Procedure : 2016/0152(COD)
Document stages in plenary
Document selected : A8-0172/2017

Texts tabled :

A8-0172/2017

Debates :

PV 05/02/2018 - 20
CRE 05/02/2018 - 20

Votes :

PV 06/02/2018 - 5.4

Texts adopted :

P8_TA(2018)0023

REPORT     ***I
PDF 1409kWORD 229k
27 April 2017
PE 595.745v02-00 A8-0172/2017

on the proposal for a regulation of the European Parliament and of the Council on addressing geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC

(COM(2016)0289 – C8-0192/2016 – 2016/0152(COD))

Committee on the Internal Market and Consumer Protection

Rapporteur: Róża Gräfin von Thun und Hohenstein

Rapporteur for the opinion (*):

Lidia Joanna Geringer de Oedenberg, Committee on Legal Affairs

(*) Associated committees – Rule 54 of the Rules of Procedure

ERRATA/ADDENDA
DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 EXPLANATORY STATEMENT
 OPINION of the Committee on Legal Affairs(*)
 OPINION OF THE COMMITTEE ON INDUSTRY, RESEARCH AND ENERGY
 OPINION of the Committee on Culture and Education
 PROCEDURE – COMMITTEE RESPONSIBLE
 FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a regulation of the European Parliament and of the Council on addressing geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC

(COM(2016)0289 – C8-0192/2016 – 2016/0152(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

–  having regard to the Commission proposal to Parliament and the Council (COM(2016)0289),

–  having regard to Article 294(2) and Article 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C8-0192/2016)),

–  having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

–  having regard to the reasoned opinions submitted, within the framework of Protocol No 2 on the application of the principles of subsidiarity and proportionality, by the Austrian Federal Council and National Council and the Luxembourg Chamber of Deputies, asserting that the draft legislative act does not comply with the principle of subsidiarity,

–  having regard to the opinion of the European Economic and Social Committee of 19 October 2016(1),

–  having regard to Rule 59 of its Rules of Procedure,

–  having regard to the report of the Committee on the Internal Market and Consumer Protection and the opinions of the Committee on Legal Affairs, the Committee on Industry, Research and Energy and the Committee on Culture and Education (A8-0172/2017),

1.  Adopts its position at first reading hereinafter set out;

2.  Calls on the Commission to refer the matter to Parliament again if it replaces, substantially amends or intends to substantially amend its proposal;

3.  Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Amendment    1

Proposal for a regulation

Title 1

Text proposed by the Commission

Amendment

Proposal for a

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on addressing geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC

on addressing unjustified geo-blocking and other forms of discrimination based on consumers' nationality, place of residence or temporary location within the internal market and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC

 

 

Amendment    2

Proposal for a regulation

Recital 1

Text proposed by the Commission

Amendment

(1)  In order to realise the objective of ensuring good functioning of the internal market, as an area without internal frontiers in which the free movement of inter alia goods and services is ensured, it is not sufficient to abolish, as between Member States, only State barriers. Such abolition can be undermined by private parties putting in place obstacles inconsistent with internal market freedoms. That occurs where traders operating in one Member State block or limit the access to their online interfaces, such as websites and apps, of customers from other Member States wishing to engage in cross-border commercial transactions (a practice known as geo-blocking). It also occurs through other actions by certain traders involving the application of different general conditions of access to their goods and services with respect to such customers from other Member States, both online and offline. Whereas there may sometimes be objective justifications for such differential treatment, in other cases traders deny consumers wishing to engage in cross-border commercial transactions access to goods or services, or apply different conditions in this regard, for purely commercial reasons.

(1)  In order to realise the full potential of the internal market as an area without internal frontiers in which the free movement of inter alia goods and services is ensured, it is not sufficient to abolish, as between Member States, only State barriers. Such abolition can be undermined by private parties putting in place obstacles inconsistent with internal market freedoms. That occurs where traders operating in one Member State block or limit access to their online interfaces, such as websites and apps, by consumers from other Member States wishing to engage in cross-border commercial transactions (a practice known as geo-blocking). It also occurs through other actions by certain traders involving the application of different general conditions of access to their goods and services with respect to such consumers from other Member States, both online and offline. Whilst there may exceptionally be objective justifications for such differential treatment, in other cases some traders' practices deny or limit access to goods or services by consumers wishing to engage in cross-border commercial transactions, or apply in this regard different conditions which are not objectively justified. Studies1a have shown that removing unjustified geo-blocking and other forms of discrimination based on consumers’ nationality, place or residence or temporary location could foster growth and reduce average prices throughout the internal market.

 

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1a See European Commission impact assessment. See also European Parliament Policy Department studies (1) “Extending the scope of the geoblocking prohibitiion: an economic assessment” http://www.europarl.europa.eu/RegData/etudes/IDAN/2017/595364/IPOL_IDA(2017)595364_EN.pdf and (2) “The Geoblocking proposal: internal market, competition law and other regulatory aspects” http://www.europarl.europa.eu/RegData/etudes/STUD/2017/595362/IPOL_STU(2017)595362_EN.pdf.

Amendment    3

Proposal for a regulation

Recital 1 a (new)

Text proposed by the Commission

Amendment

 

(1a)  This is not a stand-alone Regulation, it is intended to be understood in conjunction with the proposal for a Directive on certain aspects concerning contracts for online and other distance sales of goods1a and the proposal for a Directive on certain aspects concerning contracts for the supply of digital content1b that it will contribute to the creation of a digital single market.

 

___________________

 

1a COM (2015)0635.

 

1b COM (2015)0634.

Justification

The proposed regulation is explicitly to be considered in association with other proposals for legislation to create a digital single market, and its success is contingent on those proposals. Reference should thus be made to the Directive on certain aspects concerning contracts for the sales of goods and repealing Directive 1999/44/EC and the Directive on certain aspects concerning contracts for the supply of digital content and digital services.

Amendment    4

Proposal for a regulation

Recital 2

Text proposed by the Commission

Amendment

(2)  In this manner certain traders artificially segment the internal market along internal frontiers and hamper the free movement of goods and services, thus restricting the rights of customers and preventing them from benefitting from a wider choice and optimal conditions. Such discriminatory practices are an important factor contributing to the relatively low level of cross-border commercial transactions within the Union, including in the sector of electronic commerce, which prevents the full growth potential of the internal market from being realised. Clarifying in which situations there can be no justification for differential treatment of this kind should bring clarity and legal certainty for all participants in cross-border transactions and should ensure that rules on non-discrimination can be effectively applied and enforced across the internal market.

(2)  In this manner, certain traders' practices artificially segment the internal market along internal frontiers and hamper the free movement of goods and services, thus restricting the rights of consumers and preventing them from benefitting from a wider choice and optimal conditions. Such discriminatory practices are an important factor contributing to the relatively low level of cross-border commercial transactions within the Union, including in the sector of electronic commerce, which prevents the full growth potential of the internal market from being realised. However, there are different underlying reasons for such practices by companies, in particular SMEs and micro-enterprises. In many cases, divergent legal environments, the legal uncertainty involved and the associated risks as regards the applicable consumer protection and environmental or labelling laws, taxation and fiscal issues, delivery costs or language requirements contribute to the traders' unwillingness to engage in commercial relations with consumers from other Member States. In other cases some traders are fragmenting the market in order to increase consumer prices. Clarifying in which situations there can be no justification for differential treatment of this kind and what the traders' responsibility would be when selling to consumers from different Member States in compliance with this Regulation should bring clarity and legal certainty for all participants in cross-border transactions and should ensure that rules on non-discrimination can be effectively applied and enforced across the internal market.

Amendment    5

Proposal for a regulation

Recital 2 a (new)

Text proposed by the Commission

Amendment

 

(2a)  This Regulation aims to address geo-blocking by removing a barrier to the functioning of the internal market. However, account needs to be taken of the fact that many differences in Member States' legislation, such as those resulting in different national standards or a lack of mutual recognition or harmonisation at Union level still constitute significant barriers to cross-border trade. Those barriers continue to lead to the fragmentation of the single market, often forcing traders to engage in geo-blocking practices. Therefore the European Parliament, the Council and the Commission should continue to address these barriers with a view to reduce market fragmentation and complete the single market.

Amendment    6

Proposal for a regulation

Recital 3

Text proposed by the Commission

Amendment

(3)  Pursuant to Article 20 of Directive 2006/123/EC of the European Parliament and of the Council17, Member States are to ensure that service providers established in the Union do not treat recipients of services differently on the basis of their nationality or place of residence. However, that provision has not been fully effective in combatting discrimination and it has not sufficiently reduced legal uncertainty, particularly because of the possibility to justify the differences in treatment for which it allows and the corresponding difficulties in enforcing it in practice. Moreover, geo-blocking and other forms of discrimination based on nationality, place of residence or place of establishment can also arise as a consequence of actions by traders established in third countries, which fall outside the scope of that Directive.

(3)  Pursuant to Article 20 of Directive 2006/123/EC of the European Parliament and of the Council17, Member States are to ensure that service providers established in the Union do not treat recipients of services differently on the basis of their nationality or place of residence. However, that provision has not been fully effective in combatting discrimination and has not sufficiently reduced legal uncertainty. This Regulation aims to supplement Article 20 of Directive 2006/123/EC. It should not be construed as replacing that Directive. Rather, it aims to supplement it, by defining certain situations where different treatment on the basis of nationality, place of residence or temporary location cannot be justified under Article 20(2) of Directive 2006/123/EC. Moreover, unjustified geo-blocking and other forms of discrimination based on nationality, place of residence or temporary location can also arise as a consequence of actions by traders established in third countries, which fall outside the scope of that Directive.

__________________

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17 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36).

17 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36).

Amendment     7

Proposal for a regulation

Recital 4

Text proposed by the Commission

Amendment

(4)  For the purposes of ensuring the good functioning of the internal market, the targeted measures set out in this Regulation, which provide for a clear, uniform and effective set of rules on a selected number of issues, are therefore required.

(4)  For the purposes of ensuring the good functioning of the internal market and guaranteeing the free movement of people, goods and services without discrimination on the basis of country of origin or place of residence, the targeted measures set out in this Regulation, which provide for a clear, uniform and effective set of rules on a selected number of issues, are therefore required. Those measures should maintain a balance between consumer protection and economic and contractual freedom for traders.

Amendment    8

Proposal for a regulation

Recital 5

Text proposed by the Commission

Amendment

(5)  This Regulation aims at preventing discrimination based on customers' nationality, place of residence or place of establishment, including geo-blocking, in cross-border commercial transactions between traders and customers relating to the sales of goods and the provision of services within the Union. It seeks to address direct as well as indirect discrimination, thus also covering unjustified differences of treatment on the basis of other distinguishing criteria which lead to the same result as the application of criteria directly based on customers' nationality, place of residence or place of establishment. Such other criteria can be applied, in particular, on the basis of information indicating the physical location of customers, such as the IP address used when accessing an online interface, the address submitted for the delivery of goods, the choice language made or the Member State where the customer's payment instrument has been issued.

(5)  This Regulation aims to prevent discrimination based on a consumer’s nationality, place of residence or temporary location, including geo-blocking, in cross-border commercial transactions between a trader and a consumer relating to sales of goods and the provision of services within the Union. It seeks to address direct as well as indirect discrimination, thus also covering unjustified differences of treatment on the basis of other distinguishing criteria which lead to the same result as the application of criteria directly based on consumers' nationality, place of residence or temporary location. Such other criteria can be applied, in particular, on the basis of information indicating the physical location of consumers, such as the IP address used when accessing an online interface, the address submitted for the delivery of goods, the choice of language made or the Member State in which the consumer's payment instrument has been issued.

Amendment    9

Proposal for a regulation

Recital 5 a (new)

Text proposed by the Commission

Amendment

 

(5a)  This Regulation should not apply to purely internal situations in which no cross-border elements can be presumed to exist and all relevant activities related, inter alia, to nationality, place of residence or temporary location, access to an online interface, access to goods or services or payment transactions are confined within one and the same Member State.

Amendment    10

Proposal for a regulation

Recital 6

Text proposed by the Commission

Amendment

(6)  Considering that some regulatory and administrative barriers for traders have been removed across the Union in certain services sectors as a result of the implementation of Directive 2006/123/EC, in terms of material scope, consistency should be ensured between this Regulation and Directive 2006/123/EC. As a consequence, the provisions of this Regulation should apply inter alia to non-audio-visual electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, subject however to the specific exclusion provided for in Article 4 and the subsequent evaluation of that exclusion as provided for in Article 9. Audio-visual services, including services the main feature of which is the provision of access to broadcasts of sports events and which are provided on the basis of exclusive territorial licenses, are excluded from the scope of this Regulation. Access to retail financial services, including payment services, should therefore also be excluded, notwithstanding the provisions of this Regulation regarding non-discrimination in payments.

(6)  Given that some regulatory and administrative barriers for traders have been removed across the Union in certain services sectors as a result of the implementation of Directive 2006/123/EC, in terms of its material scope, consistency should be ensured between this Regulation and Directive 2006/123/EC. As a consequence, the provisions of this Regulation should apply inter alia to non-audio-visual electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, subject however to the specific exclusion provided for in Article 4. It should be noted, however, that since the adoption of Directive 2006/123/EC, regulatory and administrative barriers for traders have been partially removed in other sectors.also.

Amendment    11

Proposal for a regulation

Recital 6 a (new)

Text proposed by the Commission

Amendment

 

(6a)  Given the specific nature of cultural works and the specific commercial models for their distribution, this Regulation should not affect the principle of the territoriality of copyright in cultural sectors.

Amendment    12

Proposal for a regulation

Recital 7

Text proposed by the Commission

Amendment

(7)  Discrimination can also occur in relation to services in the field of transport, in particular with respect to the sales of tickets for the transport of passengers. However, in that regard Regulation (EC) No 1008/2008 of the European Parliament and of the Council18, Regulation (EU) No 1177/2010 of the European Parliament and of the Council19 and Regulation (EU) No 181/2011 of the European Parliament and of the Council20 already contain broad prohibitions of discriminations covering all discriminatory practices that the present Regulation seeks to address. Furthermore, it is intended that Regulation (EC) No 1371/2007 of the European Parliament and of the Council21 will be amended to that effect in near future. Therefore, and in order to ensure consistency with the scope of application of Directive 2006/123/EC, services in the field of transport should remain outside the scope of this Regulation.

(7)  Discrimination also occurs in relation to services outside the scope of this Regulation, including in the field of audio-visual, financial, electronic communications, transport or healthcare services. Audio-visual services, including services the main feature of which is the provision of access to broadcasts of sports events which are provided on the basis of exclusive territorial licenses, should be excluded from the scope of this Regulation. Access to retail financial services, including payment services, should also be excluded, notwithstanding the provisions of this Regulation regarding non-discrimination in payments. Concerning electronic communications, the Commission has presented a proposal for a European Electronic Communications Code which upholds the principle of non-discrimination17a. As regards transport, Regulation (EC) No 1008/2008 of the European Parliament and of the Council18, Regulation (EU) No 1177/2010 of the European Parliament and of the Council19 and Regulation (EU) No 181/2011 of the European Parliament and of the Council20 already contain broad prohibitions on discrimination covering all discriminatory practices that the present Regulation seeks to address. Furthermore, it is intended that Regulation (EC) No 1371/2007 of the European Parliament and of the Council21 will be amended to that effect in the near future. For healthcare services, Directive 2011/24/EU of the European Parliament and of the Council21a already states that patients from other Member States cannot be discriminated against with regard to nationality. Therefore, and in order to ensure consistency with the acquis, services in the field of, inter alia, audio-visual, financial, electronic communications, transport or healthcare services should, at this stage, remain outside the scope of this Regulation.

__________________

__________________

 

17a Proposal for a Directive of the European Parliament and of the Council establishing the European Electronic Communications Code (Recast) - COM(2016)0590.

18 Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ L 293, 31.10.2008, p. 3).

18 Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ L 293, 31.10.2008, p. 3).

19 Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 (OJ L 334, 17.12.2010, p. 1).

19 Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 (OJ L 334, 17.12.2010, p. 1).

20 Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 on the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004 (OJ L 55, 28.2.2011, p. 1).

20 Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 on the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004 (OJ L 55, 28.2.2011, p. 1).

21 Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations (OJ L 315, 3.12.2007, p. 14).

21 Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations (OJ L 315, 3.12.2007, p. 14).

 

21a Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients' rights in cross-border healthcare (OJ L 88, 4.4.2011, p. 45).

Amendment  13

Proposal for a regulation

Recital 8

Text proposed by the Commission

Amendment

(8)  This Regulation should be without prejudice to the rules applicable in the field of taxation, given that the Treaty on the Functioning of the European Union (TFEU) provides specific base for action at Union level as regards taxation matters.

(8)  This Regulation should be without prejudice to the rules applicable in the field of taxation, given that the Treaty on the Functioning of the European Union (TFEU) provides a specific base for action at Union level as regards taxation matters.

Amendment    14

Proposal for a regulation

Recital 9

Text proposed by the Commission

Amendment

(9)  Pursuant to Regulation (EC) No 593/2008 of the European Parliament and of the Council22, the choice of law applicable to contracts between a consumer and a professional who pursues his or her commercial or professional activities in the country where the consumer has his or her habitual residence or, by any means, directs such activities to that country or to several countries including that country, may not have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law of the country where the consumer has his or her habitual residence. Pursuant to Regulation (EU) 1215/2012 of the European Parliament and of the Council23, in matters related to a contract between a consumer and a professional who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, a consumer may bring proceedings against the other party in the courts of the Member State where he is domiciled and proceedings may be brought against the consumer only in those courts.

deleted

__________________

 

22 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6).

 

23 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).

 

Amendment    15

Proposal for a regulation

Recital 10

Text proposed by the Commission

Amendment

(10)  This Regulation should not affect acts of Union law concerning judicial cooperation in civil matters, notably the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 of the European Parliament and of the Council24 and (EU) 1215/2012 of the European Parliament and of the Council25, including the application of those acts and provisions in individual cases. In particular, the mere fact that a trader acts in accordance with the provisions of this Regulation should not be construed as implying that he directs his activities to the consumer's Member State for the purpose of such application.

(10)  This Regulation should be without prejudice to the applicable Union law concerning judicial cooperation in civil matters, notably the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 of the European Parliament and of the Council24 and (EU) 1215/2012 of the European Parliament and of the Council25, including the application of those acts and provisions in individual cases. Mere compliance with this Regulation should not be construed as implying that a trader directs his activities to the consumer's Member State. In particular, where a trader, acting in accordance with Articles 3, 4 and 5, does not block or restrict consumer access to his on-line interface, does not redirect him or her to a different version of his on-line interface to which the consumer has sought access originally, irrespective of his or her nationality or place of residence, does not apply different general conditions of access in situations provided for by this Regulation, or where the trader accepts payments instruments issued in another Member State on a non-discriminatory basis, that trader cannot be regarded, solely on these grounds, as directing his or her activities to the Member State in which the consumer has his or her habitual residence or domicile. Furthermore, a trader is also not to be deemed as directing such activities to the Member State in which the consumer has his or her habitual residence or domicile where the trader complying with this Regulation undertakes the steps reasonably expected or requested by the consumer or required by law in order to provide the necessary information and assistance to consumer whether directly or indirectly by linking the consumer to any third parties that can provide the required assistance.

__________________

__________________

24 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6).

24 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6).

25 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).

25 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).

Amendment    16

Proposal for a regulation

Recital 11

Text proposed by the Commission

Amendment

(11)  The discriminatory practices that this Regulation seeks to address typically take place through general terms, conditions and other information set and applied by or on behalf of the trader concerned, as a precondition for obtaining access to the goods or services in question, and that are made available to the public at large. Such general conditions of access include inter alia prices, payment conditions and delivery conditions. They can be made available to the public at large by or on behalf of the trader through various means, such as information published in advertisements, on websites or pre-contractual or contractual documentation. Such conditions apply in the absence of an individually negotiated agreement to the contrary entered into directly between the trader and the customer. Terms and conditions that are individually negotiated between the trader and the customers should not be considered general conditions of access for the purposes of this Regulation.

(11)  The discriminatory practices that this Regulation seeks to address typically take place through general terms, conditions and other information set and applied by or on behalf of the trader concerned, as a precondition for obtaining access to the goods or services in question, and that are made available to the public at large. Such general conditions of access include inter alia prices, payment conditions and delivery conditions. They can be made available to the public at large by or on behalf of the trader through various means, such as information published in advertisements or on websites, or can form part of pre-contractual or contractual information. Such conditions apply in the absence of individually negotiated terms and conditions between the trader and the consumers. Terms and conditions that are individually negotiated between the trader and the consumers should not be considered general conditions of access for the purposes of this Regulation. However, the possibility of individually negotiating terms and conditions or agreeing individually upon additional rights or obligations should not result in geo-blocking or other unjustified forms of discrimination addressed by this Regulation.

Amendment    17

Proposal for a regulation

Recital 12

Text proposed by the Commission

Amendment

(12)  Both consumers and undertakings should be safeguarded from discrimination for reasons related to their nationality, place of residence or place of establishment when acting as customers for the purposes of this Regulation. However, that protection should not extend to customers purchasing a good or a service for resale, because it would affect widely used distribution schemes between undertakings in a business to business context, such as selective and exclusive distribution, which generally allow for manufacturers to select their retailers, subject to compliance with the rules on competition.

(12)  Consumers should be safeguarded from discrimination on grounds related to their nationality, place of residence or temporary location. However, in the case of dual-purpose contracts, where the contract is concluded for purposes partly within and partly outside the person's trade and the trade purpose is so limited as not to be predominant in the overall context of the contract, that person should also be considered as a consumer.

Amendment    18

Proposal for a regulation

Recital 14

Text proposed by the Commission

Amendment

(14)  In order to increase the possibility for customers to access information related to the sales of goods and the provision of services on the internal market and to increase transparency, including with respect to prices, traders should not, through the use of technological measures or otherwise, prevent customers from having full and equal access to online interfaces on the basis of their nationality, place of residence or place of establishment. Such technological measures can encompass, in particular, any technologies used to determine the physical location of the customer, including the tracking of that by means of IP address, coordinates obtained through a global navigation satellite system or data related to a payment transaction. However, that prohibition of discrimination with respect to access to online interfaces should not be understood as creating an obligation for the trader to engage in commercial transactions with customers.

(14)  In order to increase the possibility for consumers to access information related to sales of goods and the provision of services within the internal market and to increase transparency, including with respect to prices, traders and online marketplaces should not, through the use of technological measures or otherwise, prevent consumers from having full and equal access to online interfaces on the basis of their nationality, place of residence or temporary location. Full and equal access to online interfaces in the form of a mobile application should include the possibility for the consumer to download and access any version of the mobile application that a trader operates in one or more Member State. Technological measures to prevent such access can encompass, in particular, any technologies used to determine the physical location of the consumer, including the tracking of that location by means of IP address, coordinates obtained through a global navigation satellite system or data related to a payment transaction. However, that prohibition of discrimination with respect to access to online interfaces should not be understood as creating an obligation for the trader to engage in commercial transactions with a consumer.

Amendment    19

Proposal for a regulation

Recital 14 a (new)

Text proposed by the Commission

Amendment

 

(14a)  In order to ensure the equal treatment of consumers and to avoid discrimination in practice, traders' websites, mobile applications and all other interfaces should be designed to allow data entry in forms from a Member State other than that of the trader. In particular, websites should permit the entry of addresses, telephone numbers, including international prefixes, bank account numbers, including IBAN and BIC numbers, and any other data from a Member State other than that of the trader if such information is required in order to complete an order through that trader's online interface. Requiring a consumer to use solely other means to order, such as email or a telephone, should not be permitted unless these are the primary means by which all consumers, including those from the Member State of the trader, make such orders.

Amendment    20

Proposal for a regulation

Recital 15

Text proposed by the Commission

Amendment

(15)  Certain traders operate different versions of their online interfaces, targeting customers from different Member States. While this should remain possible, redirecting a customer from one version of the online interface to another version without his or her explicit consent should be prohibited. All versions of the online interface should remain easily accessible to the customer at all times.

(15)  Certain traders operate different versions of their online interfaces, targeting consumers from different Member States. While this should remain possible, redirecting a consumer from one version of the online interface to another version without his or her explicit consent should be prohibited. Traders should not be under the obligation to require consumer’s explicit consent each time the same consumer visits the same online interface. Once the consumer’s explicit consent has been given, it should be deemed to be valid for all subsequent visits of the same consumer to the same online interface. All versions of the online interface should remain easily accessible to the consumer at all times.

Amendment    21

Proposal for a regulation

Recital 16

Text proposed by the Commission

Amendment

(16)  In certain cases, blocking, limiting of access or redirection without the customer's consent to an alternative version of an online interface for reasons related to the customer's nationality, place or residence or place of establishment might be necessary in order to ensure compliance with a legal requirement in Union law or in the laws of Member States in accordance with Union law. Such laws can limit customers' access to certain goods or services, for instance by prohibiting the display of specific content in certain Member States. Traders should not be prevented from complying with such requirements and thus be able to block, limit the access or redirect certain customers or customers in certain territories to an online interface, insofar as that is necessary for that reason.

(16)  In certain cases, blocking or limiting of access, or redirection without the consumer's consent to an alternative version of an online interface for reasons related to the consumer's nationality, place of residence or temporary location might be necessary in order to ensure compliance with a legal requirement in Union law or in the laws of a Member State in accordance with Union law. Such laws can limit consumers' access to certain goods or services, for instance by prohibiting the display of specific content in certain Member States. Traders should not be prevented from complying with such requirements and should thus be able to block, limit access or redirect certain groups of consumers or consumers in certain territories in so far as this may be necessary for that reason.

Amendment    22

Proposal for a regulation

Recital 17

Text proposed by the Commission

Amendment

(17)  In a number of specific situations, any differences in the treatment of customers through the application of general conditions of access, including outright refusals to sell goods or to provide services, for reasons related to the customers' nationality, place of residence or place of establishment cannot be objectively justified. In those situations, all such discrimination should be prohibited and customers should consequently be entitled, under the specific conditions laid down in this Regulation, to engage in commercial transactions under the same conditions as a local customer and have full and equal access to any of the different goods or services offered irrespective of their nationality, place of residence or place of establishment. Where necessary, traders should therefore take measures to ensure compliance with that prohibition of discrimination if otherwise the customers concerned would be precluded from having such full and equal access. However, the prohibition applicable in those situations should not be understood as precluding traders from directing their activities at different Member States or certain groups of customers with targeted offers and differing terms and conditions, including through the setting-up of country-specific online interfaces.

(17)  In a number of specific situations, any differences in the treatment of consumers through the application of general conditions of access, including outright refusals to sell goods or to provide services, for reasons related to the consumers' nationality, place of residence or temporary location cannot be objectively justified. In those situations, all such discrimination should be prohibited and consumers should consequently be entitled, under the specific conditions laid down in this Regulation, to engage in commercial transactions under the same conditions as a local consumer and should have full and equal access to any of the different goods or services offered, irrespective of his or her nationality, place of residence or temporary location. Where necessary, a trader should therefore take measures to ensure compliance with that prohibition of discrimination. However, the prohibition applicable in those situations should not be understood as precluding traders from directing their activities at different Member States or certain groups of consumers with targeted offers and differing general conditions of access, including through the setting-up of country-specific online interfaces including those with different prices.

Amendment    23

Proposal for a regulation

Recital 18

Text proposed by the Commission

Amendment

(18)  The first of those situations is where the trader sells goods and there is no cross-border delivery of those goods by or on behalf of the trader to the Member State where the customer resides. In that situation the customer should be able to purchase goods, under exactly the same conditions, including price and conditions relating to the delivery of the goods, as similar customers who are residents of the Member State of the trader. That may mean that a foreign customer will have to pick up the good in that Member State, or in a different Member State to which the trader delivers. In this situation, there is no need to register for value added tax ("VAT") in the Member State of the customer, nor arrange for the cross-border delivery of goods.

