62 Amendments of Anja WEISGERBER related to 2008/0196(COD)
Amendment 266 #
Proposal for a directive
Recital 13
Recital 13
(13) The particular circumstances under which an offer was made or the contract was negotiated should not be relevant in the definition of a distance contract. The fact that the trader is an occasional distance seller or that he uses an organised scheme run by a third party such as an online platform, should not deprive consumers of their protection . Similarly, a transaction negotiated face to face between the trader and the consumer away from business premises should be a distance contract, if the contract has then been concluded through the exclusive use of means of distance communication, such as the Internet or telephone. For traders, a simpler definition of a distance contract should improve legal certainty and protect them from unfair competition.Does not affect English version.)
Amendment 399 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
Amendment 410 #
Proposal for a directive
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
(1) 'consumer' means any natural person who, in contracts covered by this Directive, is acting for purposes which are outsideother than in the exercise of his trade, business, craft or profession;
Amendment 418 #
Proposal for a directive
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
(2) 'tradconsumer' means any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating toin the exercise of his trade, business, craft or profession and anyone acting in the name of or on behalf of a trader;
Amendment 447 #
Proposal for a directive
Article 2 – paragraph 1 – point 5 a (new)
Article 2 – paragraph 1 – point 5 a (new)
(5a) ‘utility supply contracts’ means sales and service contracts for the supply of gas and water, where they are not put up for sale in a limited volume or set quantity, and for the supply of electricity;
Amendment 461 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 – point a
Article 2 – paragraph 1 – point 8 – point a
(a) any sales or service contract concluded away from business premises with the simultaneous physical presence of the trader anbetween a trader and a consumer which the consumer was persuaded theo consumer or any sales or service contract for which an offer was made by the consumer in the same circumstancclude through negotiations initiated or conducted by the trader with the consumer and in his presence, off the trader’s business premises, or at a leisure event;
Amendment 470 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 – point b
Article 2 – paragraph 1 – point 8 – point b
Amendment 500 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. This Directive shall apply, under the conditions and to the extent set out in its provisions, to sales and service contracts concluded between the trader and the consumer. The provisions of this Directive applying to service contracts shall apply to utility supply contracts within the meaning of Article 2 (5a) irrespective of whether they are classified as sales or service contracts.
Amendment 554 #
Proposal for a directive
Article 4 b (new)
Article 4 b (new)
Amendment 811 #
Proposal for a directive
Article 11 – paragraph 4 (new)
Article 11 – paragraph 4 (new)
4a. A contract in electronic commerce covering provision of a good or service against payment whereby the consumer’s order is placed directly on the vendor’s website shall only become effective if the consumer has, before placing the order with the vendor, received notification of the fact that payment is involved and been given the information under Article 5 (1)(c) in a clear, typographically visible form and confirmed in a declaration separate from the order that he has read and understood this information.
Amendment 823 #
Proposal for a directive
Article 11 – paragraph 5
Article 11 – paragraph 5
5. Member States shall not impose any formal requirements other than those provided for in paragraphs 1 to 4. The Member States’ rules on unfair commercial practices, particularly those implementing Article 5 in combination with Appendix 1, No 26 of Directive 26/2005/EC of the European Parliament and of the Council, shall be unaffected.
Amendment 905 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. The trader shall reimburse any payment received from the consumer within thirty days from the day on whichout delay as soon as he receives the communication of withdrawal.
