory element of penalties for such infringements. In order to ensure deterrence of the fines, Member States should set in their national law the maximum fine for such infringements at a level that is at leastup to 10 000 000 EUR or 4% of the trader's total worldwide annual turnover inof the Member State concernedpreceding financial year, whichever is higher.
Amendment 79 #
Proposal for a directive
Recital 10
Recital 10
(10) Where, as a result of the coordination mechanism under Regulation (EU) 2017/2394, a single national competent authority within the meaning of that Regulation imposes a fine on the trader responsible for the widespread infringement or the widespread infringement with a Union dimension, it should be able to impose a fine of at least 4 % of the trader’s annual turnover in all Member States concerned by the coordinated enforcement actionup to 10 000 000 EUR or 4 % of the trader’s total worldwide annual turnover, whichever is higher.
Amendment 86 #
Proposal for a directive
Recital 12
Recital 12
(12) When deciding for which purpose the revenues from fines are used, Member States should take into account the ultimate objective of consumer legislation and its enforcement which is the protection of the general interest of consumers. Member States should therefore consider allocating at least part of the revenues from fines to enhance consumer protection within their jurisdictions, such as supporting consumer movement or activities aimed at empowering consumers.
Amendment 95 #
Proposal for a directive
Recital 15
Recital 15
(15) Member States should ensure that remedies are available for consumers harmed by unfair commercial practices in order to eliminate all the effects of those unfair practices. In order to meet that objective, Member States should make both contractual and non-contractual remedies available. As a minimum, the contractual remedies provided by the Member States should include the right to price reduction or to contract termination. Non-contractual remedies provided under national law should, as a minimum, include the right to compensation for damages. Member States would not be prevented from maintaining or introducing rights to additional remedies for consumers harmed by unfair commercial practices in order to ensure full removal of the effects of such practices.
Amendment 101 #
Proposal for a directive
Recital 19
Recital 19
(19) Specific transparency requirements for online marketplaces should therefore be provided in Directive 2011/83/EU to inform consumers using online marketplaces about the main parameters determining ranking of offers and the relative importance of those main parameters as opposed to other parameters, whether they enter into a contract with a trader or a non-trader (such as another consumer), whether consumer protection law applies and which trader is responsible for the performance of the contract and for ensuring consumer rights when these rights apply. This information should be provided in a clear, unambiguous and comprehensible manner and not only through a reference in the standard Terms and Conditions or similar contractual document. The information requirements for online marketplaces should be proportionate and need to strike a balance between a high level of consumer protection and the competitiveness of online marketplaces. Online marketplaces should not be required to list specific consumer rights when informing consumers about their applicability or non- applicability. The information to be provided about the responsibility for ensuring consumer rights depends on the contractual arrangements between the online marketplace and the relevant third party traders. Online marketplace may refer to the third party trader as being solely responsible for ensuring consumer rights or describe its specific responsibilities where it assumes the responsibility for certain aspects of the contract, for example, delivery or the exercise of the right of withdrawal. The obligation to provide information about the main parameters determining ranking of search results and about the relative importance of those main parameters as opposed to other parameters is without prejudice to any trade secrets regarding the underlying algorithms. This information should explain the main default parameters used by the marketplace but does not have to be presented in a customized manner for each individual search query.
Amendment 109 #
Proposal for a directive
Recital 19 a (new)
Recital 19 a (new)
Amendment 143 #
Proposal for a directive
Recital 33
Recital 33
Amendment 148 #
Proposal for a directive
Recital 34
Recital 34
Amendment 160 #
Proposal for a directive
Recital 35
Recital 35
Amendment 174 #
Proposal for a directive
Recital 41
Recital 41
(41) Article 16 of the Charter of Fundamental Rights of the EU guarantees the freedom to conduct a business in accordance with Union law and national laws and practices. However, the marketing across Member States of products as beof a product with seemingly identical when, in reality, they have a significantlypresentation to another product, which is marketed under the same brand but presents differentces in composition or characteristicssensory profile may mislead consumers and cause them to take a transactional decision that they would not have taken otherwise.
