108 Amendments of Marc TARABELLA related to 2015/0287(COD)
Amendment 79 #
Proposal for a directive
Recital 1 a (new)
Recital 1 a (new)
(1 a) Article 169(1) and point (a) of Article 169(2) of the Treaty on the Functioning of the European Union (TFEU) provide that the Union is to contribute to the attainment of a high level of consumer protection through measures adopted pursuant to Article 114 TFEU.
Amendment 80 #
Proposal for a directive
Recital 1 b (new)
Recital 1 b (new)
(1 b) Article 38 of the Charter of Fundamental Rights of the European Union provides that Union policies are to ensure a high level of consumer protection and Article 47 of the Charter provides that everyone whose rights under Union law are violated shall have the right to an effective remedy. Article 16 of the Charter recognises the freedom to run a business in accordance with Union and national law and practices.
Amendment 82 #
Proposal for a directive
Recital 2
Recital 2
(2) For the achievement of a genuine digital single market, the harmonisation of certain aspects concerning contracts for supply of digital content, taking as a base a high level of consumer protect and digital services as a common platform for all Member States while recognising Member States' competences within the Union, is necessary.
Amendment 94 #
Proposal for a directive
Recital 3
Recital 3
(3) Differences in national mandatory consumer contract law rules and a lack of clear contract law rules are among the key obstaclre an essential pre-condition for a learning process which hinder the development of the supply of digital content, as very few tailor-made rules exist at Union level. Businesses face additional costs stemming from differences in national mandatory consumer contract law rules and legal uncertainty when selling digital content across borders. Businesses also face costs when adapting their contracts to specific mandatory rules for theithin the European Union, whereas a maximum harmonisation approach would bear the risk of making contractual law non-responsive to swift technological or behavioural developments and changes. This is because maximum harmonisation would prevent Member States from adopting more stringent rules in their national laws and thus prevent them from quickly and adequately responding to new business practices detrimental to consumers. Suppliers willing to supply of digital content are already emerging in several Member States, creating differences in scope and content between specific national rules governing these contracts. In those Member States where there are not yetnd digital services cross-border would benefit highly from the European Union's harmonisation efforts, despite a minimum harmonisation approach, as only very few Member States possess specific rules foron the supply of digital content, traders willing to sell cross-border face uncertainty, as they will often not know which rules apply to digital content and digital services. This gives the Union the opportunity to harmonise this area of law and set common (high) standards, while acknowledging theat Member State thes may want to export to, nor the content of those rules and whether they amaintain certain national provisions. Business-to-business transactions are regulated differently in each Member State and should re mandatory.in outside the scope of this Directive ;
Amendment 110 #
Proposal for a directive
Recital 5
Recital 5
(5) In order to remedy these problems, both businesses and consumers should be able to rely on fully harmonised rulehigh common standards for the supply of digital content and digital services setting out Union-wide contractual rights which are essential for this type of transactioncreate an equal playing field for various actors.
Amendment 120 #
Proposal for a directive
Recital 6
Recital 6
(6) Fully harmonised consumer contract law rules in all Member States will make it easier for businesses to offer digital content cross-border. They will have a stable contract law environment when selling online and otherwise at a distance to other Member States. Fully harmonised rules specific for digital content throughout the EUMinimum standards on a high level of consumer protection will premove the complexity caused by the different national rules that currently apply to contracts for the supply of digital content. They will also prevent legal fragmentation that otherwise would arise fvent obstructions of the four freedoms in the area of the supply of digital content and digital services while leaving room newfor national legisldeviations regulating specifically digital content matters and without endangering the harmony of national contractual law.
Amendment 128 #
Proposal for a directive
Recital 7
Recital 7
(7) Consumers willalready benefit from fully harmonisedthe European Union's past harmonisation efforts and will profit greatly from common rights for digital content and digital services at a high level of protection. They will have clear rights when they receive or access digital content and digital services from anywhere in the EU. This will increase their confidence in buyaccessing digital content. This will also contribute to reducing the detriment consumers currently suffer, since there will be a set of clear rights that will enable them to address problems they face with digital content and digital services.
Amendment 136 #
Proposal for a directive
Recital 8
Recital 8
(8) This Directive should fully harmonise a set of key rules that are so far not regulated at Union level while leaving room for regulatory competition. It should include therefore rules on conformity of the digital content and digital services, remedies available to consumers in cases of lack of conformity of digital content and digital services with the contract and certain modalities for the exercise of those remedies. This Directive should also harmonise certain aspects concerning the right to terminate a long term contract, as well as certain aspects concerning the modification of the digital content.
Amendment 144 #
Proposal for a directive
Recital 9
Recital 9
Amendment 150 #
Proposal for a directive
Recital 9 a (new)
Recital 9 a (new)
(9 a) In order to allow businesses and consumers to rely upon clear rules across the Union reflecting good customer- focused commercial practice, without prejudice to any other rights under this Directive or otherwise, the consumer should have a right to reject digital content or services for non-conformity by returning them to the relevant supplier or unsubscribing as applicable.
