48 Amendments of Othmar KARAS related to 2008/0196(COD)
Amendment 261 #
Proposal for a directive
Recital 12 a (new)
Recital 12 a (new)
(12a) Gambling activities, including lottery and betting transactions, should be excluded from the scope of this Directive in view of the very specific nature of these activities, in the light of which Member States should be able to introduce other or more stringent consumer protection measures.
Amendment 265 #
Proposal for a directive
Recital 13
Recital 13
(13) The particular circumstances under which an offer was made or the contract was negotiat distance scheme was organised 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.
Amendment 269 #
Proposal for a directive
Recital 14
Recital 14
(14) An off-premises contract should be defined as a contract concluded with the simultaneous physical presence of the trader and the consumer, away from business premises, for example at the consumer's home or workplace. IAn an off- premises context, consumers aruninvited visit at home or at the workplace may take the consumer by surprise uande result in particular psychological buying pressure no matter whether they have solicited the trader's visit or not. In such circumstances, moreover, the consumer has no opportunity to compare price and quality with those of other products. All these factors are not present in the case of a contract concluded in a shop, or where the consumer has sought the contract. Consequently the particular protection rules should also not apply in these cases (e.g. where the consumer has asked the trader to come to his home). Furthermore, in order to prevent circumventions of rules when, contracts which come about after consumers are approached away from business premises, a contract negotiated, for example at the consumer's home but concluded in a shop (e.g. on the street), but which are concluded in a shop, or contracts concluded as part of an advertising trip, should be regarded as an off- premises contracts.
Amendment 277 #
Proposal for a directive
Recital 14 a (new)
Recital 14 a (new)
Amendment 286 #
Proposal for a directive
Recital 16
Recital 16
(16) The definition of dDurable mediuma should include in particular documents on paper, USB sticks, CD-ROMs, DVDs, memory cards and the hard drive of theisks of computers on which the electronic mail or a pdf file is storeddata saved in unmodifiable form are stored. Websites as such should not be durable media. Any communication by electronic means which provides a durable record in a durable medium should be equivalent to "writing".
Amendment 316 #
Proposal for a directive
Recital 27
Recital 27
(27) If the trader has not informed the consumer on the right of withdrawal prior to the conclusion of a distance or off- premises contract, the withdrawal period should be extended. However, in order to ensure legal certainty over time, a threesix- month limitation period should be introduced, provided that the trader has fully performed his contractual obligations. The trader should be regarded as having fully performed his obligations when he has delivered the goods or has fully provided the services ordered by the consumer.
Amendment 336 #
Proposal for a directive
Recital 37 a (new)
Recital 37 a (new)
(37a) Where the trader has failed to fulfil his obligations to deliver, the consumer should call upon him, on a durable medium, to make the delivery within a reasonable period and notify him of his intention to withdraw from the contract if delivery does not take place. If payment has already been made, the consumer should be entitled to a refund within seven days of withdrawal. It should be possible for Member States to adopt or maintain provisions of national law on other remedies in the event of non-delivery by the time limit set by the consumer, in order to ensure a higher level of protection for the consumer.
Amendment 343 #
Proposal for a directive
Recital 40
Recital 40
(40) If the good is not in conformity with the contract, firstly, the consumer should have the possibility toThe consumer in the first place may require the tradseller to repair the goods or to replace them at the trader's choice unless the trader proves thatunless those remedies are unlawful, impossible or causes the trader disproportionate effort. The trader's effort should be determined objectively considering costs incurred by the trader wdisproportionate. Whether a remedy is disproportionate should be determined objectively. A remedy should be considered disproportionate if it imposes, in comparison with othenr remedying the lack of conformity, the value of the goods and the significance of the lack of conformity. The lackies, unreasonable costs. This comparison can also be made by considering, for example, the relative costs of spare parts should not be a valid ground to justify the trader's failure to remedy the lack of conformity within a ir and of termination of the contract. In order to determine whether the costs are unreasonable, time or without a disproportionate efforthe costs of one remedy should be significantly higher than the costs of another remedy.
Amendment 350 #
Proposal for a directive
Recital 41
Recital 41
(41) The consumer should not bear any costs for remedybringing the lack ofgood into conformity with the contract, particularly the cost of postage, labour and materials. Furthermore, the consumer should not compensate the trader for the use of the defective goodsMember States may provide that any reimbursement to the consumer may be reduced to take account of the use the consumer has had of the goods since they were delivered to him.