Amendment 916 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
Amendment 957 #
Proposal for a directive
Article 19 – paragraph 1 – introductory part
Article 19 – paragraph 1 – introductory part
1. In respect of distance contracts and off- premises contracts, the right of withdrawal shall not apply as regards the following:
Amendment 964 #
Proposal for a directive
Article 19 – paragraph 1 – point a
Article 19 – paragraph 1 – point a
(a) services where performance has begunin the case of a service contract where the contract has been completely performed by both parties, with the consumer'’s prior express consent, before the end of the fourteen day period referred to in Article 12consumer has exercised the right of withdrawal;
Amendment 970 #
Proposal for a directive
Article 19 – paragraph 1 – point b
Article 19 – paragraph 1 – point b
Amendment 974 #
Proposal for a directive
Article 19 – paragraph 1 – point c
Article 19 – paragraph 1 – point c
(c) the supply of goods made to the consumer's specificontracts for which the consumer, in order to respond to an immediate emergency, has requested the immediate performance of the contract by the trader; if, on this occatsions or clearly personalized or which are liable to deteriorate or expire rapidly, the trader provides or sells additional services or goods other than those which are strictly necessary to meet the immediate emergency of the consumer, the right of withdrawal shall apply to those additional services or goods;
Amendment 990 #
Proposal for a directive
Article 19 – paragraph 1 – point d
Article 19 – paragraph 1 – point d
(d) the supply of wine, the price of which has been agreed upon at the time of the conclusion of the sales contract, the delivery of which can only take place beyond the time-limit referred to in Article 22(1) and the actual value of which is dependent on fluctuations contracts for which the consumer has specifically requested the trader to visit him at home for the purpose of carrying out repairs or maintenance; if on this occasion, the trader provides services in addition to those specifically requested by the consumer or goods other than replacement parts necessarily used in performing the maintenance or in making the market which cannot be controlled by the traderrepairs, the right of withdrawal shall apply to those additional services or goods;
Amendment 993 #
Proposal for a directive
Article 19 – paragraph 1 – point e
Article 19 – paragraph 1 – point e
Amendment 997 #
Proposal for a directive
Article 19 – paragraph 1 – point f
Article 19 – paragraph 1 – point f
Amendment 1002 #
Proposal for a directive
Article 19 – paragraph 1 – point g
Article 19 – paragraph 1 – point g
Amendment 1010 #
Proposal for a directive
Article 19 – paragraph 1 – point h
Article 19 – paragraph 1 – point h
Amendment 1013 #
Proposal for a directive
Article 19 – paragraph 2 – introductory part
Article 19 – paragraph 2 – introductory part
2. In respect of off-premisesdistance contracts, the right of withdrawal shall not apply as regards the followingin addition not apply if:
Amendment 1016 #
Proposal for a directive
Article 19 – paragraph 2 – point b
Article 19 – paragraph 2 – point b
(b) contracts for which the consumer, in order to respond to an immediate emergency, has requested the immediate performance of the contract by the trader; if, on this occasion, the trader provides or sells additional services or goods other than those which are strictly necessary to meet the immediate emergency of the consumer, the right of withdrawal shall apply to those additional services or goodsthe supply of goods or services for which the price is dependent on fluctuations in the financial market which cannot be controlled by the trader;
Amendment 1018 #
Proposal for a directive
Article 19 – paragraph 2 – point c
Article 19 – paragraph 2 – point c
(c) contracts for which the consumer has specifically requested the trader, by means of distance communication, to visit his home for the purpose of repairing or performing maintenance upon his property; if on this occasion, the trader provides services in addition to those specifically requested by the consumer or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the right of withdrawal shall apply to those additional services or goods.the supply of wine, the price of which has been agreed upon at the time of the conclusion of the contract, the delivery of which can only take place beyond the time-limit referred to in Article 22(1) and the current value of which is dependent on fluctuations in the market which cannot be controlled by the trader;
Amendment 1020 #
Proposal for a directive
Article 19 – paragraph 2 – point c a (new)
Article 19 – paragraph 2 – point c a (new)
(ca) the supply of sealed audio or video recordings or sealed computer software which were unsealed by the consumer;
Amendment 1021 #
Proposal for a directive
Article 19 – paragraph 2 – point c b (new)
Article 19 – paragraph 2 – point c b (new)
(cb) newspapers, periodicals and magazines unless the consumer's agreement to the contract was given by telephone;
Amendment 1022 #
Proposal for a directive
Article 19 – paragraph 2 – point c c (new)
Article 19 – paragraph 2 – point c c (new)
(cc) gaming and lottery services unless the consumer's agreement to the contract was given by telephone;
Amendment 1023 #
Proposal for a directive
Article 19 – paragraph 2 – point c d (new)
Article 19 – paragraph 2 – point c d (new)
(cd) contracts concluded at a public auction.
