42 Amendments of Olga SEHNALOVÁ related to 2015/0288(COD)
Amendment 74 #
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 75 #
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 79 #
Proposal for a directive
Recital 2
Recital 2
(2) For the achievement of a genuine digital singleand well-functioning internal market, the harmonisation of certain aspects concerning contracts for sales of goods, taking as a base a high level of consumer protection, is necessaryjustifiable.
Amendment 87 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4 a) This Directive should guarantee a high level of consumer protection, to provide consumers with appropriate reassurance when they are wishing to enter into cross-border contracts. These rules should maintain or improve upon the level of protection that consumers enjoy at present under national or Union law.
Amendment 104 #
Proposal for a directive
Recital 8 a (new)
Recital 8 a (new)
(8 a) This Directive should establish a set of clear common rules for the contractual rights of consumers when buying goods and help to provide a stable trading environment for sellers. This set of rules should recognise that consumers and sellers are not on an equal footing so that the legal framework must be just and fair to ensure a high level of consumer protection whilst still recognising the concerns of businesses, including small businesses.
Amendment 107 #
Proposal for a directive
Recital 9
Recital 9
(9) Fully harmonisedA clear framework of harmonisation for consumer contract law rules will make it easier for traders to offer their products in other Member States. Businesses will have reduced costs as they will no longer need to take account of different consumer mandatory rules. They will enjoy more legal certainty when selling at a distance to other Member States through a more stable contract law environment.
Amendment 124 #
Proposal for a directive
Recital 13
Recital 13
(13) This Directive should not apply to goods like DVDs and CDs incorporating digital content in such a way that the goods function only as a carrier of the digital content. However, this Directive should apply to digital contentdigital content or digital services integrated in goods such as household appliances, toys or stoyrage devices where the digital content is embedded in such a way that its functions are subordinate to the main functionalities of the goods and it operates as an integral part of the goods and cannot be uninstalled easily by the consumer, unless the seller proves that the lack of conformity lies in the hardware of the goods.
Amendment 129 #
Proposal for a directive
Recital 14
Recital 14
(14) This Directive should not affect contract laws of Member States in areas not regulated by this Directive. Member States should also be free to provide more detailed conditions in relation to aspects regulated in this Directive to the extent those are not fully harmonised by this Directive: this concerns limitation periods for exercising the consumers' rights, commercial guarantees, and the right of redress of the seller, and its implementation should under no circumstances constitute grounds for the reduction of protection for consumers in fields covered by the scope of Union law.
Amendment 141 #
Proposal for a directive
Recital 19
Recital 19
(19) In order to provide clarity as to what a consumer can expect from the goods and what the seller would be liable for in case of failure to deliver what is expected, it is essential to fullyjustifiable to harmonise rules for determining the conformity with the contract. Applying a combination of subjective and objective criteria should safeguard legitimate interests of both parties to a sales contract. Conformity with the contract should be assessed by taking into account not only requirements which have actually been set in the contract - including in pre-contractual information which forms an integral part of the contract - but also certain objective requirements which constitute the standards normally expected for goods, in particular in terms of fitness for the purpose, durability, packaging, installation instructions and normal qualities and performance capabilities.
Amendment 160 #
Proposal for a directive
Recital 26
Recital 26
(26) In order to allow businesses to rely on a single set of rules across the Union, it is necessary to fully and to provide a high level of consumer protection, it is justified to harmonise the period of time during which the burden of proof for the lack of conformity is reversed in favour of the consumer. Within the first two years, in addition to a short-term right to reject goods, in order to benefit from the presumption of lack of conformity, the consumer should only establish that the good is not conforming, without needing to demonstrate that the lack of conformity actually existed at the relevant time for establishing conformity. In addition, in order to increase legal certainty in relation to the available remedies for lack of conformity with the contract and in order to eliminate one of the major obstacles inhibiting the Digital Single Market, a fully harmonised order in which remedies can be exercised should be provided for. In particular, the consumer should enjoy a choice between repair or replacement as a first remedy which should help in maintaining the contractual relation and mutual trust. Moreover, enabling consumers to require repair should encourage a sustainable consumption and could contribute to a greater durability of products, the principle of free choice of remedies should be harmonised.