Amendment 168 #
Proposal for a directive
Recital 12
Recital 12
(12) In order to meet the expectations of consumers and ensure a clear-cut and simple legal framework for suppliers of digital content offered on a duratangible medium, in relation to conformity requirements and remedies available to consumers for non-conformity, this Directive should apply to goods such as DVDs and CDs, incorporatingdigital content integrated in goods such as household appliances, toys and storage devices where that digital content is embedded in such a way that the goods function only as a carrier of the digital content. Theit operates as an integral part of the goods and cannot easily be un- installed by the consumer, unless the seller proves that the lack of conformity lies in the hardware of the good. To the same avail, this Directive should also apply to the digital content supplied on a durable medium, independently whether it is soldgoods such as DVDs and CDs, incorporating digital content in such a way that the goods function only ats a distance or in face-to-face situations, so as to avoid fragmentation between the different distribution channels. Thecarrier of the digital content, unless the seller proves that the lack of conformity lies in the hardware of the good. Directive 2011/83 should continue to apply to those goods, including tohe obligations related to the delivery of goods, remedies in case of the failure to deliver and the nature of the contract under which those goods are supplied. Theis Directive is also without prejudice to the distribution right applicable to theose goods under copyright law.
Amendment 172 #
Proposal for a directive
Recital 12 a (new)
Recital 12 a (new)
(12 a) Considering that the seller is liable towards the consumer for any lack of conformity of the digital content or service resulting from an act or omission of the seller or a third party it is justified that the seller should be able to pursue remedies against the responsible person earlier in the chain of transactions.
Amendment 173 #
Proposal for a directive
Recital 12 b (new)
Recital 12 b (new)
(12 b) The European Commission considered in its Green Paper on Guarantees for Consumer Goods1a that in modern societies the confidence of consumers is bound with their faith in the manufacturers; Directive 1999/44/EC envisages more far-reaching provisions on producers' liability, notably by providing for producers' direct liability for non-conformity for which they are responsible. _________________ 1a OJ C 338, 15.12.1993.
Amendment 181 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13 a) The protection of natural persons in relation to processing of their personal data is a fundamental right. If a provision of this Directive conflicts with a provision of Regulation (EU) 2016/6791a the provision of that Regulation should take precedence over this Directive. The implementation and application of this Directive should be made in full compliance with the legal framework in the field of personal data and should supplement those rules where necessary in order to ensure a parallel protection of personal privacy and the dignity it seeks to secure through contract law. The exercise of rights granted under Regulation (EU) 2016/679 in a contractual context should not be put at risk by possible claims for damages or unjustified enrichment as a consequence of the exercise of those rights, which would go against the spirit of Recital 42 of Regulation (EU) 2016/679, which states that „(c)onsent should not be regarded as freely given if the data subject has no genuine or free choice or is unable to refuse or withdraw consent without detriment." _________________ 1a Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
Amendment 184 #
Proposal for a directive
Recital 13 b (new)
Recital 13 b (new)
(13 b) Terms not individually negotiated and that concern the processing of personal data or any other data provided by the consumer to the supplier in the context of the conclusion or performance of the contract, including data generated by the consumer's use of any digital content or services supplied, should be subject to unfairness control under the national provisions implementing Directive 93/13/EC and should not be considered as defining the main subject matter of the contract within the meaning of Article 4(2) of Directive 93/13/EC. Also, any standard term that would reduce or undermine any right afforded to the consumer as a data subject under Regulation (EU) 2016/679, including any term defining the functionality and other performance features of the digital content or digital service in a way that is not in conformity with Article 25 of Regulation (EU) 2016/679, should always be regarded as unfair within the meaning of Article 3(1) of Directive 93/13/EC.
Amendment 185 #
Proposal for a directive
Recital 14
Recital 14
Amendment 238 #
Proposal for a directive
Recital 25
Recital 25
(25) In cases where tThe contract does notshould stipulate sufficiently clear and comprehensive benchmarks to ascertain the conformity of the digital content and digital services with the contract, i. It is also necessary to set objective conformity criteria to ensure that consumers are not deprived of their rights. In such cases the conformity with the contract should be assessed considering the purpose for which digital content or digital services of the same description would normally be used.
Amendment 256 #
Proposal for a directive
Recital 31 a (new)
Recital 31 a (new)
(31 a) In order to avoid a potential gap for contracts for the supply of digital content and digital services, the conditions for any binding commercial guarantees, notably pre-contractual information, advertising and guarantee statements should be laid down.
Amendment 261 #
Proposal for a directive
Recital 32
Recital 32
(32) Due to the specific nature of digital content with its high complexity as well as the supplier's better knowledge and access to know how, technical information and high-tech assistance, it is the supplier who is in a better position than the consumer to know the reasons for the digital content or digital service not being in conformity with the contract. The supplier is also in a better position to assess whether the lack of conformity with the contract is due to incompatibility of the consumer's digital environment with the technical requirements for the digital content. Therefore, in case of a dispute, it should be for the supplier to prove that the digital content is in conformity with the contract, unless the supplier proves that the consumer's digital environment is not compatible with the digital content. Only where the supplier proves that the consumer's digital environment is not compatible with the interoperability and other technical requirements, it should be for the consumer to prove that the digital content is not in conformity with the contract.
