Activities of Damien ABAD related to 2008/0196(COD)
Plenary speeches (1)
Consumer rights (debate)
Amendments (65)
Amendment 257 #
Proposal for a directive
Recital 11 k (new)
Recital 11 k (new)
(11k) This Directive shall be without prejudice to the application of the provisions of the Member States relating to the acquisition of immovable property and guarantees relating to immovable property or the formation or transfer of rights in immovable property. This includes agreements connected with such legal acts, such as sales of immovable property still to be developed and hire- purchase.
Amendment 274 #
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. In an off- premises context, consumers are under psychological pressure no matter whether they have solicited the trader's visit or not. Furthermore, in order to prevent circumventions of rules when consumers are approached away from business premises, a contract negotiated, for example at the consumer's home but concluded in a shop should be regarded as an off-premises contract. Contracts which are endorsed by a public officer in accordance with Member States’ national legislation shall not constitute an unusual situation from a psychological point of view. Such contracts must not be regarded as off- premises or distance contracts within the meaning of this Directive.
Amendment 372 #
Proposal for a directive
Recital 47
Recital 47
(47) Consumer contracts should be drafted in plain, intelligible language and be legible. Traders should be free to choose the font type or size in which the contract terms are drafted. The consumer should be given an opportunity to read the terms before concluding the contract. This opportunity could be given to the consumer by providing him with the terms on request (for on-premises contracts) or making those terms otherwise available (e.g. on the trader's website in respect of distance contracts) or attaching standard terms to the order form (in respect of off-premises contracts). The trader should seek the consumer's express consent to any payment in addition to the remuneration for the trader's main contractual obligation. Inferring consent by using opt-out systems, such as pre-ticked boxes online, should be prohibited.
Amendment 385 #
Proposal for a directive
Recital 53
Recital 53
Amendment 401 #
Proposal for a directive
Article 1 a (new)
Article 1 a (new)
Article 1a Member States may not maintain or adopt in their national law provisions diverging from those laid down in this Chapter, including more or less stringent provisions designed to ensure a different level of consumer protection.
Amendment 458 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 – point a
Article 2 – paragraph 1 – point 8 – point a
(a) any sales or service contract concluded away from business premises with the simultaneous physical presence of the trader and the consumer or any sales or service contract for which an offer was made by the consumer in the same circumstances, or, even if preceded by an offer from the consumer,
Amendment 480 #
Proposal for a directive
Article 2 – paragraph 1 – point 8 – point b a (new)
Article 2 – paragraph 1 – point 8 – point b a (new)
(ba) Contracts which, in accordance with the laws of the Member States, are authenticated by a public official shall be excluded from the scope of this Directive.
Amendment 496 #
Proposal for a directive
Article 2 – paragraph 1 – point 20
Article 2 – paragraph 1 – point 20
(20) 'ancillary contract' means a contract by which the consumer acquires goods or services related to a distance contract or an off-premisprincipal sale or services contract and these goods or services are provided by the trader or a third party on the basis of an arrangement between that third party and the trader.
Amendment 532 #
Proposal for a directive
Article 3 – paragraph 4 a (new)
Article 3 – paragraph 4 a (new)
4a. This Directive shall not apply to social services relating to social housing, childcare and support of families and persons permanently or temporarily in need which are provided by the State, by providers mandated by the State or by charities recognised as such by the State.
