Procedure : 2008/0196(COD)
Document stages in plenary
Document selected : A7-0038/2011

Texts tabled :

A7-0038/2011

Debates :

PV 23/03/2011 - 20
CRE 23/03/2011 - 20

Votes :

PV 24/03/2011 - 6.13
CRE 24/03/2011 - 6.13
Explanations of votes
Explanations of votes
PV 23/06/2011 - 12.19
CRE 23/06/2011 - 12.19
Explanations of votes
Explanations of votes

Texts adopted :

P7_TA(2011)0116
P7_TA(2011)0293

REPORT     ***I
PDF 1139kDOC 2059k
22 February 2011
PE 442.789v07-00 A7-0038/2011

on the proposal for a directive of the European Parliament and of the Council on consumer rights

(COM(2008)0614 – C7-0349/2008 – 2008/0196(COD))

Committee on the Internal Market and Consumer Protection

Rapporteur: Andreas Schwab

Rapporteur for the opinion(*): Diana Wallis, Committee on Legal Affairs

(*) Associated committee - Rule 50 of the Rules of Procedure

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
 EXPLANATORY STATEMENT
 OPINION of the Committee on Legal Affairs(*)
 OPINION of the Committee on Economic and Monetary Affairs
 PROCEDURE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a directive of the European Parliament and of the Council

on consumer rights

(COM(2008)0614 – C7-0349/2008 – 2008/0196(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

–   having regard to the Commission proposal to Parliament and the Council (COM(2008)0614),

–   having regard to Article 251(2) and Article 95 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C7-0349/2008),

–   having regard to the Commission Communication to Parliament and the Council entitled ‘Consequences of the entry into force of the Treaty of Lisbon for ongoing interinstitutional decision-making procedures’ (COM(2009)0665),

–   having regard to Article 294(3) and Article 114 of the Treaty on the Functioning of the European Union,

–   having regard to the opinion of the European Economic and Social Committee of 16 July 2009(1),

–   having regard to the opinion of the Committee of the Regions of 22 April 2009(2),

–   having regard to Rule 55 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 and the Committee on Economic and Monetary Affairs (A7-0038/2011),

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

2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;

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

Amendment  1

Proposal for a directive

Recital 2

Text proposed by the Commission

Amendment

(2) Those Directives have been reviewed in the light of experience with a view to simplifying and updating the applicable rules, removing inconsistencies and closing unwanted gaps in the rules. That review has shown that it is appropriate to replace those four Directives by this single Directive. This Directive should accordingly lay down standard rules for the common aspects and move away from the minimum harmonisation approach in the former Directives under which Member States could maintain or adopt stricter national rules.

(2) Those Directives have been reviewed in the light of experience with a view to simplifying and updating the applicable rules, removing inconsistencies and closing unwanted gaps in the rules. That review has shown that it is appropriate to replace those four Directives by this single Directive. This Directive should accordingly lay down standard rules for the common aspects whilst allowing Member States to maintain or adopt national rules in relation to certain other aspects, providing for a higher level of consumer protection.

Amendment              2

Proposal for a directive

Recital 5

Text proposed by the Commission

Amendment

(5) The cross-border potential of distance selling which should be one of the main tangible results of the internal market is not fully exploited by consumers. Compared with the significant growth of domestic distance sales over the last few years, the growth in cross-border distance sales has been limited. This discrepancy is particularly significant for Internet sales for which the potential of further growth is high. The cross-border potential of contracts negotiated away from business premises (direct selling) is constrained by a number of factors including the different national consumer protection rules imposed upon the industry. Compared with the growth of domestic direct selling over the last few years, in particular in the services sector (e.g. utilities), the number of consumers using this channel for cross-border purchases has remained flat. Responding to increased business opportunities in many Member States, small and medium size enterprises (including individual entrepreneurs) or agents of direct selling companies should be more inclined to seek business opportunities in other Member States, in particular in border regions. Therefore the full harmonisation of consumer information and the right of withdrawal in distance and off-premises contracts will contribute to the better functioning of the business to consumer internal market.

(5) The cross-border potential of distance selling which should be one of the main tangible results of the internal market is not fully exploited. Compared with the significant growth of domestic distance sales over the last few years, the growth in cross-border distance sales has been limited. This discrepancy is particularly significant for Internet sales for which the potential of further growth is high. The cross-border potential of contracts negotiated away from business premises (direct selling) is constrained by a number of factors including the different national consumer protection rules imposed upon the industry. Compared with the growth of domestic direct selling over the last few years, in particular in the services sector (e.g. utilities), the number of consumers using this channel for cross-border purchases has remained flat. Responding to increased business opportunities in many Member States, small and medium size enterprises (including individual traders) or agents of direct selling companies should be more inclined to seek business opportunities in other Member States, in particular in border regions. Therefore the full harmonisation of certain aspects of consumer information and of the right of withdrawal in distance and off-premises contracts will contribute to a high level of consumer protection and better functioning of the business to consumer internal market.

Amendment  3

Proposal for a directive

Recital 6

Text proposed by the Commission

Amendment

(6) The laws of the Member States on consumer contracts show marked differences which can generate appreciable distortions of competition and obstacles to the smooth functioning of the internal market. The existing Community legislation in the field of consumer contracts concluded at a distance or away from business premises consumer goods and guarantees as well as unfair contract terms establishes minimum standards for harmonising legislation allowing the Member States the possibility to maintain or introduce more stringent measures which ensure a higher level of consumer protection in their territories. Furthermore, many issues are regulated inconsistently between directives or have been left open. These issues have been addressed differently by the Member States. As a result, the national provisions implementing directives on consumer contract law diverge significantly.

deleted

Amendment  4

Proposal for a directive

Recital 7

Text proposed by the Commission

Amendment

(7) These disparities create significant internal market barriers affecting business and consumers. They increase compliance costs to business wishing to engage in cross border sale of goods or provision of services. Fragmentation also undermines consumer confidence in the internal market. The negative effect on consumer confidence is strengthened by an uneven level of consumer protection across the Community. This problem is particularly acute in the light of new market developments.

(7) Certain disparities in the Member States’ legislation in the field of consumer contracts, particularly contracts concluded at a distance or away from business premises, create significant internal market barriers affecting business and consumers. They increase compliance costs to business wishing to engage in cross border sale of goods or provision of services. Inappropriate fragmentation also undermines consumer confidence in the internal market.

Amendment              5

Proposal for a directive

Recital 8

Text proposed by the Commission

Amendment

(8) Full harmonisation of some key regulatory aspects will considerably increase legal certainty for both consumers and business. Both consumers and business will be able to rely on a single regulatory framework based on clearly defined legal concepts regulating certain aspects of business-to-consumer contracts across the Community. The effect will be to eliminate the barriers stemming from the fragmentation of the rules and to complete the internal market in this area. These barriers can only be eliminated by establishing uniform rules at Community level. Furthermore consumers will enjoy a high common level of protection across the Community.

(8) Unless otherwise specified and in accordance with Article 169 of the Treaty on the Functioning of the European Union, the provisions of this Directive should not hinder the Member States from adopting or maintaining more stringent measures of national law, which improve consumer protection. However, the full harmonisation of some key regulatory aspects is justified in order to secure a single regulatory framework for consumer protection and in order to considerably increase legal certainty for both consumers and traders in cross-border business. In this case, both consumers and traders will be able to rely on a single regulatory framework based on clearly defined legal concepts regulating certain aspects of business-to-consumer contracts across the Union. Thus, the consumer will enjoy a high common level of protection across the Union. Furthermore, by establishing uniform rules at Union level, this should eliminate the barriers stemming from the disproportionate fragmentation of the rules and complete the internal market in this area.

Amendment              6

Proposal for a directive

Recital 10 a (new)

Text proposed by the Commission

Amendment

 

(10a) This Directive should not apply to healthcare, that is to say health services provided by health professionals to patients to assess, maintain or restore their health.

Amendment              7

Proposal for a directive

Recital 10 b (new)

Text proposed by the Commission

Amendment

 

(10b) Gambling activities, including lottery and betting transactions, should be excluded from the scope of this Directive in view of the very specific nature of those activities, in the light of which Member States should be able to adopt other or more stringent consumer protection measures in relation to such activities.

Amendment              8

Proposal for a directive

Recital 11

Text proposed by the Commission

Amendment

(11) The existing Community legislation on consumer financial services contains numerous rules on consumer protection. For this reason the provisions of this Directive cover contracts relating to financial services only insofar as this is necessary to fill the regulatory gaps.

(11) The existing Union legislation inter alia relating to consumer financial services or package travel contains numerous rules on consumer protection. For this reason, Articles 5 to 19 and Article 23a of this Directive should not apply to contracts relating to financial services and Articles 9 to 19 should not apply to distance and off-premises contracts relating to package travel, without prejudice to other provisions of existing Union legislation. With regard to financial services, Member States should be encouraged to draw inspiration from existing Union legislation in that area when legislating in areas not regulated at Union level, in such a way that a level playing field for all consumers and all contracts relating to financial services is ensured. The Commission should aim at complementing Union legislation in the field of financial services in order to close existing gaps and protect consumers in all types of contracts

Amendment  9

Proposal for a directive

Recital 11 a (new)

Text proposed by the Commission

Amendment

 

(11a) Articles 9 to 19 of this Directive should be without prejudice to the application of the provisions of the Member States relating to the acquisition of immovable property and guarantees relating to immovable property or the formation or transfer of rights in rem in immovable property. This includes agreements connected with such legal acts, such as sales of immovable property still to be developed and hire-purchase.

Amendment              10

Proposal for a directive

Recital 11b (new)

Text proposed by the Commission

Amendment

 

(11b) As no difficult psychological situation applies when contracts, in accordance with the provisions of the Member States, are established by a public office-holder, such contracts should be excluded from the scope of Articles 9 to 19 of this Directive.

Amendment   11

Proposal for a directive

Recital 11 c (new)

Text proposed by the Commission

Amendment

 

(11c) For the purposes of this Directive, leasing contracts for motor vehicles, where the motor vehicle is returned at the end of the contract, should be considered as motor vehicle rental services.

Amendment  12

Proposal for a directive

Recital 11 d (new)

Text proposed by the Commission

Amendment

 

 

 

(11d) Many Member States have chosen to apply national consumer protection rules to other entities such as non-governmental organisations, start-up businesses and small and medium-sized enterprises, and others may wish to do so. It should be recalled that Member States may extend the scope of the national rules adopted in order to implement this Directive to cover natural or legal persons who are not consumers within the meaning of this Directive.

Amendment  13

Proposal for a directive

Recital 11 e (new)

Text proposed by the Commission

Amendment

 

(11e) Digital content transmitted to the consumer in a digital format, where the consumer obtains the possibility of use on a permanent basis or in a way similar to the physical possession of a good, should be treated as goods for the application of the provisions of this Directive which apply to sales contracts. However, a withdrawal right should only apply until the moment the consumer chooses to download the digital content.

Amendment   14

Proposal for a directive

Recital 12

Text proposed by the Commission

Amendment

(12) The new definition of distance contract should cover all cases where sales and service contracts are concluded using exclusively one or more means of distance communication (such as mail order, Internet, telephone or fax). This should create a level playing field for all distance traders. It should also improve legal certainty as compared to the current definition requiring the presence of an organised distance selling scheme run by the trader up to the conclusion of the contract.

(12) The new definition of distance contract should cover all cases where contracts concerning the supply of a good or the provision of a service are concluded between the trader and the consumer under an organised distance sales or service-provision scheme and without the simultaneous physical presence of the parties, using exclusively one or more means of distance communication (such as mail order, Internet, telephone or fax). Websites offering purely information on the trader, his goods and/or services should not be covered by the definition of such an organised distance sales or service-provision scheme, even if such websites indicate one or more means of distance communication. This should create a level playing field for all distance traders.

Amendment   15

Proposal for a directive

Recital 13

Text proposed by the Commission

Amendment

(13) The particular circumstances under which an offer was made or the contract was negotiated should not be relevant in the definition of a distance contract. The fact that the trader is an occasional distance seller or that he uses an organised scheme run by a third party such as an online platform, should not deprive consumers of their protection . Similarly, a transaction negotiated face to face between the trader and the consumer away from business premises should be a distance contract, if the contract has then been concluded through the exclusive use of means of distance communication, such as the Internet or telephone. For traders, a simpler definition of a distance contract should improve legal certainty and protect them from unfair competition.

(13) The particular circumstances under which an offer was made or the contract was negotiated should not be relevant in the definition of a distance contract. The fact that the trader uses an organised distance sales or service-provision scheme run by a third party such as an online platform, should not deprive consumers of their protection. Similarly, a transaction negotiated face to face between the trader and the consumer away from business premises should be a distance contract, if the contract has then been concluded through the exclusive use of means of distance communication, such as the Internet or telephone. For traders, a simpler definition of a distance contract should improve legal certainty and protect them from unfair competition.

Amendment   16

Proposal for a directive

Recital 14

Text proposed by the Commission

Amendment

(14) An off-premises contract should be defined as a contract concluded with the simultaneous physical presence of the trader and the consumer, away from business premises, for example at the consumer's home or workplace. In an off-premises context, consumers are under psychological pressure no matter whether they have solicited the trader's visit or not. Furthermore, in order to prevent circumventions of rules when consumers are approached away from business premises, a contract negotiated, for example at the consumer's home but concluded in a shop should be regarded as an off-premises contract.

(14) An off-premises contract should be defined as a contract concluded with the simultaneous physical presence of the trader and the consumer, away from business premises, for example at the consumer's home or workplace. In an off-premises context, consumers are temporarily in a special situation which is different from the situation in a shop, for instance from a psychological point of view and as regards the scope for comparing goods and prices, no matter whether they have solicited the trader's visit or not. Furthermore, in order to prevent circumventions of rules when consumers are approached away from business premises, a contract negotiated, for example at the consumer's home but concluded in a shop should be regarded as an off-premises contract only when the main components of the contract have been determined in the course of an excursion, a leisure event or a sales demonstration.Nevertheless, contracts under which the payment to be made by the consumer does not exceed EUR 40 should not be covered by the above definition, so that for instance street traders, whose goods are supplied immediately, are not overburdened with obligations as regards information. A right of withdrawal is also unnecessary in such cases, since the implications of such contracts are readily understandable. Nevertheless Member States should remain free, and be encouraged, to set a lower value.

Amendment              17

Proposal for a directive

Recital 15

Text proposed by the Commission

Amendment

(15) Business premises should include premises in whatever form (such as shops or lorries) which serve as a permanent place of business for the trader. Market stalls and fair stands should be treated as business premises even though they may be used by the trader on a temporary basis. Other premises which are rented for a short time only and where the trader is not established (such as hotels, restaurants, conference centres, cinemas rented by traders who are not established there) should not be regarded as business premises. Similarly, all public spaces including public transport or facilities as well as private homes or workplaces should not be regarded as business premises.