Amendment 266 #
Proposal for a directive
Recital 33
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 or digital service is not in conformity with the contract provided that the consumer was informed about this consequence.
Amendment 272 #
Proposal for a directive
Recital 34
Recital 34
(34) The supplier should be liable to the consumer for the lack of conformity with the contract and for any failure to supply the digitalany failure to supply the digital content or a digital service and for the lack of conformity with the contenract. Moreover, given that digital content or digital services may be supplied over a period of time, it is justified that the supplier should be liable for any lack of conformity which occurs during that period.
Amendment 280 #
Proposal for a directive
Recital 35
Recital 35
(35) A failure ofWhere the supplier fails to supply the digital content or a digital service to the consumer in accordance with the contract is a serious breach of the main contractual obligatthe consumer should call to make the supply within an additional and appropriate periond of the supplier, whichime. Any failure to supply within this additional period of time should allow the consumer to immediately terminate the contract. Where the supplier has initially not failed to supply the digital content or digital services, interruptions of the supply making the digital content or digital services not available or accessible to the consumer over a short period of time should be treated as non-conformity with the contract, and not a failure to supply. In particular, the requirement of proper continuity of the digital content should also cover more than negligible short term interruptions of the supply.
Amendment 283 #
Proposal for a directive
Recital 36
Recital 36
Amendment 290 #
Proposal for a directive
Recital 36 a (new)
Recital 36 a (new)
(36 a) This Directive should grant consumers throughout the European Union a new and unrivalled freedom in choosing remedies. A consumer should be able to require the seller to bring the digital content or digital service into conformity with the contract either through repair of the defects in the digital content or digital service or the smart good in which they are embedded or through replacement of the defective good with a conforming one. But more importantly, the consumer should be able to turn down any offer by the supplier to cure so as to require price reduction or termination of the contract. The consumer should be able to decide whether or not to give the supplier a chance to cure the defects, and in which way the supplier should cure the defects, according to his own preference. Repair or replacement might be preferable if a consumer thinks the value of the defective product is great, for example because the products are unique or the market prices of the products have gone up.
Amendment 294 #
(37) As a second step, the consumer should be entitled to have the price reduced or the contract terminated. The right of a consumer to have the contract terminated should be limited to those cases where for instance bringing the digital content to conformity is not possible and the non-conformity impairs the main performance features of the digital content. Where the consumer terminates the contract, the supplier should reimburse the price paid by the consumer or, wWhere the digital content is supplied not in exchange for a price but against access to data provided by the consumer, the supplier should refrain from using it, from transferring that data to third parties or allowing third parties to acstop processing it after termination of the contract. Fulfilling the obligation to refrain from using data should mean in the case when the counter-performance consists of personal data, that the supplier should take all measures in order to comply with data protection rules by deleting it or rendering it anonymous in such a way that the consumer cannot be identified by any means likely reasonably to be used either by the supplier or by any other person. Without prejudice to obligations of a controller under Directive 95/46/ECRegulation (EU) 2016/679 the supplier should not be obliged to undertake any further steps in relation to data which the supplier has lawfully provided to third parties in the course of the duration of the contract for the supply of the digital content.
Amendment 307 #
Proposal for a directive
Recital 38
Recital 38
(38) Upon termination the supplier should also refrain from ustop processing the content generated by the consumer. However, in those cases where more than one consumer generated particular content, the supplier is entitled to continue to use the content generated by the consumer where those other consumers make use of it.
Amendment 326 #
Proposal for a directive
Recital 42
Recital 42
(42) Considering the need to balance legitimate interests of consumers and suppliers, where the digital content or a digital service are provided over a period of time in exchange for a payment of a price, gives rise to the right to terminate, the consumer should be entitled to terminate only the part of the contract which corresponds to the time when the digital content or digital service was not in conformity with the contract. However where the digital content or digital service is provided against data as a counter- performance other than money partial termination is not feasible because it is impossible to proportionally apportion a counter- performance other than money.
Amendment 330 #
Proposal for a directive
Recital 43
Recital 43
(43) Due to its nature the digital content or a digital service, except when supplied as embedded software or ancillary software to a tangible good, is not subject to wear and tear while being used and it is often supplied over a period of time rather than as a one-off supply. It is, therefore, justified not to provide a period during which the supplier should be held liable for any lack of conformity which exists at the time of the supply of the digital content. Consequently Member States should refrain from maintaining or introducing such a period. Member States should remain free to rely on national prescription rules in order to ensure legal certainty in relation to claims based on the lack of conformity of digital content.