Amendment 534 #
Proposal for a directive
Article 3 – paragraph 4 a (new)
Article 3 – paragraph 4 a (new)
Amendment 557 #
Proposal for a directive
Chapter 2 – title
Chapter 2 – title
Consumer information and withdrawal right for distance and off-premises contracts
Amendment 566 #
Proposal for a directive
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
1. Prior to the conclusion of any sales or serviceIn good time and at all events prior to the conclusion of the distance or off- premises contract, the trader shall providecommunicate to the consumer with the following information, if not already apparent from the contextn a clear and intelligible manner:
Amendment 582 #
Proposal for a directive
Article 5 – paragraph 1 – point b a (new)
Article 5 – paragraph 1 – point b a (new)
(ba) the business address of the trader and his telephone and fax numbers or e-mail address, where available, so that the consumer can genuinely contact the trader;
Amendment 624 #
Proposal for a directive
Article 5 – paragraph 1 – point e a (new)
Article 5 – paragraph 1 – point e a (new)
(ea) where a right of withdrawal does not apply in accordance with Article 19, that the consumer will not benefit from a right of withdrawal;
Amendment 625 #
Proposal for a directive
Article 5 – paragraph 1 – point e b (new)
Article 5 – paragraph 1 – point e b (new)
(eb) the date by which the trader undertakes to deliver the goods or to perform the service;
Amendment 626 #
Proposal for a directive
Article 5 – paragraph 1 – point e b (new)
Article 5 – paragraph 1 – point e b (new)
(eb) the fact that the consumer cannot invoke the right of withdrawal if he explicitly requests performance of the service during the withdrawal period;
Amendment 684 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article 5a Except where otherwise provided by this directive, Member States shall not maintain or adopt in their national law provisions which diverge from those set out in this chapter, including stricter or less strict provisions seeking to guarantee a different level of consumer protection.
Amendment 736 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. With respect toIn good time and at any event before the conclusion of the off-premises contracts, the information provided forreferred to in Article 95 shall be given in the order forsupplied to the consumer on a durable medium in plain and intelligible language and be legible. The order forminformation supplied shall include the standard withdrawal form set outprovided for in Annex I(B). The consumer shall choose the durable medium on which the information is set out and shall at any event have the option of requesting a paper document.
Amendment 745 #
Proposal for a directive
Article 10 – paragraph 2
Article 10 – paragraph 2
Amendment 759 #
Proposal for a directive
Article 10 – paragraph 3
Article 10 – paragraph 3
3. Member States shall not impose any formal requirements other than those provided for in paragraphs 1 and 2.
Amendment 773 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
1. With respect to distance contracts, the information provided for in Article 9(a)5 shall be given or made available to the consumer prior toin good time and at any event before the conclusion of the contract, in plain and intelligible language and be legible, in a way appropriate to the means of distance communication used.
Amendment 779 #
Proposal for a directive
Article 11 – paragraph 1 a (new)
Article 11 – paragraph 1 a (new)
1a. Where the subject of the contract and the urgency of its performance render the application of paragraph 1 wholly impracticable, the information referred to in Article 5 may be given verbally prior to the conclusion of the contract and confirmed without delay in accordance with the above-mentioned paragraph.
Amendment 789 #
Proposal for a directive
Article 11 – paragraph 2
Article 11 – paragraph 2
2. If the trader makes a telephone call to the consumer with a view to concluding a distance contract by telephone, he shall disclose his identity and the commercial purpose of the call at the beginning of the conversation with the consumer- and, where applicable the identity of the person on whose behalf he is making the call - and the commercial purpose of the call at the beginning of the conversation with the consumer. The trader shall send the consumer a confirmation of his offer in writing or on a durable medium. The consumer shall not be bound by the contract unless or until he has signed it.
Amendment 799 #
Proposal for a directive
Article 11 – paragraph 3
Article 11 – paragraph 3
3. If the contract is concluded through a medium which allows limited space or time to display the information, the trader shall provide at least the information regarding the main characteristics of the product andor services, the total price referred to, the duration of the contract and, in the case of open-ended contracts, the conditions for terminating the contract, as provided for in Articles 5(1)(a), (c) and (cg) on that particular medium prior to the conclusion of such a contract. The other information referred to in Articles 5 and 7 shall be provided by the trader to the consumer in an appropriate way in accordance with paragraph 1. The consumer shall be informed of the medium in question before the conclusion of the contract.
Amendment 825 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
1. The consumer shall have a period of fourteen days to withdraw from a distance or off-premises contract, without giving any reasonUnless otherwise provided by this Directive, the consumer shall have a withdrawal period which shall expire after fourteen days from the day of the conclusion of the contract.