(15) Business premises should include premises in whatever form (such as shops, taxis or lorries) which serve as a permanent place of activity for the trader. Market stalls should be treated as business premises even though they may be used by the trader on a temporary and regular basis. Other premises which are rented for a short time only and where the trader is not established (such as hotels, restaurants, conference centres, cinemas rented by traders who are not established there) should not be regarded as business premises. Similarly, all public spaces including public transport or facilities as well as private homes or workplaces should not be regarded as business premises.

Amendment              18

Proposal for a directive

Recital 16

Text proposed by the Commission

Amendment

(16) The definition of durable medium should include in particular documents on paper, USB sticks, CD-ROMs, DVDs, memory cards and the hard drive of the computer on which the electronic mail or a pdf file is stored.

(16) Durable media should include in particular paper, USB sticks, CD-ROMs, DVDs, memory cards or the hard disks of computers. In order to qualify as a "durable medium", an electronic mail or an Internet website should firstly enable the consumer to store the information for as long as it is relevant for him to protect his interests stemming from his relationship with the trader. Secondly, the electronic mail or website should allow for the information to be stored in such a way as to make it impossible for the trader to change it unilaterally.

Amendment              19

Proposal for a directive

Recital 17

Text proposed by the Commission

Amendment

(17) Consumers should be entitled to receive information before the conclusion of the contract. However traders should not have to provide the information when already apparent from the context. For example in an on-premises transaction, the main characteristics of a product, the identity of the trader and the arrangements for delivery may be apparent from the context. In distance and off-premises transactions, the trader should always provide the information on arrangements for payment, delivery, performance and the complaint handling policy, since these might not be apparent from the context.

(17) The consumer should be given comprehensive information before he is bound by an on-premises contract, a distance contract, an off-premises contract or a corresponding contract offer.

In providing that information, the trader should take into account the specific needs of consumers who are particularly vulnerable because of their mental, physical or psychological infirmity, age or credulity in a way which the trader could reasonably be expected to foresee. However, taking into account such specific needs should not lead to different levels of consumer protection.

 

Amendment              20

Proposal for a directive

Recital 20

Text proposed by the Commission

Amendment

(20) The consumer should know whether he is contracting with the trader or with an intermediary acting on behalf of another consumer, since in the latter case the consumer may not enjoy the protection under this Directive. Therefore the intermediary should inform of this fact and the consequences thereof. The notion of intermediary should not include online trading platforms which do not conclude the contract in the name of or on behalf of any other party.

deleted

Amendment              21

Proposal for a directive

Recital 22

Text proposed by the Commission

Amendment

(22) Since in the case of distance sales, the consumer is not able to see the good before concluding the contract he should have a right of withdrawal, which allows him to ascertain the nature and functioning of the goods.

 

(22) Since in the case of distance sales, the consumer is not able to see the good before concluding the contract he should have a right of withdrawal, so that, until the expiration of the withdrawal period, he can ascertain the nature, quality and functioning of the goods. Such a right of withdrawal should also be granted for off-premises contracts.

Amendment              22

Proposal for a directive

Recital 24

Text proposed by the Commission

Amendment

(24) To ensure legal certainty, it is appropriate that Council Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time limits should apply to the calculation of the periods contained in this Directive. Therefore, all periods contained in this Directive should be understood to be expressed in calendar days.

deleted

Amendment  23

Proposal for a directive

Recital 26

Text proposed by the Commission

Amendment

(26) When the consumer orders more than one good from the same trader, he should be entitled to exercise the right of withdrawal in respect of each of these goods. If the goods are delivered separately, the withdrawal period should start when the consumer acquires the material possession of each individual good. Where a good is delivered in different lots or pieces, the withdrawal period should start when the consumer or a third party indicated by the consumer acquires the material possession of the last lot or piece.

(26) Where goods are supplied in more than one delivery, the withdrawal period should begin from the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires the material possession of the first partial shipment.Where a good is delivered in different lots or pieces, the withdrawal period should start when the consumer acquires the material possession of the last lot or piece. If multiple goods are ordered by the consumer in one order and but are delivered separately, the withdrawal period should start when the consumer acquires possession of the last good.

Amendment   24

Proposal for a directive

Recital 27

Text proposed by the Commission

Amendment

(27) If the trader has not informed the consumer on the right of withdrawal prior to the conclusion of a distance or off-premises contract, the withdrawal period should be extended. However, in order to ensure legal certainty over time, a three-month limitation period should be introduced, provided that the trader has fully performed his contractual obligations. The trader should be regarded as having fully performed his obligations when he has delivered the goods or has fully provided the services ordered by the consumer.

(27) If the trader has not informed the consumer on the right of withdrawal prior to the conclusion of a distance or off-premises contract, the withdrawal period should be extended. However, in order to ensure legal certainty over time, a one-year limitation period should be introduced. However, Member States should be allowed to maintain existing legislation to extend that limitation period.

Amendment  25

Proposal for a directive

Recital 28

Text proposed by the Commission

Amendment

(28) Differences in the ways in which the right of withdrawal is exercised in the Member States have caused costs for businesses selling cross-border. The introduction of a harmonised standard withdrawal form to be used by the consumer should simplify the withdrawal process and bring legal certainty. For these reasons, Member States should refrain from adding any presentational requirements to the Community-wide standard form relating for example to the font size.

(28) Differences in the ways in which the right of withdrawal is exercised in the Member States have caused costs for businesses selling cross-border. The introduction of a harmonised model withdrawal form to be used by the consumer should simplify the withdrawal process and bring legal certainty. For these reasons, Member States should refrain from adding any presentational requirements to the Union-wide standard form relating for example to the font size.

Amendment              26

Proposal for a directive

Recital 30

Text proposed by the Commission

Amendment

(30) In case of withdrawal the trader should reimburse all payments received from the consumer, including those covering the expenses born by the trader to deliver goods to the consumer.

(30) In case of withdrawal the trader should reimburse all payments received from the consumer, including those covering the expenses born by the trader to deliver goods to the consumer, with the exception of payments for express deliveries at the express wish of the consumer. Reimbursement should be possible by any means of payment, provided they are legal tender in the Member State where the consumer receives them. Therefore, reimbursement shall not take place in the form of vouchers or credit notes.

Amendment   27

Proposal for a directive

Recital 33

Text proposed by the Commission

Amendment

(33) Certain exemptions should exist from the right of withdrawal, such as in cases where a right of withdrawal would be inappropriate given the nature of the product. That is applicable for example to wine supplied a long time after the conclusion of the contract of a speculative nature where the value is dependent on fluctuations in the market (vin en primeur).

(33) Certain exemptions should exist from the right of withdrawal, such as in cases where a right of withdrawal would be inappropriate, given the nature of the product, and exercising a right of withdrawal would unfairly disadvantage the trader. That is applicable in particular to foodstuffs and other hygienically sensitive or perishable goods, for example to wine supplied a long time after the conclusion of the contract of a speculative nature where the value is dependent on fluctuations in the market (vin en primeur). Certain other goods or services whose price is dependent on market fluctuations, for instance commodities, should also be exempt from the right of withdrawal.

Amendment   28

Proposal for a directive

Recital 34

Text proposed by the Commission

Amendment

(34) Furthermore, in case of distance contracts for the provision of services, for which the performance begins during the withdrawal period (e.g. data files downloaded by the consumer during that period), it would be unfair to allow the consumer to withdraw after the service has been enjoyed by the consumer in full or in part. Therefore the consumer should lose his right of withdrawal when performance begins with his prior express agreement.

(34) Furthermore, in case of distance and off-premises contracts for the provision of services, for which the performance begins during the withdrawal period (for instance data files downloaded by the consumer during that period), it would be unfair to allow the consumer to withdraw after the service has been enjoyed by the consumer in full or in part. Therefore the consumer should lose his right of withdrawal when performance begins with his prior express agreement, provided that it is a case of informed consent, that is to say that the consumer has been informed of the consequences of this decision in terms of losing his right of withdrawal.

Amendment              29

Proposal for a directive

Recital 37

Text proposed by the Commission

Amendment

(37) For the purpose of simplification and legal certainty, the right of withdrawal should apply to all types of off-premises contracts, except under strictly defined circumstances which can easily be proved. Therefore, no right of withdrawal should apply for urgent repairs at the consumer's home for which such a right of withdrawal would be incompatible with the emergency situation as well as for supermarket home-delivery schemes which allow consumers to select food, drinks and other goods intended for current consumption in the household through the supermarket's website and have them delivered at their home. These are goods, which are inexpensive and bought regularly by consumers for their every day's consumption or everyday use in the household and should therefore not be subject to a right of withdrawal. The main difficulties encountered by consumers and the main source of disputes with traders are about delivery of goods, including goods getting lost or damaged during transport and late and partial delivery. Therefore it is appropriate to clarify and harmonise the national rules on delivery and passing of risk.

(37) For the purpose of simplification and legal certainty, the right of withdrawal should apply to all types of distance and off-premises contracts, except under strictly defined circumstances which can easily be proved.

Amendment   30

Proposal for a directive

Recital 37 a (new)

Text proposed by the Commission

Amendment

 

(37a) The main difficulties encountered by consumers and the main source of disputes with traders concern delivery of goods, including goods getting lost or damaged during transport and late or partial delivery. Therefore it is appropriate to harmonise the national rules on delivery and passing of risk.

Amendment   31

Proposal for a directive

Recital 37 b (new)

Text proposed by the Commission

Amendment

 

(37b) Where the trader has failed to fulfil his obligations to deliver, the consumer should call upon him, on a durable medium, to make the delivery within no less than seven days and notify him of his intention to withdraw from the contract if delivery does not take place. The consumer should be deemed to have withdrawn from the contract if no action has been taken by the time the deadline expires. Without prejudice to his rights to damages, the consumer should be entitled to a refund within seven days of withdrawal if payment has already been made. It should be possible for Member States to adopt or maintain provisions of national law, in order to ensure a higher level of consumer protection.

Amendment  32

Proposal for a directive

Recital 38

Text proposed by the Commission

Amendment

(38) In the context of consumer sales, the delivery of goods can take place in various ways. Only a rule which may be freely derogated from will allow the necessary flexibility to take into account those variations. The consumer should be protected against any risk of loss or damage of the goods occurring during the transport arranged or carried out by the trader. The rule introduced on the passing of risk should not apply where the consumer unduly delays taking possession of the goods (for example, when the goods are not collected by the consumer from the post-office within the deadline fixed by the latter). In those circumstances, the consumer should bear the risk of loss or deterioration after the time of delivery as agreed with the trader.

(38) In the context of consumer sales, the delivery of goods can take place in various ways: either immediately or at a later date. If the parties have not agreed on a specific delivery date, the trader should deliver as soon as possible but in any event not later than thirty days from the day of the conclusion of the contract. The consumer should be protected against any risk of loss or damage of the goods occurring during the transport arranged or carried out by the trader. The rule introduced on the passing of risk should not apply where the consumer unduly delays taking possession of the goods (for example, when the goods are not collected by the consumer from the post-office within the deadline fixed by the latter). In those circumstances, the consumer should bear the risk of loss or deterioration after the time of delivery as agreed with the trader.

Amendment  33

Proposal for a directive

Recital 38 a (new)

Text proposed by the Commission

Amendment

 

(38a) In many transactions consumers are provided with insufficient choices of means of payments or they are charged if they refuse to use certain means. This situation should be addressed by means of a provision which ensures that the trader will offer to the consumer different means of payment and, in the case of distance contracts, these should include both electronic and non-electronic means of payment. An example of a non-electronic system of payment would be the printing of an order from the trader’s website to be paid in cash at a bank or at any other contact point of the trader.

Amendment   34

Proposal for a directive

Recital 39

Text proposed by the Commission

Amendment

(39) The trader should be liable to the consumer if the goods are not in conformity with the contract. The goods should be presumed to be in conformity with the contract if they satisfy a number of conditions concerning mainly the qualities of the goods. The quality and performance which consumers can reasonably expect will depend inter alia on whether the goods are new or second-hand as well as on the expected life-span of the goods.

(39) The trader should be liable to the consumer if the goods are not in conformity with the contract. The goods should be presumed to be in conformity with the contract if they satisfy a number of conditions concerning mainly the qualities of the goods. The quality and performance which consumers can reasonably expect will depend inter alia on whether the goods are new or second-hand as well as on the expected life-span of the goods. Where goods other than those ordered have been delivered, or in the event of undershipment, the goods should be presumed not to be in conformity with the contract.

Amendment   35

Proposal for a directive

Recital 40

Text proposed by the Commission

Amendment

(40) If the good is not in conformity with the contract, firstly, the consumer should have the possibility to require the trader to repair the goods or to replace them at the trader's choice unless the trader proves that those remedies are unlawful, impossible or causes the trader disproportionate effort. The trader's effort should be determined objectively considering costs incurred by the trader when remedying the lack of conformity, the value of the goods and the significance of the lack of conformity. The lack of spare parts should not be a valid ground to justify the trader's failure to remedy the lack of conformity within a reasonable time or without a disproportionate effort.

(40) The consumer should in the first instance have the option of requiring the trader to repair the goods or to replace them unless those remedies are impossible or disproportionate. Whether or not a remedy is disproportionate should be determined objectively. A remedy should be considered disproportionate if it imposes, in comparison with other remedies, unreasonable costs. In order to determine whether the costs are unreasonable, the costs of one remedy should be significantly higher than the costs of another remedy.

Amendment  36

Proposal for a directive

Recital 41

Text proposed by the Commission

Amendment

(41) The consumer should not bear any costs for remedying the lack of conformity, particularly the cost of postage, labour and materials. Furthermore, the consumer should not compensate the trader for the use of the defective goods.

(41) The consumer should not bear any costs for remedying the lack of conformity, particularly the cost of postage, labour and materials. Furthermore, the consumer should not compensate the trader for the use of the defective goods. The consumer should be entitled to claim damages, in accordance with provisions of applicable national law, for any loss resulting from lack of conformity with the sales contract and not remedied by the trader. It should be possible for such damages to include non-pecuniary damages where applicable national law so provides.

Amendment   37

Proposal for a directive

Recital 42

Text proposed by the Commission

Amendment

(42) When the trader has either refused or has more than once failed to remedy the lack of conformity the consumer should be entitled to choose freely any of the available remedies. The trader's refusal can be either explicit or implicit, meaning in the latter case that the trader does not respond or ignores the consumer's request to remedy the lack of conformity.

