37 Amendments of Francisco GUERREIRO related to 2022/0147(COD)
Amendment 39 #
Proposal for a directive
Recital 4
Recital 4
(4) Ensuring the same high level of consumer protection across the internal market is best achieved through full harmonisation. Full hHarmonisation is necessary in order to ensure that all consumers in the Union enjoy a high and equivalent level of protection of their interests and to create a well-functioning internal market. Member States should therefore nothowever 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 to address specific situations or in light of the public interest. WThere no such harmonised provisions existfore, Member States should remain free to maintain or introduce national legislation.
Amendment 43 #
Proposal for a directive
Recital 7
Recital 7
(7) In order to address the fact that the progressive introduction of Union sector specific legislation has led to significant overlaps of that legislation with Directive 2002/65/EC and that digitalisation exacerbated some aspects that are not fully addressed by the Directive, including how and when information should be provided to the consumer, it is necessary to revise the rules applicable to financial services contracts concluded between a consumer and a trader at a distance and off-premises, while at the same time ensuring the application of the ‘safety net’ feature.
Amendment 46 #
Proposal for a directive
Recital 10
Recital 10
(10) While not all the provisions of Directive 2011/83/EU should apply to financial services contracts concluded at a distance due to the specific nature of those services, a number of provisions of Directive 2011/83/EU, such as relevant definitions, rules on additional payments, rules on ancillary contracts, rules on inertia selling, on enforcement and penalties, should also apply to financial services contracts concluded at a distance. The application of those provisions ensures complementarity between the different types of contracts concluded at a distance. The extension of the application of the rules on penalties of Directive 2011/83/EU will ensure that effective, proportionate and dissuasive fines are imposed on traders responsible for widespread infringements or widespread infringements with a Union dimension.
Amendment 50 #
Proposal for a directive
Recital 12
Recital 12
(12) Since distance financial services contracts are most commonly concluded by electronic means, rules on ensuring online fairness when financial services are contracted at a distance should contribute to the achievement of the goals laid down in Article 114 TFEU and Article 38 of the Charter of the Fundamental Rights of the EU. The rule on adequate explanations should ensure added transparency and provide the consumer with the possibilityright to request human intervention when he or she interacts with the trader through online interfaces, such as a chatbox or similar tools. The trader should be prohibited to deploy measures in his or her online interface or any other practices relating to dark patterns that could distort or impair the consumers’ ability to make a free, autonomous and informed decision or choice.
Amendment 52 #
Proposal for a directive
Recital 12 a (new)
Recital 12 a (new)
Amendment 54 #
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 57 #
Proposal for a directive
Recital 16
Recital 16
Amendment 63 #
Proposal for a directive
Recital 17
Recital 17
(17) The use of means of distance communications should not lead to an unwarranted restriction on the information provided to the consumer. In the interests of transparency, requirements should be laid down with regard to when the information should be provided to the consumer prior to the conclusion of the distance contract and how that information should reach the consumer. In order to be able to make their decisions in full knowledge of the facts, consumers should receive the information at least onetwo days prior to the conclusion of the distance contract. Only in exceptional cases can the information be provided less than a daytwo days, i.e. one day at the latest, before the conclusion of the distance contract for financial service. In case the contract is concluded less than one day beforany case, the trader, within the established timeframe, should be obliged to remind the consumer about the possibility to withdraw from the distance contract for financial service.
Amendment 65 #
Proposal for a directive
Recital 18
Recital 18
(18) The information requirements should be modernised and updatedmade future- proof. This Directive updates those to include, for example, the email address of the trader and others means of communication. Information requirements should also be adapted to include the information on the risk and reward related to certain consumer financial services. Consumers should also be clearly informed when the price presented to them is personalised on the basis of automated processing.
Amendment 74 #
(25) For distance contracts concluded by electronic means, the trader should provide the consumer with the possibility to use a withdrawal button. This withdrawal button should be introduced not only for contracts concluded at a distance for financial services but also for contracts concluded at distance for goods and services to ensure easy exercise of the right of withdrawal for consumers. In order for ensure the effective use of the withdrawal button, the trader should ensure that it is visible and, when the consumer uses the button, the trader should adequately document its use, allowing the consumers to easily identify themselves and to confirm the withdrawal from the contract through a dedicated button.
