Activities of Axel VOSS related to 2015/0287(COD)
Legal basis opinions (0)
Amendments (88)
Amendment 71 #
Proposal for a directive
Title 1
Title 1
Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on certain aspects concerning contracts for the supply of digital content and digital services (Text with EEA relevance)
Amendment 122 #
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 EU will remove 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 from new national legislations regulating specificallyConsumers will benefit from fully harmonised rights for digital content or digital services at a high level of protection. They will have clear rights when they receive or access digital content or digital services in within the EU. This will increase their confidence in accessing digital content or digital services and 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 or digital contentservices.
Amendment 130 #
Proposal for a directive
Recital 7
Recital 7
(7) Consumers will benefit from fully harmonised rights for digital content at a high level of protection. They will have clear rights when they receive or access digital content from anywhere in the EU. This will increase their confidence in buying 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 contentFully harmonised consumer contract law rules in all Member States will make it easier for businesses to offer digital content and digital services cross- border as they will be able to rely on a stable contract law environment when supplying digital content or digital services online and otherwise at a distance to other Member States. Fully harmonised rules specific for digital content throughout the EU will remove the complexity caused by the different national rules that currently apply to contracts for the supply of digital content or digital services. They will also prevent legal fragmentation that otherwise would arise from new national legislations regulating specifically digital content or digital services.
Amendment 139 #
(8) This Directive should fully harmonise a set of key rules that are so far not regulated at Union level. It should include therefore rules on conformity of the digital content or digital services, remedies available to consumers in cases of lack of conformity of digital content or 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 148 #
Proposal for a directive
Recital 9
Recital 9
(9) By fully harmonising all requirements related to the topics regulated by this Directive, it precludes Member States, within its scope of application, from providing any further formal or substantive requirements, such as a period during which the lack of conformity has to become apparent, an obligation for the consumer to notify the supplier of a lack of conformity within a specific period or an obligation for the consumer to pay for the use of the digital content or digital service until the moment of termination because of a lack of conformity with the contract.
Amendment 152 #
Proposal for a directive
Recital 10
Recital 10
(10) This Directive should not affect national laws to the extent that the topics concerned are not regulated by this Directive, such as national rules providing for obligations of the consumer towards the supplier of digital content or digital service or regulating the qualification, formation and validity of contracts or the legality of the content. Member States should also remain free to provide rules foron the detailed conditions for the exercise of rights, such as the right to damages to the extent not coverright to damages, or rules which provide for the consequences of termination of the contract which apply in addition to restitution rules regulated by theis Directive, or rules which provide for the consequences of termination of . This Directive should not affect provisions of national laws governing the conditions under which a contract for the supply of digital content or digital services is considered to be linked with or ancillary to another contract which apply in addition to restitution rules regulated by this Directive. the consumer has concluded with the supplier or another trader, and the effect this has on either contract or on the remedies to be exercised under either contract. Member States should also be free to determine the nature of such contracts, which could be, inter alia, sales, services, rental or sui generis contracts.
Amendment 157 #
Proposal for a directive
Recital 11
Recital 11
(11) The Directive should address problems across different categories of digital content and its supply. In order to cater for fast technological developments and to maintain the future-proof nature of the notion of digital content, this notion as used in this Directive should be broader than in Directive 2011/83/EU of the European Parliament and of the Council.30 In particular it should cover services which allow the creation, processing or storage of dataor digital services and their supply. In order to ensure consistency with the acquis the notion of digital content should correspond with the one used in Directive 2011/83/EU of the European Parliament and of the Council and should cover for example video, audio, applications, digital games and any other software.30 In order to cater for fast technological developments and to ensure this Directive is future-proof, this Directive should also cover digital services which allow the creation, processing or storage of data, for example cloud storage or file hosting services. It should also cover digital services allowing sharing and other interaction, for example social media, video or audio sharing websites or platforms. While there are numerous ways for digital content or digital services to be supplied, such as transmission on a duratangible medium, downloading by consumers on their devices, web- streaming, allowing access to storage capabilities of digital contentservices or access to the use of social media, this Directive should apply to all digital content or digital services independently of the medium used for its transmission. Differentiating between different categories in this technologically fast changing market is not desirable because it would hardly be possible to avoid discriminations between suppliers. A level- playing field between suppliers of different categories of digital content or digital services should be ensured. However tThis Directive should notalso apply to digital content which is embedded in goods, in such a way that it operates as an integral part of the goods and its functions are subordinate to the main functionalitiescluding DVDs and CDs, unless the supplier proves that the defect lies in the hardware of the goods. _________________ 30 OJ L 304, 22.11.2011, p.64.