Amendment 1073 #
Proposal for a directive
Article 21 – paragraph 3
Article 21 – paragraph 3
Amendment 1081 #
Proposal for a directive
Article 22
Article 22
Amendment 1137 #
Proposal for a directive
Article 24 – paragraph 1
Article 24 – paragraph 1
1. The trader shall be obliged to deliver the goods to the consumer in conformity with the sales contract.
Amendment 1141 #
Proposal for a directive
Article 24 – paragraph 2 – introductory part
Article 24 – paragraph 2 – introductory part
2. Delivered gGoods shall be presumed to be in conformity with the contract if they satisfy the following conditions:
Amendment 1143 #
Proposal for a directive
Article 24 – paragraph 2 – point a
Article 24 – paragraph 2 – point a
(a) they comply with the description given by the trader andif their nature is in accordance with that agreed by the parties and, in particular, they possess the qualities of the goods which the trader has presented to the consumer as a sample or model;
Amendment 1146 #
Proposal for a directive
Article 24 – paragraph 2 – point b
Article 24 – paragraph 2 – point b
(b) if, in they are fit for anbsence of an agreement on their nature, they particulare fit for the purpose for which the consumer requires them and which he made known to the traderparties to the contract intended them at the time of the conclusion of the contract and which the trader has accepted;
Amendment 1151 #
Proposal for a directive
Article 24 – paragraph 2 – point c
Article 24 – paragraph 2 – point c
(c) otherwise, if they are fit for the purposes for which goods of the sameat type are normally used or;
Amendment 1156 #
Proposal for a directive
Article 24 – paragraph 2 – point d
Article 24 – paragraph 2 – point d
(d) if, in addition, they show the quality and performanceies which are normal in goods of the sameat type and which the consumer can reasonably expect, given the nature of the goods andexpect, taking into account any public statements on the specific characteristics of the goods made about them by the trader, the producer or his representative, particularly in advertising or on labelling, unless the trader was unaware and need not have been aware of the statements in question, the statements were justified at the time of the conclusion of the contract or they could not have influenced the decision to purchase.
Amendment 1159 #
Proposal for a directive
Article 24 – paragraph 3
Article 24 – paragraph 3
Amendment 1165 #
Proposal for a directive
Article 24 – paragraph 4 – introductory part
Article 24 – paragraph 4 – introductory part
Amendment 1170 #
Proposal for a directive
Article 24 – paragraph 5
Article 24 – paragraph 5
Amendment 1175 #
Proposal for a directive
Article 24 a (new)
Article 24 a (new)
Lack of conformity Goods delivered shall be deemed not to be in conformity with the contract inter alia if (a) the installation formed part of the sales contract and the goods were installed incorrectly by the trader or under his responsibility; (b) the goods, intended to be installed by the consumer, are installed by the consumer and the incorrect installation is due to a shortcoming in the installation instructions; (c) the goods delivered were not those due to be delivered or they were delivered in insufficient quantity.
Amendment 1177 #
Proposal for a directive
Article 25 – title
Article 25 – title
Amendment 1179 #
Proposal for a directive
Article 25 – paragraph 1
Article 25 – paragraph 1
The trader shall be liable to the consumer for any lack of conformity which exists at the time the risk passes toconsumer may not rely on a claim for lack of conformity with the contract if at the time of its conclusion he was aware of the lack of conformity or if he remained unaware of it as a result of gross negligence and the trader did not fraudulently conceal it, or if the lack of conformity has its origin in materials supplied by the consumer.
Amendment 1184 #
Proposal for a directive
Article 26
Article 26
Amendment 1192 #
Proposal for a directive
Article 26 – paragraph 1 – introductory part
Article 26 – paragraph 1 – introductory part
1. As provided for in paragraphs 2 to 5, whereIf the goods delivered do not conform to the contract, the consumer is at the time the risk passes to the consumer, the consumer shall have the following legal entitled toments:
Amendment 1199 #
Proposal for a directive
Article 26 – paragraph 1 – point a
Article 26 – paragraph 1 – point a
Amendment 1211 #
Proposal for a directive
Article 26 – paragraph 1 – point b
Article 26 – paragraph 1 – point b
Amendment 1219 #
Proposal for a directive
Article 26 – paragraph 1 – point c
Article 26 – paragraph 1 – point c
Amendment 1268 #
Proposal for a directive
Article 26 – paragraph 4 – introductory part
Article 26 – paragraph 4 – introductory part
4. TWhere the consumer may resort to any remedy available under paragraph 1, where one of the following situations exists:can require the goods to be repaired and the deadline for the trader to effect the repair has passed without result, the consumer may undertake the repair himself and require compensation from the trader for the necessary expenditure thereby entailed. It shall not be necessary to set a deadline if the trader has refused to effect the repair or if, taking account of the interests of both parties, special circumstances justify the consumer undertaking it himself immediately.