Amendment 77 #
Proposal for a directive
Recital 26
Recital 26
(26) CIn addition to the pre-contractual information received, consumers may need assistance in order to understand and decide which financial service is the most appropriate for his or her needs and financial situation. Therefore, Member States should ensure that before the conclusion of a financial service contract at a distance, traders provide such assistance in relation to the financial services which they offer to the consumer, by providing adequate explanations about the relevant information, including the essential characteristics of the products proposed. Where relevant, the explanations provided should encompass the social and environmental objectives of the offer, as well as how the achievement of such objectives is monitored. The provision of such information should be free of charge for consumers. The obligation of providing adequate explanations is particularly important when consumers intend to conclude a financial service contract at a distance and the trader provides explanations through online tools. In order to ensure that the consumer understands the effects that the contract may have on his or her economic situation, the consumer should always be able to request and obtain human intervention on behalf of the trader.
Amendment 81 #
Proposal for a directive
Recital 26 a (new)
Recital 26 a (new)
(26 a) Consumers rely in some cases on comparison tools, including websites, to assess different offers in the area of financial services. It is therefore crucial to ensure access to independent and certified comparison tools that enable consumers to receive impartial and neutral overview of the different offers through compliance with a minimum set of requirements.
Amendment 82 #
Proposal for a directive
Recital 26 b (new)
Recital 26 b (new)
(26 b) Similarly, misleading advertising or information on the financial services offered and their performances might incite consumers to purchase financial services that are not appropriate for their financial needs and interests. Any advertising on financial services should respect a minimum set of rules, irrespective of the format they are provided to consumers.
Amendment 89 #
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
‘Articles 1 and 2, Article 3(2), (5) and (6), Article 46a, Article 8(6), Article 11(a), Article 15, Articles 16a to 16e, Article 19, Articles 21 to 23, Article 24(1), (2), (3) and (4) and Articles 25, 26 and 267 shall apply to distance and off-premises contracts concluded between a trader and a consumer for the supply of financial services.
Amendment 98 #
Proposal for a directive
Article 1 – paragraph 1 – point 1 b (new)
Article 1 – paragraph 1 – point 1 b (new)
Directive 2011/83 EU
Article 11a (new)
Article 11a (new)
(1 b) The following Article 11a is inserted: Article 11a Withdrawal button for distance contracts concluded by electronic means 1. Member States shall ensure that, for distance contracts concluded by electronic means, the trader provides a possibility to use a withdrawal button in order to facilitate the consumer’s exercise of the right of withdrawal. Such button shall be clearly labelled with the words ‘Withdraw from Contract’ or a corresponding unambiguous formulation. 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. In addition, the trader may also provide the withdrawal button through another channel. 3. The activation of the withdrawal button shall require the consumers to identify themselves and the contract they want to withdraw from. Consumers shall be asked to confirm the withdrawal from the contract through a button that is clearly labelled as a “confirmation button”. 4. The trader shall ensure that the activation of the withdrawal “confirmation’ button 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, and where applicable, indicate the further requirements necessary to complete the withdrawal process. Confirmation of the exercise of the right of withdrawal shall be provided by the trader to the consumer on a durable medium. 5. As regards compliance with this Article, burden of proof shall be on the trader.
Amendment 99 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
RULES CONERNING FINANCIAL SERVICES CONTRACTS CONCLUDED AT A DISTANCE AND OFF- PREMISES
Amendment 102 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16a – title
Article 16a – title
Information requirements for distance and off-premises contracts for consumer financial services
Amendment 109 #
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 and 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 110 #
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 addressinformation 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, thatose of the trader on whose behalf he is acting, where the consumer can address any complaints;
Amendment 118 #
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 va (new)
Article 16a – paragraph 1 – point va (new)
(v a) where applicable, the existence of guarantee funds or other compensation arrangements;
Amendment 123 #
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
Member States shall prohibit any offer or sale of financial services to consumers without their prior request and explicit agreement. In the case of telephone communications, the identity of the trader and the commercial purpose of the call initiated by the trader shall be made explicitly clear at the beginning of any conversation with the consumer.