Amendment 182 #
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. The application of this Directive is without prejudice to the protection of personal data as provided by Regulation (EU) 2016/6791a and Directive 2002/58/EC of the European Parliament and of the Council1b. In particular the consent given concerning the processing of personal data must be distinguished and separate from the agreement necessary for the conclusion of a contract. _________________ 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, OJ L 119, 4.5.2016, p.1-88. 1b OJ L 201, 31.7.2002, p. 37–47.
Amendment 189 #
Proposal for a directive
Recital 14
Recital 14
(14) As regards digital content supplied not in exchange for a price but against counter-performance other than moneypersonal data, this Directive should apply only to contracts where the supplier requests and the consumer actively provides data, such as name and e-mail address or photos,provides personal data directly or indirectly to the supplier for example through individual registration or on the basis of a contract which allows access to consumers' photos. This Directive should not apply to situations where the supplier collects data necessary for the digital content to function in conformity with the contract, for example geographical location where necessary for a mobile application to function properly, or for the sole purpose of meeting legal requirements, for instance where the registration of the consumer is required for security and identification purposes by applicable laws. This Directive should also not apply to situations where the supplier collects information, including personal data, such as the IP address, or other automatically generated information such as information collected and transmitted by a cookie,personal data without the consumer actively supplying it, even if the consumer accepts the cookie. It should also not apply to situations where the consumer is exposed to advertisements exclusively in order to gain access to digital content.
Amendment 197 #
Proposal for a directive
Recital 14 a (new)
Recital 14 a (new)
(14 a) A contract term that concerns the processing of personal data provided by the consumer to the supplier or collected by the supplier or a third party in the interest of the supplier in the context of the conclusion or performance of the contract, which would violate any right which has been afforded to the consumer as a data subject under Regulation (EU) 2016/679 of the European Parliament and of the Council (Data Protection Regulation)1a, should not be binding. The contract should continue to bind the parties [upon those terms] if it is capable of continuing in existence without the non-binding term. _________________ 1a Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protecting of natural persons with regard to the processing of personal data and the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ L 119, 4.5.2016, p. 1-88.
Amendment 211 #
Proposal for a directive
Recital 18
Recital 18
(18) Contracts may include general terms and conditions of the supplier that need to be accepted by the consumer. For some digital contentservices, suppliers often describe the service and measurable service targets in a service level agreement. These service level agreements are generally appended to the main contract and form an important component of the contractual relationship between the supplier and the consumer. They should be covered by the definition of a contract under this Directive, and should thus comply with the rules laid down therein.
Amendment 215 #
Proposal for a directive
Recital 19
Recital 19
(19) This Directive should apply only to those services whose main subject matter is providing digital contentservices. Therefore, the Directive should not apply to services, which are performed personally by the supplier and where the digital means are only used for access or delivery purposes, such as a translation offered by a person or other professional advice services where only the output of the service is delivered to the consumer by digital means.
Amendment 216 #
Proposal for a directive
Recital 20
Recital 20
(20) Where, under a contract or a bundle of contracts, the supplier offers digital content or digital services in combination with other services such as telecommunication services or goods, which do not function merely as a carrier of the digital content or digital service, this Directive should only apply to the digital content or digital service component of such a bundle. The other elements should be governed by the applicable law.
Amendment 219 #
Proposal for a directive
Recital 21
Recital 21
(21) This Directive should not deal with copyright and other intellectual property related aspects of the supply of digital content or digital services. Therefore it should be without prejudice to any rights and obligations according to copyright law and other intellectual property laws.