(18)  The first of those situations is where the trader sells goods and there is no cross-border delivery of those goods by or on behalf of the trader to the Member State where the consumer resides. Instead, the trader offers delivery to a location in a Member State other than the Member State of residence of the consumer, including a possibility to collect the goods at a location to be agreed upon between the trader and the consumer. In that situation the consumer should be able to purchase goods under exactly the same conditions, including price conditions and conditions relating to the delivery of the goods, as similar consumers who are residents of the Member State in which the goods are delivered or in which the goods are collected. That might mean that a foreign consumer will have to pick up the good in that Member State, or in a different Member State to which the trader delivers, or arrange, by their own private means, the cross-border delivery of the goods. In this situation, in accordance with Council Directive 2006/112/EC1a, there is no need to register for value added tax ("VAT") in the Member State of the consumer.

 

___________________

 

1a Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ L 347, 11.12.2006, p. 1.

Amendment    24

Proposal for a regulation

Recital 19 a (new)

Text proposed by the Commission

Amendment

 

(19a)  The third situation is where consumers seek to receive electronically supplied services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, such as e-books or online music, games or software, provided that the trader has the rights or has acquired the licence to use such content for the relevant territories. In this case too, no physical delivery is required, as the services are being supplied electronically. The trader can declare and pay VAT in a simplified manner in accordance with the rules on VAT Mini-One-Stop-Shop (MOSS) set out in Implementing Regulation (EU) No 282/2011.

Amendment    25

Proposal for a regulation

Recital 20

Text proposed by the Commission

Amendment

(20)  Finally, in the situation where the trader provides services and those services are received by the customer in the premises of or at a location chosen by the trader and different from the Member State of which the customer is a national or in which the customer has his or her place of residence or place of establishment, the application of different general conditions of access for reasons related to such criteria should not be justified either. Those situations concern, as the case may be, the provision of services such as hotel accommodation, sport events, car rental, and entry tickets to music festivals or leisure parks. In those situations, the trader does not have to register for VAT in another Member State nor arrange for cross-border delivery of goods.

(20)  Finally, in the situation where the trader provides services and those services are received by the consumer in premises or at a location not situated in the Member State in which the consumer has his or her place of residence, the application of different general conditions of access for reasons related to the nationality, place of residence or temporary location of the consumer should not be justified either. Those situations concern, as the case may be, the provision of services excluding electronically supplied services, such as hotel accommodation, sports events, car rental, and entry tickets to music festivals or leisure parks. In those situations, the trader does not have to register for VAT in another Member State.

Amendment    26

Proposal for a regulation

Recital 21

Text proposed by the Commission

Amendment

(21)  In all those situations, by virtue of the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 and (EU) 1215/2012, where a trader does not pursue his activities in the Member State of the consumer or does not direct his activities there, or where the customer is not a consumer, compliance with this Regulation does not imply any additional costs for the trader associated with jurisdiction or differences in applicable law. Where, in contrast, a trader does pursue his activities in the consumer's Member State or does direct his activities there, the trader has manifested its intention to establish commercial relations with consumers from that Member State and thus been able to take account of any such costs.

(21)  In all those situations, by virtue of the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 and (EU) No 1215/2012, where a trader does not pursue his activities in the Member State of the consumer or does not direct his activities there, compliance with this Regulation does not involve any additional costs for the trader associated with jurisdiction or differences in applicable law.

Amendment    27

Proposal for a regulation

Recital 21 a (new)

Text proposed by the Commission

Amendment

 

(21a)  In all of those situations, the general conditions of access should comply with the laws and regulations of the Member State where the trader pursues his or her activities or to which he or she directs his or her activities. A trader does not need to ensure that the general conditions of access comply with the laws and regulations, or to use the language, of the Member State of residence of a consumer to whom the trader does not intend to sell.

Amendment    28

Proposal for a regulation

Recital 21 b (new)

Text proposed by the Commission

Amendment

 

(21b)  The use of a language in a trader’s online interface cannot in itself be adduced as indicating that the trader is intent on selling to consumers from another Member State.

Justification

While the general terms and conditions should include an indication of the trader’s intended market, it should not be assumed, in cases of doubt, that the mere use of a particular language indicates intent to attract purchasers from another Member State in which that language is used.

Amendment    29

Proposal for a regulation

Recital 21 c (new)

Text proposed by the Commission

Amendment

 

(21c)  Pursuant to Directive 1999/44/EC of the European Parliament and of the Council1a, a consumer has the right, in the case of a lack of conformity of consumer goods with the contract, to require the seller to repair those goods or to replace them, in either case free of charge, unless this is impossible or disproportionate. That Directive limits the costs to be borne by the seller to the necessary costs incurred to bring the goods into conformity. Moreover, that Directive does not preclude in certain circumstances the consumer’s right to reimbursement of the cost of repair or replacement from being limited, where necessary, to an amount proportionate to the value the goods would have if there were no lack of conformity and the significance of the lack of conformity. Where applicable, rules on precontractual information, language requirements, the right of withdrawal, its exercise and its effects, delivery, and the passing of risk are governed by Directive 2011/83/EU of the European Parliament and of the Council1b. That Directive determines inter alia what costs are to be incurred by consumers and traders in case of withdrawal from a distance or off-premises contract. The application of this Regulation should be without prejudice to Directives 1999/44/EC and 2011/83/EU.

 

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1a 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).

 

1b Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ L 304, 22.11.2011, p. 64).

Amendment    30

Proposal for a regulation

Recital 22

Text proposed by the Commission

Amendment

(22)  Traders falling under the special scheme provided in Chapter 1 of Title XII of Council Directive 2006/112/EC27 are not required to pay VAT. For those traders, when providing electronically supplied services, the prohibition of applying different general conditions of access for reasons related to the nationality, place of residence or place of establishment of the customer would imply a requirement to register in order to account for VAT of other Member States and might entail additional costs, which would be a disproportionate burden, considering the size and characteristics of the traders concerned. Therefore, those traders should be exempted from that prohibition for such time as such a scheme is applicable.

(22)  Traders falling under the special scheme provided for in Chapter 1 of Title XII of Directive 2006/112/EC are not required to pay VAT in the Member State in which they are established. For those traders, when providing electronically supplied services, the prohibition against applying different general conditions of access for reasons related to the nationality, place of residence or temporary location of the consumer would involve a requirement to register in order to account for VAT of other Member States and might entail additional costs, which would impose a disproportionate burden, considering the size and characteristics of the traders concerned. Therefore, those traders should be exempted from that prohibition for such time as such a scheme is applicable.

__________________

 

27 Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ L 347, 11.12.2006, p. 1–118)

 

Amendment    31

Proposal for a regulation

Recital 23

Text proposed by the Commission

Amendment

(23)  In all those situations, traders may in some cases be prevented from selling goods or providing services to certain customers or to customers in certain territories, for reasons related to the nationality, place of residence or place of establishment of the customer, as a consequence of a specific prohibition or a requirement laid down in Union law or in the laws of Member States in accordance with Union law. Laws of Member States may also require, in accordance with Union law, traders to respect certain rules on the pricing of books. Traders should not be prevented from complying with such laws in as far as necessary.

(23)  In all those situations, traders may in some cases be prevented from selling goods or providing services to certain groups of consumers or to consumers in certain territories, for reasons related to the nationality, place of residence or temporary location of the consumer, as a consequence of a specific prohibition or a requirement laid down in Union law or in the laws of a Member State in accordance with Union law. Laws of Member States may also require, in accordance with Union law, traders to respect certain rules on the pricing of books. In addition, the laws of Member States may require that electronically supplied publications should be able to benefit from the same preferential VAT rate treatment as publications on any means of physical support, as provided for in the proposal for a Council Directive amending Directive 2006/112/EC, as regards rates of value added tax applied to books, newspapers and periodicals1a. Traders should not be prevented from complying with such laws in as far as necessary.

 

__________________

 

1a COM(2016)0758.

Amendment    32

Proposal for a regulation

Recital 24

Text proposed by the Commission

Amendment

(24)  Under Union law, traders are in principle free to decide which means of payment they wish to accept, including payment brands. However, once this choice has been made, in view of the existing legal framework for payment services, there are no reasons for traders to discriminate customers within the Union by refusing certain commercial transactions, or by otherwise applying certain different conditions of payment in respect of those transactions, for reasons related to the nationality, place of residence or place of establishment of the customer. In this particular context, such unjustified unequal treatment for reasons related to the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union should be expressly prohibited as well. It should be further recalled that Regulation (EU) No 260/2012 already prohibits all payees, including traders, from requiring bank accounts to be located in a certain Member State for a payment in euro to be accepted.

(24)  Under Union law, traders are in principle free to decide which means of payment they wish to accept. In accordance with Regulation (EU) 2015/751 of the European Parliament and of the Council1a and Directive (EU) 2015/2366 of the European Parliament and of the Council1b, retailers accepting a card-based payment instrument of a specific payment brand and category are not under an obligation to accept card-based payment instruments of the same category but of a different brand, or of the same brand but a different category. However, once this choice has been made, in view of the existing legal framework for payment services, traders should not discriminate between consumers within the Union by refusing certain commercial transactions, or by otherwise applying certain different conditions of payment in respect of those payment transactions, for reasons related to the nationality, place of residence or temporary location of the consumer. In this particular context, such unjustified unequal treatment for reasons related to the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union should likewise be expressly prohibited. It should be further recalled that Regulation (EU) No 260/2012 of the European Parliament and of the Council1c already prohibits all traders from requiring bank accounts to be located in a certain Member State for a payment in euro to be accepted.

 

__________________

 

1a Regulation (EU) 2015/751 of the European Parliament and of the Council of 29 April 2015 on interchange fees for card-based payment transactions (OJ L 123, 19.5.2015, p. 1).

 

1b Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35).

 

1c Regulation (EU) No 260/2012 of the European Parliament and of the Council of 14 March 2012 establishing technical and business requirements for credit transfers and direct debits in euro and amending Regulation (EC) No 924/2009 (OJ L 94, 30.3.2012, p. 22).

Amendment    33

Proposal for a regulation

Recital 25

Text proposed by the Commission

Amendment

(25)  Directive 2015/2366/EU of the European Parliament and of the Council28 introduced strict security requirements for the initiation and processing of electronic payments, which reduced the risk of fraud for all new and more traditional means of payment, especially online payments. Payment service providers are obliged to apply so-called strong customer authentication, an authentication process that validates the identity of the user of a payment service or of the payment transaction. For remote transactions, such as online payments, the security requirements go even further, requiring a dynamic link to the amount of the transaction and the account of the payee, to further protect the user by minimising the risks in case of mistakes or fraudulent attacks. As a result of these provisions, the risk of payment fraud in national and cross-border purchases is brought to an equal level and should not be used as an argument to refuse or discriminate any commercial transactions within the Union.

(25)  Directive 2015/2366/EU introduced strict security requirements for the initiation and processing of electronic payments, which reduced the risk of fraud for all new and more traditional means of payment, especially online payments. Payment service providers are obliged to apply so-called strong consumer authentication, an authentication process that validates the identity of the user of a payment service or of the payment transaction. For remote transactions, such as online payments, the security requirements go even further, requiring a dynamic link to the amount of the transaction and the account of the payee, to further protect the user by minimising the risks in case of mistakes or fraudulent attacks. As a result of those provisions, the risk of payment fraud in cross-border purchases has been significantly reduced. However, in the case of direct debits where the trader might not be able to assess a consumer's creditworthiness properly, or it would require entering into a new or modified contract with the payment solution providers, the trader should be allowed to request an advance payment via SEPA credit transfer before dispatching the goods or providing the service. Different treatment is therefore justifiable in situations where there are no other means available to the trader to verify the creditworthiness of the consumer.

__________________

 

28 Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35–127).

 

Amendment    34

Proposal for a regulation

Recital 26

Text proposed by the Commission

Amendment

(26)  This Regulation should not affect the application of the rules on competition, and in particular Articles 101 and 102 TFEU. Agreements imposing on traders obligations not to engage in passive sales within the meaning of Commission Regulation (EU) No 330/201029 to certain customers or to customers in certain territories are generally considered restrictive of competition and cannot normally be exempted from the prohibition laid down in Article 101(1) TFEU. Even when they are not caught by Article 101 TFEU, in the context of the application of this Regulation, they disrupt the proper functioning of the internal market and they may be used to circumvent the provisions of this Regulation. The relevant provisions of such agreements and of other agreements in respect of passive sales requiring the trader to act in violation of this Regulation should therefore be automatically void. However, this Regulation, and in particular its provisions on access to goods or services, should not affect agreements restricting active sales within the meaning of Regulation (EU) No 330/2010.

(26)  This Regulation should not affect the application of the rules on competition, and in particular Articles 101 and 102 TFEU. Agreements imposing on traders obligations not to engage in passive sales within the meaning of Commission Regulation (EU) No 330/201029 to certain groups of consumers or to consumers in certain territories are generally considered restrictive of competition and cannot normally be exempted from the prohibition laid down in Article 101(1) TFEU. The relevant provisions of such agreements in respect of passive sales requiring the trader to act in violation of this Regulation should therefore be automatically null and void. However, this Regulation, and in particular its provisions on access to goods or services, should not affect agreements restricting active sales within the meaning of Regulation (EU) No 330/2010.

__________________

__________________

29 Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (OJ L 102, 23.4.2010, p. 1).

29 Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (OJ L 102, 23.4.2010, p. 1).

Amendment    35

Proposal for a regulation

Recital 27

Text proposed by the Commission

Amendment

(27)  Member States should designate one or more bodies responsible for taking effective action to monitor and to secure compliance with the provision of this Regulation. Member States should also ensure that effective, proportionate and dissuasive penalties can be imposed on traders in the event of any breach of this Regulation.

(27)  Member States should designate one or more responsible bodies with necessary powers to take effective action to monitor and to ensure compliance with the provisions of this Regulation. Member States should also ensure that effective, proportionate and dissuasive measures can be taken against traders in the event of any breach of this Regulation.

Amendment    36

Proposal for a regulation

Recital 28

Text proposed by the Commission

Amendment

(28)  Consumers should be in the position to receive assistance from responsible authorities facilitating the resolution of conflicts with traders, arising from the application of this Regulation, including by way of a uniform complaint form.

(28)  Consumers should be able to receive assistance from responsible bodies facilitating the resolution of conflicts with traders arising from the application of this Regulation. To that end, Member States should designate as bodies responsible for providing assistance, inter alia, the Online Dispute Resolution contact points referred to in Regulation (EU) No 524/2013 of the European Parliament and of the Council1a.

 

________________

 

1a Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR) (OJ L 165, 18.6.2013, p. 1).

Amendment    37

Proposal for a regulation

Recital 29

Text proposed by the Commission

Amendment

(29)  This Regulation should be regularly evaluated, with a view to proposing amendments where necessary. The first evaluation should concentrate, in particular, on the possible extension of the prohibition of Article 4(1)(b) to electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, provided that the trader has the requisite rights for the relevant territories.

(29)  This Regulation should be regularly evaluated, with a view to proposing amendments where necessary. The first evaluation should analyse in-depth the overall impact of the Regulation on the internal market and cross-border e-Commerce. It should concentrate, in particular, on the possible extension of the scope of this Regulation to other sectors. This should take due account of the specificities of each sector. In particular, the evaluation of the extension to audio-visual services should be based on detailed price and cost data which only service providers possess. Therefore, those providers should cooperate in the evaluation in order to facilitate the assessment of whether the inclusion of those services within the scope of this Regulation would lead to the evolution of business models which are more efficient than those currently used.

Amendment    38

Proposal for a regulation

Recital 30

Text proposed by the Commission

Amendment

(30)  With a view to facilitating the effective enforcement of the rules laid down in this Regulation, the mechanisms to ensure cross-border cooperation among competent authorities provided for in Regulation (EC) No 2006/2004 of the European Parliament and of the Council30 should also be available in relation to those rules. However, as Regulation (EC) No 2006/2004 only applies with respect to laws that protect consumers' interests, those measures should be available only when the customer is a consumer. Regulation (EC) No 2006/2004 should therefore be amended accordingly.

(30)  With a view to facilitating the effective enforcement of the rules laid down in this Regulation, the mechanisms to ensure cross-border cooperation among competent authorities provided for in Regulation (EC) No 2006/2004 of the European Parliament and of the Council30 should also be available in relation to those rules.

__________________

__________________

30 Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (the Regulation on consumer protection cooperation) (OJ L 364, 9.12.2004, p. 1).

30 Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (the Regulation on consumer protection cooperation) (OJ L 364, 9.12.2004, p. 1).

Amendment    39

Proposal for a regulation

Recital 31

Text proposed by the Commission

Amendment

(31)  In order to allow for the bringing of actions for injunctions aimed at the protection of the collective interests of consumers with respect to acts contrary to this Regulation in accordance with Directive 2009/22/EC of the European Parliament and of the Council31, that Directive should also be amended, so as to include a reference to this Regulation in its Annex I.

(31)  In order to allow for the bringing of actions for injunctions aimed at the protection of the collective interests of consumers with respect to acts contrary to this Regulation in accordance with Directive 2009/22/EC of the European Parliament and of the Council31, that Directive should also be amended, so as to include a reference to this Regulation in its Annex I. Consumers should also be encouraged to make good use of mechanisms for the out-of-court resolution of disputes concerning contractual obligations stemming from online sales or services contracts established under Regulation (EU) No 524/2013.

__________________

__________________

31 Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers' interests (OJ L 110, 1.5.2009, p. 30).

31 Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers' interests (OJ L 110, 1.5.2009, p. 30).

Justification

Clarification, that ODR can be the appropriate means of dispute resolution in this particular field.

Amendment    40

Proposal for a regulation

Recital 32

Text proposed by the Commission

Amendment

(32)  Traders, public authorities and other interested parties should have sufficient time to adapt to, and ensure compliance with, the provisions of this Regulation. In light of the particular characteristics of electronically supplied services, other than services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, it is appropriate to apply the prohibition of Article 4(1)(b) only from a later date with respect to the provision of those services.

deleted

Amendment    41

Proposal for a regulation

Recital 33

Text proposed by the Commission

Amendment

(33)  In order to achieve the objective of effectively addressing direct and indirect discrimination based on the nationality, place of residence or place of establishment of customers, it is appropriate to adopt a Regulation, which directly applies in all Member States. This is necessary in order to guarantee the uniform application of the non-discrimination rules across the Union and their entering into force at the same time. Only a Regulation ensures the degree of clarity, uniformity and legal certainty which is necessary in order to enable customers to fully benefit from those rules.

(33)  In order to achieve the objective of effectively addressing direct and indirect discrimination based on the nationality, place of residence or temporary location of consumers, it is appropriate to adopt a Regulation which directly applies in all Member States. This is necessary in order to guarantee the uniform application of the non-discrimination rules across the Union and their entry into force at the same time. Only a Regulation ensures the degree of clarity, uniformity and legal certainty which is necessary in order to enable consumers to fully benefit from those rules.

Amendment    42

Proposal for a regulation

Recital 34

Text proposed by the Commission

Amendment

(34)  Since the objective of this Regulation, namely the prevention of direct and indirect discrimination based on nationality, place of residence or place of establishment of customers, including geo-blocking, in commercial transactions with traders within the Union, cannot be sufficiently achieved by Member States, due to the cross-border nature of the problem and the insufficient clarity of the existing legal framework, but can rather, by reason of its scale and potential effect on trade in the internal market 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 Regulation does not go beyond what is necessary in order to achieve that objective.

(34)  Since the objective of this Regulation, namely the prevention of direct and indirect discrimination based on the nationality, place of residence or temporary location of consumers, including geo-blocking, in commercial transactions with traders within the Union, cannot be sufficiently achieved by Member States, due to the cross-border nature of the problem and the insufficient clarity of the existing legal framework, but can rather, by reason of its scale and potential effect on trade in the internal market, 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 Regulation does not go beyond what is necessary in order to achieve that objective.

Amendment    43

Proposal for a regulation

Recital 35

Text proposed by the Commission

Amendment

(35)  This Regulation respects fundamental rights and observes the principle recognised in the Charter of Fundamental Rights of the European Union. In particular this Regulation seeks to ensure full respect of Articles 16 and 17 thereof,

(35)  This Regulation respects fundamental rights and observes the principle recognised in the Charter of Fundamental Rights of the European Union. In particular this Regulation seeks to ensure full respect of Articles 11 (freedom of expression and information), 16 (freedom to conduct a business), 17 (right to property) and 38 (consumer protection) thereof,

Amendment    44

Proposal for a regulation

Article 1

Text proposed by the Commission

Amendment

Article 1

Article 1

Objective and scope

Subject matter

1.  This Regulation seeks to contribute to the proper functioning of the internal market by preventing discrimination based, directly or indirectly, on the nationality, place of residence or place of establishment of customers.

This Regulation seeks to contribute to the proper functioning of the internal market by preventing discrimination based, directly or indirectly, on the nationality, place of residence or temporary location of consumers and to further supplement Article 20 of Directive 2006/123/EC.

2.  This Regulation applies to the following situations:

 

(a)  where the trader sells goods, provides services, or seeks to do so, in a Member State other than the Member State in which the customer has the place of residence or the place of establishment;

 

(b)  where the trader sells goods, provides services, or seeks to do so, in the same Member State as the one in which the customer has the place of residence or place of establishment, but the customer is a national of another Member State;

 

(c)  where the trader sells goods or provides services, or seeks to do so, in a Member State in which the customer is temporarily located without residing in that Member State or having the place of establishment in that Member State.

 

3.  This Regulation does not apply to the activities referred to in Article 2(2) of Directive 2006/123/EC.

 

4.  This Regulation shall be without prejudice to the rules applicable to the field of taxation.

 

5.  This Regulation shall not affect acts of Union law concerning judicial cooperation in civil matters. Compliance with this Regulation shall not be construed as implying that a trader directs his or her activities to the Member State where the consumer has the habitual residence or domicile within the meaning of point (b) of Article 6(1) of Regulation (EC) No 593/2008 and point (c) of Article 17(1) of Regulation (EU) 1215/2012.

 

6.  Insofar as the provisions of this Regulation conflict with the provisions of Article 20(2) of Directive 2006/123/EC, the provisions of this Regulation shall prevail.

 

Amendment    45

Proposal for a regulation

Article 1 a (new)

Text proposed by the Commission

Amendment

 

Article 1a

 

Scope

 

1.  This Regulation does not apply to purely internal situations in which all relevant elements of the transaction are confined within a single Member State.

 

2.  This Regulation does not apply to the activities referred to in Article 2(2) of Directive 2006/123/EC.

 

3.  This Regulation shall be without prejudice to the rules applicable in the field of taxation.

 

4.  In so far as the provisions of this Regulation conflict with the provisions of Article 20(2) of Directive 2006/123/EC, the provisions of this Regulation shall prevail.

 

5.  This Regulation shall be without prejudice to the applicable Union law concerning judicial cooperation in civil matters. Mere compliance with this Regulation shall not be construed as implying that a trader directs his or her activities to the Member State where the consumer has the habitual residence or domicile within the meaning of point (b) of Article 6(1) of Regulation (EC) No 593/2008 and point (c) of Article 17(1) of Regulation (EU) 1215/2012. In particular, where a trader, acting in accordance with Articles 3, 4 and 5, does not block or restrict consumer access to his on-line interface, does not redirect him or her to a different version of his on-line interface to which the consumer has sought access originally, irrespective of his or her nationality or place of residence, does not apply different general conditions of access in situations provided for by this Regulation, or where the trader accepts payments instruments issued in another Member State on a non-discriminatory basis, that trader cannot be regarded, solely on these grounds, as directing his or her activities to the Member State in which the consumer has his or her habitual residence or domicile.

 

Furthermore, a trader shall also not be deemed to direct his or her activities to the Member State in which the consumer has his or her habitual residence or domicile where the trader acting in accordance with this Regulation undertakes the steps reasonably expected or requested by the consumer or required by law in order to provide the necessary information and assistance to consumer whether directly or indirectly by linking the consumer to any third parties that can provide the required assistance.

Amendment    46

Proposal for a regulation

Article 2 – paragraph 1

Text proposed by the Commission

Amendment

For the purposes of this Regulation, the definitions set out in Article 7 of Implementing Regulation (EU) No 282/2011, Article 2(10), (20) and (30) of Regulation (EU) 2015/751 of the European Parliament and Council32 and Article 4(8), (9), (11), (12), (14), (23), (24) and (30) of Directive (EU) 2015/2366 shall apply.

For the purposes of this Regulation:

 

(a)   'electronically supplied services' has the meaning assigned to that term by Article 7 of Implementing Regulation (EU) No 282/2011;

 

(b)   'interchange fee', , has the meaning assigned to that term by Article 2(10) of Regulation (EU) 2015/751;

 

(c)   'card-based payment instrument’ has the meaning assigned to that terms by Article 2(20) of Regulation (EU) 2015/751;

 

(d)   'payment brand' has the meaning assigned to that term by Article 2(30) of Regulation (EU) 2015/751;

 

(e)   'payment transaction' has the meaning assigned to that term by Article 4(5) of Directive (EU) 2015/2366.

 

(f)   'payer' has the meaning assigned to that terms by Article 4(8) of Directive (EU) 2015/2366;

 

(g)   'payment service provider' has the meaning assigned to that terms by Article 4(11) of Directive (EU) 2015/2366;

 

(h)   'payment account' has the meaning assigned to that terms by Article 4(12) of Directive (EU) 2015/2366;

 

(i)   'payment instrument' has the meaning assigned to that terms by Article 4(14) of Directive (EU) 2015/2366;

 

(j)   'direct debit' has the meaning assigned to that terms by Article 4(23) of Directive (EU) 2015/2366;

 

(k)   'credit transfer' has the meaning assigned to that terms by Article 4(24) of Directive (EU) 2015/2366;

 

(i)   'strong customer authentication' has the meaning assigned to that terms by Article 4(30) of Directive (EU) 2015/2366;

__________________

 

32 Regulation (EU) 2015/751 of the European Parliament and of the Council of 29 April 2015 on interchange fees for card-based payment transactions (OJ L 123, 19.5.2015, p. 1).

 

Amendment    47

Proposal for a regulation

Article 2 – paragraph 2 – introductory part

Text proposed by the Commission

Amendment

The following definitions shall also apply:

The following definitions shall also apply for the purposes of this Regulation:

Amendment    48

Proposal for a regulation

Article 2 – paragraph 2 – point c

Text proposed by the Commission

Amendment

(c)  'customer' means a consumer who, or an undertaking which, is a national of a Member State or has his or her place of residence or place of establishment in a Member State, and intends to purchase or purchases a good or a service within the Union, other than for resale;

deleted

Justification

In order to guarantee freedom of contract, B2B contracts should be excluded from this Regulation with the consequence that the Regulation only applies to B2C contracts.

Amendment    49

Proposal for a regulation

Article 2 – paragraph 2 – point d

Text proposed by the Commission

Amendment

(d)  'general conditions of access' means all terms, conditions and other information, including sale prices, regulating the access of customers to goods or services offered for sale by a trader, which are set, applied and made available to the public at large by or on behalf of the trader and which apply in the absence of an individually negotiated agreement between the trader and the customer;

(d)  'general conditions of access' means all terms, conditions and other information, including net sale prices, regulating access by consumers to goods or services offered for sale by a trader, which are set, applied and made available to the public at large by or on behalf of the trader and which apply in the absence of an individually negotiated agreement between the trader and the consumer;

Amendment    50

Proposal for a regulation

Article 2 – paragraph 2 – point e

Text proposed by the Commission

Amendment

(e)  'goods' means any tangible movable item, with the exception of items sold by way of execution or otherwise by authority of law; water, gas and electricity shall be considered as goods within the meaning of this Regulation where they are put up for sale in a limited volume or a set quantity;

(e)  'goods' means any tangible movable item, with the exception of (i) items sold by way of execution or otherwise by authority of law, and (ii) water, gas and electricity unless they are put up for sale in a limited volume or a set quantity;

Justification

Alignment with the online sales proposal.

