Activities of Mikuláš PEKSA related to 2022/0147(COD)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council amending Directive 2011/83/EU concerning financial services contracts concluded at a distance and repealing Directive 2002/65/EC
Amendments (23)
Amendment 14 #
Proposal for a directive
Recital 3
Recital 3
(3) Within the framework of the internal market, in order to safeguard freedom of choice, a high degree of consumer protection in the area of financial services contracts concluded at a distance and off-premises is required in order to enhance consumer confidence in distance selling and off-premises sales.
Amendment 18 #
Proposal for a directive
Recital 4
Recital 4
(4) Ensuring the same highan adequate level of consumer protection across the internal market is best achieved through fullminimum harmonisation. FullMinimum harmonisation is necessary in order to ensure that all consumers in the Union enjoy a high and equivalentsufficiently high level of protection of their interests and to create a well-functioning internal market. Member States should therefore not be allowed to maintain or introduce national provisions other than those laid down in this Directive, with respect to aspects covered by the Directive, unless otherwise provided in this Directive, with the exception of such provisions that raise the level of consumer protection beyond the harmonised minimum level specified in this Directive. Where no such harmonised provisions exist, Member States should remain free to maintain or introduce national legislation.
Amendment 23 #
Proposal for a directive
Recital 13
Recital 13
(13) Certain consumer financial services are governed by specific Union acts, which continue to apply to those financial services. In order to ensure legal certainty, it should be clarified that where another Union act governing specific financial services contains rules on pre-contractual information or on the exercise of the right of withdrawal, only the respective provisions of those other Union acts should apply to those specific consumer financial services unless provided otherwise in those acts. For instance, when Article 186 of Directive 2009/138/EC of the European Parliament and of the Council19 applies, the rules concerning the 'cancellation period' laid down in Directive 2009/138/EC apply and not the rules on the right of withdrawal laid down in this Directive and when Article 14(6) of Directive 2014/17/EU of the European Parliament and of the Council20 applies, the rules on the right of withdrawal under this Directive should not apply. Likewise, certain Union acts governing specific financial services21 contain extensive and developed rules designed to ensure that consumers are able to understand the essential characteristics of the proposed contract. Furthermore, certain Union acts governing specific financial services, such as Directive 2014/17/EU on credit agreements for consumers relating to residential immovable property22 , already lay down rules on adequate explanations to be provided by the traders to the consumers with respect to the proposed contract. In order to ensure legal certainty, the rules on adequate explanations set out in this Directive should not apply to financial services falling under Union acts governing specific financial services that contain rules on the informadequate explanations to be provided to the consumer prior to the conclusion of the contract. __________________ 19 Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) (OJ L 335, 17.12.2009, p. 1). 20 Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 (OJ L 60, 28.2.2014, p. 34). 21 Such as, Regulation (EU) 2019/1238 of the European Parliament and of the Council of 20 June 2019 on a pan- European Personal Pension Product (PEPP) (OJ L 198, 25.7.2019, p. 1), Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU (OJ L 173, 12.6.2014, p. 349), Directive (EU) 2016/97 of the European Parliament and of the Council of 20 January 2016 on insurance distribution (OJ L 26, 2.2.2016, p. 19), Directive 2014/92/EU of the European Parliament and of the Council of 23 July 2014 on the comparability of fees related to payment accounts, payment account switching and access to payment accounts with basic features (OJ L 257, 28.8.2014, p. 214) 22 Directive 2014/17/EU of the European Parliament and of the Council of 4 February 2014 on credit agreements for consumers relating to residential immovable property and amending Directives 2008/48/EC and 2013/36/EU and Regulation (EU) No 1093/2010 (OJ L 60, 28.2.2014, p. 34)
Amendment 35 #
Proposal for a directive
Recital 25
Recital 25
(25) For distance contracts concluded by electronic means, the trader should provide the consumer with the possibility to use a withdrawal button. In order for ensure the effective from a contract easily, for example through use of thea withdrawal button, the trader should ensure that it is visible and, when the consumer uses the button, the trader should adequately document its use. The goal is to allow or another interactive tool. The use of this option should always be recorded on the side of the trader and the trader should ensure that it is visible and easy to reach. The trader shall inform other options of withdrawal and options that may be suitable for different devices. An explicit provision should also be included that specifies the information that the consumer is provided with during the commencement and the termination of the contract. consumer with simple and easily located information on termination of the contract, specifically the consequences termination would entail and the mechanisms via which it is executed. Or. enJustification
Amendment 40 #
Proposal for a directive
Recital 26 a (new)
Recital 26 a (new)
(26 a) Marketing communications can heavily influence the decisions of retail investors about if and how to invest. Retail investors, and especially the younger, less experienced investors, are significantly exposed, especially on social media, for example through influencers, to misleading advertising promising a high return on investment without appropriate information of the risks. It is therefore necessary to require that any financial advertising is accompanied by a prominent warning about uncertain performances and risks of losing all the investment.