Amendment 1272 #
Proposal for a directive
Article 26 – paragraph 4 – point a
Article 26 – paragraph 4 – point a
Amendment 1277 #
Proposal for a directive
Article 26 – paragraph 4 – point b
Article 26 – paragraph 4 – point b
Amendment 1279 #
Proposal for a directive
Article 26 – paragraph 4 – point c
Article 26 – paragraph 4 – point c
Amendment 1284 #
Proposal for a directive
Article 26 – paragraph 4 – point d
Article 26 – paragraph 4 – point d
d) the same defect has reappeared more than once within a short period of time.eleted
Amendment 1297 #
Proposal for a directive
Article 26 – paragraph 5
Article 26 – paragraph 5
5. The significant inconveniencIf it is impossible for the consumer and the reasonable time neededunreasonable for the trader to remedy the lack of conformity shall be assessed taking into account the nature of the goods or the purpose for which the consumer acquired the goods as provided for by Article 24(2)(b), or if the lack of conformity is not remedied within a reasonable period, the consumer may demand an appropriate reduction in the purchase price or withdraw from the contract. A minor lack of conformity shall not give rise to a right of withdrawal.
Amendment 1302 #
Proposal for a directive
Article 27
Article 27
Amendment 1308 #
Proposal for a directive
Article 27 – paragraph 1 a (new)
Article 27 – paragraph 1 a (new)
1a. When the trader has remedied the lack of conformity by replacement, or when the consumer has withdrawn from the contract on the grounds of the lack of conformity of the product, in addition to the action provided for in paragraph 1 the trader shall reimburse to the consumer the cost of installing and removing the product concerned, provided that the product requires installation in order to be used for its intended purpose.
Amendment 1316 #
Proposal for a directive
Article 27 – paragraph 2
Article 27 – paragraph 2
2. WSubject to the provisions of applicable national law, and without prejudice to the provisions of this Chapter, the consumer may claim damages for any loss not remedied in accordance with Article 26.
Amendment 1345 #
Proposal for a directive
Article 28 – paragraph 2 a (new)
Article 28 – paragraph 2 a (new)
2a. When the trader has remedied the lack of conformity by repair, the relevant liability period shall be extended by the period during which the consumer was not in material possession of the product owing to the need to effect a repair.
Amendment 1346 #
Proposal for a directive
Article 28 – paragraph 2 b (new)
Article 28 – paragraph 2 b (new)
2b. When the trader has used spare parts in bringing the product into conformity with the contract of sale by effecting a repair, he shall be liable for the lack of conformity of the spare parts until the relevant liability period for the product has expired, and for no less than six months following completion of the repair.
Amendment 1364 #
Proposal for a directive
Article 28 – paragraph 5
Article 28 – paragraph 5
5. Unless proved otherwise, any lack of conformity which becomes apparent within six12 months of the time when the risk passed to the consumer, shall be presumed to have existed at that time unless this presumption is incompatible with the nature of the goods and the nature of the lack of conformity. If the lack of conformity is remedied by replacement, the period referred to in the first sentence shall be deemed to start when material possession is taken of the replacement product.
Amendment 1378 #
Proposal for a directive
Article 28 a (new)
Article 28 a (new)
Communication and contactability The trader shall ensure that throughout the duration of a service contract, or, following the conclusion of a contract of sale, until the time limit referred to in Article 28(1) for formal offers, notifications and questions by the consumer relating to rights and obligations under the service contract or contract of sale has expired, he can be contacted under reasonable conditions. In particular, he shall ensure that formal offers by the consumer in respect of the contract reach him without delay and that the consumer is notified of their receipt immediately. The cost of receiving and dealing with formal offers, notifications and questions concerning the service contract or the contract of sale by telephone may not be charged to the consumer; the right of the telecommunications service provider to charge for such calls shall not be affected.
Amendment 1509 #
Proposal for a directive
Article 38 – paragraph 2 a (new)
Article 38 – paragraph 2 a (new)
2a. Member States shall ensure that traders are required to make the contract terms as referred to in Chapter V which are used in legal transactions available to bodies as referred to in Article 41(2) at the latter’s request in an appropriate form and free of charge.