Amendment    51

Proposal for a regulation

Article 2 – paragraph 2 – point f

Text proposed by the Commission

Amendment

(f)  'online interface' means any software, including a website and applications, operated by or on behalf of a trader, which serves to give customers access to the trader's goods or services with a view to engaging in a commercial transaction with respect to those goods or services;

(f)  'online interface' means any software, including a website or a part thereof and mobile applications, operated by or on behalf of a trader, which serves to give consumers access to the trader's goods or services with a view to engaging in a commercial transaction with respect to those goods or services;

Amendment    52

Proposal for a regulation

Article 2 – paragraph 2 – point f a (new)

Text proposed by the Commission

Amendment

 

(fa)  'online marketplace' means a digital service that allows consumers to conclude online sales or service contracts with traders either on the website of the online marketplace or on a trader's website that uses computing services provided by the online marketplace;

+ Amendment    53

Proposal for a regulation

Article 3

Text proposed by the Commission

Amendment

Article 3

Article 3

Access to online interfaces

Access to online interfaces

1.  Traders shall not, through the use of technological measures or otherwise, block or limit customers' access to their online interface for reasons related to the nationality, place of residence or place of establishment of the customer.

1.  A trader and an online marketplace shall not, through the use of technological measures or otherwise, block or limit consumers' access to his or her online interface for reasons related to the nationality, place of residence or temporary location of the consumer.

2.  Traders shall not, for reasons related to the nationality, place of residence or place of establishment of the customer, redirect customers to a version of their online interface that is different from the online interface which the customer originally sought to access, by virtue of its layout, use of language or other characteristics that make it specific to customers with a particular nationality, place of residence or place establishment, unless the customer gives his or her explicit consent prior to such redirection.

2.  A trader shall not, for reasons related to the nationality, place of residence or temporary location of a consumer, redirect a consumer to a version of his or her online interface that is different from the online interface which the consumer initially sought to access, by virtue of its layout, use of language or other characteristics that make it specific to a consumer with a particular nationality, place of residence or temporary location, unless the consumer gives his or her explicit consent to such redirection.

 

Where the trader allows the consumer to express a clear preference on a personal account, modifiable at any moment by the customer, the trader shall be allowed to routinely redirect that consumer to a specific landing page, on condition that that landing page allows clear and simple access to the online interface that the consumer initially sought to access.

In the event of such redirection with the customer's explicit consent, the original version of the online interface shall remain easily accessible for that customer.

In the event of such redirection with the consumer's explicit consent, the version of the online interface which the consumer initially sought to access shall remain easily accessible by the consumer.

3.  The prohibitions set out in paragraphs 1 and 2 shall not apply where the blocking, limitation of access or redirection with respect to certain customers or to customers in certain territories is necessary in order to ensure compliance with a legal requirement in Union law or in the laws of Member States in accordance with Union law.

3.  The prohibitions set out in paragraphs 1 and 2 shall not apply where the blocking or limitation of access or the redirection with respect to certain groups of consumers or to consumers in certain territories is necessary in order for a trader or online marketplace to comply with a legal requirement in Union law or in the laws of a Member State in accordance with Union law. The trader or the online marketplace shall justify clearly and explicitly the reasons for compliance in the language of the online interface that the consumer initially sought to access.

4.  Where a trader blocks or limits access of customers to an online interface or redirects customers to a different version of the online interface in compliance with paragraph 4, the trader shall provide a clear justification. That justification shall be given in the language of the online interface that the customer originally sought to access.

 

 

(In relation to consumer/trader, the replacement of “their” with “his or her” applies throughout the text. Adopting this amendment will necessitate corresponding changes throughout.)

Amendment    54

Proposal for a regulation

Article 4

Text proposed by the Commission

Amendment

Article 4

Article 4

Access to goods or services

Access to goods or services

1.  Traders shall not apply different general conditions of access to their goods or services, for reasons related to the nationality, place of residence or place of establishment of the customer, in the following situations:

1.  A trader shall not apply different general conditions of access to his or her goods or services, for reasons related to the nationality, place of residence or temporary location of the consumer, where the consumer seeks to:

(a)  where the trader sells goods and those goods are not delivered cross-border to the Member State of the customer by the trader or on his or her behalf;

(a)  buy goods and the trader offers delivery of those goods to a location in a Member State other than the Member State of residence of the consumer, including the option to collect the goods at a location to be agreed upon between the consumer and the trader;

(b)  where the trader provides electronically supplied services, other than services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter;

(b)  receive electronically supplied services from the trader, other than services the main feature of which is the provision of access to and use of copyright-protected works or other protected subject matter;

 

(ba)  receive electronically supplied services the main feature of which is the provision of access to and use of copyright-protected works or other protected subject matter in respect of which the trader has the requisite rights or has acquired the licence to use such content for the relevant territories;

(c)  where the trader provides services, other than those covered by point (b), and those services are supplied to the customer in the premises of the trader or in a physical location where the trader operates, in a Member State other than that of which the customer is a national or in which the customer has the place of residence or the place of establishment.

(c)  receive services from the trader other than electronically supplied services and those services are supplied to the consumer in a physical location in which the trader operates in a Member State other than that in which the consumer has his or her place of residence.

 

1a.  The prohibition set out in paragraph 1 shall not prevent a trader from applying different general conditions of access in different Member States or within a single Member State which are offered to consumers in a specific territory or to a specific group of consumers provided that these are not applied for reasons related to nationality, place of residence or temporary location.

 

1b.  The prohibition set out in paragraph 1 does not entail an obligation for a trader to comply with national legal requirements or to inform customers about these requirements when a trader does not pursue or direct his or her activities to the specific Member State.

2.   The prohibition set out in point (b) of paragraph 1 shall not apply to traders that are exempted from VAT on the basis of the provisions of Chapter 1 of Title XII of Directive 26/112/EC.

2.   The prohibition set out in point (b) of paragraph 1 shall not apply to traders that are exempted from VAT on the basis of the provisions of Chapter 1 of Title XII of Directive 26/112/EC.

3.   The prohibition set out in paragraph 1 shall not apply in so far as a specific provision laid down in Union law or in the laws of Member States in accordance with Union law prevents the trader from selling the goods or providing the services to certain customers or to customers in certain territories

3.   The prohibition set out in paragraph 1 shall not apply in so far as a specific provision laid down in Union law or in the laws of a Member State in accordance with Union law prevents the trader from selling the goods or providing the services concerned to certain groups of consumers or to consumers in certain territories.

With respect to sales of books, the prohibition set out in paragraph 1 shall not preclude traders from applying different prices to customers in certain territories in so far as they are required to do so under the laws of Member States in accordance with Union law.

With respect to sales of books, including their electronic version, the prohibition set out in paragraph 1 shall be without prejudice to specific legislation regarding pricing in their Member States in accordance with Union law.

Amendment    55

Proposal for a regulation

Article 5

Text proposed by the Commission

Amendment

Article 5

Article 5

Non-discrimination for reasons related to payment

Non-discrimination for reasons related to payment

1.  Traders shall not, for reasons related to the nationality, place of residence or place of establishment of the customer, the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union, apply different conditions of payment for any sales of goods or provision of services, where:

1.  A trader shall not, for reasons related to the nationality, place of residence or temporary location of the consumer, the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union, apply different conditions for a payment transaction, where:

(a)  those payments are made through electronic transactions by credit transfer, direct debit or a card-based payment instrument within the same payment brand;

(a)  that payment transaction is made through an electronic transaction by credit transfer, direct debit or a card-based payment instrument within the same payment brand and category;

(b)  the payee can request strong customer authentication by the payer pursuant to the Directive (EU) 2015/2366; and

(b)  authentication requirements are fulfilled pursuant to Directive (EU) 2015/2366; and

(c)  the payments are in a currency that the payee accepts.

(c)  the payment transaction is in a currency that the trader accepts.

 

1a.  Where justified by objective reasons, the prohibition set out in paragraph 1 shall not preclude the trader's right to withhold the goods or the provision of the service concerned until the trader has received confirmation that the payment transaction has been properly initiated.

2.  The prohibition set out in paragraph 1 shall not preclude traders' possibility to request charges for the use of a card-based payment instrument for which interchanges fees are not regulated under Chapter II of Regulation (EU) 2015/751 and for those payment services to which Regulation (EU) No 260/2012 does not apply. Those charges shall not exceed the costs borne by the trader for the use of the payment instrument.

2.  The prohibition set out in paragraph 1 shall not preclude a trader from charging for the use of a card-based payment instrument for which interchange fees are not regulated under Chapter II of Regulation (EU) 2015/751 or for payment services to which Regulation (EU) No 260/2012 does not apply, unless the Member State in which the trader is established has prohibited or limited such charges pursuant to Article 62(5) of Directive 2015/2366. Those charges shall not exceed the direct costs borne by the trader for the

 

2a.  The prohibition set out in paragraph 1 shall not preclude the trader's option to request, in case of direct debits, advance payment via SEPA credit transfer before goods are dispatched or before the service is provided, where they have no other way of ensuring that the purchaser will meet his or her payment obligation.

Amendment    56

Proposal for a regulation

Article 6 – paragraph 1

Text proposed by the Commission

Amendment

Agreements imposing on traders obligations, in respect of passive sales, to act in violation of this Regulation shall be automatically void.

Provisions of agreements imposing on traders obligations, in respect of passive sales within the meaning of Regulation (EU) 330/2010, to act in violation of this Regulation shall be automatically null and void.

Amendment    57

Proposal for a regulation

Article 7 – title

Text proposed by the Commission

Amendment

Enforcement by Member State authorities

Enforcement

Amendment    58

Proposal for a regulation

Article 7 – paragraph 1

Text proposed by the Commission

Amendment

1.  Each Member State shall designate a body or bodies responsible for the enforcement of this Regulation. Member States shall ensure that adequate and effective means exist with the body or bodies designated in order to enforce compliance with this Regulation.

1.  Each Member State shall designate a body or bodies responsible for the adequate and effective enforcement of this Regulation. Without prejudice to other information and cooperation mechanisms, those bodies shall be responsible for ensuring cross-border cooperation with bodies in other Member States through the appropriate means.

Amendment    59

Proposal for a regulation

Article 7 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States shall lay down the rules on the penalties applicable for infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive.

2.  Member States shall lay down the rules on the measures applicable for infringements of the provisions of this Regulation and shall ensure that they are implemented. The measures provided for shall be effective, proportionate and dissuasive.

Amendment     60

Proposal for a regulation

Article 7 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2 a.  The measures referred to in paragraph 2 shall be communicated to the Commission and made publically available on the Commission's website.

Amendment    61

Proposal for a regulation

Article 8 – paragraph 1

Text proposed by the Commission

Amendment

1.  Each Member State shall confer responsibility for providing practical assistance to consumers to a body or bodies in case of a dispute between a consumer and a trader arising from the application of this Regulation. Each Member State shall designate a body or bodies responsible for that task.

Each Member State shall designate a body or bodies responsible for providing practical assistance to consumers in the event of a dispute between a consumer and a trader arising from the application of this Regulation.

Justification

Alignment of structure with Article 7(1)

Amendment    62

Proposal for a regulation

Article 8 – paragraph 2

Text proposed by the Commission

Amendment

2.  The bodies referred to in paragraph 1 shall offer consumers a uniform model form to file complaints to the bodies referred to in paragraph 1 and in Article 7(1). The Commission shall assist those bodies in developing this model form.

deleted

Justification

Unnecessary regulation as the model form would cover different infringement as laid down in this Regulation and could cover two different bodies.

Amendment    63

Proposal for a regulation

Article 9

Text proposed by the Commission

Amendment

Article 9

Article 9

Review clause

Review clause

1.  By [date: two years after the entry into force of this Regulation] and every five years thereafter, the Commission shall report on the evaluation of this Regulation to the European Parliament, the Council and the European Economic and Social Committee. That report shall, where necessary, be accompanied by a proposal for an amendment of this Regulation, in light of legal, technical and economic developments.

1.  By [date three years after the entry into force of this Regulation] and every five years thereafter, the Commission shall report on the evaluation of this Regulation to the European Parliament, the Council and the European Economic and Social Committee. That report shall, where necessary, be accompanied by a proposal for an amendment of this Regulation, in light of legal, technical and economic developments.

2.  The first evaluation referred to in paragraph 1 shall be carried out, in particular, with a view to assessing whether the prohibition of Article 4(1)(b) should also apply to electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, provided that the trader has the requisite rights for the relevant territories.

2.  The first evaluation referred to in paragraph 1 shall be carried out, in particular, with a view to assessing the overall impact of this Regulation on the internal market and crossborder e-Commerce. In particular, the first in-depth evaluation shall assess whether the scope of this Regulation should be extended to cover additional sectors such as the audio-visual, financial, transport, electronic communication or healthcare services sectors, taking due account of the particularities of each sector.

Amendment    64

Proposal for a regulation

Article 10 – paragraph 1

Text proposed by the Commission

Amendment

1.  In the Annex to Regulation (EC) No 2006/2004 the following point [number] is added: "[number] [full title of this Regulation] (OJ L XX, XX.XX.Year, p. X), only when the customer is a consumer within the meaning of Article 2(3) of Regulation No XXXX/Year."

1.  In the Annex to Regulation (EC) No 2006/2004 the following point [number] is added: "[number] [full title of this Regulation] (OJ L XX, XX.XX.Year, p. X)".

Amendment    65

Proposal for a regulation

Article 11 – paragraph 3

Text proposed by the Commission

Amendment

However, point (b) of Article 4(1) shall apply from 1 July 2018.

deleted

(1)

Not yet published in the Official Journal.


EXPLANATORY STATEMENT

I. Introduction

As part of its eCommerce package, the Commission presented on 25 May 2016 a proposal for a regulation on addressing geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment. The purpose of the regulation is to ensure that customers have the same access to goods and services as local customers. The Regulation builds upon the provisions of the Services Directive (Art 20), which already establishes the principle for non-discrimination, but has proven difficult to enforce in practice due to legal uncertainty concerning what practices would – and would not be – considered justified.

The regulation seeks to provide more legal certainty and enforceability by defining specific situations when there can be no justified reason for discrimination on the grounds of nationality or residence. In addition, the proposed regulation bans the blocking of access to websites and the use of automatic re-routing without the customer's prior consent. The proposed regulation also includes provisions of non-discrimination within accepted payment means.

The Regulation is part of the overall strategy to stimulate cross-border e-commerce, a key driver for growth, by ensuring better access to goods and services, by building trust and providing greater certainty and by reducing administrative burden.

II. Position of the Rapporteur

The Rapporteur shares the overall objective of the Commission’s proposal, namely to realise the full potential of the internal market as an area without internal frontiers in which the free movement of goods and services is ensured. The internal market is far from a reality. eCommerce is a key driver for growth, with annual growth rates in the EU averaging over 13%. However, only 15% of consumers bought online from another EU country and 8% of traders sold cross-border (as compared to 24% domestically). Traders and consumers face continued barriers. In the online environment, such barriers become immediately apparent – for consumers, for instance, it is incomprehensible why they should be prevented from accessing certain websites, why they should not be able to buy certain goods in other Member States or why they should be paying a different price based on their nationality or their residence alone.

At the same time, there are clearly justified reasons for such differential treatment by traders. One such reason could be for instance the fact that the trader does not have the required intellectual property rights in a particular territory. Or traders may consider applying different conditions of access due to for instance the additional costs incurred because of the distance involved or the technical characteristics of the provision of the service or the different market conditions.

The Commission proposal is a welcome step in the right direction. It provides more clarity by defining specific situations where it can never be considered justified to discriminate on the grounds of nationality or residence. It also brings welcome clarity of the type of actions that would be considered inacceptable – such as banning the blocking of access and the non-discrimination provisions within accepted payment means. However, the Commission proposal leaves important elements unanswered.

1.  Legal certainty for consumers and traders

The Rapporteur is of the view that one of the reasons why traders may be hesitant to engage in commercial relations with consumers from other Member States is the legal uncertainty and the associated risks as regards the applicable consumer protection, environmental or labelling laws. This is not addressed in the Commission proposal, which leaves considerable uncertainty for traders and consumers alike.

To address this, the Rapporteur proposes a new Article 8a on applicable law and jurisdiction. The Article sets out to clarify that in those cases where a trader clearly sets out his intention to sell to consumers from one or more Member States and a consumer from another Member State wants to conclude a contract with this trader under the rights granted by Article 4 of this Regulation, then the trader will treat the consumer in the same way as he treats local consumers. In other words, the trader would be able to apply the consumer protection, environmental, labelling or product safety requirements of his Member State. Likewise, the responsible court should be that of the trader’s Member State.

2.  Scope

In the interest of proportionality, the rapporteur proposes to limit the scope of the regulation to consumers only, with one important exception, namely in case of dual purpose contracts with a limited trade focus, that person should also be considered as a consumer.

The Rapporteur can accept that at this stage the scope of the regulation is aligned with that of the Services Directive to the extent possible in order to ensure consistency, in other words non-economic services of general interest, transport services, audio-visual services, gambling, healthcare and certain other services are excluded from the scope of the Regulation. However, the Rapporteur believes that it is necessary to evaluate this in the context of the first review of the regulation.

However, the Rapporteur disagrees with the Commission on the question of how to treat electronically supplied services for the provision of access to and use of copyright-protected works or other protected subject-matter. The Rapporteur believes that there are numerous incidents of discrimination in relation to electronically supplied services such as e-books, e-music, games or software. She therefore proposes to include them within the scope of Article 4, provided that the trader has the requisite rights for the relevant territories.

3.  Additional clarifications

In addition, the Rapporteur proposes a number of clarifications to the draft text of the Commission. This include in particular:

•  A clarification that the non-discrimination prohibition covers not only nationality and place of residence but also temporary location

•  A clarification that purely internal situations without a cross-border component are excluded (Art 1a)

•  A simplification as regards Art 3 access to online interfaces: the Rapporteur considers the explicit consent provision suggested by the Commission as too burdensome both for business and consumers and considers it sufficient to impose an information obligation concerning redirection as well as full access to the original interface. The Rapporteur clarifies that the explanations are to be given in the language of the online interface. The rapporteur also considers that the access to online interfaces shouldn’t be limited not only by traders but also by online marketplaces.

•  A clarification in Art 4 that traders can still apply different general conditions of access between Member States or within a Member State offered to consumers on a specific territory or a specific group of consumers, as long as these are not defined on the basis of nationality, residence or temporary location. In other words, a trader would still be able to offer different prices in different web portals, as long as a consumer approaching a given web shop from another Member State is able to buy the product under the same conditions as a local consumer.

•  A clarification in Art 5 on payment methods to avoid increased risks of fraud linked to certain payment methods by clarifying that the trader has the right to withhold a good or service until he has received confirmation that the payment transaction has been properly initiated.


OPINION of the Committee on Legal Affairs(*) (4.4.2017)

for the Committee on the Internal Market and Consumer Protection

on the proposal for a regulation of the European Parliament and of the Council on addressing geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC

(COM(2016)0289 – C8-0192/2016 – 2016/0152(COD))

Rapporteur: Lidia Joanna Geringer de Oedenberg

SHORT JUSTIFICATION

Your rapporteur welcomes the Commission's proposal but believes that it does not go far enough in abolishing geo-blocking. The electronic provision of non-audiovisual copyright protected works or services, including e-books, software, computer games and music should be included in the scope of the Regulation from the entry into force, and at the first review after two years of application it should be evaluated whether audiovisual works should also be included in its scope. A precondition for such inclusion would however be that the trader holds a copyright licence for such works or is otherwise a rightsholder in all relevant territories. It is furthermore necessary to ensure legal clarity regarding the meaning of "directing an activity", particularly in those cases where a trader is targeting a specific Member State and the applicable choice of law rules leads to the application of the law of the Member State of the consumer. There should be no doubt about which rules apply in such situations. However, it is also essential to prevent traders from discriminating in other cases and to oblige them to sell to consumers and other traders regardless of the country of origin or residence of the consumer. The applicable law on such non-directed transactions should therefore be that of the Member State of the seller, not least in order to make life easier for small and medium-sized enterprises, for which the burden to ensure resources to effectively trade with consumers from several different legal system would be disproportionate. It is finally essential that the Regulation will start to apply as soon as possible.

AMENDMENTS

The Committee on Legal Affairs calls on the Committee on the Internal Market and Consumer Protection, as the committee responsible, to take into account the following amendments:

Amendment    1

Proposal for a regulation

Title

 

Text proposed by the Commission

Amendment

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on addressing geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on addressing geo-blocking and other forms of discrimination based on consumers' country of origin, place of residence or place of establishment within the internal market and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC

Justification

The word “nationality” is to be changed into “country of origin or residence” throughout the entire text”.

Amendment     2

Proposal for a regulation

Recital 1

Text proposed by the Commission

Amendment

(1)  In order to realise the objective of ensuring good functioning of the internal market, as an area without internal frontiers in which the free movement of inter alia goods and services is ensured, it is not sufficient to abolish, as between Member States, only State barriers. Such abolition can be undermined by private parties putting in place obstacles inconsistent with internal market freedoms. That occurs where traders operating in one Member State block or limit the access to their online interfaces, such as websites and apps, of customers from other Member States wishing to engage in cross-border commercial transactions (a practice known as geo-blocking). It also occurs through other actions by certain traders involving the application of different general conditions of access to their goods and services with respect to such customers from other Member States, both online and offline. Whereas there may sometimes be objective justifications for such differential treatment, in other cases traders deny consumers wishing to engage in cross-border commercial transactions access to goods or services, or apply different conditions in this regard, for purely commercial reasons.

(1)  In order to realise the objective of ensuring good functioning of the internal market, as an area where most barriers to trade have been removed and in which the free movement of, inter alia, people, goods and services is ensured, and in order to achieve the objectives set out in the Digital Market Strategy, it is not sufficient to abolish, as between Member States, only administrative red-tape. Such abolition can be undermined by certain private parties putting in place obstacles that are inconsistent with the principles and freedoms of the internal market. That occurs where traders operating in one Member State, in exceptional situations, unjustly block or limit the access to their online interfaces, such as websites and apps, of consumers from other Member States wishing to engage in cross-border commercial transactions (a practice known as geo-blocking). It also occurs through other actions by certain traders involving the application of different restrictive general conditions of access to their goods and services with respect to such consumers from other Member States, both online and offline. This practice undermines the core purpose of the internal market, lowers consumers’ options and the level of competition.

Amendment     3

Proposal for a regulation

Recital 2

Text proposed by the Commission

Amendment

(2)  In this manner certain traders artificially segment the internal market along internal frontiers and hamper the free movement of goods and services, thus restricting the rights of customers and preventing them from benefitting from a wider choice and optimal conditions. Such discriminatory practices are an important factor contributing to the relatively low level of cross-border commercial transactions within the Union, including in the sector of electronic commerce, which prevents the full growth potential of the internal market from being realised. Clarifying in which situations there can be no justification for differential treatment of this kind should bring clarity and legal certainty for all participants in cross-border transactions and should ensure that rules on non-discrimination can be effectively applied and enforced across the internal market.

(2)  In this manner certain traders artificially segment the internal market along internal frontiers and hamper the free movement of goods and services, thus restricting the rights of consumers and preventing them from benefitting from a wider choice and optimal conditions. Such discriminatory practices are an important factor contributing to the relatively low level of cross-border commercial transactions within the Union, including in the sector of electronic commerce, which prevents the full growth potential of a truly integrated internal market and its fostering. Clarifying in which situations there can be no justification for differential treatment of this kind should bring clarity and legal certainty for all participants in cross-border transactions and should ensure that rules on non-discrimination can be effectively applied and enforced across the internal market.

Amendment     4

Proposal for a regulation

Recital 3

Text proposed by the Commission

Amendment

(3)  Pursuant to Article 20 of Directive 2006/123/EC of the European Parliament and of the Council17 , Member States are to ensure that service providers established in the Union do not treat recipients of services differently on the basis of their nationality or place of residence. However, that provision has not been fully effective in combatting discrimination and it has not sufficiently reduced legal uncertainty, particularly because of the possibility to justify the differences in treatment for which it allows and the corresponding difficulties in enforcing it in practice. Moreover, geo-blocking and other forms of discrimination based on nationality, place of residence or place of establishment can also arise as a consequence of actions by traders established in third countries, which fall outside the scope of that Directive.

(3)  Pursuant to Article 20 of Directive 2006/123/EC of the European Parliament and of the Council17, Member States are to ensure that service providers established in the Union do not treat recipients of services differently on the basis of their country of origin or place of residence. However, that provision has not been fully effective in combatting discrimination and it has not sufficiently reduced legal uncertainty, particularly because of the possibility to justify the differences in treatment for which it allows and the corresponding difficulties in enforcing it in practice. Moreover, geo-blocking and other forms of discrimination based on country of origin or place of residence may arise as a consequence of actions by traders established in third countries, which fall outside the scope of that Directive, but which need to be tackled.

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17 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36).

17 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36).

Amendment     5

Proposal for a regulation

Recital 3 a (new)

Text proposed by the Commission

Amendment

 

(3 a)  Even though the present Regulation deals specifically with geo-blocking, a particular focus should be laid on increasing consumer confidence in e-commerce, providing more choice and access to lower-priced goods and services.

Amendment     6

Proposal for a regulation

Recital 4

Text proposed by the Commission

Amendment

(4)  For the purposes of ensuring the good functioning of the internal market, the targeted measures set out in this Regulation, which provide for a clear, uniform and effective set of rules on a selected number of issues, are therefore required.

(4)  For the purposes of ensuring the good functioning of the internal market and guaranteeing the free movement of people, goods and services without discrimination based on country of origin or place of residence, the targeted measures set out in this Regulation, which provide for a clear, uniform and effective set of rules on a selected number of issues, are therefore required. These measures should maintain a balance between consumer protection and economic and contractual freedom for traders.

Amendment     7

Proposal for a regulation

Recital 5

Text proposed by the Commission

Amendment

(5)  This Regulation aims at preventing discrimination based on customers' nationality, place of residence or place of establishment, including geo-blocking, in cross-border commercial transactions between traders and customers relating to the sales of goods and the provision of services within the Union. It seeks to address direct as well as indirect discrimination, thus also covering unjustified differences of treatment on the basis of other distinguishing criteria which lead to the same result as the application of criteria directly based on customer’s nationality, place of residence or place of establishment. Such other criteria can be applied, in particular, on the basis of information indicating the physical location of customers, such as the IP address used when accessing an online interface, the address submitted for the delivery of goods, the choice language made or the Member State where the customer’s payment instrument has been issued.

(5)  This Regulation aims at preventing discrimination based on customers' place of origin or place of residence, in cross-border commercial transactions between traders and consumers relating to the sales of goods and the provision of intangible goods and services within the Union. It seeks to prevent direct as well as indirect discrimination. Indirect discrimination should be understood to mean the application of distinguishing criteria other than the consumer´s country of origin or place of residence, which lead either in a determined manner or statistically to the same result as the direct application of those same criteria. It also seeks to cover unjustified differences of treatment on the basis of other distinguishing criteria which lead to the same result as the application of criteria directly based on consumers' country of origin, place of residence or place of establishment. Such other criteria can be applied, in particular, on the basis of information indicating the physical location of consumers, such as the IP address used when accessing an online interface, the address submitted for the delivery of goods, the choice language made or the Member State where the consumer's payment instrument has been issued. This Regulation should therefore prohibit the unjustified blocking of access to websites and other online undertakings, and the rerouting of consumers from one country version to another, discrimination against consumers in specific cases of the sale of goods and services and the circumventing of that prohibition on discrimination in passive sales agreements.

Amendment    8

Proposal for a regulation

Recital 6

 

Text proposed by the Commission

Amendment

(6)  Considering that some regulatory and administrative barriers for traders have been removed across the Union in certain services sectors as a result of the implementation of Directive 2006/123/EC, in terms of material scope, consistency should be ensured between this Regulation and Directive 2006/123/EC. As a consequence, the provisions of this Regulation should apply inter alia to non-audio-visual electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, subject however to the specific exclusion provided for in Article 4 and the subsequent evaluation of that exclusion as provided for in Article 9. Audio-visual services, including services the main feature of which is the provision of access to broadcasts of sports events and which are provided on the basis of exclusive territorial licenses, are excluded from the scope of this Regulation. Access to retail financial services, including payment services, should therefore also be excluded, notwithstanding the provisions of this Regulation regarding non-discrimination in payments.