(42) The consumer should be entitled to choose freely any of the available remedies if he is not entitled to have the goods repaired or replaced. It should be possible for Member States to adopt or maintain provisions of national law on the free choice of remedies in the event of lack of conformity, in order to ensure a higher level of consumer protection.

Amendment  38

Proposal for a directive

Recital 42 a (new)

Text proposed by the Commission

Amendment

 

(42a) It should be stipulated that in certain cases the trader may be held liable for a lack of conformity that existed at the time the risk was transferred to the consumer, even if the lack of conformity becomes apparent only subsequently.

Amendment  39

Proposal for a directive

Recital 42 b (new)

Text proposed by the Commission

Amendment

 

(42b) Where the trader, as final seller, is liable to the consumer because of an act or omission by the producer, it should be ensured that the trader, as final seller, can pursue remedies against the person or persons liable in the contractual chain. To this end, Member States' national provisions should determine the person or persons liable, together with the relevant actions and procedure.

Amendment   40

Proposal for a directive

Recital 42 c (new)

Text proposed by the Commission

Amendment

 

(42c) With regard to lack of conformity, the consumer should be entitled to a two-year liability period. There should be a rebuttable presumption in the consumer's favour that any lack of conformity which has become apparent within six months after the risk passed to the consumer already existed when the risk passed. It should be possible for Member States to adopt or maintain provisions of national law on liability periods, duration for reversal of the burden of proof or specific rules on significant lack of conformity which becomes apparent after the liability period, in order to ensure a higher level of consumer protection.

Amendment   41

Proposal for a directive

Recital 43

Text proposed by the Commission

Amendment

(43) Directive 1999/44/EC allowed the Member States to set a period of at least two months during which the consumer was to inform the trader of any lack of conformity. The diverging transposition laws have created barriers to trade. Therefore, it is necessary to remove this regulatory option and improve legal certainty by obliging consumers to inform the trader of the lack of conformity within two months from the date of detection.

deleted

Amendment   42

Proposal for a directive

Recital 44

Text proposed by the Commission

Amendment

(44) Some traders or producers offer consumers commercial guarantees. In order to ensure that consumers are not misled, the commercial guarantees should include certain information, including their duration, territorial scope and a statement that the commercial guarantee does not affect the consumer's legal rights.

(44) Some traders or producers offer consumers commercial guarantees. In order to ensure that consumers are not misled, the commercial guarantees should include certain information, including their duration, territorial scope and a statement that the commercial guarantee does not affect the consumer's legal rights under the national provisions in force and those laid down in this Directive.

Amendment  43

Proposal for a directive

Recital 45 a (new)

Text proposed by the Commission

Amendment

 

(45a) The harmonised regulatory aspects concern only contracts concluded between businesses and consumers. Therefore, the provisions on unfair contract terms should not affect national law in the area of contracts relating to employment, contracts relating to succession rights, contracts relating to family law and contracts relating to the incorporation and organisation of companies or partnership agreements and bond terms.

Amendment  44

Proposal for a directive

Recital 46

Text proposed by the Commission

Amendment

(46) Provisions on unfair contract terms should not apply to contract terms, which directly or indirectly reflect mandatory statutory or regulatory provisions of the Member States which comply with Community law. Similarly terms which reflect the principles or provisions of international conventions to which the Community or the Member States are party, particularly in the transport area, should not be subject to the unfairness test.

(46) Provisions on unfair contract terms should not apply to contract terms, which directly or indirectly reflect statutory, regulatory or public policy provisions of the Member States which comply with Union law. Similarly, contract terms should reflect the principles and provisions of the Charter of Fundamental Rights of the European Union. Terms which reflect the principles or provisions of international conventions to which the Union or the Member States are party, particularly in the transport area, should not be subject to the unfairness test.

Amendment  45

Proposal for a directive

Recital 47

Text proposed by the Commission

Amendment

(47) Consumer contracts should be drafted in plain, intelligible language and be legible. Traders should be free to choose the font type or size in which the contract terms are drafted. The consumer should be given an opportunity to read the terms before concluding the contract. This opportunity could be given to the consumer by providing him with the terms on request (for on-premises contracts) or making those terms otherwise available (e.g. on the trader's website in respect of distance contracts) or attaching standard terms to the order form (in respect of off-premises contracts). The trader should seek the consumer's express consent to any payment in addition to the remuneration for the trader's main contractual obligation. Inferring consent by using opt-out systems, such as pre-ticked boxes online should be prohibited.

(47) All contract terms should be expressed in a clear and comprehensible manner. If a contract term is in writing, it should always be drafted in plain, intelligible language. Traders should be free to choose the font type or size in which the contract terms are drafted. The consumer should be given an opportunity to read the terms before concluding the contract. This opportunity could be given to the consumer by providing him with the terms on request (for on-premises contracts) or making those terms otherwise available (e.g. on the trader's website in respect of distance contracts) or attaching standard terms to the order form (in respect of off-premises contracts). The trader should seek the consumer's express consent to any payment in addition to the remuneration for the trader's main contractual obligation. Inferring consent by using opt-out systems, such as pre-ticked boxes online should be prohibited.

Amendment  46

Proposal for a directive

Recital 47 a (new)

Text proposed by the Commission

Amendment

 

(47a) Traders should be free to choose the way in which contract terms are communicated, for example the font type or size in which the contract terms are drafted. Member States should refrain from imposing any presentational requirements, except for those related to persons with disabilities or where the goods or services may present a particular risk to the health and safety of the consumer or a third person. Member States may also seek to impose additional requirements where due to complexities inherent in contracts for those goods or services, there is a risk of consumer detriment including issues arising which relate to competition in that sector. This may apply, for example, to contracts relating to financial services, gas, electricity and water, telecoms and immovable property. However, this should not apply to formal national requirements concerning the conclusion of the contract or other formal requirements such as for instance the language of the terms, requirements on the content of the terms or the formulation of certain contract terms for specific sectors. This Directive should not harmonise language requirements applicable to consumer contracts. Therefore, Member States should be able to maintain or introduce in their national law linguistic requirements relating to the contractual terms.

Amendment  47

Proposal for a directive

Recital 49

Text proposed by the Commission

Amendment

(49) For the purposes of this Directive, neither the fairness of terms which describe the main subject matter of the contract, nor the quality/price ratio of the goods or services supplied should be assessed unless these terms did not meet transparency requirements. The main subject matter of the contract and the price/quality ratio should nevertheless be taken into account in assessing the fairness of other terms. For example, in insurance contracts, the terms which clearly define or circumscribe the insured risk and the insurer's liability should not be subject to such an assessment since these restrictions are taken into account in calculating the premium paid by the consumer.

(49) For the purposes of this Directive, neither the fairness of terms which describe the main subject matter of the contract, nor the quality/price ratio of the goods or services supplied should be assessed unless these terms did not meet transparency requirements. The main subject matter of the contract and the price/quality ratio should nevertheless be taken into account in assessing the fairness of other terms. For example, in insurance contracts, the terms which clearly define or circumscribe the insured risk and the insurer's liability should not be subject to such an assessment since these restrictions are taken into account in calculating the premium paid by the consumer. This exclusion does not apply to the remuneration foreseen for the trader from ancillary or contingent charges set out in the contract, including fees or charges for breaching any of the terms of the contract, which should be fully subject to the fairness test.

Amendment  48

Proposal for a directive

Recital 50

Text proposed by the Commission

Amendment

(50) In order to ensure legal certainty and improve the functioning of the internal market, the Directive should contain two lists of unfair terms. Annex II contains a list of terms which should in all circumstances be considered unfair. Annex III contains a list of terms which should be deemed unfair unless the trader proves otherwise. These same lists should apply in all Member States.

(50) In order to ensure legal certainty and improve the functioning of the internal market, the Directive should contain two non-exhaustive lists of unfair terms. Annex II contains a list of terms which should in all circumstances be considered unfair. Annex III contains a list of terms which should be deemed unfair unless the trader proves otherwise.

Amendment   49

Proposal for a directive

Recital 51

Text proposed by the Commission

Amendment

(51) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission.

deleted

Amendment   50

Proposal for a directive

Recital 52

Text proposed by the Commission

Amendment

(52) In particular, the Commission should be empowered to amend Annexes II and III on contract terms to be considered or presumed unfair. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

deleted

Amendment   51

Proposal for a directive

Recital 53

Text proposed by the Commission

Amendment

(53) The Commission's power to amend Annexes II and III should be used to ensure consistent implementation of the rules on unfair terms by supplementing those Annexes with contractual terms, which should be considered unfair in all circumstances or which should be deemed unfair unless the trader has proved otherwise.

deleted

Amendment  52

Proposal for a directive

Recital 55 a (new)

Text proposed by the Commission

Amendment

 

(55a) The Member States should ensure that their national authorities have the necessary level of cooperation with the European Consumer Centre (ECC) network, so as to react in cross-border cases, especially on pending requests at ECCs.

Amendment  53

Proposal for a directive

Recital 60

Text proposed by the Commission

Amendment

(60) The European Commission will look into the most appropriate way to ensure that all consumers are made aware of their rights at the point of sale.

(60) The Commission, following consultation with the Member States and stakeholders, will look into the most appropriate way to ensure that all consumers and traders are made aware of their rights at the point of sale. The Commission should avail itself especially of the means provided by information and communication technology tools and public media.

Amendment   54

Proposal for a directive

Recital 61 a (new)

Text proposed by the Commission

Amendment

 

(61a) Provision should be made for a mutual evaluation process in which, during the transposition period for this Directive, Member States would first have to screen their legislation in order to ascertain what stricter provisions, which are compliant with the Treaty on the Functioning of the European Union, are to be maintained or adopted in their legal system in order to ensure a higher level of protection for the consumer. By the end of the transposition period for this Directive, Member States should draw up a report on the results of this screening. Each report should be submitted to all other Member States and stakeholders. Member States would then have six months in which to submit their observations on these reports. Not later than one year after the end of the transposition period for this Directive, and every three years thereafter, the Commission should draw up a summary report, accompanied where appropriate by legislative proposals. If necessary, the Commission could assist the Member States in devising a common method.

Amendment   55

Proposal for a directive

Recital 61 b (new)

Text proposed by the Commission

Amendment

 

(61b) To ensure a high level of consumer protection in all Member States, persons and organisations with a legitimate interest in consumer protection should be encouraged to notify the Member States and the Commission about their evaluations and issue non-binding recommendations so that they can be taken into account when this Directive is reviewed.

Amendment   56

Proposal for a directive

Recital 63

Text proposed by the Commission

Amendment

(63) It is appropriate to review this Directive if some barriers to the internal market were identified. The review could lead to a Commission proposal to amend this Directive, which may include amendments to other consumer protection legislation reflecting the Commission's Consumer Policy Strategy commitment to review the acquis in order to achieve a high, common level of consumer protection.

deleted

Amendment  57

Proposal for a directive

Article 1

Text proposed by the Commission

Amendment

The purpose of this Directive is to contribute to the proper functioning of the internal market and achieve a high level of consumer protection by approximating certain aspects of the laws, regulations and administrative provisions of the Member States concerning contracts between consumers and traders.

The purpose of this Directive is to achieve a high level of consumer protection and contribute to the proper functioning of the internal market by approximating certain aspects of the laws, regulations and administrative provisions of the Member States concerning contracts between consumers and traders.

Amendment  58

Proposal for a directive

Article 1

Text proposed by the Commission

Amendment

The purpose of this Directive is to contribute to the proper functioning of the internal market and achieve a high level of consumer protection by approximating certain aspects of the laws, regulations and administrative provisions of the Member States concerning contracts between consumers and traders.

Does not affect the English version.

Justification

Does not affect the English version.

Amendment  59

Proposal for a directive

Article 2 – point 1

Text proposed by the Commission

Amendment

(1) 'consumer' means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession;

(1) 'consumer' means any natural person who, in contracts covered by this Directive, is acting for purposes which are primarily outside his trade, business, craft or profession.

 

Member States may maintain or extend the application of the rules of this Directive to legal or natural persons which are not "consumers" within the meaning of the first paragraph of this point;

Amendment   60

Proposal for a directive

Article 2 – point 2

Text proposed by the Commission

Amendment

(2) 'trader' means any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business, craft or profession and anyone acting in the name of or on behalf of a trader;

(2) 'trader' means any natural or legal person who, irrespective of whether privately or publicly owned, is acting for purposes relating to his trade, business, craft or profession and anyone acting on behalf of a trader in relation to contracts covered by this Directive;

Amendment   61

Proposal for a directive

Article 2 – point 2 a (new)

Text proposed by the Commission

Amendment

 

(2a) 'goods' means any tangible movable item, and any intangible item usable in a manner which can be equated with physical possession, with the exception of goods 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 Directive where they are put up for sale in a limited volume or set quantity;

 

 

(See amendment for Article 2 – point 4)

Amendment   62

Proposal for a directive

Article 2 – point 2 b (new)

Text proposed by the Commission

Amendment

 

(2b) 'good made to the customer's specifications' means any non-prefabricated good made on the basis of an individual choice or decision by the customer;

Amendment   63

Proposal for a directive

Article 2 – point 3

Text proposed by the Commission

Amendment

(3) 'sales contract' means any contract for the sale of goods by the trader to the consumer including any mixed-purpose contract having as its object both goods and services;

deleted

(See amendment for Article 2 – point 5 a )

Amendment   64

Proposal for a directive

Article 2 – point 4

Text proposed by the Commission

Amendment

(4) 'goods' means any tangible movable item, with the exception of:

deleted

(a) goods sold by way of execution or otherwise by authority of law,

 

(b) water and gas where they are not put up for sale in a limited volume or set quantity,

 

(c) electricity;

 

(See amendment for Article 2 – point 2 a )

Amendment   65

Proposal for a directive

Article 2 – point 5

Text proposed by the Commission

Amendment

(5) 'service contract' means any contract other than a sales contract whereby a service is provided by the trader to the consumer;

(5) 'service' means any work or other service of any kind provided by the trader to the consumer for remuneration;

Amendment  66

Proposal for a directive

Article 2 – point 5 a (new)

Text proposed by the Commission

Amendment

 

(5a) 'sales contract' means any contract whereby a trader grants ownership of goods to a consumer in accordance with the applicable national law, or undertakes to grant such ownership, and whereby the consumer undertakes to pay the agreed price. Contracts for the supply of goods to be manufactured or produced shall also be defined as sales contracts for the purposes of this Directive;

(See amendment for Article 2 – point 3 )

Amendment   67

Proposal for a directive

Article 2 – point 5 b (new)

Text proposed by the Commission

Amendment

 

(5b) 'mixed-purpose contract' means any contract that includes both aspects relating to the provision of services and aspects relating to the supply of goods;

Amendment   68

Proposal for a directive

Article 2 – point 6

Text proposed by the Commission

Amendment

(6) 'distance contract' means any sales or service contract where the trader, for the conclusion of the contract, makes exclusive use of one or more means of distance communication;

(6) 'distance contract' means any contract for the supply of a good or the provision of a service concluded between a trader and a consumer under an organised distance sales or service-provision scheme where the trader and the consumer are not simultaneously physically present for the conclusion of the contract, but, rather, make exclusive use of one or more means of distance communication;

Amendment   69

Proposal for a directive

Article 2 – point 7

Text proposed by the Commission

Amendment

(7) 'means of distance communication' means any means which, without the simultaneous physical presence of the trader and the consumer, may be used for the conclusion of a contract between those parties;

deleted

Amendment   70

Proposal for a directive

Article 2 – point 8

Text proposed by the Commission

Amendment

(8) 'off-premises contract' means:

(8) 'off-premises contract' means any contract between a trader and a consumer for the supply of a good or the provision of a service:

(a) any sales or service contract concluded away from business premises with the simultaneous physical presence of the trader and the consumer or any sales or service contract for which an offer was made by the consumer in the same circumstances, or

(a) which is concluded away from business premises with the simultaneous physical presence of the trader and the consumer, or

 

(aa) for which an offer was made by the consumer with the simultaneous physical presence of the trader and the consumer away from business premises, or

(b) any sales or service contract concluded on business premises but negotiated away from business premises, with the simultaneous physical presence of the trader and the consumer.