Amendment 375 #
Proposal for a directive
Recital 47 a (new)
Recital 47 a (new)
(47a) The rules should not cover formal national requirements with regard to the conclusion of contracts or other formal requirements concerning the language of the contract, for example, or provisions on the content or formulation of clauses in contracts for specific sectors.
Amendment 450 #
Proposal for a directive
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
(6) 'distance contract' means any sales or service contract where the trader, forcontract for the provision of a good or service concluded between a trader and a consumer under an organised distance sales or service-provision scheme where the trader and the consumer are not simultaneously physically present prior to or at the conclusion of the contract, but, rather, makes exclusive use of one or more means of distance communication;
Amendment 454 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 – introductory part
Article 2 – paragraph 1 – point 8 – introductory part
(8) 'off-premises contract' means: any contract between a trader and a consumer for the provision of a good or service: (a) concluded away from business premises with the simultaneous physical presence of the trader and the consumer, or for which an offer was made by the consumer in the same circumstances, unless the consumer initiated the business contact with trader for the purpose of concluding the contract, or (b) concluded in the simultaneous physical presence of the consumer and the trader on the business premises, or for which the consumer made an offer on the business premises after having been approached in the street personally and individually and persuaded to enter the business premises, or (c) concluded in the simultaneous physical presence of the consumer and the trader on the business premises in the course of an excursion initiated by the trader, or a third party working with him, for the purpose of marketing and selling goods, or for which the consumer made an offer in the same circumstances;
Amendment 490 #
Proposal for a directive
Article 2 – paragraph 1 – point 11
Article 2 – paragraph 1 – point 11
(11) 'order form' means an instrument setting out the contract terms, to be signed by the consumer with a view to‘in writing’ means the communication of notifications or information on paper. Any communication by electronic means which provides a durable record available to the receiver in a durable medium is equivalent to ‘writing’. (All the directive’s current stipulations concluderning an off-premises contract;durable media should be changed to refer to ‘writing’.)
Amendment 512 #
Proposal for a directive
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2a. This Directive shall not apply to off-premises contracts which are drawn up with the help of a public office-holder who has a statutory obligation to be independent and impartial and must ensure, by providing comprehensive information, that the consumer only concludes the contract on the basis of careful consideration and with knowledge of its legal scope;
Amendment 513 #
Proposal for a directive
Article 3 – paragraph 2 b (new)
Article 3 – paragraph 2 b (new)
2b. This Directive shall not apply to gambling activities which involve wagering a stake with pecuniary value in games of chance, including lotteries, gambling in casinos and betting transactions;
Amendment 514 #
Proposal for a directive
Article 3 – paragraph 2 c (new)
Article 3 – paragraph 2 c (new)
2c. This Chapter shall not apply to distance and off-premises contracts: (a) relating to immovable property rights, except for rental and works relating to immovable property; (b) for financial services; (c) for transport services.
Amendment 515 #
Proposal for a directive
Article 3 – paragraph 2 d (new)
Article 3 – paragraph 2 d (new)
2d. This Chapter shall not apply to off-premises contracts in respect of which the transactions on both sides are to be performed immediately and the payment does not exceed EUR 50, if they are usually concluded by undertakings away from their business premises or if the business is, by its nature, not run on permanent business premises.
Amendment 559 #
Proposal for a directive
Chapter 2 – title
Chapter 2 – title
Amendment 561 #
Proposal for a directive
Article - 5 (new)
Article - 5 (new)
Article - 5 Save as otherwise provided by this Chapter, Member States may not maintain or introduce, in their national law, provisions diverging from those laid down in this Chapter, in order to ensure a different level of consumer protection.
Amendment 600 #
Proposal for a directive
Article 5 – paragraph 1 – point d
Article 5 – paragraph 1 – point d
(d) thWhere arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professionalwhich depart from statutory provisions are to be agreed, the arrangements for payment, dieligevery and performance;
Amendment 638 #
Proposal for a directive
Article 5 – paragraph 1 – point g
Article 5 – paragraph 1 – point g
(g) the duration of the contract where applicable or if the contract is open-ended, the conditions for terminating the contract, where conditions which depart from statutory provisions are to be agreed;
Amendment 692 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
2. Without prejudice to Articles 7(2), 13 and 42, the consequences of any breach of Article 5 shall be determined in accordance with the applicable national law. Member States shall provide in their national laws for effective contract law remedies for any breach of Article 5.