Amendment 178 #
Proposal for a directive
Recital 42
Recital 42
(42) Such a practice can therefore be qualified as contrary to Directive 2005/29/EC based on a case by case assessment of relevant elements. In order to facilitate the application of existing law by Member States' consumer and food authorities, guidance on the application of current EU rules to situations of dual quality of food products was provided in the Commission Notice of 26.9.2017 'on the application of EU food and consumer protection law to issues of Dual Quality of products – The specific case of food'.46 In this context, the Commission's Joint Research Centre is currently developing a common approach to the comparative tehas developed an EU harmonised testing methodology to comparatively assess quality related characteristingcs of food products. __________________ 46 C(2017)6532.
Amendment 183 #
Proposal for a directive
Recital 43
Recital 43
(43) However, the enforcement experience has shown that it may be unclear to consumers, traders and national competent authorities which commercial practices could be contrary to the Directive 2005/29/EC in the absence of an explicit provision. Therefore, Directive 2005/29/EC should be amended to ensure legal certainty both for traders and enforcement authorities by addressing explicitly the marketing of a product as bewith seemingly identical to the same product marketed in several other Member States, where those products have significantly different composition or characteristicspresentation to another product, which is marketed under the same brand but presents differences in composition or sensory profile, as defined by the EU harmonised testing methodology developed by the Commission's Joint Research Centre. Competent authorities should assess and address on a case by case basis such practices according to the provisions of the Directive. In undertaking its assessment the competent authority should take into account whether such differentiation is easily identifiable by consumers, a trader's right to adapt products of the same brand for different geographical markets due to legitimate factors, such as availability or seasonality of raw materials, defined consumer preferences or voluntary strategies aimed at improving access to healthy and nutritious food as well as the traders' right to offer products of the same brand in packages of different weight or volume in different geographical markets, and the recommendations on common interpretation defined by the High Level Forum for Better Functioning of the Supply Chain of found differences based on the EU harmonised testing methodology developed by the Commission's Joint Research Centre.
Amendment 238 #
Proposal for a directive
Article 1 – paragraph 1 – point 4
Article 1 – paragraph 1 – point 4
Directive 2005/29/EC
Article 11 a – paragraph 2
Article 11 a – paragraph 2
2. Contractual remedies shall include, as a minimum, the possibility for the consumer to obtain a price reduction or to unilaterally terminate the contract.
Amendment 257 #
Proposal for a directive
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Directive 2005/29/EC
Article 13 – paragraph 3
Article 13 – paragraph 3
3. Where the penalty to be imposed is a fine, the infringing trader’s annual turnover and net profits of the preceding financial year, as well as any fines imposed for the same or other infringements of this Directive in other Member States shall also be taken into account in the determination of its amount.
Amendment 261 #
Proposal for a directive
Article 1 – paragraph 1 – point 5
Article 1 – paragraph 1 – point 5
Directive 2005/29/EC
Article 13 – paragraph 4
Article 13 – paragraph 4
4. Member States shall ensure that the penalties for widespread infringements and widespread infringements with a Union dimension within the meaning of Regulation (EU) No 2017/29394 include the possibility to impose fines, the maximum amount of which shall be at leastup to 10 000 000 EUR or 4 % of the trader's total worldwide annual turnover inof the Member State or Member States concernedpreceding financial year, whichever is higher.
Amendment 274 #
Proposal for a directive
Article 1 – paragraph 1 – point 6
Article 1 – paragraph 1 – point 6
Directive 2005/29/EC
Annex I – point 11
Annex I – point 11
11. Using editorial content in the media, or providing information to a consumer’s online search query, to promote a product or service where a trader has paid for the promotionrovided direct or indirect remuneration for a promotion or prominent placement without making that clear in the content or search results or by images or sounds clearly identifiable by the consumer in a concise, transparent and intelligible form (advertorial; paid placement or paid inclusion). This is without prejudice to Directive 2010/13/EU48. __________________ 48 Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95, 15.4.2010, p. 1).