(b) whose main components have been determined in the course of an excursion, a leisure event or a sales demonstration organised by the trader or by a third party on behalf of the trader away from business premises, with the simultaneous physical presence of the trader and the consumer, the aim of such excursion, leisure event or demonstration being to conclude a contract subsequently on business premises;

Amendment  71

Proposal for a directive

Article 2 – point 9 – point b

Text proposed by the Commission

Amendment

(b) market stalls and fair stands where the trader carries on his activity on a regular or temporary basis;

(b) market stalls where the trader carries on his activity on a regular or temporary basis;

Amendment   72

Proposal for a directive

Article 2 – point 12

Text proposed by the Commission

Amendment

(12) 'product' means any good or service including immoveable property, rights and obligations;

deleted

Amendment   73

Proposal for a directive

Article 2 – point 14

Text proposed by the Commission

Amendment

(14) 'professional diligence' means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers, commensurate with honest market practice and/or the general principle of good faith in the trader's field of activity;

deleted

Amendment   74

Proposal for a directive

Article 2 – point 15

Text proposed by the Commission

Amendment

(15) 'auction' means a method of sale where goods or services are offered by the trader through a competitive bidding procedure which may include the use of means of distance communication and where the highest bidder is bound to purchase the goods or the services. A transaction concluded on the basis of a fixed-price offer, despite the option given to the consumer to conclude it through a bidding procedure is not an auction;

deleted

Amendment   75

Proposal for a directive

Article 2 – point 16

Text proposed by the Commission

Amendment

(16) 'public auction' means a method of sale where goods are offered by the trader to consumers, who attend or are given the possibility to attend the auction in person, through a competitive bidding procedure run by an auctioneer and where the highest bidder is bound to purchase the goods;

(16) 'public auction' means a method of sale where a good or a service is offered by the trader to consumers, during an event which is physically accessible to the public, through a transparent, competitive bidding procedure run by a third party (the auctioneer), who, for pecuniary consideration, acts as the trader's agent. In an ascending price auction, the good or service is sold to the consumer or a person acting on his behalf making the highest bid. In a descending price auction, the good or service is sold to the consumer or a person acting on his behalf who is first to agree immediately to purchase the good or service for the asking price;

Amendment  76

Proposal for a directive

Article 2 – point 17

Text proposed by the Commission

Amendment

(17) 'producer' means the manufacturer of goods, the importer of goods into the territory of the Community or any person purporting to be a producer by placing his name, trade mark or other distinctive sign on the goods;

(17) 'producer' means the manufacturer of goods, the importer of goods into the territory of the Union or any person purporting to be a producer by placing his name, trade mark or other distinctive sign on the goods;

Amendment   77

Proposal for a directive

Article 2 – point 18

Text proposed by the Commission

Amendment

(18) 'commercial guarantee' means any undertaking by the trader or producer (the 'guarantor') to the consumer to reimburse the price paid or to replace, repair or service goods in any way if they do not meet the specifications set out in the guarantee statement or in the relevant advertising available at the time of, or before the conclusion of the contract;

(18) 'commercial guarantee' means any undertaking by the trader or producer (the 'guarantor') to the consumer, in addition to his legal obligations relating to the guarantee of conformity, to reimburse the price paid or to replace, repair or service goods in any way if they do not meet the specifications or any other requirement not related to conformity set out in the guarantee statement or in the relevant advertising available at the time of, or before the conclusion of the contract;

Amendment   78

Proposal for a directive

Article 2 – point 19

Text proposed by the Commission

Amendment

(19) 'intermediary' means a trader who concludes the contract in the name of or on behalf of the consumer;

deleted

Amendment   79

Proposal for a directive

Article 2 – point 20

Text proposed by the Commission

Amendment

(20) 'ancillary contract' means a contract by which the consumer acquires goods or services related to a distance contract or an off-premises contract and these goods or services are provided by the trader or a third party on the basis of an arrangement between that third party and the trader.

(20) 'linked contract' means any contract for the supply of a good or the provision of a service:

 

(a) which forms, from an objective point of view, a commercial unit with a distance contract or an off-premises contract; and

 

(b) where the goods are supplied or the services are provided by the trader or a third party on the basis of an arrangement between that third party and the trader.

 

A commercial unit shall be deemed to exist where the goods or services provided under the linked contract are related to the performance of the distance contract or of the off-premises contract, as the case may be, or to the use of the goods supplied or the services provided under such distance or off-premises contract.

Amendment   80

Proposal for a directive

Article 3

Text proposed by the Commission

Amendment

1. This Directive shall apply, under the conditions and to the extent set out in its provisions, to sales and service contracts concluded between the trader and the consumer.

1. This Directive shall apply, under the conditions and to the extent set out in its provisions, to contracts concluded between the trader and the consumer for the supply of a good or the provision of a service and to mixed-purpose contracts.

2. This Directive shall only apply to financial services as regards certain off-premises contracts as provided for by Articles 8 to 20, unfair contract terms as provided for by Articles 30 to 39 and general provisions as provided for by Articles 40 to 46, read in conjunction with Article 4 on full harmonisation.

2. This Directive shall be without prejudice to sector-specific Union legislation governing contracts concluded between a trader and a consumer.

 

2a. This Directive shall not apply to contracts relating to:

 

(a)social services;

 

(b) healthcare, that is to say health services provided by health professionals to patients to assess, maintain or restore their health;

 

(c) gambling, which involves wagering a stake with pecuniary value in games of chance, including lotteries, casino games and betting transactions.

 

2b. Articles 5 to 19 and 23 a shall not apply to contracts:

 

 

(a) relating to financial services;

 

(b) falling within the scope of Directive 2002/65/EC.

3. Only Articles 30 to 39 on consumer rights concerning unfair contract terms, read in conjunction with Article 4 on full harmonisation, shall apply to contracts which fall within the scope of Directive 94/47/EC of the European Parliament and of the Council and of Council Directive 90/314/EEC.

3. Subject to paragraphs 4 to 7 of this Article, Articles 9 to 19 shall apply to distance and off-premises contracts.

4. Articles 5, 7, 9 and 11 shall be without prejudice to the provisions concerning information requirements contained in Directive 2006/123/EC of the European Parliament and of the Council and Directive 2000/31/EC of the European Parliament and of the Council.

4. Articles 9 to 19 shall not apply to distance and off-premises contracts:

 

(a) relating to the formation, acquisition or conveyance of rights in immovable property or guarantees in immovable property, or relating to the construction or major modification of a building or the renting of a building or an apartment;

 

(b) falling within the scope of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours(3) or Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday products, resale and exchange contracts(4);

 

(c) which, in accordance with the provisions of the Member States, are established by a public office-holder who has a statutory obligation to be independent and impartial and must ensure, by providing comprehensive legal information, that the consumer only concludes the contract on the basis of careful consideration and with knowledge of its legal scope.

 

5. Articles 9 to 19 shall not apply to off-premises contracts for which the trader and the consumer immediately perform their contractual obligations and the payment to be made by the consumer does not exceed EUR 40, if such contracts, due to their nature, are usually concluded away from business premises. Member States may define a lower value in their national legislation.

 

6. Articles 9 to 19 shall not apply to distance contracts:

 

(a) concluded by means of automatic vending machines or automated commercial premises;

 

(b) concluded with telecommunications operators through public payphones for the use thereof, or relating to single telephone, Internet or fax connections established by the consumer.

 

7. Articles 12 to 19 shall not apply to distance contracts for the provision of accommodation, transport, motor vehicle rental services, catering or leisure services as regards contracts providing for a specific date or period of performance.

 

8. Subject to paragraphs 9, 10 and 11 of this Article, Articles 22 to 29 shall apply to sales contracts. Without prejudice to Article 24(5), where the contract is a mixed-purpose contract, Articles 22 to 29 shall only apply to the goods.

 

9. Article 22a and 23a shall also apply to service contracts and mixed-purpose contracts

 

10. Articles 22 to 29 shall not apply to:

 

a) electricity;

 

b) water and gas, where they are not put up for sale in a limited volume or set quantity.

 

11. Articles 22 to 29 shall not apply to the sale of second-hand goods at public auctions.

 

____________________

OJ L 158, 23.6.1990, p. 59.

2 OJ L 33, 3.2.2009, p. 10.

Amendment   81

Proposal for a directive

Article 4 – title

Text proposed by the Commission

Amendment

Full harmonisation

Degree of harmonisation

Amendment   82

Proposal for a directive

Article 4

Text proposed by the Commission

Amendment

Member States may not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions to ensure a different level of consumer protection.

1. Except where provided for in paragraph 1 a and 1 b, Member States may maintain or introduce, in their national law, more stringent provisions, compatible with the Treaty on the Functioning of the European Union, in order to ensure a higher level of consumer protection, under the conditions and to the extent specified in Article 5, Article 9(3b) and 9(3c), Articles 22 to 29, Article 31(4) and Articles 34 and 35

 

1a. Member States may maintain in force, in their national law, more stringent provisions, which are compatible with the Treaty on the Functioning of the European Union, in order to ensure a higher level of consumer protection, as laid down in Article 12(4) and Article 13(2).

 

1b. Member States may not maintain or introduce, in their national law, provisions diverging from those laid down in Article 2, Article 9(1) to (3a) and Article 9(3e), Articles 10 and 11, Article 12(1) to (3), Article 13(1), Articles 14 to 19, Articles 30 to 33 and Articles 36including more stringent provisions to ensure a different level of consumer protection.

Amendment   83

Proposal for a directive

Article 4 a (new)

Text proposed by the Commission

Amendment

 

Article 4a

 

Periods, dates and time limits

 

Council Regulation (EEC, Euratom) No 1182/71 of 3 June 1971 determining the rules applicable to periods, dates and time limits(5) shall apply to the calculation of the periods contained in this Directive.

 

____________________

OJ L 124, 8.6.1971, p. 1.

Amendment   84

Proposal for a directive

Chapter II – title

Text proposed by the Commission

Amendment

Consumer information

 

Consumer information for on-premises contracts

Amendment   85

Proposal for a directive

Article 5 – title

Text proposed by the Commission

Amendment

General information requirements

Information requirements for on-premises contracts

Amendment   86

Proposal for a directive

Article 5 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1. Prior to the conclusion of any sales or service contract, the trader shall provide the consumer with the following information, if not already apparent from the context:

 

1. On concluding an on-premises contract, the trader or the person acting on his behalf shall provide the consumer with the following information in a clear and intelligible manner, if not already apparent from the context:

Amendment   87

Proposal for a directive

Article 5 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a) the main characteristics of the product, to an extent appropriate to the medium and the product;

(a) the main characteristics of the good or service, to an extent appropriate to the good or service;

Amendment   88

Proposal for a directive

Article 5 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;

(b) the identity of the trader, such as his trading name;

Amendment   89

Proposal for a directive

Article 5 – paragraph 1 – point b a (new)

Text proposed by the Commission

Amendment

 

(ba) the trader's business address, telephone, fax number and e-mail address, where available, to enable the consumer to contact the trader quickly and to communicate with him efficiently;

Amendment   90

Proposal for a directive

Article 5 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;

(c) the total price inclusive of taxes, or where the nature of the good or service means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges and any other cost or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable; In the case of an open-ended contract, the total price shall mean the total monthly costs;

Amendment   91

Proposal for a directive

Article 5 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;

(d) when appropriate, the arrangements for payment, delivery, performance, the date by which the trader undertakes to deliver the goods or to provid the service and the trader's complaint handling policy;

Amendment   92

Proposal for a directive

Article 5 – paragraph 1 – points f and f a (new)

Text proposed by the Commission

Amendment

(f) the existence and the conditions of after-sales services and commercial guarantees, where applicable;

(f) in addition to a reminder of the existence of a legal guarantee of conformity for goods, the existence and the conditions of after-sales services and commercial guarantees, where applicable;

 

(fa) the existence of codes of conduct and how they can be obtained, where applicable;

Amendment   93

Proposal for a directive

Article 5 – paragraph 1 – point g

Text proposed by the Commission

Amendment

(g)       the duration of the contract where applicable or if the contract is open-ended, the conditions for terminating the contract;

(g) the duration of the contract where applicable or if the contract is open-ended or is to be extended automatically, the conditions for terminating the contract;

Amendment   94

Proposal for a directive

Article 5 – paragraph 1 – point i

Text proposed by the Commission

Amendment

(i) the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader.

(i) where applicable, the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader;

Amendment   95

Proposal for a directive

Article 5 – paragraph 1 – points i a, i b and i c (new)

Text proposed by the Commission

Amendment

 

(ia)     the application of technical protection measures for digital content, where applicable;

 

(ib)     any interoperability of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of, including any lack of interoperability, where applicable;

 

(ic) the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods for having access to it, where applicable.

Amendment   96

Proposal for a directive

Article 5 – paragraph 2

Text proposed by the Commission

Amendment

2. In the case of a public auction, the information in paragraph 1(b) may be replaced by the geographical address and the identity of the auctioneer.

2. Paragraph 1 shall not be applicable to contracts for the delivery of a good or the provision of a service, which involve day-to-day transactions and in which the trader has to deliver the good or provide the service immediately when the contract is concluded.