Amendment 339 #
Proposal for a directive
Recital 44
Recital 44
(44) The principle of the supplier's liability for damages is an essential element of the contracts for supply of digital content. In order to increase consumers' trust in digital content this principle should thus be regulated at Union level to ensure that consumers do not suffer a detriment if their hardware or software is damaged by digital content or digital services which is not in conformity with the contract. Therefore, consumers should be entitled to a compensation for material damages caused to the consumer's digital environment and possible non-material damage resulting thereof, by a lack of conformity with the contract or a failure to supply the digital content or a digital service pursuant to the general principle that a claimant is entitled to be put in such a position as if the circumstance that caused her damage had not happened. However, it should be for Member States to lay down the detailed conditions for the exercise of the right to damages, while taking into account that discounts on prices for future supplies of the digital content, especially when offered by suppliers as an exclusive compensation for losses, do not necessarily 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.
Amendment 344 #
Proposal for a directive
Recital 45
Recital 45
(45) Due to technological or other reasons the supplier might be compelled to change features of the digital content or digital services supplied over a period of time. These changes are often to the advantage of the consumer as they improve the digital content or digital services. Consequently, the parties to the contract may include respective clauses in the contract which allow the supplier to undertake modifications. However, where such modifications negatively affect the way the consumer benefits from main performance features of the digital content or digital services, they may disturb the balance of the contract or the nature of the performance due under the contract to an extent that the consumer may not have concluded such a contract. Therefore, in such cases these modifications should be subject to certain conditions.
Amendment 359 #
Proposal for a directive
Recital 50
Recital 50
(50) Directive 1999/44/EC of the European Parliament and of the Council35 [1] should be amended to reflect the scope of this Directive in relation to a duragoods in which digital content or a digital service is embedded and in relation to a tangible medium incorporating digital content where it has been used exclusively as carrier of the digital content to the consumer. _________________ 35[1] OJ L 171,7.7.1999, p.12. .
Amendment 364 #
Proposal for a directive
Recital 54 a (new)
Recital 54 a (new)
Amendment 369 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
This Directive lays down certain requiremene purpose of this Directive is the approximation of the laws, regulations and administrative provisions of the Member States on certain aspects 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.
Amendment 410 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
5. 'damages' means a sum of money to which consumers may be entitled as compensation for economic damage to their digital environmentmaterial and non- material damage;
Amendment 419 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
6 a. "data as counter-performance" means personal data or other data provided by the consumer to the supplier in the context of the conclusion or performance of the contract, including data generated by the consumer's use of any digital content or digital service supplied, and which the supplier or a third party uses, on the basis of the consumer's consent or otherwise.
Amendment 427 #
Proposal for a directive
Article 2 – paragraph 1 – point 9
Article 2 – paragraph 1 – point 9
9. 'interoperability' means the acompatibility of the digital content to perform all its functionalities in interaction with a concrete digital environment;and its functions with a standard hardware and software environment other than the one in which it is supplied including the fact that consumers can access digital content without having to use applications or other technologies to convert the content they want to have access to.
Amendment 452 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. This Directive shall apply to any contract where the supplier supplies digital content to the consumer or undertakes to do so and, in exchange, a price is to be paidor undertakes to supply digital content or a digital service to the consumer in exchange for payment of a price and/or personal data or othe consumer actively provides counter-pr data provided by the consumerf ormance other than money in the form of personal data or any other data collected by the supplier or a third party.
Amendment 464 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
3. With the exception of Articles 5 and 11, this Directive shall apply to any durable medium incorporating digital content where the durable medium has been used exclusively as carrier of digital contentgoods in which a digital content is embedded unless the supplier proves that the lack of conformity lies in the hardware of the good. This Directive shall also apply to tangible media which serve exclusively as carrier of digital content, unless the supplier proves that the lack of conformity lies in the tangible medium.
Amendment 488 #
Proposal for a directive
Article 3 – paragraph 5 – point b
Article 3 – paragraph 5 – point b
(b) electronic communication services as defined in Directive 2002/21/EC;, with the exception of number-independent interpersonal communication services which are covered by this Directive.
Amendment 509 #
Proposal for a directive
Article 4
Article 4
Amendment 535 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. The supplier shall supply the digital content or digital service immediately after the conclusion of the contract, unless the parties have agreed otherwise. The supplyier shall be deemed to take place when the digital content is suppliedhave fulfilled his obligation to supply when the digital content or digital service is made available or is accessible to the consumer or, where point (b) or (c) of paragraph 1 applies, to the third party chosen by the consumer, whichever is the earlierapplicable.
Amendment 541 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Amendment 578 #
Proposal for a directive
Article 6 – paragraph 2 – point a
Article 6 – paragraph 2 – point a
(a) wThether the digital content is supplied in exchange for a price or other cou interoperability that the consumer may reasonably expect from an electronic file supplied for an unlimited period of time requires, whatever the provisions of the contract may be, that this electronic file shall be supplied in an open format only. The supplier of such a file which uses proprietary technological protection measures shall make available to other suppliers of files or digital services which so request, the information which is necessary for the purpose of inter-operformance than money;ability. It shall not impose other hardware or software limitations preventing the access and use to a file in a digital environment other than the one in which it has been supplied, meaning that consumers can access digital content without having to use applications or other technologies to convert the content they want to have access to.