Amendment 250 #
Proposal for a directive
Recital 29
Recital 29
(29) Many types of digital content or digital services are supplied over a period of time. For instance, consumer, such as access to cloud services over a period of time. It is therefore important to ensure that the digital content isor digital services are in conformity with the contract throughout the duration of the contract. Moreover, given the frequent improvement of digital content or digital services, notably by updates, the version of digital content supplied to the consumer should be the most recent one available at the time of the conclusion of the contract.
Amendment 255 #
Proposal for a directive
Recital 31
Recital 31
(31) Conformity should cover material as well as legal defects. Third party rights might effectively bar the consumer from enjoying the digital content or digital services or some of itstheir features in accordance with the contract if those third party rights are infringed, and if when the third party rightfully compels the supplier to stop infringing those rights and to discontinue offering the digital content or digital services in question. Legal defects are particularly important for digital content or digital services, which, by its nature, isare subject to intellectual property rights. Therefore the supplier should be obliged to ensure that the digital content is freeor digital services are free from any restrictions resulting from any right of a third party, for example a copyright claim related to the digital content, which precludes the consumer from enjoying the digital content in accordance with the contract.
Amendment 257 #
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 andIn order to allow businesses to rely on a single set of rules acceross to know how, technical information and high-tech assistance, it he Union, it is necessary to fully harmonise the supplier who is in a better position than the consumer to know the reasons for the digital content not being in conformity with the contract. The supplier is also in a better position to assess whether theperiod of time during which the burden of proof for the lack of conformity is reversed in favour of the consumer. Within the first six months, in order to benefit from the presumption of lack of conformity with, the contract is due to incompatibility of the consumer's digital environment with the technical requiremesumer should only establish that the digital content or digital service is not conforming and that the lack of conformity became apparent within six months forof delivery of 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 or digital service, without needing to demonstrate that the lack of conformity actually existed at the relevant time for establishing conformity. In order to increase legal certainty in relation to available remedies for lack of conformity with the contract and in order to eliminate one of the major obstacles inhibiting the Single Market, a fully harmonised order in which remedies can be exercised should be provided for.
Amendment 265 #
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 271 #
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 digital content. Moreover, given thatany failure to supply digital content or digital services and the lack of conformity with the contract. Moreover, given that digital content or digital contentservices 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 275 #
Proposal for a directive
Recital 34 a (new)
Recital 34 a (new)
(34 a) In order to enhance legal certainty it is important to link the time limit for remedies of consumers with the relevant time for establishing conformity with the contract. As a general rule, the relevant time for establishing conformity should be the time when a consumer or a third party indicated by the consumer and other than the carrier has acquired physical possession of a tangible medium in which the digital content or digital service is embedded, or the time where such tangible medium is handed over to the carrier chosen by the consumer. Where the digital content or digital service have not been supplied on a tangible good the consumer must have contained control of the content or service for instance by fully downloading it. Where control cannot be obtained, for instance where the digital service provides access to saving or storing capacities, the relevant time for establishing conformity with the contract must be the time where the parties have agreed that access should be provided.
Amendment 279 #
Proposal for a directive
Recital 35
Recital 35
(35) A failure ofWhere the supplier fails to supply the digital content or digital services to the consumer in accordance with the contract is a serious breach of the main contractual obligatthe consumer should call upon the supplier 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 which are significant, continuous and recurring.
Amendment 286 #
Proposal for a directive
Recital 36
Recital 36
(36) In the case of non-conformity with the contract, consumers should as a first step be entitled to have the digital content or digital service brought to conformity with the contract. Depending on technical characteristics of the digital content or digital service, the supplier may select a specific way of bringing the digital content or digital service to conformity with the contract, for example by issuing updates or requiring the consumer to access a new copy of the digital content. Given the diversity of digital content or digital services, it is not appropriate to set fixed deadlines for the exercise of rights or the fulfilling of obligations related to that digital content or digital service. Such deadlines may not capture this diversity and be either too short or too long, depending on the case. It is therefore more appropriate to refer to reasonable deadlines. The digital content or digital service should be brought into conformity with the contract within a reasonable time and free of any costs; in particular t. The consumer should not incur any costs associated with the development of an update for the digital content or digital service.