Amendment   97

Proposal for a directive

Article 5 – paragraph 3

Text proposed by the Commission

Amendment

3. The information referred to in paragraph 1 shall form an integral part of the sales or service contract.

3. Member States may adopt or maintain additional pre-contractual information requirements.

Amendment   98

Proposal for a directive

Article 6 – paragraph 2

Text proposed by the Commission

Amendment

2. Without prejudice to Articles 7(2), 13 and 42, the consequences of any breach of Article 5, shall be determined in accordance with the applicable national law. Member States shall provide in their national laws for effective contract law remedies for any breach of Article 5.

2. Without prejudice to Articles 13 and 42, the consequences of any breach of Article 5 shall be determined in accordance with the applicable national law. Member States shall provide in their national laws for effective and proportionate remedies for any breach of Article 5.

Amendment   99

Proposal for a directive

Article 7

Text proposed by the Commission

Amendment

Article 7

Specific information requirements for intermediaries

deleted

1. Prior to the conclusion of the contract, the intermediary shall disclose to the consumer, that he is acting in the name of or on behalf of another consumer and that the contract concluded, shall not be regarded as a contract between the consumer and the trader but rather as a contract between two consumers and as such falling outside the scope of this Directive.

 

2. The intermediary, who does not fulfil the obligation under paragraph 1, shall be deemed to have concluded the contract in his own name.

 

3. This Article shall not apply to public auctions.

 

Amendment   100

Proposal for a directive

Article 8

Text proposed by the Commission

Amendment

Article 8

deleted

Scope

 

This Chapter shall apply to distance and off-premises contracts.

 

Amendment   101

Proposal for a directive

Article 9

Text proposed by the Commission

Amendment

Article 9

 

Information requirements for distance and off-premises contracts

Pre-contractual information requirements for distance and off-premises contracts

As regards distance or off-premises contracts, the trader shall provide the following information which shall form an integral part of the contract:

1. In good time before the consumer is bound by any distance or off-premises contract or any corresponding offer, the trader or the person acting on his behalf shall provide the consumer with the following information in a clear and intelligible manner:

 

(a) the information referred to in Articles 5 and 7 and, by way of derogation from Article 5(1)(d), the arrangements for payment, delivery and performance in all cases;

(a) the main characteristics of the good or service, to the extent appropriate to the medium and the good or service;

 

(b) where a right of withdrawal applies, the conditions and procedures for exercising that right in accordance with Annex I;

(b) the identity of the trader, such as his trading name;

 

(ba) the trader's business address, telephone number, fax number and e-mail address, where available, to enable the consumer to contact the trader quickly and to communicate with him efficiently;

(c) if different from his geographical address, the geographical address of the place of business of the trader (and where applicable that of the trader on whose behalf he is acting) where the consumer can address any complaints;

(c) the total price inclusive of taxes, or, where the nature of the good or service means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges and any other cost or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable; in the case of an open-ended contract, the total price shall mean the total monthly costs;

 

(d) the existence of codes of conduct and how they can be obtained, where applicable;

(d) the arrangements for payment, delivery, performance, the date by which the trader undertakes to deliver the goods or to perform the service and the trader's complaint handling policy;

 

(e) the possibility of having recourse to an amicable dispute settlement, where applicable;

(e) in so far as a right of withdrawal exists, the conditions, period and procedure for exercising that right including the eventual costs of return of the goods for the consumer; for this purpose, the trader may use the model instructions on withdrawal set out in Annex I(A) and the model withdrawal form set out in Annex I(B), or any other clearly worded statement; if the trader informs the consumer using the model instructions on withdrawal in Annex I(A), he shall be deemed to have satisfied the information requirements laid down in this Article concerning the right of withdrawal;

 

 

(ea) where a right of withdrawal does not apply in accordance with Article 19(1), the information that the consumer cannot exercise a right of withdrawal;

 

(f) that the contract will be concluded with a trader and as a result that the consumer will benefit from the protection afforded by this Directive.

(f) in addition to a reminder of the existence of a legal guarantee of conformity for goods, the existence and the conditions of after-sales services and commercial guarantees, where applicable;

 

 

(fa) the existence of codes of conduct and how they can be obtained, where applicable;

 

 

(fb) the duration of the contract where applicable, or, if the contract is open-ended or is to be extended automatically, the conditions for terminating the contract;

 

 

(fc) the minimum duration of the consumer's obligations under the contract, where applicable;

 

 

(fd) the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader;

 

 

(fe) the application of technical protection measures for digital content, where applicable;

 

 

(ff) any interoperability of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of, including any lack of interoperability, where applicable;

 

 

(fg) the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods for having access to it, where applicable.

 

 

2. In the case of a public auction, the information referred to in points (b), (ba) and (c) of paragraph 1 may be replaced by the equivalent details for the auctioneer.

 

 

3. The information referred to in paragraph 1 shall form an integral part of the distance or off-premises contract.

 

 

3a. Member States shall not impose any other requirements on the content of the model instructions on withdrawal set out in Annex I(A).

 

 

3b. For distance and off-premises contracts relating to transport services or health and safety requirements, Member States may adopt or maintain provisions of national law laying down additional pre-contractual information requirements provided that they are compatible with the Treaty on the Functioning of European Union and that such requirements are appropriate for the proper information of the consumer.

 

 

3c. Member States may adopt or maintain additional pre-contractual information requirements for all distance and off-premises contracts for the provision of services for which, pursuant to Article 22(5) of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market(6), they impose additional information requirements applicable to providers established in their territory.

 

 

3d. Article 5 shall be without prejudice to Directive 2000/31/EC of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market2.

 

 

3e. As regards compliance with the information requirements referred to in this Chapter, the burden of proof shall be upon the trader.

 

____________________

OJ L 376, 27.12.2006, p. 36.

2 OJ L 178, 17.7.2000, p. 1.

Amendment   102

Proposal for a directive

Article 10 – Title

Text proposed by the Commission

Amendment

Formal requirements for off-premises contracts

Formal pre-contractual information requirements for off-premises contracts

Amendment   103

Proposal for a directive

Article 10 – paragraph 1

Text proposed by the Commission

Amendment

1. With respect to off-premises contracts, the information provided for in Article 9 shall be given in the order form in plain and intelligible language and be legible. The order form shall include the standard withdrawal form set out in Annex I(B).

1. With respect to off-premises contracts, the information provided for in Article 9 shall be given to the consumer on a durable medium, in so far as this appears appropriate in view of the nature of the contract, in plain, intelligible language and shall be legible. The consumer may in any event request that the information be provided on paper.

Amendment   104

Proposal for a directive

Article 10 – paragraph 2

Text proposed by the Commission

Amendment

2. An off-premises contract shall only be valid if the consumer signs an order form and in cases where the order form is not on paper, receives a copy of the order form on another durable medium.

2. An off-premises contract shall only become valid if the consumer has signed an order form.

Amendment   105

Proposal for a directive

Article 10 – paragraph 3

Text proposed by the Commission

Amendment

3. Member States shall not impose any formal requirements .

3. Member States shall not impose any further formal pre-contractual information requirements for the fulfilment of the information obligations referred to in Article 9(1).

Amendment   106

Proposal for a directive

Article 11 – Title

Text proposed by the Commission

Amendment

Formal requirements for distance contracts

Formal pre-contractual information requirements for distance contracts

Amendment   107

Proposal for a directive

Article 11 – paragraphs 1 and 1 a (new)

Text proposed by the Commission

Amendment

1. With respect to distance contracts, the information provided for in Article 9(a) shall be given or made available to the consumer prior to the conclusion of the contract, in plain and intelligible language and be legible, in a way appropriate to the means of distance communication used.

1. With respect to distance contracts, the information provided for in Article 9 shall be given or made available to the consumer on a durable medium, in plain and intelligible language, and shall be legible, in a way appropriate to the means of distance communication used.

 

1a. If a distance contract for the provision of services places the consumer under an obligation to make a payment, the consumer shall be bound by the contract only if:

 

 

(a) the trader has made the consumer aware in a clear and prominent manner of the total price, including all related price components; and

 

 

(b) for contracts concluded on the Internet, the trader has designed his website in such a way that a binding order cannot be placed until the consumer has confirmed that he has read and understood the information required under point (a); or

 

 

(c) for contracts concluded on the telephone, the trader has sent the consumer a confirmation of his offer on a durable medium and the consumer has confirmed the conclusion of the contract on a durable medium.

Amendment  108

Proposal for a directive

Article 11 – paragraphs 2 and 2 a (new)

Text proposed by the Commission

Amendment

2. If the trader makes a telephone call to the consumer with a view to concluding a distance contract, he shall disclose his identity and the commercial purpose of the call at the beginning of the conversation with the consumer.

2. If the trader or an intermediary acting on behalf of the trader makes a telephone call to the consumer with a view to concluding a distance contract, he shall disclose his identity and the commercial purpose of the call at the beginning of the conversation with the consumer.

 

2a. Trading websites shall indicate clearly and legibly on their homepage whether there are restrictions of any kind – including on means of payment – regarding delivery to certain Member States.

Amendment  109

Proposal for a directive

Article 11 – paragraph 3

Text proposed by the Commission

Amendment

3. If the contract is concluded through a medium which allows limited space or time to display the information, the trader shall provide at least the information regarding the main characteristics of the product and the total price referred to in Articles 5(1)(a) and (c) on that particular medium prior to the conclusion of such a contract. The other information referred to in Articles 5 and 7 shall be provided by the trader to the consumer in an appropriate way in accordance with paragraph 1.

3. If the contract is concluded through a medium which allows limited space or time to display the information, the trader shall provide at least, on that particular medium prior to the conclusion of such a contract, the pre-contractual information regarding the main characteristics of the good or service, the total price, the duration of the contract and, if the contract is open-ended, the conditions for terminating the contract referred to in Article 9(1)(a), (b), (c), (e) and (g). The other information referred to in Article 9 shall be provided by the trader to the consumer in an appropriate way in accordance with paragraph 1.

Amendment  110

Proposal for a directive

Article 11 – paragraph 4

Text proposed by the Commission

Amendment

4. The consumer shall receive confirmation of all the information referred to in Article 9(a) to (f), on a durable medium, in reasonable time after the conclusion of any distance contract, and at the latest at the time of the delivery of the goods or when the performance of the service has begun, unless the information has already been given to the consumer prior to the conclusion of any distance contract on a durable medium.

deleted

Amendment  111

Proposal for a directive

Article 11 – paragraph 5

Text proposed by the Commission

Amendment

5. Member States shall not impose any formal requirements other than those provided for in paragraphs 1 to 4.

4. Member States shall not impose any further formal pre-contractual information requirements for the fulfilment of the information obligations referred to in paragraph 9(1).

Amendment  112

Proposal for a directive

Article 12 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a. In the case of a distance or off-premises contract, the withdrawal period referred to in paragraph 1 shall begin from the day of the conclusion of the contract or on the day on which the consumer receives a copy of the signed contract document on a durable medium, if different from the day of conclusion of the contract.

Amendment   113

Proposal for a directive

Article 12 – paragraph 2

Text proposed by the Commission

Amendment

2. In the case of an off-premises contract, the withdrawal period shall begin from the day when the consumer signs the order form or in cases where the order form is not on paper, when the consumer receives a copy of the order form on another durable medium.

2. Notwithstanding paragraph 1, in the case of a distance or off-premises contract for the delivery of goods, the withdrawal period shall begin from the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires material possession of the goods ordered or:

In the case of a distance contract for the sale of goods, the withdrawal period shall begin from the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires the material possession of each of the goods ordered.

 

In the case of a distance contract for the provision of services, the withdrawal period shall begin from the day of the conclusion of the contract.

 

 

(a) in the case of multiple goods ordered by the consumer in one order and delivered separately, of the last good delivered;

 

(b) in the case of a good consisting of multiple lots or pieces, of the last lot or piece;

 

(c) in the case of the recurring delivery of goods of the same kind during a defined period of time, of the first good delivered.

 

Amendment   114

Proposal for a directive

Article 12 – paragraph 3

Text proposed by the Commission

Amendment

3. The deadline referred to in paragraph 1 is met if the communication concerning the exercise of the right of withdrawal is sent by the consumer before the end of that deadline.

3. The deadline referred to in paragraph 1 is met if the communication concerning the exercise of the right of withdrawal is sent by the consumer before the end of that period.

Amendment  115

Proposal for a directive

Article 12 – paragraph 4

Text proposed by the Commission

Amendment

4. The Member States shall not prohibit the parties from performing their obligations under the contract during the withdrawal period.

4. The Member States shall not prohibit the parties from performing their contractual obligations during the withdrawal period. Nevertheless, in the case of off-premises contracts, Member States may maintain existing national legislation prohibiting the trader from collecting the payment during a given period after the conclusion of the contract.

Amendment   116

Proposal for a directive

Article 13

Text proposed by the Commission

Amendment

If the trader has not provided the consumer with the information on the right of withdrawal in breach of Articles 9(b), 10(1) and 11(4), the withdrawal period shall expire three months after the trader has fully performed his other contractual obligations.

1. If the trader has not provided the consumer with the information on the right of withdrawal in breach of point (e) of Article 9(1), the withdrawal period shall expire one year from the end of the initial. withdrawal period, as determined in accordance with Article 12(1a) and (2).

 

1a. Nevertheless, Member States may maintain existing national legislation providing for a longer period of expiration of the withdrawal period.

Amendment   117

Proposal for a directive

Article 14 – paragraph 1

Text proposed by the Commission

Amendment

1. The consumer shall inform the trader of his decision to withdraw on a durable medium either in a statement addressed to the trader drafted in his own words or using the standard withdrawal form as set out in Annex I(B).

1. Before expiry of the withdrawal period, the consumer shall inform the trader of his decision to withdraw. For this purpose, the consumer may either:

 

(a) use the model withdrawal form as set out in Annex I(B) or make any other clearly worded statement on a durable medium; or

 

(b) return the goods to the trader, accompanied by a clearly worded statement by the consumer setting out his decision to withdraw.

Member States shall not provide for any other formal requirements applicable to this standard withdrawal form.

Member States shall not provide for any formal requirements applicable to the model withdrawal form other than those set out in Annex I(B)

Amendment   118

Proposal for a directive

Article 14 – paragraph 2

Text proposed by the Commission

Amendment

2. For distance contracts concluded on the Internet, the trader may, in addition to the possibilities referred to in paragraph 1, give the option to the consumer to electronically fill in and submit the standard withdrawal form on the trader's website. In that case the trader shall communicate to the consumer an acknowledgement of receipt of such a withdrawal by email without delay.