Amendment 604 #
Proposal for a directive
Article 7 – paragraph 1 – introductory part
Article 7 – paragraph 1 – introductory part
Where the digital content or digital service is incorrectly integrated into the consumer's digital environment, any lack of conformity resulting from the incorrect integration shall be regarded as lack of conformity ofwith the digital contenract if:
Amendment 607 #
Proposal for a directive
Article 7 – paragraph 1 – point a
Article 7 – paragraph 1 – point a
(a) the digital content or digital service was integrated by the supplier or under the supplier’'s responsibility; or
Amendment 610 #
Proposal for a directive
Article 7 – paragraph 1 – point b
Article 7 – paragraph 1 – point b
(b) the digital content or digital service was intended to be integrated by the consumer and the incorrect integration was due to shortcomings in the integration instructions where those instructions were supplied in accordance with point (cb) of Article 6(1) or should have been supplied in accordance with point (c) of Article 6(21).
Amendment 617 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
1. At the time tThe digital content is supplied to the consumer, theor digital contentservice shall be free ofrom any restriction resulting from any right of a third party, including based on intellectual property, so that rights, that may prevent the consumer using the digital content can be usedor digital service in accordance with the contract.
Amendment 625 #
Proposal for a directive
Article 8 – paragraph 2
Article 8 – paragraph 2
2. Where the digital content is supplied over a period of time, the supplier shall, for the duration of that period, keep the digital content supplied to the consumer free of any right of a third party, including that based on intellectual property, so thatrights following from the terms of a license, that may prevent the consumer from using the digital content can be usedor digital service in accordance with the contract.
Amendment 634 #
Proposal for a directive
Article 8 a (new)
Article 8 a (new)
Amendment 635 #
Proposal for a directive
Article 8 b (new)
Article 8 b (new)
Article 8 b Commercial guarantees for lifespan 1. The producer of a technical good in which digital content or a digital service is embedded shall guarantee to the consumer the fitness of the product for its foreseeable minimum life span and indicate how long this life span is. The indicated timeframe shall not be shorter than the legal prescription period of the Member State where the consumer has his habitual residence and shall reflect the expectations of a reasonable and typical consumer. 2. When the producer does not fulfil his obligations according to paragraph 1, he shall have the same obligations to the consumer as the supplier.
Amendment 650 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. Paragraph 1 shall not apply where the supplier shows that the digital environment of the consumer is not compatible with interoperability and other technical requirements of the digital content or digital service and where the supplier informed the consumer of such requirements before the conclusion of the contract.
Amendment 656 #
Proposal for a directive
Article 9 – paragraph 3
Article 9 – paragraph 3
3. The consumer shall cooperate with the supplier to the extent possible and necessary to determascertaine the consumer's digital environment in order to be able to establish whether the lack of conformity existed at the time of supply. The obligation to cooperate shall be limited to the technically available means which are the least intrusive for the consumer. Only in exceptional and duly justified circumstances where there are no other means available the consumer shall grant the supplier upon request virtual access to the consumer's digital environment. Where the consumer fails to cooperate, the burden of proof with respect to the non- conformity with the contract shall be on the consumer.
Amendment 664 #
Proposal for a directive
Article 10 – paragraph 1 – point a
Article 10 – paragraph 1 – point a
(a) any failure to supply the digital content or digital service in accordance with Article 5 and Article 11 (1);
Amendment 668 #
Proposal for a directive
Article 10 – paragraph 1 – point b
Article 10 – paragraph 1 – point b
(b) any lack of conformity with the contract (i) which exists at the time the digital content is supplied; andor digital service is supplied; or (ii) where the contract provides that the digital content or digital service shall be supplied over a period of time, any lack of conformity which occurs during the duration of that period.
Amendment 693 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
Where the supplier has failed to supply the digital content or the digital service in accordance with Article 5 the consumer shall be entitled to terminate the contract immediately under Article 13.
Amendment 695 #
Proposal for a directive
Article 11 – paragraph 1 a (new)
Article 11 – paragraph 1 a (new)
The first paragraph shall not be applicable where the supplier has refused to supply the digital content or digital services or where supply within the agreed period is essential taking into account all the circumstances attending the conclusion of the contract or where the consumer informs the supplier, prior to the conclusion of the contract, that supply by or on a specified date is essential. In those cases, if the supplier fails to supply at the relevant time pursuant Article 5(2), the consumer shall be entitled to terminate the contract immediately.
Amendment 697 #
Proposal for a directive
Article 11 – paragraph 1 b (new)
Article 11 – paragraph 1 b (new)
Where the consumer terminates the contract, Articles 13, 13a and 13b shall apply accordingly.