(6)  Considering that some regulatory and administrative barriers for traders have been removed across the Union in certain services sectors as a result of the implementation of Directive 2006/123/EC, in terms of material scope, consistency should be ensured between this Regulation and Directive 2006/123/EC. As a consequence, the provisions of this Regulation should apply inter alia to non-audio-visual copyright-protected works and electronically supplied services and intangible goods, the main feature of which is the provision of access to and use of copyright-protected works or other protected subject matter in respect of which the trader has the rights or has acquired the licence to use such content for all relevant territories. Audio-visual works, including cinematographic works, and audio-visual services, including services the main feature of which is the provision of access to broadcasts of sports events and which are provided on the basis of exclusive territorial licenses, are excluded from the scope of this Regulation pending a comprehensive review of the legislation. Access to retail financial services, including payment services, should therefore also be excluded. However, the Commission should nevertheless review possibilities to include them in the scope of the Regulation, notwithstanding the provisions of this Regulation regarding non-discrimination in payments.

Amendment     9

Proposal for a regulation

Recital 7

Text proposed by the Commission

Amendment

(7)  Discrimination can also occur in relation to services in the field of transport, in particular with respect to the sales of tickets for the transport of passengers. However, in that regard Regulation (EC) No 1008/2008 of the European Parliament and of the Council18 , Regulation (EU) No 1177/2010 of the European Parliament and of the Council19 and Regulation (EU) No 181/2011 of the European Parliament and of the Council20 already contain broad prohibitions of discriminations covering all discriminatory practices that the present Regulation seeks to address. Furthermore, it is intended that Regulation (EC) No 1371/2007 of the European Parliament and of the Council21 will be amended to that effect in near future. Therefore, and in order to ensure consistency with the scope of application of Directive 2006/123/EC, services in the field of transport should remain outside the scope of this Regulation.

(7)  Discrimination occurs in relation to services in the field of transport, in particular with respect to the sales of tickets for the transport of passengers, even though regulation (EC) No 1008/2008 of the European Parliament and of the Council18, Regulation (EU) No 1177/2010 of the European Parliament and of the Council19 and Regulation (EU) No 181/2011 of the European Parliament and of the Council20 already contain broad prohibitions of discriminations. Furthermore, it is intended that Regulation (EC) No 1371/2007 of the European Parliament and of the Council21 will be amended to that effect in near future. Therefore, services in the field of transport should either, after review of this Regulation, be included in the scope of this Regulation, or prohibition of discriminations covering all discriminatory practices should be effectively enforced through specific Union legislation in that area.

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18 Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ L 293, 31.10.2008, p. 3).

18 Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ L 293, 31.10.2008, p. 3).

19 Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 (OJ L 334, 17.12.2010, p. 1).

19 Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 (OJ L 334, 17.12.2010, p. 1).

20 Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 on the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004 (OJ L 55, 28.2.2011, p. 1).

20 Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 on the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004 (OJ L 55, 28.2.2011, p. 1).

21 Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations (OJ L 315, 3.12.2007, p. 14).

21 Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations (OJ L 315, 3.12.2007, p. 14).

Amendment     10

Proposal for a regulation

Recital 7 a (new)

Text proposed by the Commission

Amendment

 

(7 a)  This Regulation should also cover the sale of bundled services. However, a trader should be under no obligation to sell the bundled services if he or she doesn't have a legal right to provide part of one or several services that are included in that bundle.

Amendment     11

Proposal for a regulation

Recital 9

Text proposed by the Commission

Amendment

(9)  Pursuant to Regulation (EC) No 593/2008 of the European Parliament and of the Council22 , the choice of law applicable to contracts between a consumer and a professional who pursues his or her commercial or professional activities in the country where the consumer has his or her habitual residence or, by any means, directs such activities to that country or to several countries including that country, may not have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law of the country where the consumer has his or her habitual residence. Pursuant to Regulation (EU) 1215/2012 of the European Parliament and of the Council23 , in matters related to a contract between a consumer and a professional who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, a consumer may bring proceedings against the other party in the courts of the Member State where he is domiciled and proceedings may be brought against the consumer only in those courts.

(9)  This Regulation should be without prejudice to Regulation (EC) No 593/2008 of the European Parliament and of the Council22, by which in cases where a professional that pursues his or her commercial or professional activities or by any means actively directs or declares his or her activities to a country or to several countries where the consumer has his or her habitual residence, the choice of law applicable to contracts between a consumer and a professional may not have the result of depriving the consumer of the protection afforded to him by provisions that cannot be derogated from by agreement by virtue of the law of the country where the consumer has his or her habitual residence. Pursuant to Regulation (EU) 1215/2012 of the European Parliament and of the Council23 , in matters related to a contract between a consumer and a professional who pursues commercial or professional activities in the Member State of the consumer's domicile or, by any means, directs such activities to that Member State or to several States including that Member State, a consumer may bring proceedings against the other party in the courts of the Member State where he is domiciled and proceedings may be brought against the consumer only in those courts.

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22 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6).

22 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6).

23 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).

23 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).

Amendment     12

Proposal for a regulation

Recital 10

Text proposed by the Commission

Amendment

(10)  This Regulation should not affect acts of Union law concerning judicial cooperation in civil matters, notably the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 of the European Parliament and of the Council24 and (EU) 1215/2012 of the European Parliament and of the Council25, including the application of those acts and provisions in individual cases. In particular, the mere fact that a trader acts in accordance with the provisions of this Regulation should not be construed as implying that he directs his activities to the consumer's Member State for the purpose of such application.

(10)  This Regulation should be without prejudice to Union law concerning judicial cooperation in civil matters, notably the provisions on the law applicable to contractual obligations and on court jurisdiction set out in Regulations (EC) No 593/2008 of the European Parliament and of the Council24 and (EU) 1215/2012 of the European Parliament and of the Council25, including the application of those acts and provisions in individual cases. In particular, legal clarity is necessary regarding the meaning of “directing an activity” and the mere fact that a trader acts in compliance with the provisions of this Regulation should not be construed as implying that he directs his activities to the consumer's Member State, within the meaning of Article 6(1)(b) of Regulation (EC) No 593/2008, and of Article 17(1)(c) of Regulation (EU) 1215/2012, in accordance with the case law of the Court of Justice of the European Union. The mere fact that the trader does not block/limit access to its online interface for consumers from another Member State or does not apply different general conditions of access in the cases laid down in this Regulation or does not apply different conditions for payment transactions in the payment schedule should not be considered as directing activities to the consumer's Member State. An intention to direct an activity to a consumer’s Member State cannot be considered to have been expressed solely where the trader is complying with the legal obligations set out in this Regulation. Where a trader directs his activities to a consumer’s Member State, even when such commercial targeting is not explicitly mentioned by the trader’s online interface, consumers should however not lose the benefit from Regulation (EC) No 593/2008 and Regulation (EU) No 1215/2012, which should remain applicable for the sake of legal certainty.

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24 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6).

24 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6).

25 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).

25 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).

Amendment    13

Proposal for a regulation

Recital 10 a (new)

 

Text proposed by the Commission

Amendment

 

(10a)  In situations in which a trader nevertheless provides access for consumers to his or her online interface, without applying different general conditions of access when selling goods or providing services, and in which accepting payment instruments issued in another Member State does not target the Member State where the consumer has his or her habitual residence, the applicable law should be that of the seller.

Amendment     14

Proposal for a regulation

Recital 11

Text proposed by the Commission

Amendment

(11)  The discriminatory practices that this Regulation seeks to address typically take place through general terms, conditions and other information set and applied by or on behalf of the trader concerned, as a precondition for obtaining access to the goods or services in question, and that are made available to the public at large. Such general conditions of access include inter alia prices, payment conditions and delivery conditions. They can be made available to the public at large by or on behalf of the trader through various means, such as information published in advertisements, on websites or pre-contractual or contractual documentation. Such conditions apply in the absence of an individually negotiated agreement to the contrary entered into directly between the trader and the customer. Terms and conditions that are individually negotiated between the trader and the customers should not be considered general conditions of access for the purposes of this Regulation.

(11)  The discriminatory practices that this Regulation seeks to address typically take place through general terms, conditions and other information set and applied by or on behalf of the trader concerned, as a precondition for obtaining access to the goods or services in question, and that are made available to the public at large. Such general conditions of access include inter alia prices, payment conditions and delivery conditions. They can be made available to the public at large by or on behalf of the trader through various means, such as information published in advertisements, on websites or pre-contractual or contractual documentation. Such conditions apply in the absence of an individually negotiated agreement to the contrary entered into directly between the trader and the consumer. Terms and conditions that are individually negotiated between the trader and the consumers should not be considered general conditions of access for the purposes of this Regulation.

Amendment     15

Proposal for a regulation

Recital 12

Text proposed by the Commission

Amendment

(12)  Both consumers and undertakings should be safeguarded from discrimination for reasons related to their nationality, place of residence or place of establishment when acting as customers for the purposes of this Regulation. However, that protection should not extend to customers purchasing a good or a service for resale, because it would affect widely used distribution schemes between undertakings in a business to business context, such as selective and exclusive distribution, which generally allow for manufacturers to select their retailers, subject to compliance with the rules on competition.

deleted

Amendment     16

Proposal for a regulation

Recital 13

Text proposed by the Commission

Amendment

(13)  The effects for customers and on the internal market of discriminatory treatment in connection to commercial transactions relating to the sales of goods or the provision of services within the Union are the same, regardless of whether a trader is established in a Member State or in a third country. Therefore, and with a view to ensuring that competing traders are subject to the same requirements in this regard, the measures set out in this Regulation should apply equally to all traders operating within the Union.

(13)  The effects for consumers and on the internal market of discriminatory treatment in connection to commercial transactions relating to the sales of goods or the provision of services within the Union are the same, regardless of whether a trader is established in a Member State or in a third country. Therefore, and with a view to ensuring that competing traders are subject to the same requirements in this regard, the measures set out in this Regulation should apply equally to all traders operating within the Union.

Amendment     17

Proposal for a regulation

Recital 14

Text proposed by the Commission

Amendment

(14)  In order to increase the possibility for customers to access information related to the sales of goods and the provision of services on the internal market and to increase transparency, including with respect to prices, traders should not, through the use of technological measures or otherwise, prevent customers from having full and equal access to online interfaces on the basis of their nationality, place of residence or place of establishment. Such technological measures can encompass, in particular, any technologies used to determine the physical location of the customer, including the tracking of that by means of IP address, coordinates obtained through a global navigation satellite system or data related to a payment transaction. However, that prohibition of discrimination with respect to access to online interfaces should not be understood as creating an obligation for the trader to engage in commercial transactions with customers.

(14)  In order to increase the possibility for consumers to access information related to the sales of goods and the provision of services on the internal market and to increase transparency, including with respect to prices, traders should not, through the use of technological measures or otherwise, prevent consumers from having full and equal access to online interfaces on the basis of their country of origin or place of residence. Access to online interfaces in the form of a mobile application should not be blocked in any possible way for consumers if they prefer to access their chosen online interface through such means and a trader offers such an option in a Member State. Technological measures that prevent such access can encompass, in particular, any technologies used to determine the physical location of the consumer, including the IP address used when accessing an online interface, coordinates obtained through a global navigation satellite system or data related to a payment transaction. However, that prohibition of discrimination with respect to access to online interfaces should not be understood as creating an obligation for the trader to engage in commercial transactions with consumers.

Amendment     18

Proposal for a regulation

Recital 15

Text proposed by the Commission

Amendment

(15)  Certain traders operate different versions of their online interfaces, targeting customers from different Member States. While this should remain possible, redirecting a customer from one version of the online interface to another version without his or her explicit consent should be prohibited. All versions of the online interface should remain easily accessible to the customer at all times.

(15)  Certain traders operate different versions of their online interfaces, targeting consumers from different Member States. While this should remain possible, redirecting a consumer from one version of the online interface to another version without his or her explicit consent should be prohibited. All versions of the online interface should remain easily accessible to the consumer at all times.

Amendment     19

Proposal for a regulation

Recital 16

Text proposed by the Commission

Amendment

(16)  In certain cases, blocking, limiting of access or redirection without the customer's consent to an alternative version of an online interface for reasons related to the customer's nationality, place or residence or place of establishment might be necessary in order to ensure compliance with a legal requirement in Union law or in the laws of Member States in accordance with Union law. Such laws can limit customers' access to certain goods or services, for instance by prohibiting the display of specific content in certain Member States. Traders should not be prevented from complying with such requirements and thus be able to block, limit the access or redirect certain customers or customers in certain territories to an online interface, insofar as that is necessary for that reason.

(16)  In certain cases, blocking, limiting of access or redirection without the consumer's consent to an alternative version of an online interface for reasons related to the consumer's country of origin or place or residence could be justified only if it is necessary to ensure compliance with a legal requirement in Union law or in the laws of a Member State in accordance with Union law with which the trader must comply when carrying on commercial activities in the Member State concerned. Such laws might limit consumers' access to certain goods or services, for instance by prohibiting the display of specific content in a certain Member State. Traders should not be prevented from complying with such requirements and thus should be able to block or limit the access or redirect certain consumers or consumers in certain territories to an online interface, insofar as that may be necessary for that reason. In this regard, a consumer should be notified on an online interface about the purpose of blocking, limiting or redirection to an alternative version of an online interface.

Amendment     20

Proposal for a regulation

Recital 17

Text proposed by the Commission

Amendment

(17)  In a number of specific situations, any differences in the treatment of customers through the application of general conditions of access, including outright refusals to sell goods or to provide services, for reasons related to the customers' nationality, place of residence or place of establishment cannot be objectively justified. In those situations, all such discrimination should be prohibited and customers should consequently be entitled, under the specific conditions laid down in this Regulation, to engage in commercial transactions under the same conditions as a local customer and have full and equal access to any of the different goods or services offered irrespective of their nationality, place of residence or place of establishment. Where necessary, traders should therefore take measures to ensure compliance with that prohibition of discrimination if otherwise the customers concerned would be precluded from having such full and equal access. However, the prohibition applicable in those situations should not be understood as precluding traders from directing their activities at different Member States or certain groups of customers with targeted offers and differing terms and conditions, including through the setting-up of country-specific online interfaces.

(17)  In a number of specific situations, any differences in the treatment of consumers through the application of general conditions of access, including outright refusals to sell goods, accept certain financial transactions that are officially stated by a trader or to provide services, for reasons related to the consumers' country of origin or place of residence cannot be objectively justified. In those situations, all such discrimination should be prohibited and consumers should consequently be entitled, under the specific conditions laid down in this Regulation, to engage in commercial transactions under the same conditions as a local consumer and have full and equal access to any of the different goods or services offered irrespective of their country of origin or place of residence. Where necessary, traders should therefore take measures to ensure compliance with that prohibition of discrimination if otherwise the consumers concerned would be precluded from having such full and equal access.

Amendment     21

Proposal for a regulation

Recital 18

Text proposed by the Commission

Amendment

(18)  The first of those situations is where the trader sells goods and there is no cross-border delivery of those goods by or on behalf of the trader to the Member State where the customer resides. In that situation the customer should be able to purchase goods, under exactly the same conditions, including price and conditions relating to the delivery of the goods, as similar customers who are residents of the Member State of the trader. That may mean that a foreign customer will have to pick up the good in that Member State, or in a different Member State to which the trader delivers. In this situation, there is no need to register for value added tax ("VAT") in the Member State of the customer, nor arrange for the cross-border delivery of goods.

(18)  The first of those situations is where the trader sells goods and there is no cross-border delivery of those goods by or on behalf of the trader to the Member State where the consumer resides. In that situation the consumer should be able to purchase goods, under exactly the same conditions, including price and conditions relating to the delivery of the goods, as similar consumers who are residents of the Member State of the trader. That may mean that a foreign consumer will have to pick up the good in that Member State, or in a different Member State to which the trader delivers. In this situation, the trader has no obligation to cover any additional costs of the cross-border delivery. Furthermore, there is no need to register for value added tax ("VAT") in the Member State of the consumer, nor arrange for the cross-border delivery of goods.

Amendment    22

Proposal for a regulation

Recital 19

 

Text proposed by the Commission

Amendment

(19)  The second situation is where the trader provides electronically supplied services, other than services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, such as cloud services, data warehousing services, website hosting and the provision of firewalls. In this case, no physical delivery is required, as the services are being supplied electronically. The trader can declare and pay VAT in a simplified manner in accordance with the rules on VAT Mini-One-Stop-Shop (MOSS) set out in Council Implementing Regulation (EU) No 282/2011.

(19)  The second situation is where the trader provides electronically supplied services, other than audio-visual services the main feature of which is the provision of access to and use of copyright-protected works or other protected subject matter, such as social networking services, cloud services, data warehousing services, website hosting and the provision of firewalls. In this case, no physical delivery is required, as the services are being supplied electronically. The trader can declare and pay VAT in a simplified manner in accordance with the rules on VAT Mini-One-Stop-Shop (MOSS) set out in Council Implementing Regulation (EU) No 282/2011.

Amendment    23

Proposal for a regulation

Recital 19 a (new)

 

Text proposed by the Commission

Amendment

 

(19a)  Where a trader electronically provides non-audio-visual copyright-protected works or services which are not covered by Directive 2010/13/EU, including e-books, software, computer games and music, in respect of which the trader has the rights or has acquired the licence to use such content for all relevant territories, he or she should likewise be prevented from discriminating on the basis of the costumer’s country of origin or place of residence.

Amendment     24

Proposal for a regulation

Recital 20

Text proposed by the Commission

Amendment

(20)  Finally, in the situation where the trader provides services and those services are received by the customer in the premises of or at a location chosen by the trader and different from the Member State of which the customer is a national or in which the customer has his or her place of residence or place of establishment, the application of different general conditions of access for reasons related to such criteria should not be justified either. Those situations concern, as the case may be, the provision of services such as hotel accommodation, sport events, car rental, and entry tickets to music festivals or leisure parks. In those situations, the trader does not have to register for VAT in another Member State nor arrange for cross-border delivery of goods.

(20)  Finally, in the situation where the trader provides services and those services are received by the consumer in the premises of or at a location chosen by the trader and different from the Member State of which the consumer is a national or in which the consumer has his or her place of residence, the application of different general conditions of access for reasons related to such criteria should not be justified either. Those situations concern, as the case may be, the provision of services such as hotel accommodation, sport events, car rental, and entry tickets to music festivals or leisure parks. In those situations, the trader does not have to register for VAT in another Member State nor arrange for cross-border delivery of goods.

Amendment    25

Proposal for a regulation

Recital 21

Text proposed by the Commission

Amendment

(21)  In all those situations, by virtue of the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 and (EU) 1215/2012, where a trader does not pursue his activities in the Member State of the consumer or does not direct his activities there, or where the customer is not a consumer, compliance with this Regulation does not imply any additional costs for the trader associated with jurisdiction or differences in applicable law. Where, in contrast, a trader does pursue his activities in the consumer's Member State or does direct his activities there, the trader has manifested its intention to establish commercial relations with consumers from that Member State and thus been able to take account of any such costs.

(21)  In all those situations, by virtue of the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 and (EU) No 1215/2012, where a trader does not pursue his activities in the Member State of the consumer or does not actively direct his activities there, or where the consumer is not a consumer, compliance with this Regulation does not imply any additional costs for the trader associated with jurisdiction or differences in applicable law. Where, in contrast, a trader does pursue his activities in the consumer's Member State or does direct his activities there, inter alia by the use of language – possibly, depending on the language, in combination with other criteria –, or by reference to currency or through prominence in local search engine results, manifesting his or her intention to establish commercial relations with consumers from that Member State, he or she should be able to take account of any such costs. The prohibition of discrimination under this Regulation should however not be understood as an obligation to deliver goods cross-border to another Member State where the trader would not otherwise offer the possibility of such delivery to its consumers, nor as an obligation to take back goods in another Member State or bear additional costs in this regard, where the trader would otherwise not be under such an obligation.

Amendment     26

Proposal for a regulation

Recital 22

Text proposed by the Commission

Amendment

(22)  Traders falling under the special scheme provided in Chapter 1 of Title XII of Council Directive 2006/112/EC27 are not required to pay VAT. For those traders, when providing electronically supplied services, the prohibition of applying different general conditions of access for reasons related to the nationality, place of residence or place of establishment of the customer would imply a requirement to register in order to account for VAT of other Member States and might entail additional costs, which would be a disproportionate burden, considering the size and characteristics of the traders concerned. Therefore, those traders should be exempted from that prohibition for such time as such a scheme is applicable.

(22)  Traders falling under the special scheme provided in Chapter 1 of Title XII of Council Directive 2006/112/EC27 are not required to pay VAT. For those traders, when providing electronically supplied services, the prohibition of applying different general conditions of access for reasons related to the country of residence or place of residence of the consumer would imply a requirement to register in order to account for VAT of other Member States and might entail additional costs, which would be a disproportionate burden, considering the size and characteristics of the traders concerned. Therefore, those traders should be exempted from that prohibition for such time as such a scheme is applicable.

_________________

_________________

27 Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ L 347, 11.12.2006, p. 1–118)

27 Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ L 347, 11.12.2006, p. 1–118)

Amendment     27

Proposal for a regulation

Recital 23

Text proposed by the Commission

Amendment

(23)  In all those situations, traders may in some cases be prevented from selling goods or providing services to certain customers or to customers in certain territories, for reasons related to the nationality, place of residence or place of establishment of the customer, as a consequence of a specific prohibition or a requirement laid down in Union law or in the laws of Member States in accordance with Union law. Laws of Member States may also require, in accordance with Union law, traders to respect certain rules on the pricing of books. Traders should not be prevented from complying with such laws in as far as necessary.

(23)  In those situations, traders may in some cases be prevented from selling goods or providing services to certain consumers or to consumers in certain territories, as a consequence of a specific prohibition or a requirement laid down in Union law or in the laws of Member States in accordance with Union law. Laws of Member States may also require, in accordance with Union law, traders to respect certain rules on the pricing of books. In addition, laws of Member States may require that electronically supplied services and electronically supplied publications should be able to benefit from the same preferential VAT rate treatment as publications on any means of physical support, in line with Council Directive amending Directive 2006/112/EC, as regards rates of value added tax applied to books, newspapers and periodicals. Traders should not be prevented from complying with such laws in as far as necessary and in as far as the Union's principles and legislation, and the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union, are complied with.

Amendment     28

Proposal for a regulation

Recital 26

Text proposed by the Commission

Amendment

(26)  This Regulation should not affect the application of the rules on competition, and in particular Articles 101 and 102 TFEU. Agreements imposing on traders obligations not to engage in passive sales within the meaning of Commission Regulation (EU) No 330/201029 to certain customers or to customers in certain territories are generally considered restrictive of competition and cannot normally be exempted from the prohibition laid down in Article 101(1) TFEU. Even when they are not caught by Article 101 TFEU, in the context of the application of this Regulation, they disrupt the proper functioning of the internal market and they may be used to circumvent the provisions of this Regulation. The relevant provisions of such agreements and of other agreements in respect of passive sales requiring the trader to act in violation of this Regulation should therefore be automatically void. However, this Regulation, and in particular its provisions on access to goods or services, should not affect agreements restricting active sales within the meaning of Regulation (EU) No 330/2010.

(26)  This Regulation should not affect the application of the rules on competition, and in particular Articles 101 and 102 TFEU. Agreements imposing on traders obligations not to engage in passive sales within the meaning of Commission Regulation (EU) No 330/201029 to certain consumers or to consumers in certain territories are generally considered restrictive of competition and cannot normally be exempted from the prohibition laid down in Article 101(1) TFEU. Even when they are not caught by Article 101 TFEU, in the context of the application of this Regulation, they disrupt the proper functioning of the internal market and they may be used to circumvent the provisions of this Regulation. The relevant provisions of such agreements and of other agreements in respect of passive sales requiring the trader to act in violation of this Regulation should therefore be automatically void. However, this Regulation, and in particular its provisions on access to goods or services, should not affect agreements restricting active sales within the meaning of Regulation (EU) No 330/2010.

_________________

_________________

29 Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (OJ L 102, 23.4.2010, p. 1).

29 Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (OJ L 102, 23.4.2010, p. 1).

Amendment     29

Proposal for a regulation

Recital 27

Text proposed by the Commission

Amendment

(27)  Member States should designate one or more bodies responsible for taking effective action to monitor and to secure compliance with the provision of this Regulation. Member States should also ensure that effective, proportionate and dissuasive penalties can be imposed on traders in the event of any breach of this Regulation.

(27)  Member States should designate one or more responsible bodies with necessary powers to take effective action to monitor and to ensure compliance with the provision of this Regulation. Member States should also ensure that effective, proportionate and dissuasive penalties can be imposed on traders in the event of any breach of this Regulation.

Amendment     30

Proposal for a regulation

Recital 28

Text proposed by the Commission

Amendment

(28)  Consumers should be in the position to receive assistance from responsible authorities facilitating the resolution of conflicts with traders, arising from the application of this Regulation, including by way of a uniform complaint form.

(28)  Consumers should be in the position to receive assistance from responsible bodies facilitating the resolution of conflicts with traders, arising from the application of this Regulation, including by way of a uniform complaint form.

Amendment     31

Proposal for a regulation

Recital 29

Text proposed by the Commission

Amendment

(29)  This Regulation should be regularly evaluated, with a view to proposing amendments where necessary. The first evaluation should concentrate, in particular, on the possible extension of the prohibition of Article 4(1)(b) to electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, provided that the trader has the requisite rights for the relevant territories.

(29)  This Regulation should be regularly evaluated, with a view to proposing amendments where necessary. The first evaluation should concentrate on an analysis of situations in which differences in treatment cannot be justified under Directive 2006/123/EC, in particular, on the possible extension of the application of Article 4(1)(b) to electronically supplied services and intangible goods, the main feature of which is the provision of access to and use of audio-visual copyright protected works and services or other protected subject matter, in respect of which the trader has the rights or has acquired the licences to use such content for all relevant territories, pending a comprehensive review of the legislation affecting those services, with a view to its possible extension to other cases, as well as the development of consumer prices and purchasing power in the Single Market following this Regulation. It should moreover take into account the legal and technological developments in Member States with regard to the reform of copyright, the audiovisual services' sector and the provision of cross-border portability of online content services for subscribers who are temporarily not present in their Member State of residence. This first evaluation should also consider the possible extension of the scope of this Regulation to financial services, transport services or healthcare services. Audio-visual service providers should in future cooperate in the evaluation in order to assess whether the inclusion of those services within the scope of this Regulation would lead to the evolution of business models which are more efficient than those currently used.

Amendment     32

Proposal for a regulation

Recital 30

Text proposed by the Commission

Amendment

(30)  With a view to facilitating the effective enforcement of the rules laid down in this Regulation, the mechanisms to ensure cross-border cooperation among competent authorities provided for in Regulation (EC) No 2006/2004 of the European Parliament and of the Council30 should also be available in relation to those rules. However, as Regulation (EC) No 2006/2004 only applies with respect to laws that protect consumers' interests, those measures should be available only when the customer is a consumer. Regulation (EC) No 2006/2004 should therefore be amended accordingly.

(30)  With a view to facilitating the effective enforcement of the rules laid down in this Regulation, the mechanisms to ensure cross-border cooperation among competent authorities provided for in Regulation (EC) No 2006/2004 of the European Parliament and of the Council30 should also be available in relation to those rules. However, as Regulation (EC) No 2006/2004 only applies with respect to laws that protect consumers' interests, Regulation (EC) No 2006/2004 should be amended accordingly.

_________________

_________________

30 Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (the Regulation on consumer protection cooperation) (OJ L 364, 9.12.2004, p. 1).

30 Regulation (EC) No 2006/2004 of the European Parliament and of the Council of 27 October 2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws (the Regulation on consumer protection cooperation) (OJ L 364, 9.12.2004, p. 1).

Amendment     33

Proposal for a regulation

Recital 33

Text proposed by the Commission

Amendment

(33)  In order to achieve the objective of effectively addressing direct and indirect discrimination based on the nationality, place of residence or place of establishment of customers, it is appropriate to adopt a Regulation, which directly applies in all Member States. This is necessary in order to guarantee the uniform application of the non-discrimination rules across the Union and their entering into force at the same time. Only a Regulation ensures the degree of clarity, uniformity and legal certainty which is necessary in order to enable customers to fully benefit from those rules.

(33)  In order to achieve the objective of effectively addressing direct and indirect discrimination based on the country of origin or place of residence of consumers, it is appropriate to adopt a Regulation, which directly applies in all Member States. This is necessary in order to guarantee the uniform application of the non-discrimination rules across the Union and their entering into force at the same time. Only a Regulation ensures the degree of clarity, uniformity and legal certainty which is necessary in order to enable consumers to fully benefit from those rules.