2. The trader may, in addition to the possibilities referred to in paragraph 1, give the option to the consumer to electronically fill in and submit either the model withdrawal form set out in Annex I(B) or any other clearly worded statement on the trader's website. The trader may also give the option to the consumer of withdrawing from the contract by telephone. In these cases the trader shall communicate to the consumer an acknowledgement of receipt of such a withdrawal on a durable medium without delay.

Amendment   119

Proposal for a directive

Article 15 – points a and b

Text proposed by the Commission

Amendment

(a) to perform the distance or off-premises contract, or

Does not affect the English version

(b) to conclude an off-premises contract, in cases where an offer was made by the consumer.

(b) to conclude the distance or off-premises contract, in cases where an offer was made by the consumer.

Amendment   120

Proposal for a directive

Article 16 – paragraph 1

Text proposed by the Commission

Amendment

1. The trader shall reimburse any payment received from the consumer within thirty days from the day on which he receives the communication of withdrawal.

1. The trader shall reimburse any payment received from the consumer, including, if applicable, the costs of delivery, without undue delay, and in any event not later than fourteen days from the day on which he is informed of the consumer’s decision to withdraw in accordance with Article 14. The trader may carry out such reimbursement by any means of payment, which is legal tender in the country where the consumer receives it and provided that the consumer does not incur any fees as a result of the reimbursement.

Amendment  121

Proposal for a directive

Article 16 – paragraph 2

Text proposed by the Commission

Amendment

2. For sales contracts, the trader may withhold the reimbursement until he has received or collected the goods back, or the consumer has supplied evidence of having sent back the goods, whichever is the earliest.

2. Notwithstanding paragraph 1, the trader shall not be required to reimburse additional delivery costs, if the consumer has expressly opted for a type of delivery other than a standard delivery.

Amendment   122

Proposal for a directive

Article 17 – paragraph 1

Text proposed by the Commission

Amendment

1. For sales contracts for which the material possession of the goods has been transferred to the consumer or at his request, to a third party before the expiration of the withdrawal period, the consumer shall send back the goods or hand them over to the trader or to a person authorised by the trader to receive them, within fourteen days from the day on which he communicates his withdrawal to the trader, unless the trader has offered to collect the goods himself.

1. For distance or off-premises contracts for the supply of goods the consumer shall send back the goods or hand them over to the trader or to a person authorised by the trader to receive them, without undue delay and in any event not later than fourteen days from the day on which he communicates his decision to withdraw to the trader in accordance with Article 14, unless the trader has offered to collect the goods himself.

The consumer shall only be charged for the direct cost of returning the goods unless the trader has agreed to bear that cost.

The consumer shall only be charged for the direct cost of returning the goods. He shall not be charged for that cost if the trader has agreed in the contract to bear it or the price of the goods to be returned is more than EUR 40.

Amendment   123

Proposal for a directive

Article 17 – paragraphs 2 and 2 a (new)

Text proposed by the Commission

Amendment

2. The consumer shall only be liable for any diminished value of the goods resulting from the handling other than what is necessary to ascertain the nature and functioning of the goods. He shall not be liable for diminished value where the trader has failed to provide notice of the withdrawal right in accordance with Article 9(b). For service contracts subject to a right of withdrawal, the consumer shall bear no cost for services performed, in full or in part, during the withdrawal period.

2. The consumer shall only be liable for any diminished value of the goods resulting from the handling other than what is necessary to establish the nature, qualities and functioning of the goods. The consumer shall in any event not be liable for any diminished value of the goods where the trader has failed to provide notice of the right of withdrawal in accordance with point (e) of Article 9(1).

 

2a. Except as provided for in this Article, the consumer shall not incur any liability through the exercise of the right of withdrawal.

Amendment   124

Proposal for a directive

Article 18 – title

Text proposed by the Commission

Amendment

Effects of the exercise of the right of withdrawal on ancillary contracts

Effects of the exercise of the right of withdrawal on linked contracts

Amendment     125

Proposal for a directive

Article 18 – paragraph 1

Text proposed by the Commission

Amendment

1. Without prejudice to Article 15 of Directive 2008/48/EC, if the consumer exercises his right of withdrawal from a distance or an off-premises contract in accordance with Articles 12 to 17, any ancillary contracts shall be automatically terminated, without any costs for the consumer.

1. Without prejudice to Article 15 of Directive 2008/48/EC, if the consumer exercises his right of withdrawal from a distance or an off-premises contract in accordance with Articles 12 to 17, any linked contracts shall be automatically terminated, without any costs for the consumer that are not provided for in this Directive.

Amendment   126

Proposal for a directive

Article 19 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1. In respect of distance contracts, the right of withdrawal shall not apply as regards the following:

1. In respect of distance and off-premises contracts, the right of withdrawal shall not apply as regards the following:

Amendment   127

Proposal for a directive

Article 19 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a) services where performance has begun, with the consumer's prior express consent, before the end of the fourteen day period referred to in Article 12;

(a) services where performance has begun, with the consumer's prior express consent on a durable medium, before the end of the fourteen day period referred to in Article 12; in such cases, the consent should also extend to waiving the consumer’s right of withdrawal;

Amendment  128

Proposal for a directive

Article 19 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b) the supply of goods or services for which the price is dependent on fluctuations in the financial market which cannot be controlled by the trader;

(b) the supply of goods or services for which the price is dependent on fluctuations in the market which cannot be controlled by the trader and which may occur within the withdrawal period;

Amendment  129

Proposal for a directive

Article 19 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c) the supply of goods made to the consumer's specifications or clearly personalized or which are liable to deteriorate or expire rapidly;

 

(c) the supply of goods made or services provided to the consumer's specifications or clearly personalized, requiring the trader to make individual arrangements which he can make no other use of, or which are liable to deteriorate or expire rapidly;

Amendment   130

Proposal for a directive

Article 19 – paragraph 1 – points d, d a (new) and d b (new)

Text proposed by the Commission

Amendment

(d) the supply of wine, the price of which has been agreed upon at the time of the conclusion of the sales contract, the delivery of which can only take place beyond the time-limit referred to in Article 22(1) and the actual value of which is dependent on fluctuations in the market which cannot be controlled by the trader;

(d) the supply of

- foodstuffs,

- beverages,

- pharmaceuticals, or

- other hygienically sensitive goods, whose packaging or sealing has already been opened by the consumer, after having been previously informed about the exclusion of the right of withdrawal;

 

 

(da) contracts in respect of which the consumer, in order to respond to an immediate emergency, has requested immediate performance by the trader; if, on this occasion, the trader provides or sells additional services or goods other than those which are strictly necessary to meet the immediate emergency of the consumer, the right of withdrawal shall apply to those additional goods or services;

 

(db) contracts for which the consumer has specifically requested the trader to visit him at home for the purpose of carrying out repairs or maintenance; if on the occasion of such a visit, the trader provides services in addition to those specifically requested by the consumer or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the right of withdrawal shall apply to those additional services or goods;

Amendment   131

Proposal for a directive

Article 19 – paragraph 1 – point e

Text proposed by the Commission

Amendment

(e) the supply of sealed audio or video recordings or computer software which were unsealed by the consumer;

(e) the supply of sealed audio or sealed video recordings or computer software which were unsealed by the consumer;

Amendment  132

Proposal for a directive

Article 19 – paragraph 1 – point f

Text proposed by the Commission

Amendment

(f) the supply of newspapers, periodicals and magazines;

(f) the supply of newspapers, periodicals and magazines with the exception of subscription contracts for the supply of such publications;

Amendment  133

Proposal for a directive

Article 19 – paragraph 1 – point g

Text proposed by the Commission

Amendment

(g) gaming and lottery services;

deleted

Amendment   134

Proposal for a directive

Article 19 – paragraph 1 – points h and h a (new)

Text proposed by the Commission

Amendment

(h) contracts concluded at an auction.

(h) contracts concluded at a public auction.

 

(ha) the supply of digital content once the consumer has started to download that digital content.

Amendment   135

Proposal for a directive

Article 19 – paragraph 2

Text proposed by the Commission

Amendment

2. In respect of off-premises contracts, the right of withdrawal shall not apply as regards the following:

deleted

(a) contracts for the supply of foodstuffs, beverages or other goods intended for current consumption in the household, selected in advance by the consumer by means of distance communication and physically supplied to the consumer's home, residence or workplace by the trader who usually sells such goods on his own business premises;

 

(b) contracts for which the consumer, in order to respond to an immediate emergency, has requested the immediate performance of the contract by the trader; if, on this occasion, the trader provides or sells additional services or goods other than those which are strictly necessary to meet the immediate emergency of the consumer, the right of withdrawal shall apply to those additional services or goods;

 

(c) contracts for which the consumer has specifically requested the trader, by means of distance communication, to visit his home for the purpose of repairing or performing maintenance upon his property; if on this occasion, the trader provides services in addition to those specifically requested by the consumer or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the right of withdrawal shall apply to those additional services or goods.

 

Amendment   136

Proposal for a directive

Article 19 – paragraph 3

Text proposed by the Commission

Amendment

3. The parties may agree not to apply paragraphs 1 and 2.

2. The trader and the consumer may agree not to apply paragraph 1.

Amendment  137

Proposal for a directive

Article 20

Text proposed by the Commission

Amendment

Article 20

Excluded distance and off-premises contracts

deleted

1. Articles 8 to 19 shall not apply to distance and off-premises contracts:

 

(a) for the sale of immovable property or relating to other immovable property rights, except for rental and works relating to immovable property;

 

(b) concluded by means of automatic vending machines or automated commercial premises;

 

(c) concluded with telecommunications operators through public payphones for their use;

 

(d) for the supply of foodstuffs or beverages by a trader on frequent and regular rounds in the neighbourhood of his business premises.

 

2. Articles 8 to 19 shall not apply to off-premises contracts relating to:

 

(a) insurance,

 

(b) financial services whose price depends on fluctuations in the financial market outside the trader's control, which may occur during the withdrawal period, as defined in Article 6(2)(a) of Directive 2002/65/EC16 and

 

(c) credit which falls within the scope of Directive 2008/48/EC.

 

3. Articles 8 to 19 shall not apply to distance contracts for the provision of accommodation, transport, car rental services, catering or leisure services as regards contracts providing for a specific date or period of performance.

 

16 OJ L 271, 09.10.2002, p. 16.

 

Amendment   138

Proposal for a directive

Article 21

Text proposed by the Commission

Amendment

Article 21

Scope

deleted

1. This Chapter shall apply to sales contracts. Without prejudice to Article 24(5), where the contract is a mixed-purpose contract having as its object both goods and services, this Chapter shall only apply to the goods

 

2. This Chapter shall also apply to contracts for the supply of goods to be manufactured or produced.

 

3. This Chapter shall not apply to the spare parts replaced by the trader when he has remedied the lack of conformity of the goods by repair under Article 26.

 

4. Member States may decide not to apply this Chapter to the sale of second-hand goods at public auctions

 

 

Amendment  139

Proposal for a directive

Article 22 – paragraph 1

Text proposed by the Commission

Amendment

1. Unless the parties have agreed otherwise, the trader shall deliver the goods by transferring the material possession of the goods to the consumer or to a third party, other than the carrier and indicated by the consumer, within a maximum of thirty days from the day of the conclusion of the contract.

1. In the event that the parties have not agreed on the time of delivery, the trader shall deliver the goods by transferring the material possession of the goods to the consumer or to a third party, indicated by the consumer and other than the carrier, as soon as possible but not later than thirty days from the day of the conclusion of the contract.

Amendment   140

Proposal for a directive

Article 22 – paragraphs 2, 2 a (new) and 2 b (new)

Text proposed by the Commission

Amendment

2. Where the trader has failed to fulfil his obligations to deliver, the consumer shall be entitled to a refund of any sums paid within seven days from the date of delivery provided for in paragraph 1.

2. Where the trader has failed to fulfil his obligations to deliver the goods at the time agreed on with the consumer, or in accordance with paragraph 1, the consumer shall be entitled to terminate the contract unless the goods are delivered within a new period to be determined by the consumer, which shall not exceed seven days. To that end, the consumer shall give prior notice in writing to the trader, specifying the new delivery period and stating his intention to terminate the contract in the event that the delivery does not take place by the end of that new delivery period. If, upon expiry of that period, no action has been taken, the consumer shall be deemed to have withdrawn from the sales contract.

 

Notwithstanding the first subparagraph, the consumer shall be entitled to terminate the contract with immediate effect where the trader has implicitly or explicitly refused to deliver the goods, or where compliance with the agreed time of delivery is regarded as an essential element of the contract, taking into account the circumstances attending the conclusion of the contract.

 

2a. Upon termination of the contract, the trader shall immediately, and in any event not later than seven days after the termination of the contract, reimburse all sums paid under the contract.

 

2b. This Article shall be without prejudice to the right of the consumer to claim damages.

Amendment  141

Proposal for a directive

Article 22 a (new)

Text proposed by the Commission

Amendment

 

Article 22a

 

Right to delivery of goods to or supply of services in another Member State

 

In the case of a distance contract, the consumer shall be entitled to require the trader to supply the goods to or deliver the service in another Member State. The trader shall meet the consumer's request if this is technically feasible and if the consumer agrees to bear all the related costs. The trader shall in any event state those costs in advance.

Amendment  142

Proposal for a directive

Article 22 b (new)

Text proposed by the Commission

Amendment

 

Article 22b

 

Means of payment

 

1. The trader and consumer may agree on a advance payment or a deposit on delivery.

 

2. In accordance with Article 52 (3) of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market(7), Member States may prohibit or limit traders' right to request charges from consumers taking into account the need to encourage competition and promote the use of efficient payment instruments.

 

3. Member States shall prohibit traders from charging consumers, in respect of the use of a given means of payment, fees that exceed the cost borne by the trader for the use of such means.

 

OJ L 319, 5.12.2007, p. 1

 

Amendment  143

Proposal for a directive

Article 23 – paragraph 1

Text proposed by the Commission

Amendment

1. The risk of loss of or damage to the goods shall pass to the consumer when he or a third party, other than the carrier and indicated by the consumer has acquired the material possession of the goods.

1. The risk of loss of or damage to the goods shall pass to the consumer when he or a third party, indicated by the consumer and other than the carrier, has acquired the material possession of the goods. The risk shall pass to the consumer upon delivery to the carrier, if the carrier was commissioned to carry the goods by the consumer and that choice was not offered by the trader, without prejudice to the rights of the consumer against the carrier.

 

 

Amendment  144

Proposal for a directive

Article 23 – paragraph 2

Text proposed by the Commission

Amendment

2. The risk referred to in paragraph 1 shall pass to the consumer at the time of delivery as agreed by the parties, if the consumer or a third party, other than the carrier and indicated by the consumer has failed to take reasonable steps to acquire the material possession of the goods.