Amendment 42 #
Proposal for a directive
Recital 31 a (new)
Recital 31 a (new)
(31 a) Comparison tools and automated advisors may combine the provision of advice with the sale of financial services. This practice often leads to misleading advice favouring certain offers over others. To allow consumers to take their decision based on unbiased advice, only comparison tools and automated advisors fulfilling a number of quality requirements should be allowed to identify themselves as such.
Amendment 47 #
Proposal for a directive
Article 1 – paragraph 1 – point 1 – point a
Article 1 – paragraph 1 – point 1 – point a
Directive 2011/83/EU
Article 3 – paragraph 1b – subparagraph 1
Article 3 – paragraph 1b – subparagraph 1
‘(1b) ‘Articles 1 and 2, Article 3(2), (5) and (6), Article 46a, Articles 11a and 11b, Articles 16a to 16e, Article 19, Articles 21 to 23, Article 24(1), (2), (3) and (4) and Articles 25 andto 267 shall apply to distance contracts and off-premises contracts concluded between a trader and a consumer for the supply of financial services.’
Amendment 50 #
Proposal for a directive
Article 1 – paragraph 1 – point 1 – point a
Article 1 – paragraph 1 – point 1 – point a
Directive 2011/83/EU
Article 3 – paragraph 1b – subparagraph 2
Article 3 – paragraph 1b – subparagraph 2
Where contracts referred to in the first subparagraph comprise an initial service agreement followed by successive operations or a series of separate operations of the same nature performed, however, no operation of the same nature is performed for more than two years, the next operation will be deemed to be the first in a new series of ovper atimeons, the provisions referred to in the first subparagraph shall apply only to the initial agreement.
Amendment 59 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16a – paragraph 1 – point b
Article 16a – paragraph 1 – point b
(b) the geographical address at which the trader is established as well as the trader’s telephone number and email address; in addition, where the trader provides other means of online communication which guarantee that the consumer can keep any written correspondence, including the date and time of such correspondence, with the trader on a durable medium, the information shall also include details of those other means; all those means of communication provided by the trader shall enable the consumer to contact the trader quickly and communicate with him efficiently; where applicable, the trader shall also provide the geographical address, and identity, telephone number and email address of the trader on whose behalf he is acting;
Amendment 61 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16a – paragraph 1 – point c
Article 16a – paragraph 1 – point c
(c) if different from the address information provided in accordance with point (b), the geographical address of the place of business of the trader, telephone number and email address and, where applicable, those that of the trader on whose behalf he is acting, where the consumer can address any complaints;
Amendment 82 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16a – paragraph 2 – subparagraph 1
Article 16a – paragraph 2 – subparagraph 1
Amendment 87 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16a – paragraph 2a (new)
Article 16a – paragraph 2a (new)
2 a. If a distance contract to be concluded by electronic means places the consumer under an obligation to pay, the trader shall make the consumer aware in a clear and prominent manner, and directly before the consumer places his order, of the information provided for in points(f),(g),(i),(l), (m) and(q)of Article 16a(1). The trader shall ensure that the consumer, when placing his order, explicitly acknowledges that the order implies an obligation to pay. If placing an order entails activating a button or a similar function, the button or similar function shall be labelled in an easily legible manner only with the words ‘Order with obligation to pay’ or a corresponding unambiguous formulation indicating that placing the order entails an obligation to pay the trader. If the trader does not comply with this subparagraph, the consumer shall not be bound by the contract or order.
Amendment 102 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16a a (new)
Article 16a a (new)
Article 16a a (new) Cancellation option Member States shall ensure that the trader provides a possibility to use a simple cancellation option for long-term contracts in order to facilitate the consumer’s exercise of the right to terminate a contract if such a right to terminate the contract, different from the right of withdrawal, is foreseen under EU or national law. Such an option shall be clearly labelled with the words ‘Cancel contract’ or a corresponding unambiguous formulation. The cancellation option shall be placed in a prominent manner and permanently available on the same electronic interface as the one used to conclude the distance contract and directly and easily accessible on the website of the trader. The simple cancellation option shall then inform the consumer about cancellation possibilities for different contracts and about costs associated with the cancelation. The consumer should be able to commence the cancelation procedure as simply as possible thereafter. The trader shall inform the consumer without delay: a) when the right to terminate a contract is not applicable for the selected contract or; b) on further requirements to complete the cancellation process followed by a confirmation once the process is completed. Where a trader does not provide a simple cancellation option to the consumer in conformity with this paragraph, the consumer shall have the right to terminate the contract without any period of notice.