Amendment     34

Proposal for a regulation

Recital 34

Text proposed by the Commission

Amendment

(34)  Since the objective of this Regulation, namely the prevention of direct and indirect discrimination based on nationality, place of residence or place of establishment of customers, including geo-blocking, in commercial transactions with traders within the Union, cannot be sufficiently achieved by Member States, due to the cross-border nature of the problem and the insufficient clarity of the existing legal framework, but can rather, by reason of its scale and potential effect on trade in the internal market 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 Regulation does not go beyond what is necessary in order to achieve that objective.

(34)  Since the objective of this Regulation, namely the prevention of direct and indirect discrimination based on country of origin or place of residence of consumers, including geo-blocking, in commercial transactions with traders within the Union, cannot be sufficiently achieved by Member States, due to the cross-border nature of the problem and the insufficient clarity of the existing legal framework, but can rather, by reason of its scale and potential effect on trade in the internal market 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 Regulation does not go beyond what is necessary in order to achieve that objective.

Amendment     35

Proposal for a regulation

Recital 35

Text proposed by the Commission

Amendment

(35)  This Regulation respects fundamental rights and observes the principle recognised in the Charter of Fundamental Rights of the European Union. In particular this Regulation seeks to ensure full respect of Articles 16 and 17 thereof,

(35)  This Regulation respects fundamental rights and observes the principle recognised in the Charter of Fundamental Rights of the European Union. In particular this Regulation seeks to ensure full respect of Articles 11, 16 and 17 thereof,

Amendment     36

Proposal for a regulation

Article 1 – title

Text proposed by the Commission

Amendment

Objective and scope

Subject matter and scope

Amendment     37

Proposal for a regulation

Article 1 – paragraph 1

Text proposed by the Commission

Amendment

1.  This Regulation seeks to contribute to the proper functioning of the internal market by preventing discrimination based, directly or indirectly, on the nationality, place of residence or place of establishment of customers.

1.  The purpose of this Regulation is to contribute to the proper functioning of the internal market and achieve a high level of consumer protection by preventing geo-blocking based, directly or indirectly, on the country of origin or place of residence of consumers. This Regulation defines situations in which differences in conditions of access cannot be justified by objective criteria under the provisions of Article 20(2) of Directive 2006/123/EC.

Insofar as the provisions of this Regulation conflict with the provisions of Article 20(2) of Directive 2006/123/EC, the provisions of this Regulation shall prevail. Article 20(2) of Directive 2006/123/EC continues to fully apply to situations that are not covered by this Regulation and that fall within the scope of Directive 2006/123/EC.

Amendment    38

Proposal for a regulation

Article 1 – paragraph 2 – point a

 

Text proposed by the Commission

Amendment

(a)  where the trader sells goods, provides services, or seeks to do so, in a Member State other than the Member State in which the customer has the place of residence or the place of establishment;

(a)  where the trader sells goods or provides services, including non-audio-visual copyright-protected works and services, or seeks to do so, in a Member State other than the Member State in which the consumer has the place of residence;

Amendment    39

Proposal for a regulation

Article 1 – paragraph 2 – point b

 

Text proposed by the Commission

Amendment

(b)  where the trader sells goods, provides services, or seeks to do so, in the same Member State as the one in which the customer has the place of residence or place of establishment, but the customer is a national of another Member State;

(b)  where the trader sells goods or provides services, including non-audio-visual copyright-protected works and services, or seeks to do so, in the same Member State as the one in which the consumer has the place of residence, but the consumer is a national of another Member State;

Amendment    40

Proposal for a regulation

Article 1 – paragraph 2 – point c

 

Text proposed by the Commission

Amendment

(c)  where the trader sells goods or provides services, or seeks to do so, in a Member State in which the customer is temporarily located without residing in that Member State or having the place of establishment in that Member State.

(c)  where the trader sells goods or provides services, including non-audio-visual copyright-protected works and services, or seeks to do so, in a Member State in which the consumer is temporarily located without residing in that Member State.

Amendment     41

Proposal for a regulation

Article 1 – paragraph 5

Text proposed by the Commission

Amendment

5.  This Regulation shall not affect acts of Union law concerning judicial cooperation in civil matters. Compliance with this Regulation shall not be construed as implying that a trader directs his or her activities to the Member State where the consumer has the habitual residence or domicile within the meaning of point (b) of Article 6(1) of Regulation (EC) No 593/2008 and point (c) of Article 17(1) of Regulation (EU) 1215/2012.

5.  This Regulation shall be without prejudice to acts of Union law concerning judicial cooperation in civil matters. Simple compliance with this Regulation shall not be construed as implying that a trader directs his or her activities to the Member State where the consumer has the habitual residence or domicile within the meaning of point (b) of Article 6(1) of Regulation (EC) No 593/2008, and point (c) of Article 17(1) of Regulation (EU) 1215/2012. In particular, when a trader, acting in compliance with Articles 3, 4 and 5, does not block or limit consumers' access to its online interface, does not redirect them to a version of its online interface other than that which the consumer in question initially sought to access, regardless of their country of origin or place of residence, and does not apply different general access conditions in situations covered by this Regulation, that operator cannot be said for those reasons alone to be actively directing its activities towards the Member State where the consumer has the habitual residence or domicile. This shall however not apply when the existence of other additional elements, which go beyond simple compliance with the mandatory provisions, indicate that the trader directs his or her commercial or professional activities to such a Member State.

Amendment     42

Proposal for a regulation

Article 2 – paragraph 2 – point c

Text proposed by the Commission

Amendment

(c)  'customer' means a consumer who, or an undertaking which, is a national of a Member State or has his or her place of residence or place of establishment in a Member State, and intends to purchase or purchases a good or a service within the Union, other than for resale;

deleted

Amendment     43

Proposal for a regulation

Article 2 – paragraph 2 – point d

Text proposed by the Commission

Amendment

(d)  'general conditions of access' means all terms, conditions and other information, including sale prices, regulating the access of customers to goods or services offered for sale by a trader, which are set, applied and made available to the public at large by or on behalf of the trader and which apply in the absence of an individually negotiated agreement between the trader and the customer;

(d)  'general conditions of access' means all terms, conditions and other information, including sale prices, regulating the access of consumers to goods or services offered for sale by a trader, which are set, applied and made available to the public at large by or on behalf of the trader and which apply in the absence of an individually negotiated agreement between the trader and the consumer;

Amendment     44

Proposal for a regulation

Article 2 – paragraph 2 – point e

Text proposed by the Commission

Amendment

(e)  'goods' means any tangible movable item, with the exception of items sold by way of execution or otherwise by authority of law; water, gas and electricity shall be considered as goods within the meaning of this Regulation where they are put up for sale in a limited volume or a set quantity;

(e)  'goods' means any tangible movable item, with the exception of items sold by way of execution or otherwise by authority of law.

Amendment     45

Proposal for a regulation

Article 2 – paragraph 2 – point f

Text proposed by the Commission

Amendment

(f)  'online interface' means any software, including a website and applications, operated by or on behalf of a trader, which serves to give customers access to the trader's goods or services with a view to engaging in a commercial transaction with respect to those goods or services;

(f)  'online interface' means any software, including a website and applications, operated by or on behalf of a trader, which serves to give consumers access to the trader's goods or services with a view to engaging in a commercial transaction with respect to those goods or services;

Amendment     46

Proposal for a regulation

Article 2 – paragraph 2 – point h a (new)

Text proposed by the Commission

Amendment

 

(h a)  'geo-blocking' means unjustified access limitation to certain online interfaces through the use of technological measures or otherwise for geographical reasons.

Amendment     47

Proposal for a regulation

Article 3 – paragraph 1

Text proposed by the Commission

Amendment

1.  Traders shall not, through the use of technological measures or otherwise, block or limit customers' access to their online interface for reasons related to the nationality, place of residence or place of establishment of the customer.

1.  Traders shall not, through the use of technological measures or otherwise, block or limit consumers' access to their online interface for reasons related to the place of origin or place of residence of the consumer.

Amendment     48

Proposal for a regulation

Article 3 – paragraph 2 – subparagraph 1

Text proposed by the Commission

Amendment

Traders shall not, for reasons related to the nationality, place of residence or place of establishment of the customer, redirect customers to a version of their online interface that is different from the online interface which the customer originally sought to access, by virtue of its layout, use of language or other characteristics that make it specific to customers with a particular nationality, place of residence or place establishment, unless the customer gives his or her explicit consent prior to such redirection.

Traders shall not, for reasons related to the country of origin or place of residence of the consumer, redirect consumers to a version of their online interface that is different from the online interface which the consumer originally sought to access, by virtue of its layout, use of language or other characteristics that make it specific to consumers with a particular country of origin or place of residence, unless the consumer has given his or her explicit consent prior to such redirection, which the consumer originally sought to access.

Amendment     49

Proposal for a regulation

Article 3 – paragraph 2 – subparagraph 2

Text proposed by the Commission

Amendment

In the event of such redirection with the customer's explicit consent, the original version of the online interface shall remain easily accessible for that customer.

In the event of such redirection with the consumer's explicit consent, the version of the online interface which the consumer initially sought to access, shall remain easily accessible for that consumer.

Amendment     50

Proposal for a regulation

Article 3 – paragraph 3

Text proposed by the Commission

Amendment

3.  The prohibitions set out in paragraphs 1 and 2 shall not apply where the blocking, limitation of access or redirection with respect to certain customers or to customers in certain territories is necessary in order to ensure compliance with a legal requirement in Union law or in the laws of Member States in accordance with Union law.

3.  The prohibitions set out in paragraphs 1 and 2 shall not apply where the blocking or limitation of clients' access to the trader's online interface or redirection with respect to certain consumers or to consumers in certain territories is necessary in order to ensure compliance with a legal requirement in Union law or in the laws of Member States in accordance with Union law, to which the trader's activities are subject.

Amendment     51

Proposal for a regulation

Article 3 – paragraph 4

Text proposed by the Commission

Amendment

4.  Where a trader blocks or limits access of customers to an online interface or redirects customers to a different version of the online interface in compliance with paragraph 4, the trader shall provide a clear justification. That justification shall be given in the language of the online interface that the customer originally sought to access.

4.  Where a trader blocks or limits access of consumers to an online interface or redirects consumers to a different version of the online interface in compliance with paragraph 3, the trader shall provide a clear justification and explanation to the consumer. That justification shall be given in the language of the online interface that the consumer originally sought to access.

Amendment     52

Proposal for a regulation

Article 4 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1.  Traders shall not apply different general conditions of access to their goods or services, for reasons related to the nationality, place of residence or place of establishment of the customer, in the following situations:

1.  Traders shall not apply different general conditions of access to their goods or services, for reasons related to the country of origin or place of residence of the consumer, where:

Amendment     53

Proposal for a regulation

Article 4 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  where the trader sells goods and those goods are not delivered cross-border to the Member State of the customer by the trader or on his or her behalf;

(a)  the trader sells goods and those goods are not delivered cross-border to the Member State of the consumer by the trader or on his or her behalf, but are collected at a location agreed between the trader and the consumer in which the trader operates;

Amendment     54

Proposal for a regulation

Article 4 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b)  where the trader provides electronically supplied services, other than services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter;

(b)  where the trader provides electronically supplied services, other than services the main feature of which is the sale in non-material form or the provision of access to and use of copyright protected works or other protected subject matter;

Amendment    55

Proposal for a regulation

Article 4 – paragraph 1 – point b a (new)

 

Text proposed by the Commission

Amendment

 

(b a)  where the trader provides electronically supplied non-audio-visual works or services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter in respect of which the trader has the rights or has acquired the licence to use such content for all relevant territories;

Amendment     56

Proposal for a regulation

Article 4 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  where the trader provides services, other than those covered by point (b), and those services are supplied to the customer in the premises of the trader or in a physical location where the trader operates, in a Member State other than that of which the customer is a national or in which the customer has the place of residence or the place of establishment.

(c)  the trader provides services, other than those covered by point (b), and those services are supplied to the consumer in the premises of the trader or in a physical location where the trader operates, in a Member State other than that of which the consumer is a national or in which the consumer has the place of residence.

Amendment     57

Proposal for a regulation

Article 4 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1 a.  The prohibition set out in paragraph 1 shall not prevent traders from offering general conditions of access, including sale prices, which differ from one Member State to another or which are offered to consumers in a specific territory or to specific groups of consumers.

Amendment     58

Proposal for a regulation

Article 4 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2 a.  Traders shall have the possibility not to deliver goods or provide services across borders in cases where the delivery or the provision creates additional costs and/or requires additional arrangements on the trader's behalf.

Amendment    59

Proposal for a regulation

Article 4 – paragraph 3 –subparagraph 1

 

Text proposed by the Commission

Amendment

The prohibition set out in paragraph 1 shall not apply in so far as a specific provision laid down in Union law or in the laws of Member States in accordance with Union law prevents the trader from selling the goods or providing the services to certain customers or to customers in certain territories.

The prohibition set out in paragraph 1 shall apply taking into account specific provisions laid down in Union law or in the laws of Member States in accordance with Union law by preventing the trader from selling the goods or providing the services to certain consumers or to consumers in certain territories.

Amendment     60

Proposal for a regulation

Article 4 – paragraph 3 – subparagraph 2

Text proposed by the Commission

Amendment

With respect to sales of books, the prohibition set out in paragraph 1 shall not preclude traders from applying different prices to customers in certain territories in so far as they are required to do so under the laws of Member States in accordance with Union law.

With respect to sales of books, the prohibition set out in paragraph 1 shall be without prejudice to specific legislation regarding pricing in Member States, in accordance with Union law.

Amendment     61

Proposal for a regulation

Article 4 a (new)

Text proposed by the Commission

Amendment

 

Article 4 a

 

This Regulation shall not affect the rules applicable in the field of copyright and the neighbouring rights.

Justification

Access to copyright protected works or other protected subject matter and the use of such works or subject matter should continue to fall outside the scope of this regulation. This will rule out overlap with other items of EU legislation.

Amendment     62

Proposal for a regulation

Article 5 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1.  Traders shall not, for reasons related to the nationality, place of residence or place of establishment of the customer, the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union, apply different conditions of payment for any sales of goods or provision of services, where:

1.  Traders shall not, for reasons related to the place of origin or place of residence of the consumer, the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union, apply different conditions of payment for any sales of goods or provision of services, where:

Amendment     63

Proposal for a regulation

Article 6 – paragraph 1

Text proposed by the Commission

Amendment

Agreements imposing on traders obligations, in respect of passive sales, to act in violation of this Regulation shall be automatically void.

Provisions imposing on traders obligations, in respect of passive sales, within the meaning of Regulation (EU) 330/2010 to act in violation of this Regulation shall be automatically null and void.

Amendment     64

Proposal for a regulation

Article 7 – paragraph 2

Text proposed by the Commission

Amendment

2.  Member States shall lay down the rules on the penalties applicable for infringements of the provisions of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive.

2.  Member States shall lay down the rules on the sanctions applicable for infringements of the provisions of this Regulation and shall take all necessary measures to ensure that they are implemented. The sanctions provided for shall be effective, proportionate and dissuasive.

Amendment     65

Proposal for a regulation

Article 7 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2 a.  The sanctions referred to in paragraph 2 should be communicated to the Commission and made publically available on the Commission's website.

Amendment     66

Proposal for a regulation

Article 9 – paragraph 1

Text proposed by the Commission

Amendment

1.  By [date: two years after the entry into force of this Regulation] and every five years thereafter, the Commission shall report on the evaluation of this Regulation to the European Parliament, the Council and the European Economic and Social Committee. That report shall, where necessary, be accompanied by a proposal for an amendment of this Regulation, in light of legal, technical and economic developments.

1.  By [date: two years after the entry into force of this Regulation], as required thereafter and at the latest every four years thereafter, the Commission shall assess the application of this Regulation in light of legal, technical and economic developments, and shall submit a respective report to the European Parliament, the Council and the European Economic and Social Committee. That report shall, if appropriate, be accompanied by a legislative proposal to review the current Regulation.

 

The report referred to in the first paragraph shall include an assessment on possibly extending the scope of this Regulation, notably on extending the prohibition of Article 4(1)(b) to electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter as well as to other sectors, such as music, e-books, games and/or software.

 

Furthermore, the report shall pay special attention to potential economic effects on SMEs and start-ups, the effectiveness of national enforcement measures referred to in Article 7 of this Regulation as well as focus on the use and protection of personal data.

Amendment     67

Proposal for a regulation

Article 9 – paragraph 2

Text proposed by the Commission

Amendment

2.  The first evaluation referred to in paragraph 1 shall be carried out, in particular, with a view to assessing whether the prohibition of Article 4(1)(b) should also apply to electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, provided that the trader has the requisite rights for the relevant territories.

2.  The first evaluation referred to in paragraph 1 shall be carried out, in particular, with a view to assessing whether the scope of this Regulation should be extended to cover additional sectors such as financial, transport, electronic communication, healthcare and audio-visual services, provided that the trader has the rights or has acquired the license to use electronically supplied audio-visual works, intangible goods or services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter for all relevant territories.

Amendment    68

Proposal for a regulation

Article 11 – paragraph 3

 

Text proposed by the Commission

Amendment

However, point (b) of Article 4(1) shall apply from 1 July 2018.

deleted

PROCEDURE – COMMITTEE ASKED FOR OPINION

Title

Addressing geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market

References

COM(2016)0289 – C8-0192/2016 – 2016/0152(COD)

Committee responsible

       Date announced in plenary

IMCO

9.6.2016

 

 

 

Opinion by

       Date announced in plenary

JURI

9.6.2016

Associated committees - date announced in plenary

19.1.2017

Rapporteur

       Date appointed

Lidia Joanna Geringer de Oedenberg

12.9.2016

Discussed in committee

29.11.2016

31.1.2017

 

 

Date adopted

23.3.2017

 

 

 

Result of final vote

+:

–:

0:

14

3

4

Members present for the final vote

Max Andersson, Joëlle Bergeron, Marie-Christine Boutonnet, Jean-Marie Cavada, Kostas Chrysogonos, Lidia Joanna Geringer de Oedenberg, Mary Honeyball, Sajjad Karim, Sylvia-Yvonne Kaufmann, António Marinho e Pinto, Jiří Maštálka, Julia Reda, Pavel Svoboda, Tadeusz Zwiefka

Substitutes present for the final vote

Isabella Adinolfi, Daniel Buda, Jytte Guteland, Angelika Niebler, Virginie Rozière, Rainer Wieland

Substitutes under Rule 200(2) present for the final vote

Eugen Freund, Maria Noichl

FINAL VOTE BY ROLL CALL IN COMMITTEE ASKED FOR OPINION

14

+

ALDE

EFDD

GUE/NGL Group

PPE

S&D

Verts/ALE Group

Jean-Marie Cavada, António Marinho e Pinto

Joëlle Bergeron

Kostas Chrysogonos, Jiří Maštálka

Pavel Svoboda

Eugen Freund, Lidia Joanna Geringer de Oedenberg, Jytte Guteland, Mary Honeyball, Sylvia-Yvonne Kaufmann, Maria Noichl

Max Andersson, Julia Reda

3

-

EFDD

ENF

PPE

Isabella Adinolfi

Marie-Christine Boutonnet

Angelika Niebler

4

0

ECR

PPE

Sajjad Karim

Daniel Buda, Rainer Wieland, Tadeusz Zwiefka

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention


OPINION OF THE COMMITTEE ON INDUSTRY, RESEARCH AND ENERGY (10.2.2017)

for the Committee on Internal Market and Consumer Protection

on the proposal for a regulation of the European Parliament and of the Council on addressing geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC

(COM(2016)0289 – C8-0192/2016 – 2016/0152(COD))

Rapporteur: Eva Kaili

SHORT JUSTIFICATION

The Regulation of the European Parliament and of the Council on addressing geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market is an essential component in ensuring that customers and traders are allowed to have commercial transactions without having to experience any unjustified discrimination.

As a Regulation, it will impose binding obligations to traders from the date of its entry into force, so as to allow customers to access and purchase products, preventing the effects of discrimination based on nationality or place of residence or establishment or payment service. It aims to lift any unjustified barriers in e-commerce and to be a decisive step towards the completion of the Digital Single Market.

In addition to lifting the barriers leading to unjustified discrimination this Regulation clarifies that businesses are not obliged to conduct their activities all across Europe. This Regulation recognises the need for clarification with regards to the businesses’ obligation to deliver to customers outside of their territory of activities. It is crucial to avoid adding additional burdens to the traders.

Furthermore, this Regulation acknowledges the importance of the establishment of a truly digital single market for all citizens and shows the direction for other important legal reforms that need to be made including but not limited to the copyright reform, the audiovisual sector reform and the reform in taxation. The same principles should be followed so as to lead to the creation of a user and business friendly Digital Single Market.

The present opinion aims to make improvements and clarifications to a number of points as set out below.

Content and scope of this Regulation

This Regulation’s scope is aligned with that of the Directive 2006/123/EC so as to ensure legal continuity and certainty for traders and customers. This means that, inter alia, non-economic services of general interest, transport services, audio-visual services, gambling activities, healthcare services and certain social services are excluded from the scope of this Regulation. With regards to copyrighted material and audiovisual content it is important to allow for the respective reforms to take place before assessing whether a potential inclusion would have beneficial effects for the consumers and the sectors alike.

Access to online interfaces

Prevention of access to online interfaces and redirecting are regarded as a practise that causes frustration to customers and this proposal addresses the issue, ensuring that customers would be able to access the interface of their liking at all times and regardless of their geographical location.

Discrimination of customers based on residence

The application of different general terms and conditions to customers as a product of discrimination based on residence is prohibited. However compliance with the provisions of the Regulation should not be considered as a restriction to traders to develop their activities at different Member States with targeted offers and different terms and conditions, provided that a foreign customer could access these products or services with the same contractual rights and obligations applicable to national transactions. Furthermore, compliance with this Regulation provide neither for an obligation to deliver goods cross-border nor for an obligation to accept to withdraw these from the country of establishment or of residence of the customer.

Discrimination based in the context of payments

The provisions of this Regulation provide that traders cannot reject or otherwise discriminate concerning payment instruments. In further detail and with regards to card based payment instruments, when a certain payment brand and category are being accepted, the trader will be obliged to accept the same brand and category regardless of the country of origin of that payment method. Such a provision does not oblige traders to accept all card based payment instruments.

Enforcement and assistance to customers

It is proposed that Member States designate bodies to ensure effective enforcement of this Regulation and that those bodies also facilitate customers when in need of assistance.

Review of the Regulation

The first evaluation will be of great importance, as the European Commission should assess the scope and application of this proposal, taking into consideration the legal developments in the fields of copyright, taxation, audiovisual services and portability of online content.

Date of application

This Regulation shall apply from 6 months from the day of its publication, which will enable customers to benefit from the lifting of the obstacles that cause unjustified discrimination.

AMENDMENTS

The Committee on Industry, Research and Energy calls on the Committee on Internal Market and Consumer Protection, as the committee responsible, to take into account the following amendments:

Amendment     1

Proposal for a regulation

Title

Text proposed by the Commission

Amendment

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on addressing geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC

Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on addressing unjustified geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC

Amendment     2

Proposal for a regulation

Citation 1 a (new)

Text proposed by the Commission

Amendment

 

Having regard to Protocol No 1 of the Treaty on the Functioning of the European Union on the role of national parliaments in the European Union,

Amendment     3

Proposal for a regulation

Citation 1 b (new)

Text proposed by the Commission

Amendment

 

Having regard to Protocol No 2 of the Treaty on the Functioning of the European Union on the application of the principles of subsidiarity and proportionality,

Amendment    4

Proposal for a regulation

Recital 1

Text proposed by the Commission

Amendment

(1)  In order to realise the objective of ensuring good functioning of the internal market, as an area without internal frontiers in which the free movement of inter alia goods and services is ensured, it is not sufficient to abolish, as between Member States, only State barriers. Such abolition can be undermined by private parties putting in place obstacles inconsistent with internal market freedoms. That occurs where traders operating in one Member State block or limit the access to their online interfaces, such as websites and apps, of customers from other Member States wishing to engage in cross-border commercial transactions (a practice known as geo-blocking). It also occurs through other actions by certain traders involving the application of different general conditions of access to their goods and services with respect to such customers from other Member States, both online and offline. Whereas there may sometimes be objective justifications for such differential treatment, in other cases traders deny consumers wishing to engage in cross-border commercial transactions access to goods or services, or apply different conditions in this regard, for purely commercial reasons.

(1)  In order to realise the objective of ensuring good functioning of the internal market, as an area without internal frontiers in which the free movement of inter alia goods and services is ensured, it is not sufficient to abolish, as between Member States, only State barriers. Such abolition can be undermined by private parties putting in place obstacles of various types and forms inconsistent with internal market freedoms. That occurs where traders operating in one Member State block or limit the access to their online interfaces, such as websites and apps, of customers from other Member States wishing to engage in cross-border commercial transactions (a practice known as geo-blocking). It also occurs through other actions by certain traders involving the application of different general conditions of access to their goods and services with respect to such customers from other Member States, both online and offline. Whereas there may be objective justifications in exceptional cases, for such differential treatment, in other cases traders deny consumers wishing to engage in cross-border commercial transactions access to goods or services, or apply different conditions in this regard, for non-objective reasons. According to analyses carried out, for the impact assessment of the European Commission, removing unjustified geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market could contribute to a 1.1% expansion in market size and an, on average, -0.5% to -0.6% fall in prices. Additionally and as the result of the Commission’s stakeholder consultation demonstrates, it could contribute to lower levels of customer frustration as unjustified geoblocking is one of its primary sources.

Amendment    5

Proposal for a regulation

Recital 2

Text proposed by the Commission

Amendment

(2)  In this manner certain traders artificially segment the internal market along internal frontiers and hamper the free movement of goods and services, thus restricting the rights of customers and preventing them from benefitting from a wider choice and optimal conditions. Such discriminatory practices are an important factor contributing to the relatively low level of cross-border commercial transactions within the Union, including in the sector of electronic commerce, which prevents the full growth potential of the internal market from being realised. Clarifying in which situations there can be no justification for differential treatment of this kind should bring clarity and legal certainty for all participants in cross-border transactions and should ensure that rules on non-discrimination can be effectively applied and enforced across the internal market.

(2)  In this manner certain traders artificially segment the internal market along internal frontiers and hamper the free movement of goods and services, thus restricting the rights of customers and preventing them from benefitting from a wider choice of goods and services and optimal conditions. Such discriminatory practices are an important factor contributing to the relatively low level of cross-border commercial transactions within the Union, including in the sector of electronic commerce, which prevents the full growth potential of the internal market from being realised. Clarifying in which situations there can be no justification for differential treatment of this kind should bring clarity and legal certainty for all participants in cross-border transactions and should ensure that rules on non-discrimination can be effectively applied and enforced across the internal market.

Amendment    6

Proposal for a regulation

Recital 2 a (new)

Text proposed by the Commission

Amendment

 

(2a)  Although the present Regulation aims to address geo-blocking and hence taking down a barrier to the functioning of the internal market, it needs to be kept in mind that many differences in Member States' legislation, such as different national standards, or a lack of mutual recognition or harmonisation at Union level, still constitute significant barriers that continue to lead to fragmentation in the single market, and in this manner often force traders to engage in geo-blocking practices. Therefore the European Parliament, the Council and the Commission should continue to address these barriers with a view to reduce market fragmentation and complete the Single Market.

Amendment    7

Proposal for a regulation

Recital 3

Text proposed by the Commission

Amendment

(3)  Pursuant to Article 20 of Directive 2006/123/EC of the European Parliament and of the Council17, Member States are to ensure that service providers established in the Union do not treat recipients of services differently on the basis of their nationality or place of residence. However, that provision has not been fully effective in combatting discrimination and it has not sufficiently reduced legal uncertainty, particularly because of the possibility to justify the differences in treatment for which it allows and the corresponding difficulties in enforcing it in practice. Moreover, geo-blocking and other forms of discrimination based on nationality, place of residence or place of establishment can also arise as a consequence of actions by traders established in third countries, which fall outside the scope of that Directive.