Amendment 289 #
Proposal for a directive
Recital 36 a (new)
Recital 36 a (new)
(36 a) The standard of reasonableness should be objectively ascertained, having regard to the nature and purpose of the contract, to the circumstances of the case and to the usages and practices of the parties involved. In particular, the reasonable time for bringing the digital content or digital service in conformity with the contract should be objectively ascertained, having regard to the nature of digital content or digital service and the lack of conformity.
Amendment 293 #
Proposal for a directive
Recital 37
Recital 37
(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 instancthe lack of non-conformity is not only minor and where bringing the digital content or digital service 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, where 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 access 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/EC 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 contentfunctionality, interoperability or performance features of the digital content or digital service such as its accessibility, continuity and security as required by objective or subjective conformity criteria. Where the consumer terminates the contract, the supplier should reimburse the price paid by the consumer.
Amendment 301 #
Proposal for a directive
Recital 37 a (new)
Recital 37 a (new)
(37 a) Where the digital content or digital service is supplied in exchange for personal data, the supplier should comply with the obligations applicable under Regulation (EU) 2016/679 of the European Parliament and of the Council (Data Protection Regulation)[1]. [1]Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protecting of natural persons with regard to the processing of personal data and the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)(OJ L 119 4.5.2016, p. 1-88).
Amendment 310 #
Proposal for a directive
Recital 39
Recital 39
Amendment 318 #
Proposal for a directive
Recital 40
Recital 40
Amendment 323 #
Proposal for a directive
Recital 41
Recital 41
(41) Where the contract is terminated, the consumer should not be required to pay for the use of digital content or digital services which is not in conformity with the contract because that would deprive the consumer of effective protection.
Amendment 328 #
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 digital services are provided over a period of time in exchange for a payment of a price, and 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 wasor digital services were not in conformity with the contract. However where the digital content isor digital services are provided against a counter-perfpersonal data orm ancey other than moneydata partial termination is not feasible because it is impossible to proportionally apportion a counter-performance other than moneysuch data.
Amendment 335 #
Proposal for a directive
Recital 43
Recital 43
(43) Due to its nature the digital content 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,In order to ensure consistency within the acquis, it is justified not to provide a two year 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 or digital service. 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 or digital services but such rules should not provide for a period shorter than two years from the relevant time of establishing conformity with the contract.
Amendment 336 #
Proposal for a directive
Recital 44
Recital 44
Amendment 345 #
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 349 #
Proposal for a directive
Recital 46
Recital 46
Amendment 355 #
Proposal for a directive
Recital 47
Recital 47
(47) The lack of conformity with the contract of the final digital content or digital service as supplied to the consumer is often due to one of the transactions in a chain, from the original designer to the final supplier. While the final supplier should be liable towards the consumer in case of lack of conformity with the contract between these two parties, it is important to ensure that the supplier has appropriate rights vis-a-vis different members of the chain of transactions in order to be able to cover his liability towards the consumer. However, it should be for the applicable national law to identify the members of the chains of transactions against which the final supplier can turn and the modalities and conditions of such actions.
Amendment 361 #
Proposal for a directive
Recital 50
Recital 50
(50) Directive 1999/44/EC of the European Parliament and of the Council35 should be amended to reflect the scope of this Directive in relation to a duratangible medium incorporating digital content where it has been used exclusively as carrier of the digital content to the consumer. _________________ 35 OJ L 171,7.7.1999, p.12.
Amendment 363 #
Proposal for a directive
Recital 54
Recital 54
(54) 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 supply of digital content or digital service while preventing legal fragmentation cannot be sufficiently achieved by the Member States but can rather, by reasons of ensuring the overall coherence of the national legislations through harmonised contract law rules which would also facilitate coordinated enforcement actions, 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 406 #
Proposal for a directive
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
Amendment 411 #
Proposal for a directive
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
Amendment 415 #
Proposal for a directive
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
6 a. 'personal data' means personal data as defined by Artcile 4 (1) of Regulation (EU) 2016/679 of the European Parliament and of the Council (Data Protection Regulation)[1] [1] Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protecting of natural persons with regard to the processing of personal data and the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)(OJ L 119 4.5.2016, p. 1-88).