Amendment 834 #
Proposal for a directive
Article 12 – paragraph 2 – subparagraph 1
Article 12 – paragraph 2 – subparagraph 1
Amendment 839 #
Proposal for a directive
Article 12 – paragraph 2 – subparagraph 2
Article 12 – paragraph 2 – subparagraph 2
Amendment 846 #
Proposal for a directive
Article 12 – paragraph 2 – subparagraph 3
Article 12 – paragraph 2 – subparagraph 3
Amendment 853 #
Proposal for a directive
Article 12 – paragraph 2 a (new)
Article 12 – paragraph 2 a (new)
2a. However, as regards the distance sale of goods, the withdrawal period may not expire before 14 days from the day when the consumer takes delivery of the goods. Where an order made by the consumer relates to different goods which are delivered separately, the withdrawal period shall begin from when each good is delivered. Where the order relates to a batch made up of different goods or services, the withdrawal period shall begin from when the consumer has taken delivery of the final element making up the batch.
Amendment 860 #
Proposal for a directive
Article 12 – paragraph 4
Article 12 – paragraph 4
4. TIn the case of distance contracts, the Member States shallmay not prohibit the parties from performing their obligations under the contract during the withdrawal periodas laid down in this Directive during the withdrawal period. In the case of off-premises contracts, this Article shall be without prejudice to any rule of national law establishing, within the withdrawal period, a period of time during which the performance of the contract may not begin.
Amendment 903 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
1. The trader shall reimburse any payment received from the consumer within thirtyout delay and not later than fifteen days from the day on which he receives the communication of withdrawalnotification of withdrawal. Reimbursement shall be made by any means of payment. However, at the proposal of the trader, consumers who have exercised their right of withdrawal may opt for a different method of reimbursement.
Amendment 932 #
Proposal for a directive
Article 17 – paragraph 1 – subparagraph 2
Article 17 – paragraph 1 – subparagraph 2
The consumer shall only be charged for the direct cost of returning the goods unless the trader has agreed to bear that cost. He shall not be charged for that cost if the trader has agreed to bear it or if the cost of returning the goods is more than EUR 50.
Amendment 984 #
Proposal for a directive
Article 19 – paragraph 1 – point c a (new)
Article 19 – paragraph 1 – point c a (new)
ca) the supply of foodstuffs, beverages and other hygienically sensitive goods, or goods that may create a sanitary risk if returned within the withdrawal period;
Amendment 1012 #
Proposal for a directive
Article 19 – paragraph 1 – point h
Article 19 – paragraph 1 – point h
h) contracts concluded at an public auction.
Amendment 1054 #
Proposal for a directive
Article 20 a (new)
Article 20 a (new)
Article 20a Should a Member State note that a proven risk of prejudice to the consumer has arisen as a result of developments in market practices, it may take the necessary national measures to remedy the situation. It shall immediately inform the Commission and the other Member States thereof and give reasons for its decision. In its report on the application of this directive, as provided for in Article […], the Commission shall consider in particular whether this directive should be amended in order to establish appropriate mechanisms at Union level to deal with the new market practices that justified the introduction of national measures.
Amendment 1060 #
Proposal for a directive
Article 21 – paragraph 1
Article 21 – paragraph 1
1. This Chapter shall apply to sales contracts. Without prejudice to Article 24(5), where the contract is a mixed- purpose contract having as its object both goods and services, this Chapter shall only apply to the goods.
Amendment 1064 #
Proposal for a directive
Article 21 – paragraph 1 a (new)
Article 21 – paragraph 1 a (new)
1a. Member States may maintain or introduce in their national law provisions diverging from those laid down in this chapter, in so far as this is necessary to ensure a higher level of consumer protection.
Amendment 1067 #
Proposal for a directive
Article 21 – paragraph 2
Article 21 – paragraph 2
2. This Chapter shall also apply toFor the purposes of this Directive, contracts for the supply of goods to be manufactured or produced shall also be defined as sales contracts.