(3)  Pursuant to Article 20 of Directive 2006/123/EC of the European Parliament and of the Council17, Member States are to ensure that service providers established in the Union do not treat recipients of services differently on the basis of their nationality or place of residence. However, that provision has not been fully effective in combatting discrimination and it has not sufficiently reduced legal uncertainty, particularly because of the possibility to justify the differences in treatment for which it allows and the corresponding difficulties in enforcing it in practice. Moreover, geo-blocking and other forms of discrimination based on nationality, place of residence or place of establishment can also arise as a consequence of actions by traders established in third countries, which fall outside the scope of that Directive. Consequently, this Regulation should apply to traders as well as service providers, and to goods as well as services.

__________________

__________________

17 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36).

17 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36).

Amendment    8

Proposal for a regulation

Recital 3 a (new)

Text proposed by the Commission

Amendment

 

(3a)  This Regulation aims to clarify Article 20 of the Directive 2006/123/EC. It should not be construed as replacing Directive 2006/123/EC, either as regards the scope of that Directive, where this Regulation abides by the same principles, excluding the activities referred to in Article 2(2) of Directive 2006/123/EC from the scope of its application, or as regards its effect, as the application of Directive 2006/123/EC is independent of, and complementary to, that of this Regulation. This Regulation may not restrict the entrepreneurial freedom and freedom of contract as defined in Article 16 of the Charter of Fundamental Rights of the European Union.

Amendment     9

Proposal for a regulation

Recital 4

Text proposed by the Commission

Amendment

(4)  For the purposes of ensuring the good functioning of the internal market, the targeted measures set out in this Regulation, which provide for a clear, uniform and effective set of rules on a selected number of issues, are therefore required.

(4)  For the purposes of ensuring the good functioning of the internal market, the targeted measures set out in this Regulation, which provide for a clear, uniform and effective set of rules on a selected number of issues, are therefore required. These measures should maintain balance between consumer protection for customers and economic and contractual freedom for traders. In this respect, any disproportionate costs or administrative burden or the obligation to deliver to all Member States should not be imposed on traders. Furthermore, the new obligations imposed on Member States should not extend beyond what is necessary to implement the new rules.

Amendment     10

Proposal for a regulation

Recital 5

Text proposed by the Commission

Amendment

(5)  This Regulation aims at preventing discrimination based on customers' nationality, place of residence or place of establishment, including geo-blocking, in cross-border commercial transactions between traders and customers relating to the sales of goods and the provision of services within the Union. It seeks to address direct as well as indirect discrimination, thus also covering unjustified differences of treatment on the basis of other distinguishing criteria which lead to the same result as the application of criteria directly based on customers' nationality, place of residence or place of establishment. Such other criteria can be applied, in particular, on the basis of information indicating the physical location of customers, such as the IP address used when accessing an online interface, the address submitted for the delivery of goods, the choice language made or the Member State where the customer's payment instrument has been issued.

(5)  This Regulation aims at preventing discrimination based on customers' nationality, place of residence or place of establishment, including geo-blocking, in cross-border commercial transactions between traders and customers relating to the sales of goods and the provision of services within the Union. It seeks to prevent direct as well as indirect discrimination. By indirect discrimination it is understood the application of distinguishing criteria other than customer's nationality, place of residence or place of establishment which lead either deterministically or statistically to the same result as the direct application of those same criteria. It also covers unjustified differences of treatment on the basis of other distinguishing criteria which lead to the same result as the application of criteria directly based on customers' nationality, place of residence or place of establishment. Such other criteria can be applied, in particular, on the basis of information indicating the physical location of customers, such as the IP address used when accessing an online interface, the address submitted for the delivery of goods, the choice language made or the Member State where the customer's payment instrument has been issued.

Amendment    11

Proposal for a regulation

Recital 6 a (new)

Text proposed by the Commission

Amendment

 

(6a)  Recital 29 of Directive 2001/29/EC of the European Parliament and of the Council1a establishes that the question of exhaustion does not arise in the case of services and on-line services in particular.

 

_______________________

 

1a Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society

Amendment     12

Proposal for a regulation

Recital 10

Text proposed by the Commission

Amendment

(10)  This Regulation should not affect acts of Union law concerning judicial cooperation in civil matters, notably the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 of the European Parliament and of the Council24 and (EU) 1215/2012 of the European Parliament and of the Council25, including the application of those acts and provisions in individual cases. In particular, the mere fact that a trader acts in accordance with the provisions of this Regulation should not be construed as implying that he directs his activities to the consumer's Member State for the purpose of such application.

(10)  This Regulation should be without prejudice to acts of Union law concerning judicial cooperation in civil matters, notably the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 of the European Parliament and of the Council24 and (EU) 1215/2012 of the European Parliament and of the Council25, including the application of those acts and provisions in individual cases. In particular, the mere fact that a trader acts in accordance with the provisions of this Regulation should not be construed as implying that he directs his activities to the consumer's Member State for the purpose of such application. For that reason, and in order to ensure legal certainty for traders complying with this Regulation, it should be made clear that the mere fact that a trader makes its online interface accessible for customers from another Member State or does not apply different general conditions of access in the cases laid down in this Regulation, including where relevant through the conclusion of contracts, or accepts payment instruments from another Member State, should not in itself be regarded, for the purpose of determining the applicable law and jurisdiction, as indicating that the trader's activities are directed to the Member State of the customer, unless additional elements are proved from which the existence of an intention on the part of the trader to direct activities to such Member States in accordance with Union law can be concluded.

_________________

_________________

24 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6).

24 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6).

25 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).

25 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).

Amendment     13

Proposal for a regulation

Recital 11

Text proposed by the Commission

Amendment

(11)  The discriminatory practices that this Regulation seeks to address typically take place through general terms, conditions and other information set and applied by or on behalf of the trader concerned, as a precondition for obtaining access to the goods or services in question, and that are made available to the public at large. Such general conditions of access include inter alia prices, payment conditions and delivery conditions. They can be made available to the public at large by or on behalf of the trader through various means, such as information published in advertisements, on websites or pre-contractual or contractual documentation. Such conditions apply in the absence of an individually negotiated agreement to the contrary entered into directly between the trader and the customer. Terms and conditions that are individually negotiated between the trader and the customers should not be considered general conditions of access for the purposes of this Regulation.

(11)  The discriminatory practices that this Regulation seeks to address typically take place through general terms, conditions and other information set and applied by or on behalf of the trader concerned, as a precondition for obtaining access to the goods or services in question, and that are made available to the public at large. Such general conditions of access include inter alia prices, requirements based on telephone prefixes, payment conditions and delivery conditions. They can be made available to the public at large by or on behalf of the trader through various means, such as information published in advertisements, on websites or pre-contractual or contractual documentation. Such conditions apply in the absence of an individually negotiated agreement to the contrary entered into directly between the trader and the customer. Terms and conditions that are individually negotiated between the trader and the customers should not be considered general conditions of access for the purposes of this Regulation.

Justification

Discrimination can occur when traders require a customer to have a phone number with a specific country code to complete a transaction

Amendment     14

Proposal for a regulation

Recital 11 a (new)

Text proposed by the Commission

Amendment

 

(11a)  Differing pricing arrangements in individual Member States should not count as a discriminatory practice.

Amendment    15

Proposal for a regulation

Recital 12

Text proposed by the Commission

Amendment

(12)  Both consumers and undertakings should be safeguarded from discrimination for reasons related to their nationality, place of residence or place of establishment when acting as customers for the purposes of this Regulation. However, that protection should not extend to customers purchasing a good or a service for resale, because it would affect widely used distribution schemes between undertakings in a business to business context, such as selective and exclusive distribution, which generally allow for manufacturers to select their retailers, subject to compliance with the rules on competition.

(12)  Both consumers and undertakings should be safeguarded from discrimination for reasons related to their nationality, place of residence or place of establishment when acting as customers for the purposes of this Regulation. However, that protection should not extend to customers purchasing a good or a service for resale, commercial rent, or transformation and processing of purchased goods, because it would affect widely used distribution schemes between undertakings in a business to business context, such as selective and exclusive distribution, which generally allow for manufacturers to select their retailers, subject to compliance with the rules on competition. Customers should only be safeguarded from discrimination for reasons related to their nationality, place of residence or place of establishment when purchasing a good or service for end use.

Amendment    16

Proposal for a regulation

Recital 14

Text proposed by the Commission

Amendment

(14)  In order to increase the possibility for customers to access information related to the sales of goods and the provision of services on the internal market and to increase transparency, including with respect to prices, traders should not, through the use of technological measures or otherwise, prevent customers from having full and equal access to online interfaces on the basis of their nationality, place of residence or place of establishment. Such technological measures can encompass, in particular, any technologies used to determine the physical location of the customer, including the tracking of that by means of IP address, coordinates obtained through a global navigation satellite system or data related to a payment transaction. However, that prohibition of discrimination with respect to access to online interfaces should not be understood as creating an obligation for the trader to engage in commercial transactions with customers.

(14)  In order to increase the possibility for customers to access information related to the sales of goods and the provision of services on the internal market and to increase transparency, including with respect to prices but not limited to them, traders or any other parties acting on their behalf, including intermediaries and operators of online interfaces for the purposes of access, should not, through the use of technological measures or otherwise, prevent customers from having full and equal access to online interfaces on the basis of their nationality, place of residence or place of establishment. Such technological measures can encompass, but not be limited to, in particular, any technologies used to determine the physical location of the customer, including the tracking of that by means of IP address, surfing history and/or patterns, GSM tracking or localisation, coordinates obtained through a global navigation satellite system or data related to a payment transaction. However, that prohibition of discrimination with respect to access to online interfaces should not be understood as creating an obligation for the trader to engage in commercial transactions with customers.

Amendment    17

Proposal for a regulation

Recital 14 a (new)

Text proposed by the Commission

Amendment

 

(14a)  In certain cases, blocking, limiting of access or redirection without the customer's consent to an alternative version of an online interface for reasons related to the customer's nationality, place or residence or place of establishment might be necessary in order to ensure compliance with a legal requirement in Union law or in the laws of Member States in accordance with Union law. Such laws can limit customers' access to certain goods or services, for instance by prohibiting the display of specific content in certain Member States. Traders should not be prevented from complying with such requirements and thus be able to block, limit the access or redirect certain customers or customers in certain territories to an online interface, insofar as that is necessary for that reason. Where a trader blocks or limits access to an online interface in order to ensure compliance with a legal requirement in Union law or in the laws of Member States in accordance with Union law, the trader should provide a clear explanation.

Amendment     18

Proposal for a regulation

Recital 16

Text proposed by the Commission

Amendment

(16)  In certain cases, blocking, limiting of access or redirection without the customer's consent to an alternative version of an online interface for reasons related to the customer's nationality, place or residence or place of establishment might be necessary in order to ensure compliance with a legal requirement in Union law or in the laws of Member States in accordance with Union law. Such laws can limit customers' access to certain goods or services, for instance by prohibiting the display of specific content in certain Member States. Traders should not be prevented from complying with such requirements and thus be able to block, limit the access or redirect certain customers or customers in certain territories to an online interface, insofar as that is necessary for that reason.

(16)  In certain cases, blocking, limiting of access or redirection without the customer's consent to an alternative version of an online interface for reasons related to the customer's nationality, place or residence or place of establishment might be necessary in order to ensure compliance with a legal requirement in Union law or in the laws of Member States in accordance with Union law. Such laws can limit customers' access to certain goods or services, for instance by prohibiting the display of specific content in certain Member States. Traders should not be prevented from complying with such requirements and thus be able to block, limit the access or redirect certain customers or customers in certain territories to an online interface, insofar as that is necessary for that reason. Furthermore, the application of this Regulation should not prevent Member States from applying their fundamental rules and principles relating to the freedom of press and freedom of expression.

Amendment    19

Proposal for a regulation

Recital 17

Text proposed by the Commission

Amendment

(17)  In a number of specific situations, any differences in the treatment of customers through the application of general conditions of access, including outright refusals to sell goods or to provide services, for reasons related to the customers' nationality, place of residence or place of establishment cannot be objectively justified. In those situations, all such discrimination should be prohibited and customers should consequently be entitled, under the specific conditions laid down in this Regulation, to engage in commercial transactions under the same conditions as a local customer and have full and equal access to any of the different goods or services offered irrespective of their nationality, place of residence or place of establishment. Where necessary, traders should therefore take measures to ensure compliance with that prohibition of discrimination if otherwise the customers concerned would be precluded from having such full and equal access. However, the prohibition applicable in those situations should not be understood as precluding traders from directing their activities at different Member States or certain groups of customers with targeted offers and differing terms and conditions, including through the setting-up of country-specific online interfaces.

(17)  In a number of specific situations, any differences in the treatment of customers through the application of general conditions of access, including outright refusals to sell goods or to provide services, for reasons related to the customers' nationality, place of residence or place of establishment cannot be objectively justified. In those situations, all such discrimination should be prohibited and customers should consequently be entitled, under the specific conditions laid down in this Regulation, to engage in commercial transactions under the same conditions as a local customer and have full and equal access to any of the different goods or services offered irrespective of their nationality, place of residence or place of establishment, or any other indirect means correlated to these criteria, cannot be considered as objectively justified in the sense of Article 20 of Directive 2006/123/EC. Where necessary, traders should therefore take measures to ensure compliance with that prohibition of discrimination if otherwise the customers concerned would be precluded from having such full and equal access. However, the prohibition applicable in those situations should not be understood as precluding traders from directing their activities at different Member States or certain groups of customers with targeted offers and differing terms and conditions, including through the setting-up of country-specific online interfaces. Should different conditions be applied to services or goods for objective reasons, however, this will not constitute unlawful discrimination as defined in Article 20 and in Recital 95 of Directive 2006/123/EC.

Amendment     20

Proposal for a regulation

Recital 17 a (new)

Text proposed by the Commission

Amendment

 

(17a)  Article 6 of Regulation (EC) No 593/2008 (Rome I) governs consumer contracts. Pursuant to that article, a contract which a consumer has concluded with a trader is subject to the law of the State in which the consumer has his or her normal place of residence, provided that the trader, by any means, directs a professional or commercial activity to that country. In the cases defined in Article 4(1)(a) to (c), the provider does not direct his activity to the consumer's Member State. In such cases the Rome I Regulation stipulates that the contract is not subject to the law of the consumer's State of residence. The principle of freedom of choice (Article 3 of the Rome I Regulation) applies here. The same applies to jurisdiction, which is governed by Regulation (EU) No 1215/2012.

Amendment     21

Proposal for a regulation

Recital 18

Text proposed by the Commission

Amendment

(18)  The first of those situations is where the trader sells goods and there is no cross-border delivery of those goods by or on behalf of the trader to the Member State where the customer resides. In that situation the customer should be able to purchase goods, under exactly the same conditions, including price and conditions relating to the delivery of the goods, as similar customers who are residents of the Member State of the trader. That may mean that a foreign customer will have to pick up the good in that Member State, or in a different Member State to which the trader delivers. In this situation, there is no need to register for value added tax ("VAT") in the Member State of the customer, nor arrange for the cross-border delivery of goods.

(18)  The first of those situations is where the trader sells goods and there is no cross-border delivery of those goods by or on behalf of the trader to the Member State where the customer resides. In that situation, provided that a contract is concluded between the trader and the customer, the customer should be able to purchase goods, under exactly the same conditions, including conditions relating to the delivery of the goods, as similar customers who are residents of the Member State of the trader. That may mean that a foreign customer will have to pick up the good in that Member State, or in a different Member State to which the trader delivers. In this situation, there is no need to register for value added tax ("VAT") in the Member State of the customer, nor arrange for the cross-border delivery of goods. The trader must not be compelled to deliver the goods.

Amendment    22

Proposal for a regulation

Recital 19

Text proposed by the Commission

Amendment

(19)  The second situation is where the trader provides electronically supplied services, other than services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, such as cloud services, data warehousing services, website hosting and the provision of firewalls. In this case, no physical delivery is required, as the services are being supplied electronically. The trader can declare and pay VAT in a simplified manner in accordance with the rules on VAT Mini-One-Stop-Shop (MOSS) set out in Council Implementing Regulation (EU) No 282/201126.

(19)  The second situation is where the trader provides electronically supplied services, other than services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, such as cloud services, data warehousing services, website hosting and the provision of firewalls. In this case, no physical delivery is required, as the services are being supplied electronically. The trader can declare and pay VAT in a simplified manner in accordance with the rules on VAT Mini-One-Stop-Shop (MOSS) set out in Council Implementing Regulation (EU) No 282/201126. Any difference in the final price that might occur as a result of the application of different VAT rates in accordance with applicable legislation in the place of consumption should not entail the application of different conditions of access.

__________________

__________________

26 Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax (OJ L 77, 23.3.2011, p. 1).

26 Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax (OJ L 77, 23.3.2011, p. 1).

Amendment    23

Proposal for a regulation

Recital 21 a (new)

Text proposed by the Commission

Amendment

 

(21a)  The prohibition of discrimination in those situations should not be considered as a restriction on the right of traders to develop their business strategy by directing their activities at different Member States or certain groups of customers with targeted offers and different terms and conditions, including country- or region-specific online interfaces. However, where a foreign customer seeks access to such online interfaces and specific offers, in accordance with one given set of terms and conditions, he or she should enjoy the same contractual rights, and be subject to the same obligations, as those applicable to national transactions. Territorial limitations on the provision of after-sales services deriving from terms and conditions to which the customer has agreed, in accordance with Union law and the applicable national law enacted pursuant thereto, should be permissible under this Regulation. Compliance with this Regulation should not entail any obligation on traders to deliver goods across borders or any obligation to take goods back from the customer’s country of establishment or residence.

Amendment     24

Proposal for a regulation

Recital 22

Text proposed by the Commission

Amendment

(22)  Traders falling under the special scheme provided in Chapter 1 of Title XII of Council Directive 2006/112/EC27 are not required to pay VAT. For those traders, when providing electronically supplied services, the prohibition of applying different general conditions of access for reasons related to the nationality, place of residence or place of establishment of the customer would imply a requirement to register in order to account for VAT of other Member States and might entail additional costs, which would be a disproportionate burden, considering the size and characteristics of the traders concerned. Therefore, those traders should be exempted from that prohibition for such time as such a scheme is applicable.

(22)  Traders falling under the special scheme provided in Chapter 1 of Title XII of Council Directive 2006/112/EC27 are not required to pay VAT in the Member State where they are established. For those traders, when providing electronically supplied services, the prohibition of applying different general conditions of access for reasons related to the nationality, place of residence or place of establishment of the customer would imply a requirement to register in order to account for VAT of other Member States and might entail additional costs, which would be a disproportionate burden, considering the size and characteristics of the traders concerned. Therefore, those traders should be exempted from that prohibition for such time as such a scheme is applicable.

_________________

_________________

27 Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ L 347, 11.12.2006, p. 1–118)

27 Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ L 347, 11.12.2006, p. 1–118)

Amendment    25

Proposal for a regulation

Recital 24

Text proposed by the Commission

Amendment

(24)  Under Union law, traders are in principle free to decide which means of payment they wish to accept, including payment brands. However, once this choice has been made, in view of the existing legal framework for payment services, there are no reasons for traders to discriminate customers within the Union by refusing certain commercial transactions, or by otherwise applying certain different conditions of payment in respect of those transactions, for reasons related to the nationality, place of residence or place of establishment of the customer. In this particular context, such unjustified unequal treatment for reasons related to the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union should be expressly prohibited as well. It should be further recalled that Regulation (EU) No 260/2012 already prohibits all payees, including traders, from requiring bank accounts to be located in a certain Member State for a payment in euro to be accepted.

(24)  Under Union law, traders are in principle free to decide which means of payment they wish to accept. In accordance with Regulation (EU) 2015/751 of the European Parliament and of the Council 1a and Directive 2007/64/EC of the European Parliament and of the Council1b, traders accepting a card-based payment instrument of a specific payment brand and category are under no obligation to accept card-based payment instruments of the same category but of a different brand, or of the same brand but of a different category. However, once this choice has been made, in view of the existing legal framework for payment services, there are no reasons for traders to discriminate customers within the Union by refusing certain commercial transactions, or by otherwise applying certain different conditions of payment in respect of those transactions, for reasons related to the nationality, place of residence or place of establishment of the customer. In this particular context, such unjustified unequal treatment for reasons related to the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union should be expressly prohibited as well. The European Commission should assess the use of incentives to promote the use of European payment services. Moreover, the Commission should assess whether to provide the legal framework that allows, subject to the freedom of contract principle, the protection of undertakings and consumers when the transaction is carried through alternative modes of payment, including virtual currencies, other blockchain type transactions and e-wallets. The personal data created by the e-commerce transactions should be stored in data centres in the Union, regardless of the location that the seat of the payment company is incorporated, unless the transfer of such data to a third country takes place in accordance with Regulation (EU) 2016/679 and ensures adequate levels of protection for the consumers and the undertakings. It should be further recalled that Regulation (EU) No 260/2012 already prohibits all payees, including traders, from requiring bank accounts to be located in a certain Member State for a payment in euro to be accepted. Traders should remain free to request charges for the use of a payment instrument. However, this right should be subject to the restrictions introduced by Article 62 of Directive (EU) 2015/23661c, meaning amongst others that these additional charges cannot be higher than the actual cost the trader has incurred.

 

__________________

 

1a Regulation (EU) 2015/751 of the European Parliament and of the Council of 29 April 2015 on interchange fees for card-based payment transactions (OJ L 123, 19.5.2015, p. 1).

 

1b Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ L 319, 5.12.2007, p. 1).

 

1c Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35).

Amendment    26

Proposal for a regulation

Recital 24 a (new)

Text proposed by the Commission

Amendment

 

(24a)  In the case of any measure taken by a government, central bank or other regulatory body to limit the flow of capital in and out of a Member State’s economy, such as capital restrictions, this Regulation should continue to apply in accordance with Union law and the applicable national law and relative restrictions imposed in accordance with Union law. Consequently, any direct or indirect discrimination based on the customer’s nationality, place of residence or place of establishment, or the location of the payment account, of the payment service provider or of the place of issue of the payment instrument within the Union should be prohibited.

Amendment    27

Proposal for a regulation

Recital 25 a (new)

Text proposed by the Commission

Amendment

 

(25a)  Data generated by e-commerce and online transactions should conform to the legislative framework on traffic and location of data, data retention, data protection and data analysis, ensuring full compliance with Union law. Network and information systems should operate in accordance with the relevant provisions of Directive (EU) 2016/1148 of the European Parliament and the Council1a, ensuring maximum security of networks and information systems.

 

_____________________

 

1a Directive (EU) 2016/1148 of the European Parliament and the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union (OJ L 194, 19.7.2016, p. 1).

Amendment    28

Proposal for a regulation

Recital 28

Text proposed by the Commission

Amendment

(28)  Consumers should be in the position to receive assistance from responsible authorities facilitating the resolution of conflicts with traders, arising from the application of this Regulation, including by way of a uniform complaint form.

(28)  Customers should be in the position to receive assistance from responsible authorities facilitating the resolution of conflicts with traders, arising from the application of this Regulation, including by way of a uniform complaint form.

Amendment    29

Proposal for a regulation

Article 1 – paragraph 1

Text proposed by the Commission

Amendment

1.  This Regulation seeks to contribute to the proper functioning of the internal market by preventing discrimination based, directly or indirectly, on the nationality, place of residence or place of establishment of customers.

1.  This Regulation seeks to contribute to the proper functioning of the internal market by preventing discrimination based, directly or indirectly, on the nationality, place of residence or place of establishment of customers and by defining, inter alia, situations where different treatment, as referred to in Article 20(2) of Directive 2006/123/EC is under no circumstances justifiable, excluding the cases where different conditions could be applied to services or goods for objective reasons according the same Article of Directive 2006/123/EC.

Amendment     30

Proposal for a regulation

Article 1 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  This Regulation may not restrict the entrepreneurial freedom and freedom of contract enshrined in Article 16 of the Charter of Fundamental Rights of the European Union.

Amendment     31

Proposal for a regulation

Article 1 – paragraph 5

Text proposed by the Commission

Amendment

5.  This Regulation shall not affect acts of Union law concerning judicial cooperation in civil matters. Compliance with this Regulation shall not be construed as implying that a trader directs his or her activities to the Member State where the consumer has the habitual residence or domicile within the meaning of point (b) of Article 6(1) of Regulation (EC) No 593/2008 and point (c) of Article 17(1) of Regulation (EU) 1215/2012.

5.  This Regulation shall not affect acts of Union law concerning judicial cooperation in civil matters. Compliance with this Regulation shall not be construed as implying that a trader directs his or her activities to the Member State where the consumer has the habitual residence or domicile within the meaning of point (b) of Article 6(1) of Regulation (EC) No 593/2008 and point (c) of Article 17(1) of Regulation (EU) 1215/2012. In particular, where a trader, in accordance with this Regulation ensures access to their online interface for customers regardless of their nationality or place of residence, does not apply different general conditions of access when selling goods or providing services in cases laid down in this Regulation or where the trader accepts payments instruments issued in a another Member State on a non-discriminatory basis, the trader shall not be considered as directing his or her activities to the Member State, where the consumer has the habitual residence or domicile, unless the existence of other additional elements is established, indicating the overall intention of the trader to direct his or her activity to such Member State.

Amendment    32

Proposal for a regulation

Article 2 – paragraph 1

Text proposed by the Commission

Amendment

For the purposes of this Regulation, the definitions set out in Article 7 of Implementing Regulation (EU) No 282/2011, Article 2(10), (20) and (30) of Regulation (EU) 2015/751 of the European Parliament and Council32 and Article 4(8), (9), (11), (12), (14), (23), (24) and (30) of Directive (EU) 2015/2366 shall apply.

For the purposes of this Regulation, the definition of the term 'electronically supplied services' set out in Article 7 of Implementing Regulation (EU) No 282/2011, the definitions of the terms 'interchange fee', 'card-based payment instrument', 'payment brand', 'debit card', 'credit card' and 'prepaid card' respectively set out in Article 2(10), (20) and (30), (33), (34) and (35) of Regulation (EU) 2015/751 and the definitions of the terms 'payment transaction', 'payer', 'payment service provider', 'payment account', 'payment instrument', 'direct debit', 'credit transfer' and 'strong customer authentication' respectively set out in Article 4(5), (8), (11), (12), (14), (23), (24) and (30) of Directive (EU) 2015/2366 shall apply.

__________________

 

32 Regulation (EU) 2015/751 of the European Parliament and of the Council of 29 April 2015 on interchange fees for card-based payment transactions (OJ L 123, 19.5.2015, p. 1).

 

Amendment    33

Proposal for a regulation

Article 2 – paragraph 2 – introductory part

Text proposed by the Commission

Amendment

The following definitions shall also apply:

The following definitions shall also apply for the purposes of this Regulation:

Amendment    34

Proposal for a regulation

Article 2 – paragraph 2 – point c

Text proposed by the Commission

Amendment

(c)  'customer' means a consumer who, or an undertaking which, is a national of a Member State or has his or her place of residence or place of establishment in a Member State, and intends to purchase or purchases a good or a service within the Union, other than for resale;

(c)  'customer' means a consumer who, or an undertaking which, is a national of a Member State or has his or her place of residence or place of establishment in a Member State, and intends to purchase or purchases a good or a service within the Union, other than for resale, rental, transformation or processing on a commercial scale. The intention for end-use by that consumer or undertaking, is the only one covered by this Regulation;

Amendment     35

Proposal for a regulation

Article 2 – paragraph 2 – point d

Text proposed by the Commission

Amendment

(d)  'general conditions of access' means all terms, conditions and other information, including sale prices, regulating the access of customers to goods or services offered for sale by a trader, which are set, applied and made available to the public at large by or on behalf of the trader and which apply in the absence of an individually negotiated agreement between the trader and the customer;

(d)  'general conditions of access' means all terms, conditions and other information, including sale prices, requirements based on telephone prefixes, regulating the access of customers to goods or services offered for sale by a trader, which are set, applied and made available to the public at large by or on behalf of the trader and which apply in the absence of an individually negotiated agreement between the trader and the customer;

Justification

Discrimination can occur when traders require a customer to have a phone number with a specific country code to complete a transaction

Amendment     36

Proposal for a regulation

Article 2 – paragraph 2 – point f

Text proposed by the Commission

Amendment

(f)  'online interface' means any software, including a website and applications, operated by or on behalf of a trader, which serves to give customers access to the trader's goods or services with a view to engaging in a commercial transaction with respect to those goods or services;

(f)  'online interface' means any software, including a website, or some part thereof, and applications, operated by or on behalf of a trader, which serves to give customers access to the trader's goods or services with a view to engaging in a commercial transaction with respect to those goods or services;

Amendment    37

Proposal for a regulation

Article 3 – paragraph 2 – subparagraph 1

Text proposed by the Commission

Amendment

Traders shall not, for reasons related to the nationality, place of residence or place of establishment of the customer, redirect customers to a version of their online interface that is different from the online interface which the customer originally sought to access, by virtue of its layout, use of language or other characteristics that make it specific to customers with a particular nationality, place of residence or place establishment, unless the customer gives his or her explicit consent prior to such redirection.