Amendment 420 #
Proposal for a directive
Article 2 – paragraph 1 – point 7
Article 2 – paragraph 1 – point 7
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 602 #
Proposal for a directive
Article 7 – title
Article 7 – title
Integration of the digital content or digital services
Amendment 605 #
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 606 #
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 609 #
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(a1) or should have been supplied in accordance with point (c) of Article 6(2a1).
Amendment 616 #
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 from using the digital content can be usedor digital service in accordance with the contract.
Amendment 623 #
Proposal for a directive
Article 8 – paragraph 2
Article 8 – paragraph 2
Amendment 632 #
Proposal for a directive
Article 8 a (new)
Article 8 a (new)
Amendment 644 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. The burden of proof with respect to the conformity with the contract at the time indicated in Article 10 shall be on theAny lack of conformity with the contract which becomes apparent within six months after supply shall be presumed to have existed at the time of suppliery.
Amendment 651 #
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 655 #
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. Where the consumer fails to cooperate, the burden of proof with respect to the non-conformity withOnly in exceptional and duly justified circumstances where there are no other means available the consumer shall grant the supplier upon request access to the consumer's digital environment. Where the consumer fails to cooperate, the presumption set in paragraph 1a shall not apply provided the supplier informed the consumer about theis contract shall be on the consumersequence in a clear and comprehensible manner when asking for cooperation.
Amendment 663 #
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 669 #
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 688 #
Proposal for a directive
Article 11 – title
Article 11 – title
Amendment 690 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
Where the supplier has failed to supply the digital content in accordance with Article 5 at the relevant time pursuant Article 5 (2) the consumer shall call upon him to make the supply within an additional period of time appropriate to the circumstances. If the supplier fails to supply the digital content or digital service within that additional period of time, the consumer shall be entitled to terminate the contract immediately under Article 13.
Amendment 696 #
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 698 #
Proposal for a directive
Article 11 – paragraph 1 b (new)
Article 11 – paragraph 1 b (new)
Where the consumer terminates the contract Article 13, 13a and 13b shall apply accordingly.
Amendment 705 #
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 facility brought into conformity with the contract free of charge, unless this is impossible, disproportionate or unlawfulfactually or legally impossible, or would impose costs on the supplier that would be disproportionate.
Amendment 708 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 2 – introductory part
Article 12 – paragraph 1 – subparagraph 2 – introductory part
Amendment 717 #
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 ithere were ino lack of conformity with the contract; and
Amendment 720 #
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 of the same description would normally be used.
Amendment 726 #
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 or digital service and the purpose for which the consumer required this digital content or digital service.
Amendment 730 #
Proposal for a directive
Article 12 – paragraph 2 a (new)
Article 12 – paragraph 2 a (new)
2 a. The consumer shall be entitled to withhold the payment of any outstanding part of the price, until the supplier has brought the digital content or digital service into conformity with the contract.
Amendment 735 #
Proposal for a directive
Article 12 – paragraph 3 – introductory part
Article 12 – paragraph 3 – introductory part
3. The consumer shall be entitled to either a proportionn appropriate reduction of the price in the manner set out in paragraph 4 where the digital content or digital service is supplied in exchange for a payment of a price, or a terminateion of the contract under paragraph 5 and Article 13, where
Amendment 739 #
Proposal for a directive
Article 12 – paragraph 3 – point a
Article 12 – paragraph 3 – point a
(a) the remedy to bring the digital content in conformity is impossible or, disproportionate or unlawfulin accordance with paragraph 1;
Amendment 742 #
Proposal for a directive
Article 12 – paragraph 3 – point b
Article 12 – paragraph 3 – point b
(b) the supplier has not completed the remedy within the time specified inbrought the digital content or digital service in conformity within a reasonable time in accordance with paragraph 2;
Amendment 745 #
Proposal for a directive
Article 12 – paragraph 3 – point c
Article 12 – paragraph 3 – point c
(c) the remedy to bring the digital or digital service content in conformity would cause significant inconvenience to the consumer; or
Amendment 747 #
Proposal for a directive
Article 12 – paragraph 3 – point d
Article 12 – paragraph 3 – point d
(d) the supplier has declared, or it is equally clear from the circumstances, that the supplier will not bring the digital content or digital service in conformity with the contract.