Amendment 699 #
Proposal for a directive
Article 11 a (new)
Article 11 a (new)
Article 11 a In the case of a lack of conformity of the digital content or digital service with the contract, the consumer shall be entitled to choose between the following remedies: (a) have the digital content or digital service brought into conformity with the contract, in accordance with Article 12a; (b) be entitled to a price reduction, in accordance with Article 12b; (c) terminate the contract, in accordance with Articles 13, 13a and 13b.
Amendment 700 #
Proposal for a directive
Article 12 – title
Article 12 – title
Amendment 706 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1
Article 12 – paragraph 1 – subparagraph 1
In the case of a lack of conformity with the contract, the consumer shall be entitled to have the digital content or digital service brought into conformity with the contract free of charge, unless this is factually or legally impossible, disproportionate or unlawful.
Amendment 709 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2 – introductory part
Article 12 – paragraph 1 – subparagraph 2 – introductory part
Bringing the digital content or digital service into conformity with the contract shall be deemed to be disproportionate where the costs it imposes on the supplier are unreasonable. The following shall be taken into account when deciding whether the costs are unreasonable:
Amendment 714 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2 – point a
Article 12 – paragraph 1 – subparagraph 2 – point a
(a) the value the digital content or digital service would have if it were in conformity with the contract; and
Amendment 722 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2 – point b
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 or digital service of the same description would normally be used.
Amendment 727 #
Proposal for a directive
Article 12 – paragraph 2
Article 12 – paragraph 2
2. The supplier shall bring the digital content or digital service in conformity with the contract pursuant to paragraph 1 within a reasonable time from the time the supplier has been informed by the consumer about the lack of conformity with the contract and without any significant inconvenience to the consumer, taking account of the nature of digital content and the purpose for which the consumer required this digital content.
Amendment 732 #
Proposal for a directive
Article 12 – paragraph 3 – introductory part
Article 12 – paragraph 3 – introductory part
3. The consumer shall be entitled to ewither a proportionate reduction of the price in the manner set out in paragraph 4 where the digital content is supplied in exchange for a payment of a price, or terminate the contract under paragraph 5 and Arthold the payment of any outstanding part of the price, or where the non- conformity is minor, an appropriate proportion of the outstanding amount of the price, until the supplier has brought the digital content or digital service into conformity with the contract. Where the digital content or digital service is to be supplied over a period of time, and for a period the digital content or digital service did not conform to the contract, the consumer may withhold payment of the pricle 13, whereby an appropriate amount.
Amendment 737 #
Proposal for a directive
Article 12 – paragraph 3 – point a
Article 12 – paragraph 3 – point a
Amendment 740 #
Proposal for a directive
Article 12 – paragraph 3 – point b
Article 12 – paragraph 3 – point b
Amendment 744 #
Proposal for a directive
Article 12 – paragraph 3 – point c
Article 12 – paragraph 3 – point c
Amendment 746 #
Proposal for a directive
Article 12 – paragraph 3 – point d
Article 12 – paragraph 3 – point d
Amendment 750 #
Proposal for a directive
Article 12 – paragraph 4
Article 12 – paragraph 4
Amendment 755 #
Proposal for a directive
Article 12 – paragraph 5
Article 12 – paragraph 5
Amendment 769 #
Proposal for a directive
Article 12 b (new)
Article 12 b (new)
Article 12 b Price reduction 1. As an alternative remedy to bringing into conformity, in the case of a lack of conformity of the digital content or digital service with the contract, the consumer shall be entitled to an appropriate reduction of the price in the manner set out in paragraph 2 where the digital content is supplied in exchange for a payment of a price. 2. The reduction in price shall be proportionate to the decrease in the value of the digital content or digital service which was received by the consumer compared to the value of the digital content or digital service would have if it were to be in conformity with the contract. 3. Where the digital content or digital service is to be supplied over a period of time, and for a certain period the digital content or digital service did not conform to the contract, the consumer shall be entitled to a price reduction proportionate to the period during which the digital content or digital service did not work conform to the contract. 4. The supplier shall reimburse the consumer without undue delay, and in any event within 14 days from the day on which the supplier was informed of the consumer's decision to invoke his right for a price reduction. The supplier shall give the refund using the same means of payment as the consumer used to pay for the digital content or digital service, unless the consumer expressly agrees otherwise. The supplier shall not impose any fee on the consumer in respect of the refund.
Amendment 770 #
Proposal for a directive
Article 13 – title
Article 13 – title
Termination of the contract for lack of conformity
Amendment 772 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. The consumer shall exercise the right to terminate the contract by notice to the supplier given by any meansAs an alternative remedy to bringing into conformity or price reduction, in the case of a lack of conformity of the digital content or digital service with the contract, the consumer shall be entitled to terminate the contract if the lack of conformity with the contract is not minor and causes or may cause a substantial effect on the consumer's use or enjoyment of the digital content or digital service. The burden of proof that the lack of conformity with the contract does not have substantial effect on the consumer's use or enjoyment of the digital content or digital service shall be on the supplier.