Amendment 1070 #
Proposal for a directive
Article 21 – paragraph 2 a (new)
Article 21 – paragraph 2 a (new)
2a. This chapter shall apply without prejudice to any rights which an injured party may have according to a special liability system existing in national law.
Amendment 1097 #
Proposal for a directive
Article 22 – paragraph 2
Article 22 – paragraph 2
2. Where the trader has failed to fulfil his obligations to deliver, the consumer shall be entitled to a refund of any sums paid within seven days from the date of delivery provided for in paragraph 1delivery does not take place within seven days of the established delivery date, as indicated in paragraph 1, the consumer shall be entitled to rescind the contract and claim a refund of any sums paid under the contract. The contract shall be deemed to be terminated on the date the trader receives a letter from the consumer informing him of his decision, if the delivery has not taken place in the meantime. The trader shall be required to reimburse all sums paid under the contract as soon as possible, and no more than seven days after receiving the letter rescinding the contract.
Amendment 1118 #
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, on delivery.
Amendment 1120 #
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, on delivery. In the case of off-premises contracts, this provision shall not apply to the period referred to in Article 12(4), during which the contract is not enforceable.
Amendment 1123 #
Proposal for a directive
Article 23 – paragraph 2
Article 23 – paragraph 2
2. The risk referred to in paragraph 1 shall pass to the consumer at the time of delivery as agreed by the parties, if the consumer or a third party, other than the carrier and indicated by the consumer has failed to take reasonable steps to acquire the material possessionMember States may lay down additional national provisions governing the passing of risk if the consumer has failed to take all the necessary steps to take delivery of the goods.
Amendment 1185 #
Proposal for a directive
Article 26 – paragraph 1
Article 26 – paragraph 1
Amendment 1189 #
Proposal for a directive
Article 26 – paragraph 1 – introductory part
Article 26 – paragraph 1 – introductory part
1. As provided for inWhen the goods present a lack of conformity, the consumer is entitled, under the terms of paragraphs 2 to 5, wherto: (a) have the goods do not conform to the contract, the consumer is entitled to:repaired, (b) have the goods replaced, (c) have the price reduced, (d) have the contract rescinded. The consumer may only rescind the contract if the lack of conformity is not minor.
Amendment 1198 #
Proposal for a directive
Article 26 – paragraph 1 – point a
Article 26 – paragraph 1 – point a
Amendment 1210 #
Proposal for a directive
Article 26 – paragraph 1 – point b
Article 26 – paragraph 1 – point b
Amendment 1218 #
Proposal for a directive
Article 26 – paragraph 1 – point c
Article 26 – paragraph 1 – point c
Amendment 1237 #
Proposal for a directive
Article 26 – paragraph 2
Article 26 – paragraph 2
Amendment 1243 #
Proposal for a directive
Article 26 – paragraph 3 – subparagraph 1
Article 26 – paragraph 3 – subparagraph 1
Amendment 1254 #
Proposal for a directive
Article 26 – paragraph 3 – subparagraph 2
Article 26 – paragraph 3 – subparagraph 2
Amendment 1259 #
Proposal for a directive
Article 26 – paragraph 3 a (new)
Article 26 – paragraph 3 a (new)
3a. If the consumer chooses repair, replacement or having the price reduced, and this choice proves impossible, unlawful or would cause the trader a disproportionate effort, the trader may insist vis à vis the consumer that the lack of conformity be remedied by repair or replacement, according to the consumer's initial choice. A trader's effort is disproportionate if it imposes costs on him which, in comparison with the repair or replacement, is excessive, taking into account the value of the goods if there was no lack of conformity and the significance of the lack of conformity.