Amendment 754 #
Proposal for a directive
Article 12 – paragraph 4
Article 12 – paragraph 4
4. 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 thator digital service would have isf in conformity with the contract.
Amendment 758 #
Proposal for a directive
Article 12 – paragraph 5
Article 12 – paragraph 5
5. TWhere the digital content or digital service has been supplied in exchange for a price the consumer may terminate the contract only if the lack of conformity with the contract is not only minor but also impairs functionality, interoperability and or other main performance features of the digital content such as its accessibility, continuity and security where required by Article 6 paragraphs (1) and (2)6a. The burden of proof that the lack of conformity with the contract doeis not only minor and impairs functionality, interoperability and other main performance features of the digital content or digital service shall be on the supplier.
Amendment 763 #
Proposal for a directive
Article 12 – paragraph 5 a (new)
Article 12 – paragraph 5 a (new)
5 a. Where the digital content or digital service has been supplied in exchange for personal data, the consumer shall be entitled to terminate the contract immediately for lack of conformity with the contract.
Amendment 765 #
Proposal for a directive
Article 12 – paragraph 5 b (new)
Article 12 – paragraph 5 b (new)
5 b. Where the contract stipulated that the digital content or digital service shall be supplied over a period of time in exchange for a payment of a price, the consumer may terminate the contract only in relation to that part of the period of time where the digital content or digital service has not been in conformity with the contract.
Amendment 766 #
Proposal for a directive
Article 12 – paragraph 5 c (new)
Article 12 – paragraph 5 c (new)
Amendment 779 #
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 meansan unequivocal statement setting out the decision to terminate the contract.
Amendment 784 #
Proposal for a directive
Article 13 – paragraph 2
Article 13 – paragraph 2
Amendment 825 #
Proposal for a directive
Article 13 – paragraph 3
Article 13 – paragraph 3
Amendment 832 #
Proposal for a directive
Article 13 – paragraph 4
Article 13 – paragraph 4
Amendment 834 #
Proposal for a directive
Article 13 – paragraph 5
Article 13 – paragraph 5
Amendment 840 #
Proposal for a directive
Article 13 – paragraph 6
Article 13 – paragraph 6
Amendment 846 #
Proposal for a directive
Article 13 a (new)
Article 13 a (new)
Amendment 850 #
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. Where the digital content 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 any usable copy or rendering it otherwise unintelligible. 2. Where the digital content was supplied on a tangible medium, the consumer shall: (a) refrain from using the digital content or digial service or making it available to third parties, in particular by deleting the digital content or any usable copy or rendering it otherwise unintelligible; (b) upon the request of the supplier made without undue delay, at the latest 14 days after receiving the notice of termination in accordance with Article 13 , return, at the supplier's expense, the tangible medium to the supplier without undue delay, and in any event not later than 14 days from the receipt of the supplier's request. 3. The consumer shall not be liable to pay for any use made of the digital content in the period prior to the termination of the contract. 4. The consumer shall pay to the supplier the price corresponding to the period of time when the digital service was in conformity with the contract.
Amendment 852 #
Proposal for a directive
Article 13 c (new)
Article 13 c (new)
Amendment 854 #
Proposal for a directive
Article 13 d (new)
Article 13 d (new)
Amendment 855 #
Proposal for a directive
Article 14
Article 14
Amendment 907 #
Proposal for a directive
Article 16
Article 16
Amendment 965 #
Proposal for a directive
Article 17 – paragraph 1
Article 17 – paragraph 1
Where the supplier is liable to the consumer because of any failure to supply the digital content or digital service or a lack of conformity with the contract resulting from an act or omission by a person in earlierprevious links of the chain of transactions, the supplier shall be entitled to pursue remedies against the person or persons liable in the chain of transactions. The person against whom the supplier may pursue remedies and the relevant actions and conditions of exercise, shall be determined by national law.
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."