Amendment 782 #
Proposal for a directive
Article 13 – paragraph 1 a (new)
Article 13 – paragraph 1 a (new)
1 a. Without prejudice to any other rights under this Directive or otherwise, the consumer has a right to reject digital content or services for non-conformity by returning them to the relevant supplier or unsubscribing as applicable.
Amendment 785 #
Proposal for a directive
Article 13 – paragraph 2 – introductory part
Article 13 – paragraph 2 – introductory part
2. Where the consumer terminatesdigital content or digital service has been supplied in exchange for data as counter-performance, the consumer shall be entitled to terminate the contract for any lack of conformity with the contract:.
Amendment 786 #
Proposal for a directive
Article 13 – paragraph 2 – point a
Article 13 – paragraph 2 – point a
Amendment 789 #
Proposal for a directive
Article 13 – paragraph 2 – point b
Article 13 – paragraph 2 – point b
Amendment 801 #
Proposal for a directive
Article 13 – paragraph 2 – point c
Article 13 – paragraph 2 – point c
Amendment 813 #
Proposal for a directive
Article 13 – paragraph 2 – point d
Article 13 – paragraph 2 – point d
Amendment 815 #
Proposal for a directive
Article 13 – paragraph 2 – point e
Article 13 – paragraph 2 – point e
Amendment 824 #
Proposal for a directive
Article 13 – paragraph 3
Article 13 – paragraph 3
Amendment 830 #
Proposal for a directive
Article 13 – paragraph 4
Article 13 – paragraph 4
Amendment 836 #
Proposal for a directive
Article 13 – paragraph 5
Article 13 – paragraph 5
5. Where the digital content has been supplied in exchange for a payment of a price and over the period of time stipulated in the contract, the consumer mayshall be entitled to terminate the contract only in relation to that part of the period of time where the digital content has not been in conformity with the contractfrom the date on which the digital content or digital service ceased to be in conformity with the contract, unless the lack of conformity with the contract is such as to justify termination of the contract as a whole.
Amendment 839 #
Proposal for a directive
Article 13 – paragraph 5 a (new)
Article 13 – paragraph 5 a (new)
5 a. The consumer shall exercise the right to terminate the contract by an unequivocal statement setting out his decision to terminate the contract.
Amendment 841 #
Proposal for a directive
Article 13 – paragraph 6
Article 13 – paragraph 6
Amendment 845 #
Proposal for a directive
Article 13 a (new)
Article 13 a (new)
Amendment 851 #
Proposal for a directive
Article 13 b (new)
Article 13 b (new)
Article 13 b Obligations of the consumer in the event of termination 1. In the event of termination, where the digital content or digital service was not supplied on a tangible medium, the consumer shall refrain from using the digital content or making it available to third parties, in particular by deleting the digital content or rendering it otherwise unintelligible. 2.Where the digital content or digital service was supplied on a tangible medium or embedded in a good, the consumer shall (i) upon the request of the supplier, return, at the supplier's expense, the durable tangible medium or the good to the supplier without undue delay, and in any event within 14 days from the receipt of the supplier's request; and (ii) delete any usable copy of the digital content, render it unintelligible or otherwise refrain from using it or making it available to third parties. 3.The consumer shall not be liable to pay for any use made of the digital content or the digital service in the period prior to the termination of the contract.
Amendment 853 #
Proposal for a directive
Article 13 c (new)
Article 13 c (new)
Amendment 857 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. The supplier shall be liable to the consumer for any economicmaterial damage to the digital environment of the consumer, and for non-material damage to the consumer resulting thereof, caused by a lack of conformity with the contract or a failure to supply the digital content or the digital service. 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.
Amendment 870 #
Proposal for a directive
Article 14 – paragraph 2 a (new)
Article 14 – paragraph 2 a (new)
2 a. The consumer's right to damages under paragraph 1 shall be without prejudice to any other rights to damages under the applicable national law.
Amendment 906 #
Proposal for a directive
Article 15 – paragraph 2 a (new)
Article 15 – paragraph 2 a (new)
2 a. Where the consumer chooses to remain on his or her present version of digital content or digital service, the supplier shall no longer be obliged to provide for features that have a service included in the contract for the digital content or digital service which have been rendered inaccessible or un-unusable to the consumer by the consumer's refusal to integrate the modification in to their digital environment, until such time as the consumer chooses to integrate that modification.
Amendment 918 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. Where the contract provides for the supply of the digital content for an indeterminate digital service for a fixed period or whlongere the initial contract duration or any combination of an 6 months or where any combination of subsequent contracts or renewal periods exceed 126 months from the moment of conclusion of the initial contract, the consumer shall be entitled to terminateend the contract any time after the expiration of the first 126 months period.
Amendment 923 #
Proposal for a directive
Article 16 – paragraph 2
Article 16 – paragraph 2
2. The consumer shall exercise the right to terminateend the contract by notice to the supplier given by any means. The termination shall become effective 14 days after the receipt of the notice.