2. The risk referred to in paragraph 1 shall pass to the consumer at the time of delivery as agreed by the parties, if the consumer or a third party, other than the carrier and indicated by the consumer has manifestly failed to take reasonable steps to acquire the material possession of the goods.

Amendment  145

Proposal for a directive

Article 23 a (new)

Text proposed by the Commission

Amendment

 

Article 23a

 

Duration of contracts

 

1. Without prejudice of the provisions of this Directive on unfair terms, contracts concluded between consumers and traders shall not stipulate an initial commitment period of more than 12 months.

 

2. At the end of the initial 12 months commitment period, consumers shall be entitled to terminate the contract at any time. Termination of the contract shall be subject to a period of prior notice, which shall not exceed two months. Consumers shall be entitled to give such prior notice before the end of the initial commitment period in order to terminate the contract with effect from the end of that period.

Amendment   146

Proposal for a directive

Article 24 – paragraph 1

Text proposed by the Commission

Amendment

1. The trader shall deliver the goods in conformity with the sales contract.

1. The trader shall deliver the goods in conformity with the sales contract, in particular as regards quality and quantity, that were jointly agreed upon by the parties.

Amendment   147

Proposal for a directive

Article 24 – paragraph 2 – point a

Text proposed by the Commission

Amendment

(a) they comply with the description given by the trader and possess the qualities of the goods which the trader has presented to the consumer as a sample or model;

(a) they comply with the description given by the trader and possess the qualities of the goods which the trader has presented to the consumer as a sample or model, and

Amendment  148

Proposal for a directive

Article 24 – paragraph 2 – point b

Text proposed by the Commission

Amendment

(b) they are fit for any particular purpose for which the consumer requires them and which he made known to the trader at the time of the conclusion of the contract and which the trader has accepted;

(b) they are fit, in the absence of an agreement on their characteristics, for the purpose for which the parties to the contract intended them at the time of the conclusion of the contract, and

Amendment  149

Proposal for a directive

Article 24 – paragraph 2 – points c and d

Text proposed by the Commission

Amendment

(c) they are fit for the purposes for which goods of the same type are normally used or

(c) they are fit for the purposes for which goods of the same type would normally be used and they show the quality and performance which are normal in goods of the same type, taking into account inter alia the purpose, the appearance, the durability and the finish, and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the trader, the producer or his representative, particularly in advertising or on labelling.

(d)       they show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the trader, the producer or his representative, particularly in advertising or on labelling.

 

Amendment  150

Proposal for a directive

Article 24 – paragraph 3

Text proposed by the Commission

Amendment

3. There shall be no lack of conformity for the purposes of this Article if, at the time the contract was concluded, the consumer was aware, or should reasonably have been aware of, the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer.

3. There shall be no lack of conformity for the purposes of this Article if, at the time the contract was concluded, the consumer was aware, or could not reasonably have been unaware of, the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer.

Amendment  151

Proposal for a directive

Article 24 – paragraph 4 – point b

Text proposed by the Commission

Amendment

(b) by the time of conclusion of the contract the statement had been corrected;

(b) by the time of conclusion of the contract the statement had been corrected in due time and in a manner equivalent to that in which it was made or at least prominently in the contract document;

Amendment   152

Proposal for a directive

Article 24 – paragraph 5

Text proposed by the Commission

Amendment

5. Any lack of conformity resulting from the incorrect installation of the goods shall be considered as a lack of conformity of the goods where the installation forms part of the sales contract and the goods were installed by the trader or under his responsibility. The same shall apply equally if the goods, intended to be installed by the consumer, are installed by the consumer and the incorrect installation is due to a shortcoming in the installation instructions.

5. The trader shall be liable for any lack of conformity arising as a result of the packaging or resulting from the incorrect installation where the installation forms part of the sales contract for the goods, and the goods were installed by the trader or under his responsibility. The same shall apply equally if the goods, intended to be installed by the consumer, are installed by the consumer and the incorrect installation is due to a shortcoming in the installation instructions.

Amendment   153

Proposal for a directive

Article 26 – paragraph 1

Text proposed by the Commission

Amendment

1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to:

1. Where the goods do not conform to the contract, the consumer is entitled either to:

(a) have the lack of conformity remedied by repair or replacement,

(a) have the lack of conformity remedied by repair or replacement in accordance with paragraphs 2, 3 and 5, or to

(b) have the price reduced,

(b) a reasonable reduction in price or rescission of the contract in accordance with paragraphs 4, 5 and 5a.

(c) have the contract rescinded.

 

Amendment   154

Proposal for a directive

Article 26 – paragraph 2

Text proposed by the Commission

Amendment

2. The trader shall remedy the lack of conformity by either repair or replacement according to his choice.

2. The consumer may first require the trader to repair the goods or to replace them if such a remedy is not impossible or disproportionate.

Amendment   155

Proposal for a directive

Article 26 – paragraph 3

Text proposed by the Commission

Amendment

3. Where the trader has proved that remedying the lack of conformity by repair or replacement is unlawful, impossible or would cause the trader a disproportionate effort, the consumer may choose to have the price reduced or the contract rescinded. A trader's effort is disproportionate if it imposes costs on him which, in comparison with the price reduction or the rescission of the contract, are excessive, taking into account the value of the goods if there was no lack of conformity and the significance of the lack of conformity.

3. Either of the remedies provided for in paragraph 2 shall be deemed disproportionate if it would impose costs on the trader, which

The consumer may only rescind the contract if the lack of conformity is not minor.

(a) in the light of what would be the value of the goods if there were no lack of conformity,

 

(b) taking into account the significance of the lack of conformity,

 

(c) upon consideration of the question as to whether use could be made of other remedies (repair or replacement) without significance inconvenience for the consumer, would be unreasonable by comparison with the alternative remedy (repair or replacement).

 

Repair or replacement shall take place within a reasonable time and without significant inconvenience for the consumer.

Amendment   156

Proposal for a directive

Article 26 – paragraph 4

Text proposed by the Commission

Amendment

4. The consumer may resort to any remedy available under paragraph 1, where one of the following situations exists:

4. Without prejudice to paragraph 5b, the consumer may insist on a reasonable reduction in price or rescission of the contract, where one of the following situations exists:

(a) the trader has implicitly or explicitly refused to remedy the lack of conformity;

(a) the consumer is entitled neither to repair nor replacement;

 

(aa) the trader has refused explicitly or by his conduct to remedy the lack of conformity;

(b) the trader has failed to remedy the lack of conformity within a reasonable time;

(b) the trader has failed to remedy the lack of conformity within a reasonable time;

(c) the trader has tried to remedy the lack of conformity, causing significant inconvenience to the consumer;

(c) the trader has remedied the lack of conformity, causing significant inconvenience to the consumer.

(d) the same defect has reappeared more than once within a short period of time.

 

Amendment   157

Proposal for a directive

Article 26 – paragraph 5

Text proposed by the Commission

Amendment

5. The significant inconvenience for the consumer and the reasonable time needed for the trader to remedy the lack of conformity shall be assessed taking into account the nature of the goods or the purpose for which the consumer acquired the goods as provided for by Article 24(2)(b).

5. The significant inconvenience for the consumer and the reasonable time needed for the trader to remedy the lack of conformity shall be assessed taking into account the nature of the goods and the purpose for which the consumer requires them within the meaning of Article 24(2)(b).

Amendment   158

Proposal for a directive

Article 26 – paragraph 5 a (new)

Text proposed by the Commission

Amendment

 

5a. The consumer shall not be entitled to have the sales contract rescinded if the lack of conformity is minor.

Amendment   159

Proposal for a directive

Article 26 – paragraph 5 b (new)

Text proposed by the Commission

Amendment

 

5b. Member States may adopt or maintain provisions of national law giving consumers, in the event of lack of conformity, the right for a short period to terminate the contract and receive a full refund or a free choice from among the remedies referred to in paragraph 1, in order to ensure a higher level of consumer protection.

Amendment  160

Proposal for a directive

Article 27 – paragraph 2

Text proposed by the Commission

Amendment

2. Without prejudice to the provisions of this Chapter, the consumer may claim damages for any loss not remedied in accordance with Article 26.

2. In accordance with the provisions of applicable national law, and without prejudice to the provisions of this Chapter, the consumer may claim damages for any loss not remedied in accordance with Article 26.

Amendment   161

Proposal for a directive

Article 27 a (new)

Text proposed by the Commission

Amendment

 

Article 27a

Right of recourse

 

Where the trader, as final seller, is liable to the consumer because of a lack of conformity resulting from an act or omission by the producer, a previous seller in the same chain of contracts or any other intermediary, the trader, as final seller, may pursue remedies against the person or persons liable in the contractual chain. The person or persons liable against whom the trader, as final seller, may pursue remedies, together with the relevant actions and procedure, shall be determined by national law, ., in such a way as to ensure the effectiveness of that right.

 

A person established as being liable within the meaning of the first paragraph shall have the burden of proving an absence of responsibility for the lack of conformity, or that the remedy made by the final seller for the consumer was not in fact required.

Amendment   162

Proposal for a directive

Article 28 – paragraph 2

Text proposed by the Commission

Amendment

2. When the trader has remedied the lack of conformity by replacement, he shall be held liable under Article 25 where the lack of conformity becomes apparent within two years as from the time the consumer or a third party indicated by the consumer has acquired the material possession of the replaced goods.

deleted

Amendment   163

Proposal for a directive

Article 28 – paragraph 4

Text proposed by the Commission

Amendment

4. In order to benefit from his rights under Article 25, the consumer shall inform the trader of the lack of conformity within two months from the date on which he detected the lack of conformity.

deleted

Amendment   164

Proposal for a directive

Article 28 – paragraph 5 a (new)

Text proposed by the Commission

Amendment

 

5a. Member States may adopt or maintain provisions of national law providing for a longer liability period, a longer period for reversal of the burden of proof in the consumer's favour or specific rules on significant lack of conformity which becomes apparent after the liability period, in order to ensure a higher level of consumer protection.

Amendment  165

Proposal for a directive

Article 28 a (new)

Text proposed by the Commission

Amendment

 

Article 28 a

Communication and contactability

 

The trader shall ensure that throughout the duration of a service contract, or, following the conclusion of a contract of sale, until the time limit referred to in Article 28(1) for formal offers, notifications and questions by the consumer relating to rights and obligations under the service contract or contract of sale has expired, he can be contacted under reasonable conditions. In particular, he shall ensure that formal offers by the consumer in respect of the contract reach him without delay and that the consumer is notified of their receipt immediately. The cost of receiving and dealing with formal offers, notifications and questions concerning the service contract or the contract of sale by telephone may not be charged to the consumer; the right of the telecommunications service provider to charge for such calls shall not be affected.

Amendment  166

Proposal for a directive

Article 29 – paragraph 2 – introductory part

Text proposed by the Commission

Amendment

2. The guarantee statement shall be drafted in plain intelligible language and be legible. It shall include the following:

2. The guarantee statement shall be drafted in plain intelligible language, be legible and in the same font size. It shall be written in the same language as the contract. The guarantee statement shall include the following:

Amendment   167

Proposal for a directive

Article 29 – paragraph 2 – points a, b and c

Text proposed by the Commission

Amendment

(a) legal rights of the consumer, as provided for in Article 26 and a clear statement that those rights are not affected by the commercial guarantee,

(a) legal rights of the consumer under Articles 26 and 28, and the provisions of applicable national law, as well as a clear statement that those rights are not affected by the commercial guarantee,

(b) set the contents of the commercial guarantee and the conditions for making claims, notably the duration, territorial scope and the name and address of the guarantor,

(b) set the contents of the commercial guarantee and the conditions for making claims, notably the duration, territorial scope and the name and address of the guarantor,

(c) without prejudice to Articles 32 and 35 and Annex III(1)(j), set out, where applicable, that the commercial guarantee cannot be transferred to a subsequent buyer.

(c) the information that the commercial guarantee can be transferred to a subsequent buyer.

Amendment  168

Proposal for a directive

Article 29 – paragraph 3

Text proposed by the Commission

Amendment

3. If the consumer so requests, the trader shall make the guarantee statement available in a durable medium.

3. The trader shall make the guarantee statement available in a durable medium and, if so requested by the consumer, also on paper.

Amendment  169

Proposal for a directive

Article 30 – paragraph 1

Text proposed by the Commission

Amendment

1. This Chapter shall apply to contract terms drafted in advance by the trader or a third party, which the consumer agreed to without having the possibility of influencing their content, in particular where such contract terms are part of a pre-formulated standard contract.

1. This Chapter shall apply to contract terms drafted in advance by the trader or a third party, which have not been individually negotiated. A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, in particular where such contract term is part of a pre-formulated standard contract.

Amendment  170

Proposal for a directive

Article 30 – paragraph 2

Text proposed by the Commission

Amendment

2. The fact that the consumer had the possibility of influencing the content of certain aspects of a contract term or one specific term, shall not exclude the application of this Chapter to other contract terms which form part of the contract.

2. The fact that the content of certain aspects of a contract term or one specific term have been individually negotiated, shall not exclude the application of this Chapter to other contract terms which form part of the contract.

Amendment  171

Proposal for a directive

Article 30 – paragraph 3

Text proposed by the Commission

Amendment

3. This Chapter shall not apply to contract terms reflecting mandatory statutory or regulatory provisions, which comply with Community law and the provisions or principles of international conventions to which the Community or the Member States are party.

3. This Chapter shall not apply to contract terms reflecting statutory, regulatory or public policy provisions, which comply with Union law and the provisions or principles of international conventions to which the Union or the Member States are party.

Amendment  172

Proposal for a directive

Article 30 a (new)

Text proposed by the Commission

Amendment

 

Article 30a

 

Degree of harmonisation

 

Unless otherwise provided, Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Chapter, including more or less stringent provisions to ensure a different level of consumer protection.

Amendment  173

Proposal for a directive

Article 31 – paragraph 1

Text proposed by the Commission

Amendment

1. Contract terms shall be expressed in plain, intelligible language and be legible.

1. All contract terms shall be expressed in a clear and comprehensible manner. If a contract term is in writing, it shall always be drafted in plain, intelligible language and be legible.

Amendment  174

Proposal for a directive

Article 31 – paragraph 4

Text proposed by the Commission

Amendment

4. Member States shall refrain from imposing any presentational requirements as to the way the contract terms are expressed or made available to the consumer.

4. Member States shall refrain from imposing any requirements on the presentation of contract terms, except for presentational requirements in relation to persons with disabilities, or where the goods or services may present a particular risk to the health and safety of the consumer or a third person, or in respect of specific goods or services where there is evidence that demonstrates consumer detriment.

