BETA

30 Amendments of Andreas SCHWAB related to 2015/0287(COD)

Eva MAYDELL, Andreas SCHWAB

Proposal for a directive
Recital 2 a (new)

(2 a) Consumers are not confident when contracting 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 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 they are not able to access the digital service in question. As a result, consumers suffer financial and non- financial detriment.

2017/02/15
Committee: IMCO JURI

Proposal for a directive
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 is not in conformity with the contract.~~

2017/02/15
Committee: IMCO JURI

Eva MAYDELL, Andreas SCHWAB

Proposal for a directive
Article 1 – paragraph 1

Th~~is Directive lays~~e purpose of this Directive is, through the achievement of a high level of consumer protection, to contribute to the proper functioning of the internal market by laying down certain requirements concerning contracts for the supply of digital content or digital services to consumers, in particular rules on conformity ~~of digital content~~ 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~~of the digital content or digital service.

2017/02/15
Committee: IMCO JURI

Eva MAYDELL, Andreas SCHWAB

Proposal for a directive
Article 2 – paragraph 1 – point 2 a (new)

2 a. 'embedded software' means pre- installed digital content which operates as an integral part of the goods and cannot easily be de-installed by the consumer;

2017/02/15
Committee: IMCO JURI

Eva MAYDELL, Andreas SCHWAB

1. This Directive shall apply to any contract ~~where~~under which the supplier supplies digital content to the consumer or undertakes to do so and, in exchange, a price is to be paid or the consumer actively provides counter-performance other than money in the form of personal data or any otheror undertakes to supply digital content or a digital services to the consumer in exchange for the payment of a price or for the provision of personal data.

2017/02/15
Committee: IMCO JURI

Eva MAYDELL, Pascal ARIMONT, Andreas SCHWAB

Proposal for a directive
Article 3 – paragraph 3 a (new)

3 a. Where digital content is supplied on a tangible medium or is embedded in a good, this Directive, with the exception of Articles 5 and 11, shall apply to any lack of conformity unless the supplier proves that the lack of conformity lies in the tangible medium or the hardware of the good.

2017/02/15
Committee: IMCO JURI

Proposal for a directive
Article 3 – paragraph 3 a (new)

3a. The provisions of this directive shall also apply to digital content incorporated into goods. Irrespective of any separate contractual relationships, the provider of the goods shall be liable to the consumer for meeting his obligations in respect of the digital content.

2017/02/15
Committee: IMCO JURI

Proposal for a directive
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 carrier, such as legal services;

2017/02/15
Committee: IMCO JURI

Proposal for a directive
Article 3 – paragraph 5 a (new)

5a. This directive shall not apply to the provision of public registers established in electronic form and of excerpts from such registers.

2017/02/15
Committee: IMCO JURI

Eva MAYDELL, Andreas SCHWAB

Proposal for a directive
Article 3 – paragraph 8

8. This Directive is without prejudice to the protection of ~~individuals with regard to the processing of personal data~~personal data as provided for by Regulation (EU) 2016/679 and Directive 2002/58/EC of the European Parliament and of the Council.

2017/02/15
Committee: IMCO JURI

Proposal for a directive
Article 6 – paragraph 3

3. Where the contract stipulates that the digital content shall be supplied over a period of time, the digital content shall be in conformity with the contract throughout the duration of that period. Digital content that is incorporated into goods must be updated by the provider for the normal lifetime of the goods, where and to the extent that this is necessary under statutory requirements in order to use the goods as intended.

2017/02/15
Committee: IMCO JURI

Proposal for a directive
Article 9 – paragraph 1

1. The burden of proof with respect to the conformity with the contract at the time indicated in Article 10 shall be on the supplier for a period of six months.

2017/02/15
Committee: IMCO JURI

Proposal for a directive
Article 10 – paragraph 1 – point b

(b) any lack of conformity which exists at the time the digital content is supplied; ~~and~~

2017/02/15
Committee: IMCO JURI

Proposal for a directive
Article 10 – paragraph 1 – point c

(c) where the contract provides that the digital content shall be supplied over a period of time, any lack of conformity which occurs during the duration of that period. and

2017/02/15
Committee: IMCO JURI

any lack of conformity occasioned by the upgrading of, or other change to, the digital content that the supplier has undertaken or caused to be undertaken.