Amendment 198 #
Proposal for a directive
Recital 42
Recital 42
(42) Since the objectives of this Directive, namely to contribute to the functioning of the internal market by tackling in a consistent manner contract law-related obstacles for the online and other distance sales of goodimprove the conditions for the establishment and the functioning of the internal market, to ensure a high level of consumer protection and confidence and to help provide a level playing field for traders cannot be sufficiently achieved by the Member States but can rather be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.
Amendment 208 #
Proposal for a directive
Article 1 – paragraph 1 a (new)
Article 1 – paragraph 1 a (new)
1 a. This Directive aims to improve the conditions for the establishment and the functioning of the internal market, to ensure a high level of consumer protection and confidence and to help provide a level playing field for traders.
Amendment 213 #
Proposal for a directive
Article 1 – paragraph 3
Article 1 – paragraph 3
3. This Directive shall not apply to any durable medium incorporating digital content where the durable medium has been used exclusively as a carrier for the supply of the digital content to the consumergoods in which digital content or digital services are embedded unless the seller or producer proves that the lack of conformity lies in the hardware of the goods, nor to tangible media the main function of which is to carry digital content.
Amendment 232 #
Proposal for a directive
Article 2 – paragraph 1 – point j
Article 2 – paragraph 1 – point j
(j) ‘free of charge’ means free of the costs necessarily incurred in order to brincurred specifically for the purpose of bringing the goods into conformity, particularly the cost of postage, labour and materials.
Amendment 237 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
Member States shall not maintain or introduce provisions diverging from those laid down in this Directive including more or less stringent provisions to ensure a different level of consumer protection. may adopt or maintain in force more stringent provisions than those laid down in this Directive for the protection of consumers, and the implementation of this Directive shall under no circumstances constitute grounds for the reduction of protection for consumers in fields covered by the scope of Union law.
Amendment 240 #
Proposal for a directive
Article 3 – paragraph 1 a (new)
Article 3 – paragraph 1 a (new)
This Directive shall be without prejudice to general substantive and procedural rights which consumers may invoke under national laws governing contractual or non-contractual liability.
Amendment 249 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
Amendment 255 #
Proposal for a directive
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
The goods shall, where relevantapplicable:
Amendment 258 #
Proposal for a directive
Article 5 – paragraph 1 – point c – introductory part
Article 5 – paragraph 1 – point c – introductory part
(c) possess qualities, durability and performance capabilities which are normal in goods of the same type, including in relation to appearance, safety and freedom from all defects, which are satisfactory and which the consumer maycan expect given the nature of the goods and taking into account any public statement made by or on behalf of the seller or other persons in earlier links of the chain of transactions, including the producer, unless the seller shows that:
Amendment 262 #
Proposal for a directive
Article 5 – paragraph 1 – point c – point ii
Article 5 – paragraph 1 – point c – point ii
(ii) by the time of conclusion of the contract the statement had been corrected and the consumer could not reasonably have been unaware of that correction; or
Amendment 265 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article 5 a Pre-contractual information Where the provisions of Directive 2011/83/EU require the seller to provide information to the consumer before the contract becomes binding, any of that information that was provided by the seller other than information about the main characteristics of goods shall be deemed to be included as a term of the contract.
Amendment 266 #
Proposal for a directive
Article 6
Article 6
Amendment 272 #
Proposal for a directive
Article 8 – paragraph 2
Article 8 – paragraph 2
Amendment 288 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. In the case of a lack of conformity with the contract, the consumer shall be entitled to havechoose any of the following remedies: (a) having the goods brought into conformity by the seller, free of charge, by repair or replacement in accordance with Article 11; (b) being granted a proportionate price reduction in accordance with Article 12; (c) terminating the contract in accordance with Article 13.
Amendment 290 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. A repair or replacement shall be completed within a reasonable time, and in any case within 30 days from the moment the seller has acquired physical possession of the goods, and without any significant inconvenience to the consumer, taking account of the nature of the goods and the purpose for which the consumer required the goods.