Amendment 928 #
Proposal for a directive
Article 16 – paragraph 3
Article 16 – paragraph 3
3. Where the digital content or digital service 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 or digital service supplied corresponding to the period of time before the termination becomescontract ended effectively.
Amendment 933 #
Proposal for a directive
Article 16 – paragraph 4 – introductory part
Article 16 – paragraph 4 – introductory part
4. Where the consumer terminateends the contract in accordance with this Article:
Amendment 940 #
Proposal for a directive
Article 16 – paragraph 4 – point a
Article 16 – paragraph 4 – point a
(a) the supplier shall take all measures which could be expected in order to refrain from the use of other counter- performance than moneydata 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;
Amendment 943 #
Proposal for a directive
Article 16 – paragraph 4 – point b
Article 16 – paragraph 4 – point b
(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 thesuch content or data without significant inconvenience, in reasonable time and in a commonly used data format. The aforementioned obligations do not apply to content [or data] that cannot exist outside the specific digital ecosystem in which it was generated as well as data that has been anonymised or pseudonymised; and
Amendment 961 #
Proposal for a directive
Article 16 – paragraph 5
Article 16 – paragraph 5
5. Upon terminationWhen the contract ends, 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).
Amendment 968 #
Proposal for a directive
Article 17 – paragraph 1 a (new)
Article 17 – paragraph 1 a (new)
Where the seller is liable to the consumer because of a lack of conformity with the contract resulting from an act or omission by a person in earlier links of the chain of transactions, the seller shall be entitled to pursue remedies against the person or persons liable in the chain of transactions. The person against whom the seller may pursue remedies and the relevant actions and conditions of exercise, shall be determined by national law. However, the seller shall be entitled to pursue remedies for at least the duration of the legal guarantee period, and the reversal of the burden of proof shall be no shorter than as provided for in Article 9 .
Amendment 969 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
1. Member States shall ensure that adequate and effective means exist to ensure compliance with this Directive, taking account in particular of the need for consumers to be informed about, enabled and facilitated to enforce their rights in practice. Such means shall include legal mechanisms to enable two or more natural persons or their representative entities to claim remedies collectively where appropriate.
Amendment 971 #
Proposal for a directive
Article 18 – paragraph 2 – introductory part
Article 18 – paragraph 2 – introductory part
2. The means referred to in paragraph 1 shall include provisions whereby one or more of the following bodies,representative bodies, under justified and appropriate criteria as determined by national law, may take action under national law before the courts or before the competent administrative bodies to ensure that the national provisions transposing this Directive are applied. Such bodies shall include, but are not limited to:
Amendment 972 #
Proposal for a directive
Article 18 – paragraph 2 – point a
Article 18 – paragraph 2 – point a
(a) public bodies or their representatives; and
Amendment 973 #
Proposal for a directive
Article 18 – paragraph 2 – point b
Article 18 – paragraph 2 – point b
(b) consumer organisations having a legitimate interest in protecting consumers; and
Amendment 977 #
Proposal for a directive
Article 20 – paragraph 1
Article 20 – paragraph 1
Directive 1999/44/EC
Article 1 – paragraph 2 – point b – indent 4
Article 1 – paragraph 2 – point b – indent 4
- a duratangible medium incorporating digital content where it has been used exclusively as carrier of the digital content to the consumer as referred to in Directive (EU) N/XXX39 . _________________ 39 Directive (EU) N/XXX of the European Parliament and of the Council of …. on contracts for the supply of digital content (OJ …)
Amendment 978 #
Proposal for a directive
Article 20 – paragraph 1 – indent 1 (new)
Article 20 – paragraph 1 – indent 1 (new)
Directive 1999/44/EC
Article 1 – paragraph 2 – point b – indent 4 a (new)
Article 1 – paragraph 2 – point b – indent 4 a (new)
- goods in which a digital content or is embedded, unless the supplier proves that the lack of conformity lies in the hardware of the good."
Amendment 980 #
1 a. In the Annex to Directive 93/13/EC, the following points are added in paragraph 1: "(qa) enabling the supplier to unduly limit the interoperability of digital content or a digital service with hardware and other digital content or digital services; (qb) requiring the consumer to conclude an additional contract for the supply of digital content or a digital service or a contract pertaining to hardware with the seller or a third party; (qc) circumventing by contractual means the rights of the data subject under Regulation (EU) 2016/679 governing the protection of consumers' personal data."
Amendment 982 #
Proposal for a directive
Article 22 – paragraph 1
Article 22 – paragraph 1
The Commission shall, not later than on [the date of five years after entry into force] review the application of this Directive and submit a report to the European Parliament and the Council and the European Economic and Social Committee taking full account of the process of scrutiny and review on the application and implementation of this Directive. The review process shall include meaningful and detailed consultation and involvement with Member States and consumer, legal and business organisations at Union level. The report shall examine, inter alia, the case for harmonisation of rules applicable to contracts for the supply of digital content against counter-performance other than that covered by this Directive, in particular supplied against advertisement or indirect collection of data.