Amendment 302 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point d
Article 2 – paragraph 1 – point 1 – point d
Directive 2011/83/EU
Article 2 – paragraph 1 – point 16
Article 2 – paragraph 1 – point 16
(16) ‘contract for the supply of digital content which is not supplied on tangible medium’ means a contract under which a trader supplies or undertakes to supply specific digital content to the consumer and the consumer pays or undertakes to pay the price thereof. This also includes contracts where the consumer provides or undertakes to provide personal data to the trader, except where the personal data provided by the consumer is exclusively processed by the trader for the purpose of supplying the digital content, or for the trader to comply with legal requirements to which the trader is subject, and the trader does not process this data for any other purpose;
Amendment 306 #
Proposal for a directive
Article 2 – paragraph 1 – point 1 – point d
Article 2 – paragraph 1 – point 1 – point d
Directive 2011/83/EU
Article 2 – paragraph 1 – point 18
Article 2 – paragraph 1 – point 18
(18) ‘digital service contract’ means a contract under which a trader supplies or undertakes to supply a digital service to the consumer and the consumer pays or undertakes to pay the price thereof. This also includes contracts where the consumer provides or undertakes to provide personal data to the trader, except where the personal data provided by the consumer is exclusively processed by the trader for the purpose of supplying the digital service, or for the trader to comply with legal requirements to which the trader is subject, and the trader does not process this data for any other purpose;
Amendment 335 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
Directive 2011/83/EU
Article 6 a – paragraph 1 – point a
Article 6 a – paragraph 1 – point a
(a) the main parameters determining ranking of offers presented to the consumer as result of his search query on the online marketplace and the reason for the relative importance of those main parameters as opposed to other parameters;
Amendment 342 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
Directive 2011/83/EU
Article 6 a – paragraph 1 – point a a (new)
Article 6 a – paragraph 1 – point a a (new)
(aa) whether the user reviews related to the offered product or service have been subject to a control of their authenticity, and if so, a description of the main characteristics of such control;
Amendment 363 #
Proposal for a directive
Article 2 – paragraph 1 – point 4
Article 2 – paragraph 1 – point 4
Directive 2011/83/EU
Article 6 a – paragraph 1 a (new)
Article 6 a – paragraph 1 a (new)
After the consumer is bound by a distance or off-premises contract, or any corresponding offer, on an online marketplace, and where the offer for the good or service that has been sold was notified to and removed by the online marketplace on grounds that it is illegal, the online marketplace shall promptly provide the following information to the consumer in a clear and comprehensible manner: (a) that the product or service sold or the offer thereof is illegal or apparently illegal and was removed; (b) the identity of the trader that placed the offer, which was removed; (c) the reason why the offer was removed.
Amendment 389 #
Proposal for a directive
Article 2 – paragraph 1 – point 7 – point a
Article 2 – paragraph 1 – point 7 – point a
Directive 2011/83/EU
Article 13 – paragraph 3
Article 13 – paragraph 3
Amendment 433 #
Proposal for a directive
Article 2 – paragraph 1 – point 10
Article 2 – paragraph 1 – point 10
Directive 2011/83/EU
Article 24 – paragraph 4
Article 24 – paragraph 4
4. Member States shall ensure that the penalties for widespread infringements and widespread infringements with a Union dimension within the meaning of Regulation (EU) No 2017/29394 include the possibility to impose fines, the maximum amount of which shall be at leastup to 10 000 000 EUR or 4% of the trader’s total worldwide annual turnover inof the Member State or Member States concernedpreceding financial year, whichever is higher.
Amendment 464 #
Proposal for a directive
Article 3 – paragraph 1 – subparagraph 1
Article 3 – paragraph 1 – subparagraph 1
Directive 1993/13/EEC
Article 8 b – paragraph 4
Article 8 b – paragraph 4
4. Member States shall ensure that the penalties for widespread infringements and widespread infringements with a Union dimension within the meaning of Regulation (EU) No 2017/29394 include the possibility to impose fines, the maximum amount of which shall be at leastup to 10 000 000 EUR or 4% of the trader’s total worldwide annual turnover inof the Member State or Member States concerned. preceding financial year, whichever is higher.
Amendment 480 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1
Article 4 – paragraph 1 – subparagraph 1
Directive 1998/06/EC
Article 8 – paragraph 4
Article 8 – paragraph 4
4. Member States shall ensure that the penalties for widespread infringements and widespread infringements with a Union dimension within the meaning of Regulation (EU) No 2017/29394 include the possibility to impose fines, the maximum amount of which shall be at leastup to 10 000 000 EUR or 4 % of the trader’s total worldwide annual turnover inof the Member State or Member States concernedpreceding financial year, whichever is higher.