Amendment 339 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. The consumer shall in the event of lack of conformity with the contract exercise the right to terminate the contract by notice to the seller given by any means.
Amendment 342 #
Proposal for a directive
Article 13 – paragraph 2
Article 13 – paragraph 2
2. Where the lack of conformity with the contract relates to only some of the goods delivered under the contract and there is a ground for termination of a contract pursuant to Article 9, the consumer may terminate the contract only in relation to those goods and any other goods, which the consumer acquired as an accessory to the non-conforming goods. In the case of sets or suites of goods supplied for a single price, the contract shall always be terminated for the whole set or suite of goods.
Amendment 355 #
Proposal for a directive
Article 13 – paragraph 3 – point c
Article 13 – paragraph 3 – point c
Amendment 356 #
Proposal for a directive
Article 13 – paragraph 3 – point d
Article 13 – paragraph 3 – point d
Amendment 358 #
Proposal for a directive
Article 13 a (new)
Article 13 a (new)
Article 13 a Short-term right to reject Without prejudice to any other rights under this Directive or otherwise, the consumer shall have a right to reject goods for non-conformity with the contract by returning them within 30 days of receipt.
Amendment 373 #
Proposal for a directive
Article 14 – paragraph 1 a (new)
Article 14 – paragraph 1 a (new)
The time limits referred to in Article 14 shall restart from the beginning in the event of replacement of goods or components.
Amendment 385 #
Proposal for a directive
Article 15 a (new)
Article 15 a (new)
Article 15 a Commercial guarantees for lifespan 1. The producer of technical or other durable goods shall indicate to the seller and the consumer the lifespan of the goods. The indicated timeframe shall reflect the reasonable expectations of the consumer and shall not be shorter than two years unless justified by the particular nature of the goods concerned. 2. Where goods do not conform to their lifespan as specified in accordance with paragraph 1, this shall be construed as a breach enforceable by the consumer directly against the producer as a contractual guarantee, which may give rise to remedies for non-conformity.
Amendment 396 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – 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 their rights and enabled and facilitated to enforce those 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 409 #
Proposal for a directive
Article 20 a (new)
Article 20 a (new)
Article 20 a Review 1. The Commission shall keep the application and implementation of this Directive under close scrutiny and review. This process shall include meaningful and detailed consultation and involvement of the Member States and of consumer, legal and business organisations at Union level. 2. No later than (...), the Commission shall submit a report to the European Parliament and to the Council taking full account of the process of scrutiny and review referred to in paragraph 1. That report shall include, inter alia, a detailed analysis of the impact of provisions of this Directive on the burden of proof in Member States.
Amendment 418 #
Proposal for a directive
Recital 2
Recital 2
(2) For the good functioning of the internal market, the harmonisation of certain aspects concerning contracts for sales of goods, taking as a base a high level of consumer protection, is necessarywhile recognising Member States’ competences, is justifiable. Keeping in mind the evolving and complex European case law on this subject matter, and in order to provide a greater degree of legal certainty to businesses and consumers alike, Member States should be able to maintain or introduce more stringent provisions for the protection of consumers in so far as provided for, or not expressly regulated otherwise in this Directive.
Amendment 420 #
Proposal for a directive
Recital 4
Recital 4
(4) TheCertain Union rules applicable to the sales of goods are still fragmented althoughhave already been harmonised, including rules on pre- contractual information requirements, the right of withdrawal for distance contracts and delivery conditions have already been fully harmonised. Other key contractual elements such as the conformity criteria, the remedies and modalities for their exercise for goods which do not conform to the contract are currently subject to minimum harmonisation inregulated at a minimum level by Directive 1999/44/EC of the European Parliament and of the Council46. Member States have been allowed to go beyond the Union standards and introduce rules that ensure even higher levelIn practice, therefore, national provisions transposing the Union legislation ofn consumer protection. Having done so, they have acted on different elements and to different extents. Thus, national provisions transposingcontract law, in particular Directive 1999/44/EC, significantly diverge today on essential elements of what constitutes a sales contract, such as the absence or existence of a hierarchy of remedies, the period of the legal guarantee, the period of the reversal of the burden of proof, or the notification of the defect to the seller. __________________ 46 Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees OJ L 171, 7.7.1999, p.12.