Amendment 112 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16b – paragraph 5 – subparagraph 1
Article 16b – paragraph 5 – subparagraph 1
Member States shall ensure that, for distance contracts concluded by electronic means, the trader provides a possibility to use the trader provides a possibility to use a simple withdrawal option, for example in a form of a withdrawal button, in order to facilitate the consumer’s exercise of the right of withdrawal. Such buttoption shall be clearly labelled with the words ‘Withdraw from Contract’ or a corresponding unambiguous formulation.
Amendment 117 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16b – paragraph 5 – subparagraph 2
Article 16b – paragraph 5 – subparagraph 2
The withdrawal button shall be placed in a prominent manner and permanently available during the entire withdrawal period on the same electronic interface as the one used to conclude the distance contract and directly and easily accessible on the website of the trader. Where a confirmation e-mail is sent after the conclusion of the contract, it shall also include the withdrawal option. In addition, the trader may also provide the withdrawal buttoption through another channel.
Amendment 120 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16b – paragraph 5 – subparagraph 3
Article 16b – paragraph 5 – subparagraph 3
The trader shall ensure that the activation of the simple withdrawal buttoption results in an instant confirmation notice to the consumer that the right of withdrawal has been exercised, which shall include the date and time of the exercise of the right of withdrawal. Confirmation of the exercise of the right of withdrawal shall be provided by the trader to the consumer on a durable medium. The trader shall inform the consumer without delay: a) whether the right of withdrawal is not applicable for the selected contract or; b) on further requirements to complete the withdrawal process followed by a confirmation once the process is completed.
Amendment 123 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16b – paragraph 5 – subparagraph 3 a (new)
Article 16b – paragraph 5 – subparagraph 3 a (new)
The activation of the simple withdrawal option shall require consumers to identify themselves and the contract they want to withdraw from. The consumer shall be subsequently asked to confirm the withdrawal from the contract with a button labelled: “Withdraw now”.
Amendment 129 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16d – paragraph 1 – introductory part
Article 16d – paragraph 1 – introductory part
1. Member States shall ensure that traders are required to provide adequate explanations to the consumer on the proposed financial services contracts that make it possible for the consumer to assess whether the proposed contract and ancillary services are adapted to his or her needs and financial situation. services and ancillary services are adapted to his or her needs and financial situation. Such explanations should be given free of charge and at least one day before concluding the agreement. The explanations shall include the following elements in simple, non-ambiguous terms:
Amendment 133 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16d – paragraph 2 a (new)
Article 16d – paragraph 2 a (new)
2a. Member States shall require traders to document when and in what form such explanations were provided to the consumer.
Amendment 134 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16d – paragraph 2 b (new)
Article 16d – paragraph 2 b (new)
2b. As regards compliance with this Article, the burden of proof shall be on the trader.
Amendment 138 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16e – paragraph 1
Article 16e – paragraph 1
Without prejudice to Directive 2005/29/EC of the European Parliament and of the Council24 and Council Directive 93/13/EEC25 , Member States shall adopt measures requiring that traders, when concluding financial services contracts at a distance, do not use the structure, design, function or manner of operation of their online interface in a way that could distort or impair consumers’ ability to make a free, autonomous and informed decision or choice. Measures shall inter alia include the obligation for traders to: a) present the different options to consumers in an equivalent and non- preferential way, and b) present ancillary contracts in a neutral manner. __________________ 24 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to- consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ L 149, 11.6.2005, p. 22). 25 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29).
Amendment 141 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16e a (new)
Article 16e a (new)
Article 16ea Comparison tools and automatic advisors Member States shall impose the following conditions on the use of the term ‘comparison-tool’ or ‘automated advisors’. A ‘comparison-tool’ or ‘automated advisor’ represents an entity such that the service: (a) acts in an operationally independent way by ensuring that financial service providers are given equal treatment in search results; (b) clearly discloses their owners; (c) sets out clear, objective criteria on which the comparison or advice will be based; (d) uses plain and unambiguous language and, where applicable, standardised terms; (e) provides accurate and up-to-date information, and states the time of the last update; (f) provides an effective procedure to report incorrect information; (g) clearly discloses if the comparison tool profits from any provisions from the traders. Where operators of comparison tools, automated advisors or robo-advisors do not fulfil these criteria, they shall clearly identify themselves as traders of financial services.
Amendment 144 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16e b (new)
Article 16e b (new)
Article 16eb Advertising Member States shall require that advertising concerning financial services concluded at a distance includes, where relevant, a clear, prominent and concise risk warning, indicating that the financial service is related to instruments involving special risks related to their specific features or the operations to be executed or whose price depends on fluctuations in the financial markets outside the supplier's control and that historical performances are no indicators for future performances. Member States shall require that any persons who advertises a financial product disclose the nature, source and amount of compensation received in exchange for the advertising.