Traders shall not, for reasons related to the nationality, place of residence or place of establishment of the customer, redirect customers to a version of their online interface that is different from the online interface which the customer first sought to access, by virtue of its layout, use of language or other characteristics that make it specific to customers with a particular nationality, place of residence or place establishment, unless the customer gives his or her explicit consent prior to such redirection.

Amendment    38

Proposal for a regulation

Article 3 – paragraph 2 – subparagraph 2

Text proposed by the Commission

Amendment

In the event of such redirection with the customer's explicit consent, the original version of the online interface shall remain easily accessible for that customer.

In the event of such redirection with the customer's explicit consent, the version of the online interface which the customer initially sought to access shall remain easily accessible for that customer.

Amendment    39

Proposal for a regulation

Article 3 – paragraph 3

Text proposed by the Commission

Amendment

3.  The prohibitions set out in paragraphs 1 and 2 shall not apply where the blocking, limitation of access or redirection with respect to certain customers or to customers in certain territories is necessary in order to ensure compliance with a legal requirement in Union law or in the laws of Member States in accordance with Union law.

3.  The prohibitions set out in paragraphs 1 and 2 shall not apply where the blocking of the online interface, the limitation of access or the redirection with respect to certain customers or to customers in certain territories is necessary in order to ensure compliance with a legal requirement in Union law or in the laws of Member States in accordance with Union law.

Amendment    40

Proposal for a regulation

Article 3 – paragraph 4

Text proposed by the Commission

Amendment

4.  Where a trader blocks or limits access of customers to an online interface or redirects customers to a different version of the online interface in compliance with paragraph 4, the trader shall provide a clear justification. That justification shall be given in the language of the online interface that the customer originally sought to access.

4.  Where a trader blocks or limits access of customers to an online interface or redirects customers to a different version of the online interface in compliance with paragraph 3, the trader shall provide a clear explanation to the customers concerned. That explanation shall be given in the language of the online interface that the customer first sought to access.

Amendment    41

Proposal for a regulation

Article 4 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1.  Traders shall not apply different general conditions of access to their goods or services, for reasons related to the nationality, place of residence or place of establishment of the customer, in the following situations:

1.  Traders shall not apply different general conditions of access to their goods or services, for reasons related to the nationality, place of residence or place of establishment of the customer, in situations where the customer seeks to:

Amendment    42

Proposal for a regulation

Article 4 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  where the trader sells goods and those goods are not delivered cross-border to the Member State of the customer by the trader or on his or her behalf;

(a)  buy goods from a trader and those goods are not delivered cross-border to the Member State of the customer by the trader or on his or her behalf;

Amendment    43

Proposal for a regulation

Article 4 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b)  where the trader provides electronically supplied services, other than services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter;

(b)  receive electronically supplied services from a trader, other than services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter;

Amendment    44

Proposal for a regulation

Article 4 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  where the trader provides services, other than those covered by point (b), and those services are supplied to the customer in the premises of the trader or in a physical location where the trader operates, in a Member State other than that of which the customer is a national or in which the customer has the place of residence or the place of establishment.

(c)  receive services, other than those covered by point (b), from a trader in a Member State where that trader operates, and where that customer is a national of, or has a place of residence or establishment in, another Member State.

Amendment    45

Proposal for a regulation

Article 5 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1.  Traders shall not, for reasons related to the nationality, place of residence or place of establishment of the customer, the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union, apply different conditions of payment for any sales of goods or provision of services, where:

1.  Traders shall not, within the range of electronic payment means, namely credit transfers, direct debits or card-based payment instruments of a specific brand and category, for reasons related to the nationality, place of residence or place of establishment of the customer, the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union, apply different conditions of payment for any sales of goods or provision of services, where:

Amendment    46

Proposal for a regulation

Article 5 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a)  those payments are made through electronic transactions by credit transfer, direct debit or a card-based payment instrument within the same payment brand;

deleted

Amendment    47

Proposal for a regulation

Article 5 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b)  the payee can request strong customer authentication by the payer pursuant to the Directive (EU) 2015/2366; and

(b)  the identity of the payer or the validity of the use of the payment means can be verified by strong customer authentication pursuant to Directive (EU) 2015/2366; and

Amendment    48

Proposal for a regulation

Article 5 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  the payments are in a currency that the payee accepts.

(c)  the payment transactions are in a currency that the trader accepts.

Amendment     49

Proposal for a regulation

Article 5 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  The prohibition set out in paragraph 1 shall not preclude trader´s right to withhold the goods or the provision of the service based on objective reasons, until the payment transaction is correctly initiated.

Amendment    50

Proposal for a regulation

Article 5 – paragraph 2

Text proposed by the Commission

Amendment

2.  The prohibition set out in paragraph 1 shall not preclude traders' possibility to request charges for the use of a card-based payment instrument for which interchanges fees are not regulated under Chapter II of Regulation (EU) 2015/751 and for those payment services to which Regulation (EU) No 260/2012 does not apply. Those charges shall not exceed the costs borne by the trader for the use of the payment instrument.

2.  The prohibition set out in paragraph 1 shall not preclude traders' possibility to request charges for the use of a card-based payment instrument for which interchanges fees are not regulated under Chapter II of Regulation (EU) 2015/751 and for those payment services to which Regulation (EU) No 260/2012 does not apply, unless national prohibitions or limitations of the right to request charges for the use of payment instruments have been introduced in the laws of the Member States pursuant to Article 62(5) of Directive (EU) 2015/2366. Those charges shall not exceed the costs borne by the trader for the use of the payment instrument.

Amendment     51

Proposal for a regulation

Article 6 – paragraph 1

Text proposed by the Commission

Amendment

Agreements imposing on traders obligations, in respect of passive sales, to act in violation of this Regulation shall be automatically void.

Contractual provisions imposing on traders obligations, in respect of passive sales within the meaning of Commission Regulation (EU) No 330/2010, to act in violation of this Regulation shall be automatically null and void.

Amendment    52

Proposal for a regulation

Article 7 – paragraph 1

Text proposed by the Commission

Amendment

1.  Each Member State shall designate a body or bodies responsible for the enforcement of this Regulation. Member States shall ensure that adequate and effective means exist with the body or bodies designated in order to enforce compliance with this Regulation.

1.  Each Member State shall designate an existing body or bodies responsible for the enforcement of this Regulation with regard to traders and customers. Without prejudice to other information and cooperation mechanisms, those bodies shall be responsible for ensuring cross-border cooperation with bodies in other Member States through the appropriate means. Member States shall ensure that adequate and effective means exist with the body or bodies designated in order to enforce compliance with this Regulation.

Amendment    53

Proposal for a regulation

Article 7 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a.  Where no other information and cooperation mechanisms exist, existing structures shall be used. The Internal Market Information System ('IMI') established by Regulation (EU) No 1024/2012 of the European Parliament and of the Council1a shall be used for the purposes of this Article.

 

______________________

 

1a Regulation (EU) No 1024/2012 of the European Parliament and of the Council of 25 October 2012 on administrative cooperation through the Internal Market Information System and repealing Commission Decision 2008/49/EC (‘the IMI Regulation’) (OJ L 316, 14.11.2012, p. 1).

Amendment    54

Proposal for a regulation

Article 8 – title

Text proposed by the Commission

Amendment

Assistance to consumers

Assistance to customers

Amendment     55

Proposal for a regulation

Article 8 – paragraph -1 (new)

Text proposed by the Commission

Amendment

 

-1.  Traders shall indicate the general conditions of access and possible restrictions in accordance with this Regulation at the latest at the beginning of the ordering process in accordance with Article 8 of Directive 2011/83/EU.

Amendment    56

Proposal for a regulation

Article 8 – paragraph 1

Text proposed by the Commission

Amendment

1.  Each Member State shall confer responsibility for providing practical assistance to consumers to a body or bodies in case of a dispute between a consumer and a trader arising from the application of this Regulation. Each Member State shall designate a body or bodies responsible for that task.

1.  Each Member State shall confer responsibility for providing practical assistance and information to customers on the body or bodies tasked with enforcement, in the case of a dispute between a customer and a trader arising from the application of this Regulation.

Amendment    57

Proposal for a regulation

Article 8 – paragraph 2

Text proposed by the Commission

Amendment

2.  The bodies referred to in paragraph 1 shall offer consumers a uniform model form to file complaints to the bodies referred to in paragraph 1 and in Article 7(1). The Commission shall assist those bodies in developing this model form.

2.  The bodies referred to in paragraph 1 shall offer customers a uniform model form to file complaints to the bodies referred to in paragraph 1 of this Article and in Article 7(1). The Commission shall assist those bodies in developing this model form. They shall be responsible, inter alia, for accepting complaints from customers, forwarding complaints to bodies in other Member States and facilitating communication between the customer and the trader in order to facilitate the resolution of the dispute.

Amendment    58

Proposal for a regulation

Article 9 – paragraph 1

Text proposed by the Commission

Amendment

1.  By [date: two years after the entry into force of this Regulation] and every five years thereafter, the Commission shall report on the evaluation of this Regulation to the European Parliament, the Council and the European Economic and Social Committee. That report shall, where necessary, be accompanied by a proposal for an amendment of this Regulation, in light of legal, technical and economic developments.

1.  By [date: two years after the entry into force of this Regulation] and every three years thereafter, the Commission shall report on the evaluation of this Regulation to the European Parliament, the Council and the European Economic and Social Committee. That report shall, where necessary, be accompanied by a proposal for an amendment of this Regulation, in light of legal, technical and economic developments.

Amendment     59

Proposal for a regulation

Article 9 – paragraph 2

Text proposed by the Commission

Amendment

2.  The first evaluation referred to in paragraph 1 shall be carried out, in particular, with a view to assessing whether the prohibition of Article 4(1)(b) should also apply to electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, provided that the trader has the requisite rights for the relevant territories.

deleted

Justification

Access to copyright protected works or other protected subject matter and the use of such works or subject matter should continue to fall outside the scope of this regulation. This will rule out overlap with other items of EU legislation.

Amendment     60

Proposal for a regulation

Article 11 – paragraph 2

Text proposed by the Commission

Amendment

It shall apply from [date: six months following the day of its publication].

It shall apply from [date: twelve months following the day of its publication].

PROCEDURE – COMMITTEE ASKED FOR OPINION

Title

Addressing geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market

References

COM(2016)0289 – C8-0192/2016 – 2016/0152(COD)

Committee responsible

       Date announced in plenary

IMCO

9.6.2016

 

 

 

Opinion by

       Date announced in plenary

ITRE

9.6.2016

Rapporteur

       Date appointed

Eva Kaili

6.7.2016

Discussed in committee

9.11.2016

 

 

 

Date adopted

26.1.2017

 

 

 

Result of final vote

+:

–:

0:

44

13

0

Members present for the final vote

Bendt Bendtsen, Xabier Benito Ziluaga, José Blanco López, David Borrelli, Jerzy Buzek, Angelo Ciocca, Edward Czesak, Jakop Dalunde, Pilar del Castillo Vera, Christian Ehler, Fredrick Federley, Ashley Fox, Theresa Griffin, András Gyürk, Rebecca Harms, Roger Helmer, Hans-Olaf Henkel, Eva Kaili, Seán Kelly, Jeppe Kofod, Jaromír Kohlíček, Peter Kouroumbashev, Miapetra Kumpula-Natri, Janusz Lewandowski, Paloma López Bermejo, Edouard Martin, Csaba Molnár, Nadine Morano, Dan Nica, Angelika Niebler, Miroslav Poche, Carolina Punset, Michel Reimon, Herbert Reul, Algirdas Saudargas, Neoklis Sylikiotis, Dario Tamburrano, Patrizia Toia, Evžen Tošenovský, Claude Turmes, Vladimir Urutchev, Henna Virkkunen, Martina Werner, Lieve Wierinck, Hermann Winkler, Anna Záborská, Flavio Zanonato, Carlos Zorrinho

Substitutes present for the final vote

Amjad Bashir, Michał Boni, Gunnar Hökmark, Werner Langen, Olle Ludvigsson, Massimiliano Salini, Anne Sander, Davor Škrlec, Pavel Telička


OPINION of the Committee on Culture and Education (24.1.2017)

for the Committee on the Internal Market and Consumer Protection

on the proposal for a Regulation of the European Parliament and of the Council on addressing geo-blocking and other forms of discrimination based on customers' nationality, place of residence or place of establishment within the internal market and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC

(COM(2016)0289 – C8-0192/2016 – 2016/0152(COD))

Rapporteur: Therese Comodini Cachia

SHORT JUSTIFICATION

Purpose and scope

The Commission’s proposal seeks to enhance access to cross-border goods and services by preventing direct and indirect discrimination by traders based on a customer’s nationality, place of residence or place of establishment. In so doing, the proposal further refines the rather loosely defined non-discrimination principle in Article 20(2) of the Services Directive (2006/123/EC).

In specific terms, the proposal sets out to prohibit unjustified forms of geo-blocking whereby traders either block access to a specific online interface or else redirect customers to a different online interface without prior consent (Article 3). It also requires traders to apply consistent general conditions of access to customers irrespective of their nationality, place of residence or place of establishment – subject to the limitation on scope detailed below (Article 4). And finally, it bans discrimination for reasons related to payment (Article 5). It is important to emphasise that the Commission proposal does not introduce an “obligation to deliver”, meaning that traders not seeking to target cross-border markets are not required to deliver goods or services, but only to allow customers to purchase them under the same conditions as “target customers” (e.g. by collecting them from the trader’s premises).

With regard to the scope, there are two important aspects to underscore. Firstly, the proposed Regulation applies to “customers” – understood both as “consumers” (i.e. natural persons) and undertakings where they are transacting as end users and not where they are making purchases for resale. Secondly, the proposed Regulation does not apply to “electronically supplied services, other than services the main feature of which is the provision of access to and use of copyright protected works and other protected subject matter” (Article 4(1b)), meaning that e-books or music streaming services, for example, are outside the scope. Nonetheless, the Commission inserts a review clause (Article 9) which states that the first review – two years after the Regulation enters into force – will focus specifically on whether this derogation should be lifted.

Overall position of the Rapporteur

The Rapporteur supports the overall direction and balance of the Commission proposal and considers that it represents an important step in further developing the internal market. A fully-functioning single market is vitally important for cultural industries and should, in the longer term, help to promote cultural diversity and a common cultural heritage across the European Union.

Apart from a series of amendments designed to clarify some provisions or improve their readability, the amendments tabled by the Rapporteur focus on two chief aspects:

The review clause

The Rapporteur supports both the Commission’s decision to leave “electronically supplied services, other than services the main feature of which is the provision of access to and use of copyright protected works and other protected subject matter” outside the scope of the current Regulation and to assess this derogation as part of the first review after two years. Cultural goods and services – such as e-books and music streaming services – have distinct business models and specific characteristics that require further and careful examination. The Rapporteur believes that it is right to re-examine their inclusion after two years, but insists that the review process must pay particular heed to the specific nature of cultural goods and services.

The notion of customer and assistance in the case of a dispute

As outlined above, the proposed Regulation would apply to consumers and to undertakings where they are making commercial transactions as end users and not for resale – covered collectively under the term “customers” as defined in Article 2(c). The Rapporteur welcomes this approach. However, in the proposed provisions on assistance and dispute settlement (Article 8), the Commission’s proposal provides for support to be given by designated bodies only to consumers. In the opinion of the Rapporteur, this support should be provided to all “customers” within the meaning of the Regulation. This is important both to ensure consistency and because many micro and small enterprises, including associations with legal personality, would be severely disadvantaged by being forced to rely solely on the courts for redress. It is particularly important for many cultural operators who are often either voluntary associations or very small businesses. Furthermore, the disputes which the designated bodies are to assist customers with relate directly to the implementation of this Regulation and not to any other issues that might arise from the commercial transaction.

The amendments tabled by the Rapporteur retain the non-prescriptive approach favoured by the Commission, leaving Member States the freedom to decide which bodies should be designated and how they should provide assistance in the case of a dispute.

AMENDMENTS

The Committee on Culture and Education calls on the Committee on the Internal Market and Consumer Protection, as the committee responsible, to take into account the following amendments:

Amendment    1

Proposal for a regulation

Recital 1

Text proposed by the Commission

Amendment

(1)  In order to realise the objective of ensuring good functioning of the internal market, as an area without internal frontiers in which the free movement of inter alia goods and services is ensured, it is not sufficient to abolish, as between Member States, only State barriers. Such abolition can be undermined by private parties putting in place obstacles inconsistent with internal market freedoms. That occurs where traders operating in one Member State block or limit the access to their online interfaces, such as websites and apps, of customers from other Member States wishing to engage in cross-border commercial transactions (a practice known as geo-blocking). It also occurs through other actions by certain traders involving the application of different general conditions of access to their goods and services with respect to such customers from other Member States, both online and offline. Whereas there may sometimes be objective justifications for such differential treatment, in other cases traders deny consumers wishing to engage in cross-border commercial transactions access to goods or services, or apply different conditions in this regard, for purely commercial reasons.

(1)  It is imperative to establish an area without internal frontiers in which the free movement of inter alia goods and services is ensured, as well as to achieve the objectives set in the New Digital Market Strategy. Remaining unjustified barriers should be removed in order to ensure a fully functioning single market for goods and services, notably in the cultural sector, which is of crucial importance in order to promote cultural diversity, disseminate culture and engender a common cultural heritage across the Union. It is not sufficient to abolish only State barriers since this can be undermined by private parties putting in place obstacles inconsistent with internal market freedoms. Such barriers occur where traders operating in one Member State block or limit the access to their online interfaces, such as websites and applications, of customers from other Member States wishing to engage in cross-border commercial transactions (a practice known as geo-blocking). They also occur through other actions by certain traders involving the application of different general conditions of access to their goods and services with respect to such customers from other Member States, both online and offline. Whereas there may sometimes be objective justifications for such differential treatment as provided for in Directive 2006/123/EC, in other cases traders deny consumers wishing to engage in cross-border commercial transactions access to goods or services, or apply different conditions in this regard, for purely commercial reasons.

Amendment    2

Proposal for a regulation

Recital 2

Text proposed by the Commission

Amendment

(2)  In this manner certain traders artificially segment the internal market along internal frontiers and hamper the free movement of goods and services, thus restricting the rights of customers and preventing them from benefitting from a wider choice and optimal conditions. Such discriminatory practices are an important factor contributing to the relatively low level of cross-border commercial transactions within the Union, including in the sector of electronic commerce, which prevents the full growth potential of the internal market from being realised. Clarifying in which situations there can be no justification for differential treatment of this kind should bring clarity and legal certainty for all participants in cross-border transactions and should ensure that rules on non-discrimination can be effectively applied and enforced across the internal market.

(2)  In this manner certain traders artificially segment the internal market along internal frontiers and hamper the free movement of goods and services, thus restricting the rights of customers and preventing them from benefitting from a wider choice and optimal conditions. Such discriminatory practices are an important factor contributing to the relatively low level of cross-border commercial transactions within the Union, including in the sector of electronic commerce, which prevents the full growth potential of the internal market from being realised. This Regulation specifies the situations in which there can be no justification for differential treatment of this kind, which should bring clarity and legal certainty for all participants in cross-border transactions and should ensure that rules on non-discrimination can be effectively applied and enforced across the internal market.

Amendment     3

Proposal for a regulation

Recital 3

Text proposed by the Commission

Amendment

(3)  Pursuant to Article 20 of Directive 2006/123/EC of the European Parliament and of the Council17 , Member States are to ensure that service providers established in the Union do not treat recipients of services differently on the basis of their nationality or place of residence. However, that provision has not been fully effective in combatting discrimination and it has not sufficiently reduced legal uncertainty, particularly because of the possibility to justify the differences in treatment for which it allows and the corresponding difficulties in enforcing it in practice. Moreover, geo-blocking and other forms of discrimination based on nationality, place of residence or place of establishment can also arise as a consequence of actions by traders established in third countries, which fall outside the scope of that Directive.

(3)  Pursuant to Article 20 of Directive 2006/123/EC of the European Parliament and of the Council17 , Member States are to ensure that service providers established in the Union do not treat recipients of services differently on the basis of their nationality or place of residence. However, that provision has not been fully effective in combatting discrimination and it has not sufficiently reduced legal uncertainty, particularly because of the possibility to justify the differences in treatment for which it allows and the corresponding difficulties in enforcing it in practice. Moreover, unjustified geo-blocking and other forms of discrimination based on nationality, place of residence or place of establishment can also arise as a consequence of actions by traders established in third countries, which fall outside the scope of that Directive.

_________________

_________________

17 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36).

17 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36).

Amendment    4

Proposal for a regulation

Recital 5

Text proposed by the Commission

Amendment

(5)  This Regulation aims at preventing discrimination based on customers' nationality, place of residence or place of establishment, including geo-blocking, in cross-border commercial transactions between traders and customers relating to the sales of goods and the provision of services within the Union. It seeks to address direct as well as indirect discrimination, thus also covering unjustified differences of treatment on the basis of other distinguishing criteria which lead to the same result as the application of criteria directly based on customers' nationality, place of residence or place of establishment. Such other criteria can be applied, in particular, on the basis of information indicating the physical location of customers, such as the IP address used when accessing an online interface, the address submitted for the delivery of goods, the choice language made or the Member State where the customer's payment instrument has been issued.

(5)  This Regulation aims to prevent discrimination based on customers' nationality, place of residence or place of establishment, including geo-blocking, in cross-border commercial transactions between traders and customers relating to the sales of goods and the provision of services within the Union. It seeks to address direct as well as indirect discrimination, thus also covering unjustified differences of treatment on the basis of other distinguishing criteria which lead to the same result as the application of criteria directly based on customers' nationality, place of residence or place of establishment. Such other criteria can be applied, in particular, on the basis of information indicating the physical location of customers, such as the IP address used when accessing an online interface, the address submitted for the delivery of goods, the choice of language made or the Member State where the customer's payment instrument has been issued.

Amendment    5

Proposal for a regulation

Recital 6

Text proposed by the Commission

Amendment

(6)  Considering that some regulatory and administrative barriers for traders have been removed across the Union in certain services sectors as a result of the implementation of Directive 2006/123/EC, in terms of material scope, consistency should be ensured between this Regulation and Directive 2006/123/EC. As a consequence, the provisions of this Regulation should apply inter alia to non-audio-visual electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, subject however to the specific exclusion provided for in Article 4 and the subsequent evaluation of that exclusion as provided for in Article 9. Audio-visual services, including services the main feature of which is the provision of access to broadcasts of sports events and which are provided on the basis of exclusive territorial licenses, are excluded from the scope of this Regulation. Access to retail financial services, including payment services, should therefore also be excluded, notwithstanding the provisions of this Regulation regarding non-discrimination in payments.

(6)  Considering that some regulatory and administrative barriers for traders have been removed across the Union in certain services sectors as a result of the implementation of Directive 2006/123/EC, in terms of material scope, consistency should be ensured between this Regulation and Directive 2006/123/EC. As a consequence, the provisions of this Regulation should apply inter alia to non-audio-visual electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter. Owing to the particular nature of such services, they are currently covered by a specific exclusion provided for in Article 4, which will subsequently be subject to evaluation as provided for in Article 9 with regard to the specific nature of cultural goods and services. Audio-visual services, including services the main feature of which is the provision of access to broadcasts of sports events and which are provided on the basis of exclusive territorial licenses, are excluded from the scope of this Regulation. Access to retail financial services, including payment services, should therefore also be excluded, notwithstanding the provisions of this Regulation regarding non-discrimination in payments.

Amendment     6

Proposal for a regulation

Recital 6 a (new)

Text proposed by the Commission

Amendment

 

(6a)  In its report on the evaluation of this Regulation the Commission should take into account that the principle of territoriality remains an essential element of the copyright system in the Union and that the approach for tackling geo-blocking and fostering online cross-border services should therefore be balanced against the need to protect cultural diversity and the economic model of cultural industries.

Amendment     7

Proposal for a regulation

Recital 7

Text proposed by the Commission

Amendment

(7)  Discrimination can also occur in relation to services in the field of transport, in particular with respect to the sales of tickets for the transport of passengers. However, in that regard Regulation (EC) No 1008/2008 of the European Parliament and of the Council18 , Regulation (EU) No 1177/2010 of the European Parliament and of the Council19 and Regulation (EU) No 181/2011 of the European Parliament and of the Council20 already contain broad prohibitions of discriminations covering all discriminatory practices that the present Regulation seeks to address. Furthermore, it is intended that Regulation (EC) No 1371/2007 of the European Parliament and of the Council21 will be amended to that effect in near future. Therefore, and in order to ensure consistency with the scope of application of Directive 2006/123/EC, services in the field of transport should remain outside the scope of this Regulation.

(7)  Discrimination can also occur in relation to services in the field of transport, in particular with respect to the sales of tickets for the transport of passengers. Therefore the provisions of this Regulation should also apply to those services.

_________________

 

18 Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community (OJ L 293, 31.10.2008, p. 3).

 

19 Regulation (EU) No 1177/2010 of the European Parliament and of the Council of 24 November 2010 concerning the rights of passengers when travelling by sea and inland waterway and amending Regulation (EC) No 2006/2004 (OJ L 334, 17.12.2010, p. 1).

 

20 Regulation (EU) No 181/2011 of the European Parliament and of the Council of 16 February 2011 on the rights of passengers in bus and coach transport and amending Regulation (EC) No 2006/2004 (OJ L 55, 28.2.2011, p. 1).

 

21 Regulation (EC) No 1371/2007 of the European Parliament and of the Council of 23 October 2007 on rail passengers’ rights and obligations (OJ L 315, 3.12.2007, p. 14).

 

Amendment  8

Proposal for a regulation

Recital 8

Text proposed by the Commission

Amendment

(8)  This Regulation should be without prejudice to the rules applicable in the field of taxation, given that the Treaty on the Functioning of the European Union (TFEU) provides specific base for action at Union level as regards taxation matters.

(8)  This Regulation should be without prejudice to the rules applicable in the field of taxation, given that the Treaty on the Functioning of the European Union (TFEU) provides a specific base for action at Union level as regards taxation matters.

Amendment    9

Proposal for a regulation

Recital 11

Text proposed by the Commission

Amendment

(11)  The discriminatory practices that this Regulation seeks to address typically take place through general terms, conditions and other information set and applied by or on behalf of the trader concerned, as a precondition for obtaining access to the goods or services in question, and that are made available to the public at large. Such general conditions of access include inter alia prices, payment conditions and delivery conditions. They can be made available to the public at large by or on behalf of the trader through various means, such as information published in advertisements, on websites or pre-contractual or contractual documentation. Such conditions apply in the absence of an individually negotiated agreement to the contrary entered into directly between the trader and the customer. Terms and conditions that are individually negotiated between the trader and the customers should not be considered general conditions of access for the purposes of this Regulation.

(11)  The discriminatory practices that this Regulation seeks to address typically take place through general terms, conditions and other information set and applied by or on behalf of the trader concerned, as a precondition for obtaining access to the goods or services in question, and that are made available to the public at large. Such general conditions of access include inter alia prices, payment conditions and delivery conditions. They can be made available to the public at large by or on behalf of the trader through various means, such as information published in advertisements, on websites or pre-contractual or contractual documentation. Such conditions apply in the absence of an individually negotiated agreement to the contrary entered into directly between the trader and the customer. Terms and conditions that are individually negotiated between the trader and the customer should not be considered general conditions of access for the purposes of this Regulation. Terms and conditions should not be considered to be individually negotiated where they have been prescribed by one party and the other party has not been able to influence their content. In the case of an agreement between a trader and a customer, the trader should bear the burden of proving that it has been individually negotiated.