Amendment 421 #
Proposal for a directive
Recital 7
Recital 7
(7) While online sales of goods constitute the vast majority of cross-border sales in the Union, differences in national contract laws equally affect retailers using distance sales channels and retailers selling face-to-face and prevent them from expanding across borders. This Directive should cover all sales channels, in order to create a level playing field for all businesses selling goods to consumers. By laying down uniform rules across sales channels, this Directive should avoid any divergence that would create disproportionate burdens for the growing number of omni-channel retailers in the Union. The need for retaining consistent rules on sales and guarantees for all sales channels was confirmed in the Fitness Check of EU consumer and marketing law, which also covered Directive 1999/44/EC.48 __________________ 48 Commission Staff Working Document{SWD(2017) 208 final}, Report of the Fitness Check on Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’); Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts; Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers; Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees; Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers' interests; Directive 2006/114/EC of the European Parliament and of the Council of 12 December 2006 concerning misleading and comparative advertisingAt the same time, this Directive should also ensure a very high level of consumer protection in accordance with Union law in order to provide consumers with the confidence to buy cross-border and in order to enhance the functioning of the internal market.
Amendment 423 #
Proposal for a directive
Recital 14
Recital 14
(14) This Directive should not affect contract laws of Member States in areas not regulated by this Directive. In addition, its implementation should under no circumstances constitute grounds for reducing the level of protection afforded to consumers in fields that fall within the scope of Union law. Furthermore, in certain areas regulated by this Directive Member States should also be free to lay down rules in relation to those aspects which are not regulated in this Directive: this concerns limitation periods for exercising the consumers' rights and commercial guarantees. Finally, in relation to the right of redress of the seller, Member States should be free to provide more detailed conditions on the exercise of such right.
Amendment 425 #
Proposal for a directive
Recital 26
Recital 26
(26) In order to allow businesses to rely on a single set of rules across the Union, it is necessary to fully and to provide a high level of consumer protection, it is justified to harmonise the period of time during which the burden of proof for the lack of conformity is reversed in favour of the consumer. Within the first two years, in addition to a short-term right to reject goods, the consumer should, in order to benefit from the presumption of lack of conformity, the consumer should onlyonly have to demonstrate that the good is not conforming, without also needing to demonstrate that the lack of conformity actually existed at the relevant time for establishing conformity. In addition, in order to increase legal certainty in relation to the available remedies for lack of conformity with the contract and in order to eliminate one of the major obstacles inhibiting the internal market, a fully harmonised order in which remedies can be exercised, provision should be provimaded for. In particular, the consumer should enjoy a choice between repair or replacement as a first remedy which should help in maintaining the contractual relation and mutual trust. Moreover, enabling consumers to require repair should encourage a sustainable consumption and could contribute to a greater durability of product harmonised rules that enshrine the principle of a free choice of remedies.
Amendment 426 #
Proposal for a directive
Recital 34
Recital 34
(34) In order to ensure transparency, certain transparency requirements for commercial guarantees should be provided. Moreover in order to improve legal certainty and to avoid that consumers are misled, this Directive should provide that where commercial guarantee conditions contained in advertisements or pre- contractual information are more favourable to the consumer than those included in the guarantee statement the more advantageous conditions should prevail. Finally, this Directive should provide rules on the content of the guarantee statement and the way it should be made available to consumers. Member States should be free to lay down rules on other aspects of commercial guarantees not covered by this Directive, provided that those rules do not deprive consumers of the protection afforded to them by the fully harmonised provisions of this Directive on commercial guarantees. This Directive should ensure that consumers continue to enjoy a high degree of consumer protection in accordance with Union law with regard to commercial guarantees.
Amendment 430 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
Amendment 432 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. A repair or replacement shall be completed within a reasonable time, and in any event within 30 days from the moment the seller has acquired physical possession of the goods or the consumer has handed over the goods to the carrier chosen by the seller. Such repair or replacement shall be without any significant inconvenience to the consumer, taking account of the nature of the goods and the purpose for which the consumer required the goods.