Amendment 1265 #
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 1In case of repair or replacement of goods, chosen by the consumer or insisted on by the trader, the consumer may nonetheless resort to having the contract rescinded or the price reduced, where one of the following situations exists:
Amendment 1296 #
Proposal for a directive
Article 26 – paragraph 5
Article 26 – paragraph 5
Amendment 1365 #
Proposal for a directive
Article 28 – paragraph 5
Article 28 – paragraph 5
5. Unless proved otherwise, any lack of conformity which becomes apparent within sixtwelve months of the time when the risk passed to the consumer, shall be presumed to have existed at that time unless this presumption is incompatible with the nature of the goods and the nature of the lack of conformity.
Amendment 1374 #
Proposal for a directive
Article 28 – paragraph 5 b (new)
Article 28 – paragraph 5 b (new)
5 b. Member States shall have the right to maintain or adopt different national provisions concerning the legal guarantee of conformity, particularly by providing for or maintaining longer periods of guarantee or reversal of the burden of proof, or providing for or maintaining particular rules for serious lack of conformity which becomes apparent after the expiry of the guarantee, so as to guarantee consumers a higher level of protection.
Amendment 1423 #
Proposal for a directive
Article 30 – paragraph 1 b (new)
Article 30 – paragraph 1 b (new)
1b. Member States may maintain or introduce, in their national legislation, provisions different from those laid down in this Chapter, when this is necessary in order to ensure a higher level of consumer protection.
Amendment 1424 #
Proposal for a directive
Article 30 – paragraph 1 c (new)
Article 30 – paragraph 1 c (new)
1c. This Chapter shall apply, in contracts between traders and consumers, to contract terms which have not been individually negotiated. A term shall be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract. Terms negotiated individually do not fall within the scope of this chapter. Member States may therefore maintain or introduce national rules that reflect these terms and extend the benefit of this chapter to them.
Amendment 1433 #
Proposal for a directive
Article 30 – paragraph 3 a (new)
Article 30 – paragraph 3 a (new)
3a. This Chapter shall apply without prejudice to any national provisions declaring terms, included in certain sales or service contracts, that conflict with legal provisions – sometimes relating to public policy – to be unlawful.
Amendment 1467 #
Proposal for a directive
Article 32 – paragraph 1
Article 32 – paragraph 1
1. Where a contract term is not included in Annex II or III, Member States shall ensure that it is regarded as unfair if, contrary to the requirement of good faith,it may nevertheless be considered unfair if it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer.
Amendment 1476 #
Proposal for a directive
Article 32 – paragraph 3
Article 32 – paragraph 3
3. Paragraphs 1 and 2 shall not apply to the assessment ofrovided that the trader fully complies with Article 31(1), (2) and (3), the assessment of the unfairness of contract terms shall not concern either the main subject matter of the contract or to the adequacy of the price or remuneration foreseen for the trader's main contractual obligation, provided that the trader fully complies with Article 31in relation to the goods or services, as long as these terms are drafted in a clear and intelligible manner.
Amendment 1489 #
Proposal for a directive
Article 34 – paragraph 1
Article 34 – paragraph 1
Member States shall ensure that contract terms, as set out in the list in Annex II, are considered unfair in all circumstances. That list of contract terms shall apply in all Member States and may only be amended in accordance with Articles 39(2) and 40.
Amendment 1491 #
Proposal for a directive
Article 34 – paragraph 1 a (new)
Article 34 – paragraph 1 a (new)
1a. Member States may maintain or adopt provisions that are more protective of consumer interests and may supplement the list of terms included in Annex II to this directive with other contract terms considered to be unfair in all circumstances.
Amendment 1497 #
Proposal for a directive
Article 35 – paragraph 1
Article 35 – paragraph 1
Member States shall ensure that contract terms, as set out in the list in point 1 of Annex III, are considered unfair, unless the trader has proved that such contract terms are fair in accordance with Article 32. That list of contract terms shall apply in all Member States and may only be amended in accordance with Articles 39(2) and 40.
Amendment 1500 #
Proposal for a directive
Article 35 – paragraph 1 b (new)
Article 35 – paragraph 1 b (new)
Members States may maintain or adopt provisions that are more protective of consumer interests and may supplement the list of terms included in Annex III to this directive with other contract terms presumed to be unfair.