Justification

To clarify the meaning of an "individually negotiated agreement" to ensure that it cannot encompass "take it or leave it" terms and conditions for use of a website, which might allow geoblocking by the back door. Equally making clear that the trader is required to demonstrate that an agreement is "individually negotiated".

Amendment     10

Proposal for a regulation

Recital 12

Text proposed by the Commission

Amendment

(12)  Both consumers and undertakings should be safeguarded from discrimination for reasons related to their nationality, place of residence or place of establishment when acting as customers for the purposes of this Regulation. However, that protection should not extend to customers purchasing a good or a service for resale, because it would affect widely used distribution schemes between undertakings in a business to business context, such as selective and exclusive distribution, which generally allow for manufacturers to select their retailers, subject to compliance with the rules on competition.

(12)  Both consumers and undertakings should be safeguarded from direct or indirect discrimination for reasons related to their nationality, place of residence or place of establishment when acting as customers for the purposes of this Regulation. However, that protection should not extend to customers purchasing a good or a service for resale, because it would affect widely used distribution schemes between undertakings in a business to business context, such as selective and exclusive distribution, which generally allow for manufacturers to select their retailers, subject to compliance with the rules on competition.

Amendment    11

Proposal for a regulation

Recital 14

Text proposed by the Commission

Amendment

(14)  In order to increase the possibility for customers to access information related to the sales of goods and the provision of services on the internal market and to increase transparency, including with respect to prices, traders should not, through the use of technological measures or otherwise, prevent customers from having full and equal access to online interfaces on the basis of their nationality, place of residence or place of establishment. Such technological measures can encompass, in particular, any technologies used to determine the physical location of the customer, including the tracking of that by means of IP address, coordinates obtained through a global navigation satellite system or data related to a payment transaction. However, that prohibition of discrimination with respect to access to online interfaces should not be understood as creating an obligation for the trader to engage in commercial transactions with customers.

(14)  In order to increase the possibility for customers to access information related to the sales of goods and the provision of services on the internal market and to increase transparency, including with respect to prices, traders should not, through the use of technological measures or otherwise, prevent customers from having full and equal access to online interfaces on the basis of their nationality, place of residence or place of establishment. Such technological measures can encompass, in particular, any technologies used to determine the physical location of the customer, including the tracking of that by means of IP address, coordinates obtained through a global navigation satellite system or data related to a payment transaction. However, the prohibition of discrimination with respect to access to online interfaces should not be understood as creating an obligation for the trader to engage in commercial transactions with customers.

Amendment  12

Proposal for a regulation

Recital 15

Text proposed by the Commission

Amendment

(15)  Certain traders operate different versions of their online interfaces, targeting customers from different Member States. While this should remain possible, redirecting a customer from one version of the online interface to another version without his or her explicit consent should be prohibited. All versions of the online interface should remain easily accessible to the customer at all times.

(15)  Certain traders operate different versions of their online interfaces, targeting customers from different Member States. While this should remain possible, redirecting a customer from one version of the online interface to another version without his or her explicit consent should be prohibited. All versions of the online interface should remain easily accessible for use by the customer at all times.

Justification

To specify that an interface should not merely remain accessible to the customer, but must also be usable to enable transactions to take place.

Amendment    13

Proposal for a regulation

Recital 18

Text proposed by the Commission

Amendment

(18)  The first of those situations is where the trader sells goods and there is no cross-border delivery of those goods by or on behalf of the trader to the Member State where the customer resides. In that situation the customer should be able to purchase goods, under exactly the same conditions, including price and conditions relating to the delivery of the goods, as similar customers who are residents of the Member State of the trader. That may mean that a foreign customer will have to pick up the good in that Member State, or in a different Member State to which the trader delivers. In this situation, there is no need to register for value added tax ("VAT") in the Member State of the customer, nor arrange for the cross-border delivery of goods.

(18)  The first of those situations is where the trader sells goods and there is no cross-border delivery of those goods by or on behalf of the trader to the Member State where the customer resides. In that situation the customer should be able to purchase goods under exactly the same conditions, including price and conditions relating to the delivery of the goods, as customers who are residents of the Member State of the trader. That may mean that a foreign customer will have to pick up the good in that Member State, or in a different Member State to which the trader delivers. In this situation, there is no need to register for value added tax ("VAT") in the Member State of the customer, nor arrange for the cross-border delivery of goods.

Amendment    14

Proposal for a regulation

Recital 19

Text proposed by the Commission

Amendment

(19)  The second situation is where the trader provides electronically supplied services, other than services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, such as cloud services, data warehousing services, website hosting and the provision of firewalls. In this case, no physical delivery is required, as the services are being supplied electronically. The trader can declare and pay VAT in a simplified manner in accordance with the rules on VAT Mini-One-Stop-Shop (MOSS) set out in Council Implementing Regulation (EU) No 282/201126.

(19)  The second situation is where the trader provides electronically supplied services, other than services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, such as cloud services, data warehousing services, website hosting and the provision of firewalls. In this case, no physical delivery is required, as the services are being supplied electronically. The trader can declare and pay VAT in a simplified manner in accordance with the rules on the VAT Mini-One-Stop-Shop (MOSS) set out in Council Implementing Regulation (EU) No 282/201126.

__________________

__________________

26 Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax (OJ L 77, 23.3.2011, p. 1).

26 Council Implementing Regulation (EU) No 282/2011 of 15 March 2011 laying down implementing measures for Directive 2006/112/EC on the common system of value added tax (OJ L 77, 23.3.2011, p. 1).

Amendment    15

Proposal for a regulation

Recital 20

Text proposed by the Commission

Amendment

(20)  Finally, in the situation where the trader provides services and those services are received by the customer in the premises of or at a location chosen by the trader and different from the Member State of which the customer is a national or in which the customer has his or her place of residence or place of establishment, the application of different general conditions of access for reasons related to such criteria should not be justified either. Those situations concern, as the case may be, the provision of services such as hotel accommodation, sport events, car rental, and entry tickets to music festivals or leisure parks. In those situations, the trader does not have to register for VAT in another Member State nor arrange for cross-border delivery of goods.

(20)  Finally, where the trader provides services and those services are received by the customer on the premises of or at a location chosen by the trader and not in the Member State of which the customer is a national or in which the customer has his or her place of residence or place of establishment, the application of different general conditions of access for reasons related to such criteria should not be justified either. Those situations may concern the provision of services such as hotel accommodation, sport events, car rental, and entry tickets to music festivals or leisure parks. In those situations, the trader does not have to register for VAT in another Member State nor arrange for cross-border delivery of goods.

Amendment    16

Proposal for a regulation

Recital 21

Text proposed by the Commission

Amendment

(21)  In all those situations, by virtue of the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 and (EU) 1215/2012, where a trader does not pursue his activities in the Member State of the consumer or does not direct his activities there, or where the customer is not a consumer, compliance with this Regulation does not imply any additional costs for the trader associated with jurisdiction or differences in applicable law. Where, in contrast, a trader does pursue his activities in the consumer's Member State or does direct his activities there, the trader has manifested its intention to establish commercial relations with consumers from that Member State and thus been able to take account of any such costs.

(21)  In all those situations, by virtue of the provisions on the law applicable to contractual obligations and on jurisdiction set out in Regulations (EC) No 593/2008 and (EU) 1215/2012, where a trader does not pursue his activities in the Member State of the consumer or does not direct his activities there, compliance with this Regulation does not entail any additional costs for the trader associated with jurisdiction or differences in applicable law. This holds equally where the customer is not a consumer but an undertaking making a purchase as an end user and thus transacting in a manner indistinguishable from that of a consumer. Where, in contrast, a trader does pursue his activities in the customer's Member State or does direct his activities there, the trader has manifested his or her intention to establish commercial relations with customers from that Member State and has thus been able to take account of any such costs.

Justification

To clarify that undertakings making purchases as end users are behaving like consumers and are covered by the notion of "customer" in the Regulation and that no additional costs arise irrespectively of whether the "customer" is a consumer or an undertaking.

Amendment     17

Proposal for a regulation

Recital 21 a (new)

Text proposed by the Commission

Amendment

 

(21a)  The Regulation should take into account the principle of proportionality, in particular for micro, small and medium enterprises, and the right of market operators to engage in market selection by directing their activities at different Member States or certain groups of customers. The Regulation should therefore ensure the balance between the principle of freedom of trade and the free choice of business strategy and the need to overcome unjustified geo-blocking practices towards customers and undertakings in different Member States.

Amendment    18

Proposal for a regulation

Recital 24

Text proposed by the Commission

Amendment

(24)  Under Union law, traders are in principle free to decide which means of payment they wish to accept, including payment brands. However, once this choice has been made, in view of the existing legal framework for payment services, there are no reasons for traders to discriminate customers within the Union by refusing certain commercial transactions, or by otherwise applying certain different conditions of payment in respect of those transactions, for reasons related to the nationality, place of residence or place of establishment of the customer. In this particular context, such unjustified unequal treatment for reasons related to the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union should be expressly prohibited as well. It should be further recalled that Regulation (EU) No 260/2012 already prohibits all payees, including traders, from requiring bank accounts to be located in a certain Member State for a payment in euro to be accepted.

(24)  Under Union law, traders are in principle free to decide which means of payment they wish to accept, including payment brands. However, once this choice has been made, in view of the existing legal framework for payment services, there are no reasons for traders to discriminate among customers within the Union by refusing certain commercial transactions, or by otherwise applying different conditions of payment in respect of those transactions, for reasons related to the nationality, place of residence or place of establishment of the customer. In this particular context, such unjustified unequal treatment for reasons related to the location of the payment account, the place of establishment of the payment service provider or the place of issue of the payment instrument within the Union should also be expressly prohibited. It should be further recalled that Regulation (EU) No 260/2012 already prohibits all payees, including traders, from requiring bank accounts to be located in a certain Member State for a payment in euro to be accepted.

Amendment    19

Proposal for a regulation

Recital 25

Text proposed by the Commission

Amendment

(25)  Directive 2015/2366/EU of the European Parliament and of the Council28 introduced strict security requirements for the initiation and processing of electronic payments, which reduced the risk of fraud for all new and more traditional means of payment, especially online payments. Payment service providers are obliged to apply so-called strong customer authentication, an authentication process that validates the identity of the user of a payment service or of the payment transaction. For remote transactions, such as online payments, the security requirements go even further, requiring a dynamic link to the amount of the transaction and the account of the payee, to further protect the user by minimising the risks in case of mistakes or fraudulent attacks. As a result of these provisions, the risk of payment fraud in national and cross-border purchases is brought to an equal level and should not be used as an argument to refuse or discriminate any commercial transactions within the Union.

(25)  Directive 2015/2366/EU of the European Parliament and of the Council28 introduced strict security requirements for the initiation and processing of electronic payments, which reduced the risk of fraud for all new and more traditional means of payment, especially online payments. Payment service providers are obliged to apply so-called strong customer authentication, an authentication process that validates the identity of the user of a payment service or of the payment transaction. For remote transactions, such as online payments, the security requirements go even further, requiring a dynamic link to the amount of the transaction and the account of the payee, to further protect the user by minimising the risks in case of mistakes or fraudulent attacks. As a result of these provisions, cross-border purchases do not entail a higher risk of payment fraud than national purchases, meaning that the risk of payment fraud should not be used as an argument to refuse or discriminate against any commercial transactions within the Union.

__________________

__________________

28 Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35–127).

28 Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ L 337, 23.12.2015, p. 35–127).

Amendment     20

Proposal for a regulation

Recital 25 a (new)

Text proposed by the Commission

Amendment

 

(25a)  Data and metadata generated by e-commerce and online transactions should comply with the legislative framework on traffic and location of data, data retention, data protection and data analysis, ensuring full compliance with Union law. Beyond that minimum requirement, companies engaging in e-commerce should be encouraged to develop innovative business models that make use of the least possible data, collect the minimum data necessary for their legitimate purpose, and store them for the shortest possible period of time.

Amendment    21

Proposal for a regulation

Recital 26

Text proposed by the Commission

Amendment

(26)  This Regulation should not affect the application of the rules on competition, and in particular Articles 101 and 102 TFEU. Agreements imposing on traders obligations not to engage in passive sales within the meaning of Commission Regulation (EU) No 330/201029 to certain customers or to customers in certain territories are generally considered restrictive of competition and cannot normally be exempted from the prohibition laid down in Article 101(1) TFEU. Even when they are not caught by Article 101 TFEU, in the context of the application of this Regulation, they disrupt the proper functioning of the internal market and they may be used to circumvent the provisions of this Regulation. The relevant provisions of such agreements and of other agreements in respect of passive sales requiring the trader to act in violation of this Regulation should therefore be automatically void. However, this Regulation, and in particular its provisions on access to goods or services, should not affect agreements restricting active sales within the meaning of Regulation (EU) No 330/2010.

(26)  This Regulation should not affect the application of the rules on competition, and in particular Articles 101 and 102 TFEU. Agreements imposing on traders obligations not to engage in passive sales within the meaning of Commission Regulation (EU) No 330/201029 to certain customers or to customers in certain territories are generally considered to restrict competition and cannot normally be exempted from the prohibition laid down in Article 101(1) TFEU. Even when such agreements are not covered by Article 101 TFEU, in the context of the application of this Regulation, they disrupt the proper functioning of the internal market and they may be used to circumvent the provisions of this Regulation. The relevant provisions of such agreements and of other agreements in respect of passive sales requiring the trader to act in violation of this Regulation should therefore be automatically void. However, this Regulation, and in particular its provisions on access to goods or services, should not affect agreements restricting active sales within the meaning of Regulation (EU) No 330/2010.

__________________

__________________

29 Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (OJ L 102, 23.4.2010, p. 1).

29 Commission Regulation (EU) No 330/2010 of 20 April 2010 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices (OJ L 102, 23.4.2010, p. 1).

Amendment     22

Proposal for a regulation

Recital 29

Text proposed by the Commission

Amendment

(29)  This Regulation should be regularly evaluated, with a view to proposing amendments where necessary. The first evaluation should concentrate, in particular, on the possible extension of the prohibition of Article 4(1)(b) to electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, provided that the trader has the requisite rights for the relevant territories.

(29)  This Regulation should be regularly evaluated, with a view to proposing amendments where necessary. The first evaluation should concentrate, in particular, on the possible extension of the prohibition of Article 4(1)(b) to electronically supplied services, the main feature of which is the provision of access to and use or sale of copyright protected works or other protected subject matter, provided that the trader has the requisite rights for the relevant territories. The first evaluation should take into account the legal developments in Member States with regard to the copyright reform, audiovisual media services and cross-border portability of online content services.

Amendment    23

Proposal for a regulation

Recital 33

Text proposed by the Commission

Amendment

(33)  In order to achieve the objective of effectively addressing direct and indirect discrimination based on the nationality, place of residence or place of establishment of customers, it is appropriate to adopt a Regulation, which directly applies in all Member States. This is necessary in order to guarantee the uniform application of the non-discrimination rules across the Union and their entering into force at the same time. Only a Regulation ensures the degree of clarity, uniformity and legal certainty which is necessary in order to enable customers to fully benefit from those rules.

(33)  In order to achieve the objective of effectively preventing direct and indirect discrimination based on the nationality, place of residence or place of establishment of customers, and of providing effective means of redress to those customers who consider themselves affected by it, it is appropriate to adopt a Regulation, which applies directly in all Member States. This is necessary in order to guarantee the uniform application of the non-discrimination rules across the Union and their entry into force at the same time. Only a Regulation ensures the degree of clarity, uniformity and legal certainty which is necessary in order to enable customers to fully benefit from those rules.

Amendment    24

Proposal for a regulation

Article 1 – paragraph 2 – point a

Text proposed by the Commission

Amendment

(a)  where the trader sells goods, provides services, or seeks to do so, in a Member State other than the Member State in which the customer has the place of residence or the place of establishment;

(a)  where the trader sells goods, provides services, or seeks to do so, in a Member State other than the Member State in which the customer has his or her place of residence or place of establishment;

Amendment    25

Proposal for a regulation

Article 1 – paragraph 2 – point b

Text proposed by the Commission

Amendment

(b)  where the trader sells goods, provides services, or seeks to do so, in the same Member State as the one in which the customer has the place of residence or place of establishment, but the customer is a national of another Member State;

(b)  where the trader sells goods, provides services, or seeks to do so, in the same Member State as the one in which the customer has his or her place of residence or place of establishment, but the customer is a national of another Member State;

Amendment    26

Proposal for a regulation

Article 1 – paragraph 2 – point c

Text proposed by the Commission

Amendment

(c)  where the trader sells goods or provides services, or seeks to do so, in a Member State in which the customer is temporarily located without residing in that Member State or having the place of establishment in that Member State.

(c)  where the trader sells goods or provides services, or seeks to do so, in a Member State in which the customer is temporarily located without residing in that Member State or having his or her place of establishment in that Member State.

Amendment     27

Proposal for a regulation

Article 1 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

 

4a.  This Regulation shall be without prejudice to the rules applicable in the field of copyright and neighbouring rights.

Amendment    28

Proposal for a regulation

Article 1 – paragraph 5

Text proposed by the Commission

Amendment

5.  This Regulation shall not affect acts of Union law concerning judicial cooperation in civil matters. Compliance with this Regulation shall not be construed as implying that a trader directs his or her activities to the Member State where the consumer has the habitual residence or domicile within the meaning of point (b) of Article 6(1) of Regulation (EC) No 593/2008 and point (c) of Article 17(1) of Regulation (EU) 1215/2012.

5.  This Regulation shall not affect acts of Union law concerning judicial cooperation in civil matters. Compliance with this Regulation shall not be construed as implying that a trader directs his or her activities to the Member State where the consumer has his or her habitual residence or domicile within the meaning of point (b) of Article 6(1) of Regulation (EC) No 593/2008 and point (c) of Article 17(1) of Regulation (EU) No 1215/2012.

Amendment    29

Proposal for a regulation

Article 2 – paragraph 2 – point e

Text proposed by the Commission

Amendment

(e)  'goods' means any tangible movable item, with the exception of items sold by way of execution or otherwise by authority of law; water, gas and electricity shall be considered as goods within the meaning of this Regulation where they are put up for sale in a limited volume or a set quantity;

(e)  'goods' means any tangible movable item, with the exception of items sold by way of execution or otherwise by authority of law;

Justification

The specific case included here, while taken from the definition of "goods" in the Consumer Rights Directive (2011/83/EC), does not appear relevant in the case of a Regulation on unjustified geoblocking.

Amendment    30

Proposal for a regulation

Article 3 – paragraph 2 – subparagraph 2

Text proposed by the Commission

Amendment

In the event of such redirection with the customer's explicit consent, the original version of the online interface shall remain easily accessible for that customer.

In the event of such redirection with the customer's explicit consent, the original version of the online interface shall remain easily accessible for use by that customer.

Justification

To specify that an interface should not merely remain accessible to the customer, but must also be usable to enable transactions to take place.

Amendment    31

Proposal for a regulation

Article 3 – paragraph 4

Text proposed by the Commission

Amendment

4.  Where a trader blocks or limits access of customers to an online interface or redirects customers to a different version of the online interface in compliance with paragraph 4, the trader shall provide a clear justification. That justification shall be given in the language of the online interface that the customer originally sought to access.

4.  Where a trader blocks or limits access of customers to an online interface or redirects customers to a different version of the online interface in compliance with paragraph 3, the trader shall provide a clear justification. That justification shall be given in the language of the online interface that the customer originally sought to access.

Amendment   32

Proposal for a regulation

Article 4 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b)  where the trader provides electronically supplied services, other than services the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter;

(b)  where the trader provides electronically supplied services, other than services the main feature of which is the provision of access to and use or sale of copyright protected works or other protected subject matter;

Amendment    33

Proposal for a regulation

Article 4 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c)  where the trader provides services, other than those covered by point (b), and those services are supplied to the customer in the premises of the trader or in a physical location where the trader operates, in a Member State other than that of which the customer is a national or in which the customer has the place of residence or the place of establishment.

(c)  where the trader provides services other than those covered by point (b), and those services are supplied to the customer on the premises of the trader or in a physical location where the trader operates, in a Member State other than that of which the customer is a national or in which the customer has his or her place of residence or place of establishment.

Amendment    34

Proposal for a regulation

Article 5 – paragraph 2

Text proposed by the Commission

Amendment

2.  The prohibition set out in paragraph 1 shall not preclude traders' possibility to request charges for the use of a card-based payment instrument for which interchanges fees are not regulated under Chapter II of Regulation (EU) 2015/751 and for those payment services to which Regulation (EU) No 260/2012 does not apply. Those charges shall not exceed the costs borne by the trader for the use of the payment instrument.

2.  The prohibition set out in paragraph 1 shall not preclude traders from charging for the use of a card-based payment instrument for which interchanges fees are not regulated under Chapter II of Regulation (EU) 2015/751 and for those payment services to which Regulation (EU) No 260/2012 does not apply. Those charges shall not exceed the costs borne by the trader for the use of the payment instrument.

Amendment    35

Proposal for a regulation

Article 7 – paragraph 1

Text proposed by the Commission

Amendment

1.  Each Member State shall designate a body or bodies responsible for the enforcement of this Regulation. Member States shall ensure that adequate and effective means exist with the body or bodies designated in order to enforce compliance with this Regulation.

1.  Each Member State shall designate a body or bodies responsible for the enforcement of this Regulation. Member States shall ensure that adequate and effective means exist with the body or bodies designated in order to enforce compliance with this Regulation, including through cross-border cooperation mechanisms.

Justification

While retaining the spirit of the Commission proposal and allowing Member States to determine which body/bodies to designate and how to ensure compliance, this amendment underscores that any arrangement must encompass cross-border cooperation mechanisms to guarantee effectiveness.

Amendment    36

Proposal for a regulation

Article 8 – title

Text proposed by the Commission

Amendment

Assistance to consumers

Assistance to customers

Justification

Since the Regulation applies not only to "consumers", but to undertakings transacting as end users ("customers"), the assistance and dispute resolution mechanisms should include all "customers" within the meaning of this Regulation.

Amendment    37

Proposal for a regulation

Article 8 – paragraph 2

Text proposed by the Commission

Amendment

2.  The bodies referred to in paragraph 1 shall offer consumers a uniform model form to file complaints to the bodies referred to in paragraph 1 and in Article 7(1). The Commission shall assist those bodies in developing this model form.

2.  The bodies referred to in paragraph 1 shall offer customers a uniform model form to file complaints to the bodies referred to in paragraph 1 and in Article 7(1). The Commission shall assist those bodies in developing this model form.

Justification

Since the Regulation applies not only to "consumers", but to undertakings transacting as end users ("customers"), the assistance and dispute resolution mechanisms should include all "customers" within the meaning of this Regulation.

Amendment    38

Proposal for a regulation

Article 9 – paragraph 2

Text proposed by the Commission

Amendment

2.  The first evaluation referred to in paragraph 1 shall be carried out, in particular, with a view to assessing whether the prohibition of Article 4(1)(b) should also apply to electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, provided that the trader has the requisite rights for the relevant territories.

2.  The first evaluation referred to in paragraph 1 shall be carried out, in particular, with a view to assessing whether the prohibition of Article 4(1)(b) should also apply to electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter, provided that the trader has the requisite rights for the relevant territories. The evaluation shall take due account of the specificities of copyright-protected cultural goods and services.

Justification

The review clause is specifically designed to consider extending the Regulation's scope to include "electronically supplied services, the main feature of which is the provision of access to and use of copyright protected works or other protected subject matter". This amendment stresses that the specific nature of cultural goods and services must be fully considered in the evaluation.

PROCEDURE – COMMITTEE ASKED FOR OPINION

Title

Addressing geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market

References

COM(2016)0289 – C8-0192/2016 – 2016/0152(COD)

Committee responsible

       Date announced in plenary

IMCO

9.6.2016

 

 

 

Opinion by

       Date announced in plenary

CULT

9.6.2016

Rapporteur

       Date appointed

Therese Comodini Cachia

7.7.2016

Date adopted

24.1.2017

 

 

 

Result of final vote

+:

–:

0:

21

1

5

Members present for the final vote

Dominique Bilde, Andrea Bocskor, Silvia Costa, Mircea Diaconu, Angel Dzhambazki, Jill Evans, María Teresa Giménez Barbat, Giorgos Grammatikakis, Petra Kammerevert, Andrew Lewer, Svetoslav Hristov Malinov, Curzio Maltese, Luigi Morgano, Momchil Nekov, John Procter, Michaela Šojdrová, Yana Toom, Helga Trüpel, Sabine Verheyen, Julie Ward, Bogdan Brunon Wenta, Theodoros Zagorakis, Bogdan Andrzej Zdrojewski, Milan Zver, Krystyna Łybacka

Substitutes present for the final vote

Therese Comodini Cachia, Sylvie Guillaume


PROCEDURE – COMMITTEE RESPONSIBLE

Title

Addressing geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market

References

COM(2016)0289 – C8-0192/2016 – 2016/0152(COD)

Date submitted to Parliament

25.5.2016

 

 

 

Committee responsible

       Date announced in plenary

IMCO

9.6.2016

 

 

 

Committees asked for opinions

       Date announced in plenary

ITRE

9.6.2016

CULT

9.6.2016

JURI

9.6.2016

 

Associated committees

       Date announced in plenary

JURI

19.1.2017

 

 

 

Rapporteurs

       Date appointed

Róża Gräfin von Thun und Hohenstein

17.6.2016

 

 

 

Discussed in committee

29.9.2016

6.3.2017

21.3.2017

 

Date adopted

25.4.2017

 

 

 

Result of final vote

+:

–:

0:

30

3

4

Members present for the final vote

Dita Charanzová, Carlos Coelho, Sergio Gaetano Cofferati, Anna Maria Corazza Bildt, Daniel Dalton, Nicola Danti, Dennis de Jong, Pascal Durand, Evelyne Gebhardt, Maria Grapini, Robert Jarosław Iwaszkiewicz, Liisa Jaakonsaari, Morten Løkkegaard, Eva Maydell, Marlene Mizzi, Marcus Pretzell, Virginie Rozière, Christel Schaldemose, Andreas Schwab, Olga Sehnalová, Jasenko Selimovic, Ivan Štefanec, Catherine Stihler, Róża Gräfin von Thun und Hohenstein, Anneleen Van Bossuyt, Marco Zullo

Substitutes present for the final vote

Pascal Arimont, Lidia Joanna Geringer de Oedenberg, Roberta Metsola, Franz Obermayr, Julia Reda, Ulrike Trebesius, Sabine Verheyen

Substitutes under Rule 200(2) present for the final vote

David Coburn, Pál Csáky, Andor Deli, Dieter-Lebrecht Koch

Date tabled

27.4.2017


FINAL VOTE BY ROLL CALL IN COMMITTEE RESPONSIBLE

30

+

ALDE

EFDD

PPE

S&D

Verts/ALE

Dita Charanzová, Morten Løkkegaard, Jasenko Selimovic

Robert Jarosław Iwaszkiewicz, Marco Zullo

Pascal Arimont, Carlos Coelho, Anna Maria Corazza Bildt, Pál Csáky, Andor Deli, Dieter-Lebrecht Koch, Eva Maydell, Roberta Metsola, Andreas Schwab, Ivan Štefanec, Róża Gräfin von Thun und Hohenstein, Sabine Verheyen

Sergio Gaetano Cofferati, Nicola Danti, Evelyne Gebhardt, Lidia Joanna Geringer de Oedenberg, Maria Grapini, Liisa Jaakonsaari, Marlene Mizzi, Virginie Rozière, Christel Schaldemose, Olga Sehnalová, Catherine Stihler

Pascal Durand, Julia Reda

3

-

EFDD

ENF

David Coburn

Franz Obermayr, Marcus Pretzell

4

0

ECR

GUE/NGL

Daniel Dalton, Ulrike Trebesius, Anneleen Van Bossuyt

Dennis de Jong

Key to symbols:

+  :  in favour

-  :  against

0  :  abstention

Last updated: 29 January 2018Legal notice