Amendment 698 #
Proposal for a directive
Chapter 3 – title (new)
Chapter 3 – title (new)
Targeted full harmonisation
Amendment 699 #
Proposal for a directive
Article 8 a (new)
Article 8 a (new)
Article 8a Save as otherwise provided by this Chapter, Member States may not maintain or introduce, in their national law, provisions diverging from those laid down in this Chapter in order to ensure a different level of consumer protection.
Amendment 758 #
Proposal for a directive
Article 10 – paragraph 3
Article 10 – paragraph 3
3. Member States shall not impose any formal pre-contractual requirements other than those provided for in paragraphs 1 and 2.
Amendment 820 #
Proposal for a directive
Article 11 – paragraph 5
Article 11 – paragraph 5
5. Member States shall not impose any pre-contractual formal requirements other than those provided for in paragraphs 1 to 4.
Amendment 868 #
Proposal for a directive
Article 13
Article 13
If the trader has not provided the consumer with the information on the right of withdrawal in breach of Articles 9(b5(1)(e), 10(1) and 11(4), the withdrawal period shall expire three months after the trader has fully performed his owhichever of the dates specified in Article 12(2) applies to ther contractual obliga in questions.
Amendment 937 #
Proposal for a directive
Article 17 – paragraph 2
Article 17 – paragraph 2
2. The consumer shall only be liable for any diminished value of the goods resulting from the handling other than what is necessary to ascertainestablish the nature, qualities and functioning of the goods. He shall not be liable for diminished value where the trader has failed to provide notice of the withdrawal right in accordance with Article 9(b). For service contracts subject to a right of withdrawals 10(1) and 11(4). In the case of services performed during the withdrawal period to which a right of withdrawal applies and for which cancellation is no longer possible, the consumer shall bear no costpay the undertaking for the services perform which has been used or can no longer be reversed, in full or in part, during the withdrawal period. accordance with its value, provided that this service is clearly and mainly to the consumer's advantage.
Amendment 1031 #
Proposal for a directive
Article 20 – paragraph 1 – point a
Article 20 – paragraph 1 – point a
(a) for the sale of immovable property or relating to other immovable property rights, except for rental and works relating torelating to the sale or acquisition of immovable property or to the formulation or transfer of rights in rem in immovable property or in connection with the sale of immovable property or with the formulation or transfer of rights in rem in immovable property. This shall in particular include agreements connected with such legal acts, especially purchases from a property developer or leasing. This shall be without prejudice to the application of this Directive to contracts on immovable property rental only or on immovable property works only;
Amendment 1038 #
Proposal for a directive
Article 20 – paragraph 1 – point d a (new)
Article 20 – paragraph 1 – point d a (new)
(da) concluded with a lawyer as defined in Article 1(2) of Directive 98/5/EC.
Amendment 1098 #
Proposal for a directive
Article 22 – paragraph 2
Article 22 – paragraph 2
2. WhereIf the trader has failed to fulfil his obligations to deliver, the consumer may call upon him, on a durable medium, to make the delivery within a period appropriate to the circumstances and notify him of his intention to withdraw from the contract if delivery does not take place. If, upon expiry of that period, no action has been taken, the consumer may withdraw from the sales contract. A consumer who has already paid the price shall be entitled to a refund of any sums paid within seven days from the date of delivery provided for in paragraph 1. y on which he withdrew from the contract.
Amendment 1108 #
Proposal for a directive
Article 22 – paragraph 2 a (new)
Article 22 – paragraph 2 a (new)
2a. If the trader fails to deliver within the appropriate period referred to in paragraph 2, Member States may adopt or maintain provisions of national law providing for other or additional remedies for the consumer, such as, for example, claims for damages.
Amendment 1119 #
Proposal for a directive
Article 23 – paragraph 1
Article 23 – paragraph 1
1. The risk of loss of or damage to the goods shall pass to the consumer when he or a third party, other than the carrier and indicated by the consumer has acquired the material possession of the goods. The risk shall pass to the consumer, upon delivery to the carrier, if the carrier was commissioned to carry the goods by the consumer or if the consumer selected the carrier. Member States may not maintain or introduce provisions of national law which depart from the provisions of this Article in order to guarantee a different level of consumer protection.