Amendment 136 #
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. With respect to off-premises contracts, the trader shall give the information referred to in paragraph 1 to the consumer on paper or, if the consumer agrees, on another durable medium. That information shall be legible and in plain, intelligible language.
Amendment 138 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83 EU
Article 16a – paragraph 3 – subparagraph 1
Article 16a – paragraph 3 – subparagraph 1
The trader shall provide the information referred to in paragraph 1 at least onetwo days before the consumer is bound by any distance contract.
Amendment 143 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83 EU
Article 16a – paragraph 3 – subparagraph 2
Article 16a – paragraph 3 – subparagraph 2
When the information referred to in paragraph 1 is provided less than two days, and in all cases, no later than one day before the consumer is bound by the distance contract, Member States shall require that the trader sends a reminder, on a durable medium, to the consumer of the possibility to withdraw from the distance contract and of the procedure to follow for withdrawing, in accordance with Article 16b. That reminder shall be provided to the consumer, at the latest, one day after the conclusion of the distance contract.
Amendment 145 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16a – paragraph 3a (new)
Article 16a – paragraph 3a (new)
3 a. Further to the provision of pre- contractual information in line with the requirements under this Article, the trader shall maintain the terms and conditions offered for a minimum period of 14 days starting from the date of receipt by the consumer.
Amendment 146 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83 EU
Article 16a – paragraph 4 – subparagraph 1
Article 16a – paragraph 4 – subparagraph 1
The information referred to in paragraph 1 shall be made availableprovided to the consumer on a durable medium and laid out in a way that is easy to read, using characters of readable size.
Amendment 149 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83 EU
Article 16a – paragraph 4 – subparagraph 5
Article 16a – paragraph 4 – subparagraph 5
The information referred to in paragraph 1 shall be made availableprovided upon request in an appropriatccessible format to persons with disabilities, including for consumers with a visual impairment.
Amendment 151 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83 EU
Article 16a – paragraph 4a (new)
Article 16a – paragraph 4a (new)
4 a. At any time during the contractual relationship, the consumer, upon request, is entitled to receive the contractual terms and conditions on paper or any other durable medium. In addition, the consumer is entitled to change the means of distance communication used, unless this is incompatible with the contract concluded or with the nature of the financial service provided.
Amendment 154 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83 EU
Article 16b – paragraph 1 – subparagraph 1
Article 16b – paragraph 1 – subparagraph 1
The Member States shall ensure that the consumer shall have a period of 14 calendar days to withdraw from a contract without penalty and without giving any reason. This period shall be extended to 30 calendar days in distance contracts relating to personal pension operations and life insurances.
Amendment 172 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83 EU
Article 16b – paragraph 3
Article 16b – paragraph 3
3. The consumer shall have exercised his right of withdrawal within the withdrawal period referred to in paragraph 1 if the communication concerning the exercise of the right of withdrawal is sent or the withdrawal button referred to in paragraph 5Article 11(a) is activated by the consumer before that period has expired.
Amendment 173 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83 EU
Article 16b – paragraph 3a (new)
Article 16b – paragraph 3a (new)
3 a. In case the trader has not provided the consumer with the information on the right of withdrawal as required by point (p) of Article 16a or about the existence of a withdrawal button in accordance with Article 11a, the right of withdrawal shall not lapse. For cases where the trader has not provided the consumer with the required information on contractual terms and conditions, the withdrawal period shall expire 12 months and 14 calendar days from the day of conclusion of the contract.
Amendment 176 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83 EU
Article 16b – paragraph 5
Article 16b – paragraph 5
Amendment 182 #
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. The provision of information shall be free of charge for consumers and take place not later than two days before the conclusion of the contract. The explanations shall, as a minimum, include the following elements:
Amendment 184 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
(b a) environmental and social objectives of the proposed contract, including monitoring measures to ensure their achievements;
Amendment 188 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83 EU
Article 16d – paragraph 3 a (new)
Article 16d – paragraph 3 a (new)
3 a. As regards compliance with this Article, the burden on proof shall be on the trader.
Amendment 189 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16d a (new)
Article 16d a (new)
Amendment 190 #
Proposal for a directive
Article 1 – paragraph 1 – point 2
Article 1 – paragraph 1 – point 2
Directive 2011/83/EU
Article 16d b (new)
Article 16d b (new)