2017/02/15
Committee: IMCO JURI

Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2 – point a

(a) the value the digital content, or the product in which it is embedded, would have if it were in conformity with the contract; and

2017/02/15
Committee: IMCO JURI

Proposal for a directive
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 of the same description, or any products in which it is embedded, would normally be used.

2017/02/15
Committee: IMCO JURI

Proposal for a directive
Article 12 – paragraph 2 a (new)

2a. The consumer may withhold the payment until the seller has brought the digital content into conformity with the contract.

2017/02/15
Committee: IMCO JURI

Proposal for a directive
Article 12 – paragraph 3 – introductory part

3. 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 the product in which it is embedded, is supplied in exchange for a payment of a price, or terminate the contract under paragraph 5 and Article 13, where

2017/02/15
Committee: IMCO JURI

Proposal for a directive
Article 12 – paragraph 4

4. The reduction in price shall be proportionate to the decrease in the value of the digital content, or the product in which the digital content is embedded, which was received by the consumer compared to the value of ~~the~~such digital content ~~that is~~, or such a product, in conformity with the contract.

2017/02/15
Committee: IMCO JURI

Proposal for a directive
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 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;deleted

2017/02/15
Committee: IMCO JURI

Proposal for a directive
Article 13 – paragraph 2 – point e a (new)

(ea) the consumer shall return the good in which the digital content is embedded on a one-for-one basis in return for the price paid.

2017/02/15
Committee: IMCO JURI

Proposal for a directive
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. Such liability must be based on fault. Damages shall put the consumer as nearly as possible into the position in which the consumer would have been if the digital content had been duly supplied and been in conformity with the contract.

2017/02/15
Committee: IMCO JURI

Proposal for a directive
Article 15 – paragraph 1 – point d

~~(d) upon termination of the contract in accordance with point (c), the consumer is provided with technical means to retrieve all content provided in accordance with Article 13(2)(c).~~deleted

2017/02/15
Committee: IMCO JURI

Proposal for a directive
Article 16

Right to terminate long term contracts 1.Where the contract provides for the supply of the digital content 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. 2.The consumer shall exercise the right to terminate the contract by notice to the supplier given by any means. The termination shall become effective 14 days after the receipt of the notice. 3.Where the digital content 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 supplied corresponding to the period of time before the termination becomes effective. 4.Where the consumer terminates the contract in accordance with this Article: (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 and any other data colArticle 16 delected by the supplier in relation to the supply of the digital content including any content provided by the consumer; (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 content to the extent this 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 (c)where applicable, the consumer shall delete any usable copy of the digital content, render it unintelligible or otherwise refrain from using it including by making it available to a third party. 5.Upon termination, the supplier may prevent any further use of the digital content 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).

2017/02/15
Committee: IMCO JURI

Proposal for a directive
Article 16 – paragraph 1

1. Where the contract provides for the supply of the digital content 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.deleted

2017/02/15
Committee: IMCO JURI

Proposal for a directive
Article 16 – paragraph 2

~~2. The consumer shall exercise the right to terminate the contract by notice to the supplier given by any means. The termination shall become effective 14 days after the receipt of the notice.~~deleted

2017/02/15
Committee: IMCO JURI

Proposal for a directive
Article 16 – paragraph 3

3. Where the digital content 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 supplied corresponding to the period of time before the termination becomes effective.deleted

2017/02/15
Committee: IMCO JURI

Proposal for a directive
Article 16 – paragraph 4

4. Where the consumer terminates the contract in accordance with this Article: (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 and any other data collected by the supplier in relation to the supply of the digital content including any content provided by the consumer; (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 content to the extent this 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 (c)where applicable, the consumer shall delete any usable copy of the digital content, render it unintelligible or otherwise refrain from using it including by making it available to a third party.deleted

2017/02/15
Committee: IMCO JURI

Proposal for a directive
Article 16 – paragraph 5

5. Upon termination, the supplier may prevent any further use of the digital content 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).deleted

2017/02/15
Committee: IMCO JURI