Amendment 1249 #
Proposal for a directive
Article 26 – paragraph 3 – subparagraph 1
Article 26 – paragraph 3 – subparagraph 1
Amendment 1266 #
Proposal for a directive
Article 26 – paragraph 4 – introductory part
Article 26 – paragraph 4 – introductory part
4. The consumer may resort to any remedy available under paragraph 1Without prejudice to paragraph 5(b), the consumer may insist on a reasonable reduction in price or rescission of the contract, where one of the following situations exists:
Amendment 1273 #
Proposal for a directive
Article 26 – paragraph 4 – point a
Article 26 – paragraph 4 – point a
(a) the trader has implicitly or explicitly refused to remedy the lack of conformityconsumer is entitled to neither repair nor replacement;
Amendment 1280 #
Proposal for a directive
Article 26 – paragraph 4 – point c
Article 26 – paragraph 4 – point c
c) the trader has tried to remedy the lack of conformity,repairing or replacing the product would causinge significant inconvenience to the consumer;
Amendment 1305 #
Proposal for a directive
Article 27 – paragraph 1
Article 27 – paragraph 1
1. The consumer shall be entitled to have the lack of conformity remediedproduct brought into conformity with the contract of sale free of any cost.
Amendment 1309 #
Proposal for a directive
Article 27 – paragraph 1 b (new)
Article 27 – paragraph 1 b (new)
1b. When the consumer remedies the lack of conformity of the product without having first given the trader the opportunity to do so within a reasonable period, the costs shall only be reimbursed by the trader, and then only up to a maximum of the amount saved, if pressing circumstances justified immediate action by the consumer.
Amendment 1315 #
Proposal for a directive
Article 27 – paragraph 2
Article 27 – paragraph 2
2. Without prejudice to the provisions of this Chapter, the consumer may claim damages for any loss not remedied in accordance with Article 26The provisions of this Chapter shall not affect the provisions and principles of the Member States concerning contractual and non-contractual liability. Any claims for compensation in cases of non- conformity shall therefore not be affected by the provisions of this Chapter and shall be governed by the applicable national law.
Amendment 1325 #
Proposal for a directive
Article 28 – paragraph 1
Article 28 – paragraph 1
1. The trader shall be held liable under Article 25 where the lack of conformity becomes apparent within two years as from the time the risk passed to the consumer. If, under national law, the rights laid down in Article 26(1) are subject to a limitation period, that period shall not expire within two years as from the time the risk passed to the consumer.
Amendment 1394 #
Proposal for a directive
Article 29 – paragraph 2 – point a
Article 29 – paragraph 2 – point a
(a) legal rights ofa clear statement that the consumer, has provided for in Article 26 and a clear statementlegal rights under national law and that those rights are not affected by the commercial guarantee, Member States may not maintain or adopt provisions of national law which depart from the provisions of this Article in order to guarantee a different level of consumer protection.
Amendment 1457 #
Proposal for a directive
Article 31 – paragraph 4
Article 31 – paragraph 4
4. Member States shall refrain from imposing any presentational requirements as to the way the contract terms are expressed or made available to the consumer. This article shall not affect the discretion of the Member States to adopt further formal requirements with regard to the validity or effect on third parties of contracts, for example their registration or authentication.
Amendment 1520 #
Proposal for a directive
Article 41 – paragraph 2 – introductory part
Article 41 – paragraph 2 – introductory part
2. The means referred to in paragraph 1 shall include provisions whereby one or more of the following bodies, as determined by national law, may take action in accordance with national law before the courts or competent administrative bodies to ensure that the national provisions for the implementation of this Directive are applied:Amendments to Directive 98/27/EC
Amendment 1521 #
Proposal for a directive
Article 41 – paragraph 2 – point a
Article 41 – paragraph 2 – point a
(a) public bodieThe Annex to Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for their representatives; protection of consumers' interests shall be amended as follows: Paragraph 2 shall read: ‘Directive 2011/XX/EC of the European Parliament and of the Council of XX.XX.XXXX on consumer rights, OJ L, XX.XX.XXXX’ Paragraphs 7, 9 and 10 shall be deleted.
Amendment 1522 #
Proposal for a directive
Article 41 – paragraph 2 – point b
Article 41 – paragraph 2 – point b
Amendment 1523 #
Proposal for a directive
Article 41 – paragraph 2 – point c
Article 41 – paragraph 2 – point c
Amendment 1532 #
Proposal for a directive
Article 46 – paragraph 2 a (new)
Article 46 – paragraph 2 a (new)