Amendment  175

Proposal for a directive

Article 32 – paragraph 2

Text proposed by the Commission

Amendment

2. Without prejudice to Articles 34 and 38, the unfairness of a contract term shall be assessed, taking into account the nature of the products for which the contract was concluded and by referring, at the time of the conclusion of the contract, to all the circumstances attending the conclusion and to all the other terms of the contract or of another contract on which the former is dependent. When assessing the fairness of a contract term, the competent national authority shall also take into account the manner in which the contract was drafted and communicated to the consumer by the trader in accordance with Article 31.

2. Without prejudice to Articles 34 and 38, the unfairness of a contract term shall be assessed, taking into account the nature of the products for which the contract was concluded and by referring, at the time of the conclusion of the contract, to all the circumstances attending the conclusion and to all the other terms of the contract or of another contract on which the former is dependent.

Amendment  176

Proposal for a directive

Article 32 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a. When assessing the fairness of a contract term, the competent national authority shall also take into account the manner in which the contract was drafted and communicated to the consumer by the trader in accordance with Article 31(1) and (2). A term which has been supplied by the trader in breach of the duty of transparency imposed by Article 31(1) and 31(2) may on that ground alone be considered unfair.

Amendment  177

Proposal for a directive

Article 32 – paragraph 3

Text proposed by the Commission

Amendment

3. Paragraphs 1 and 2 shall not apply to the assessment of the main subject matter of the contract or to the adequacy of the remuneration foreseen for the trader's main contractual obligation, provided that the trader fully complies with Article 31.

3. Paragraphs 1, 2, and 2(a) of this Article shall not apply to the assessment of the main subject matter of the contract or to the adequacy of the remuneration foreseen for the trader's main contractual obligation, provided that the trader fully complies with Article 31(1), (2) and (3).

Amendment  178

Proposal for a directive

Article 33

Text proposed by the Commission

Amendment

Where the trader claims that a contract term has been individually negotiated, the burden of proof shall be incumbent on him.

Where the trader claims that a contract term has been individually negotiated, or that a contract term is compliant with the transparency requirement laid down in Article 31(1) and 31(2), the burden of proof shall be incumbent on him.

Amendment  179

Proposal for a directive

Article 34

Text proposed by the Commission

Amendment

Member States shall ensure that contract terms, as set out in the list in Annex II, are considered unfair in all circumstances. That list of contract terms shall apply in all Member States and may only be amended in accordance with Articles 39(2) and 40.

1. Member States shall ensure that contract terms, as set out in the list in Annex II, are considered unfair in all circumstances.

 

2. Member States may provide in their national legislation for additional contract terms considered unfair in all circumstances. Member States shall notify to the Commission the contract terms referred to in paragraph 1.

The Commission shall make that information public in an easily accessible way.

Amendment  180

Proposal for a directive

Article 35

Text proposed by the Commission

Amendment

Member States shall ensure that contract terms, as set out in the list in point 1 of Annex III, are considered unfair, unless the trader has proved that such contract terms are fair in accordance with Article 32. That list of contract terms shall apply in all Member States and may only be amended in accordance with Articles 39(2) and 40.

1. Member States shall ensure that contract terms, as set out in the list point 1 of Annex III, are considered unfair, unless the trader has proved that such contract terms are fair in accordance with Article 32.

 

2. Member States may provide in their national legislation for additional contract terms presumed to be unfair. Member States shall notify to the Commission the contract terms referred to in paragraph 1.

The Commission shall make that information public in an easily accessible way.

Amendment  181

Proposal for a directive

Article 37

Text proposed by the Commission

Amendment

Contract terms which are unfair shall not be binding on the consumer. The contract shall continue to bind the parties if it can remain in force without the unfair terms.

Contract terms which are unfair under this Directive shall not be binding on the consumer in accordance with national law. The contract shall continue to bind the parties if it can remain in force without the unfair terms.

Amendment  182

Proposal for a directive

Article 38 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall ensure that, in the interests of consumers and competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by traders.

1. Member States shall ensure that, in the interests of consumers and competitors, adequate and effective means exist to prevent the use of unfair terms in contracts concluded with consumers by traders.

Amendment  183

Proposal for a directive

Article 38 – paragraph 3

Text proposed by the Commission

Amendment

3. Member States shall enable the courts or administrative authorities to apply appropriate and effective means to prevent traders from continuing to use terms which have been found unfair.

3. Member States shall enable the courts or administrative authorities to apply appropriate and effective means to prevent traders from the use of terms which have been found unfair.

Amendment  184

Proposal for a directive

Article 39

Text proposed by the Commission

Amendment

Article 39

deleted

Review of the terms in Annexes 2 and 3

 

1. Member States shall notify to the Commission the terms which have been found unfair by the competent national authorities and which they deem to be relevant for the purpose of amending this Directive as provided for by paragraph 2.

 

2. In the light of the notifications received under paragraph 1, the Commission shall amend Annex II and III. Those measures designed to amend non essential elements of this Directive shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 40(2).

 

Amendment   185

Proposal for a directive

Article 40

Text proposed by the Commission

Amendment

Article 40

The Committee

deleted

1. The Commission shall be assisted by the Committee on unfair terms in consumer contracts (hereinafter referred to as "the Committee").

 

2. Where reference is made to this paragraph, Article 5a(1) to (4), and Article 7 of Decision 1999/468/EC1 shall apply, having regard to the provisions of Article 8 thereof.

 

Amendment  186

Proposal for a directive

Article 41 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall ensure that adequate and effective means exist to ensure compliance with this Directive.

1. Member States and the Commission shall ensure that adequate and effective means exist to ensure compliance with consumer rights as ensured in this Directive.

Amendment  187

Proposal for a directive

Article 44

Text proposed by the Commission

Amendment

Member States shall take appropriate measures to inform consumers of the national provisions transposing this Directive and shall, where appropriate, encourage traders and code owners to inform consumers of their codes of conduct.

Member States and the Commission shall take appropriate measures to inform consumers and traders, especially via information and communication technology tools and public media, of the national provisions transposing this Directive and shall, where appropriate, encourage traders and code owners to inform consumers of their codes of conduct.

Amendment  188

Proposal for a directive

Article 45

Text proposed by the Commission

Amendment

The consumer shall be exempted from the provision of any consideration in cases of unsolicited supply of a product as prohibited by Article 5(5) and point 29 of Annex I of Directive 2005/29/EC. The absence of a response from the consumer following such an unsolicited supply shall not constitute consent.

The consumer shall be exempted from the provision of any consideration in cases of unsolicited supply of goods or provision of a service prohibited pursuant to Article 5(5) and point 29 of Annex I of Directive 2005/29/EC. In such cases, the absence of a response from the consumer following such an unsolicited supply shall not constitute consent.

Amendment   189

Proposal for a directive

Article 46 – paragraph 2

Text proposed by the Commission

Amendment

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

deleted

Amendment   190

Proposal for a directive

Article 46 a (new)

Text proposed by the Commission

Amendment

 

Article 46a

Reporting requirement and mutual evaluation

 

1. By [the end of the transposition period], and every three years thereafter, Member States shall draw up a report containing the following information:

 

(a) the text of any additional pre-contractual information requirements which Member States adopt or maintain pursuant to Article 9(3b) and (3c);

 

(b) the text of any diverging provisions of national law which Member States adopt or maintain pursuant to Article 12(4) and Article 13(2);

 

(c) the text of any diverging provisions of national law which Member States adopt or maintain pursuant to Article 22(2a);

 

(d) the text of any diverging provisions of national law which Member States adopt or maintain pursuant to Article 26(5b) and Article 28(5a);

 

(e) the text of any additional contract terms designated by Member States, pursuant to Article 34(1a), as unfair in all circumstances;

 

(e) the text of any additional contract terms designated by Member States, pursuant to Article 35(1a), as terms presumed to be unfair;

 

(f) the text of any decisions of fundamental importance – together with the grounds for them – taken by Member States' courts, arbitration bodies or competent administrative authorities in the field covered by this Directive.

 

2. The report referred to in paragraph 1 shall be submitted to the Commission. With regard to the information referred to in points (a) to (e) of paragraph 1, Member States shall explain why diverging provisions of national law are appropriate and proportionate with a view to attaining the purpose of the Directive.

 

3. The Commission shall ensure that the information referred to in points (d) and (e) of paragraph 1 is easily accessible to consumers and traders, inter alia on a dedicated website set up and maintained by the Commission.

 

4. The Commission shall forward the reports provided for in paragraph 1 to the other Member States and the European Parliament, which shall submit their observations on each of the reports within six months of receipt. Within the same period, the Commission shall consult stakeholders on those reports.

Amendment   191

Proposal for a directive

Article 46 b (new)

Text proposed by the Commission

Amendment

 

Article 46b

Reporting by consumer protection agents

 

Persons or organisations having a legitimate interest under national law in protecting consumers, within the meaning of Article 38(2), shall notify the Commission of the conclusions they have reached from the assessment of the application and impact of this Directive on consumer rights and the functioning of the internal market.

Amendment   192

Proposal for a directive

Article 46 c (new)

Text proposed by the Commission

Amendment

 

Article 46c

Review

 

By [one year after transposition], and every three years thereafter, the Commission shall submit a report on the application of this Directive to the European Parliament and the Council, taking account of the information gathered pursuant to Article 46a(4) and Article 46b. If necessary, it shall make legislative proposals, accompanying the report, to adapt this Directive to developments in the field of consumer rights.

Amendment   193

Proposal for a directive

Article - 47 (new)

Directive 2002/65/EC

 

Text proposed by the Commission

Amendment

 

Article -47

Amendment of Directive 2002/65/EC

 

Article 2(a) of Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services1 shall be replaced by the following:

 

(a) 'distance contract' means any contract for the supply of a good or the provision of a service concluded between a trader and a consumer under an organised distance sales or service-provision scheme where the trader and the consumer are not simultaneously physically present for the conclusion of the contract, but, rather, make exclusive use of one or more means of distance communication;.

 

____________________

1 OJ L 271, 9.10.2002, p. 16.

Amendment  194

Proposal for a directive

Article 47 – paragraph 1

Text proposed by the Commission

Amendment

Directives 85/577/EEC 93/13/EEC and 97/7/EC and Directive 1999/44/EC, as amended by the Directives listed in Annex IV, are repealed.

Directives 85/577/EEC 93/13/EEC and 97/7/EC and Directive 1999/44/EC, as amended by the Directives listed in Annex IV, are repealed as of [date of transposition].

Amendment   195

Proposal for a directive

Article 48

Text proposed by the Commission

Amendment

Article 48

Review

deleted

The Commission shall review this Directive and report to the European Parliament and the Council no later than [insert same date as in the second subparagraph of Article 46(1) +five years].

 

If necessary, it shall make proposals to adapt it to developments in the area. The Commission may request information from the Member States.

 

(See amendment for Article 46 c)

Amendment  196

Proposal for a directive

Article 48 a (new)

Text proposed by the Commission

Amendment

 

Article 48 a

 

The Commission shall consider adopting a proposal for a Regulation on distance and off-premises contracts,from which transport, and health services will be exempted.

Amendment   197

Proposal for a directive

Annex I – part A

Text proposed by the Commission

Amendment

A. Information to be provided with the withdrawal form

A. Model instructions on withdrawal

1. The name, geographical address and the email address of the trader to whom the withdrawal form must be sent.

Right of withdrawal

2. A statement that the consumer has a right to withdraw from the contract and that this right can be exercised by sending the withdrawal form below on a durable medium to the trader referred to in paragraph 1:

You may withdraw on a durable medium from this contract within a period of 14 days without giving any reason [or – if the goods are delivered to you before the expiry of this period – by returning the goods].

(a) for off-premises contracts, within a period of fourteen days following his signature of the order form;

The period for withdrawal shall begin [on receipt of the goods ordered] (1). The day [on which the goods are received] (2) shall not be counted as part of the period for withdrawal. If the last day of the period for withdrawal falls on a public holiday, a Saturday or a Sunday, the period shall end on the first working day thereafter.

 

The period for withdrawal shall be deemed to have been observed if your notice of withdrawal is sent, or the goods are sent, before its expiry.The sending of either the notice of withdrawal or the goods before the expiry of the withdrawal period must be provable (for example in the form of a postal receipt).

(b) for distance sales contracts, within a period of fourteen days following the material possession of the goods by the consumer or a third party, other than the carrier and indicated by the consumer;

Notice of withdrawal should be sent on a durable medium (for example in the form of a posted letter)(3) to: (4). The consumer may use the form below, but it is not obligatory.

(c) for distance service contracts:

Effects of withdrawal

- within a period of fourteen days following the conclusion of the contract, where the consumer has not given his prior express consent for the performance of the contract to begin before the end of this fourteen day period;

For withdrawal to be valid you must send the goods back, at [our expense](5), within a period of 14 days of sending your notice of withdrawal. The period for reimbursement shall begin when we receive your notice of withdrawal or the goods. The day on which we receive the notice of withdrawal shall not be counted as part of the period for reimbursement. If the last day of this period falls on a public holiday, a Saturday or a Sunday, the period shall end on the first working day thereafter.

- within a period ending when the performance of the contract begins, where the consumer has given his prior express consent for the performance of the contract to begin before the end of the fourteen day period.

If you are unable to return the goods in their original condition, you shall be liable for any diminished value of the goods. This provision shall apply only if the deterioration in value is attributable to the goods having been handled in a manner other than that necessary for ascertaining their nature and how they function. You can prevent deterioration by refraining from using the goods as you would your own property and by avoiding any form of handling liable to reduce their value.

3. For all sales contracts, a statement informing the consumer about the time-limits and modalities to send back the goods to the trader and the conditions for the reimbursement in accordance with Articles 16 and 17(2).

In the case of valid withdrawal, we must reimburse within a period of 14 days any payment you have made to us. The period for reimbursement shall begin when we receive your notice of withdrawal. The day on which we receive the notice of withdrawal shall not be counted as part of the period for reimbursement. If the last day of this period falls on a public holiday, a Saturday or a Sunday, the period shall end on the first working day thereafter.

4. For distance contracts concluded on the Internet, a statement that the consumer can electronically fill in and submit the standard withdrawal form on the trader's website and that he will receive an acknowledgement of receipt of such a withdrawal from the trader by email without delay.

We may make reimbursement subject to the condition that we have received the returned goods.

5. A statement that the consumer can use the withdrawal form set out in Part B.

Advice on alternative wording:

 

(1) In the following specific cases, the text in parentheses should read as indicated:

 

in the case of distance or off-premises contracts for the supply of services: 'from the day of the conclusion of the contract or on the day on which you received

a copy of the signed contract on a durable medium if this is not the day of conclusion of the contract'.

 

 

(2) In the following specific cases, the text in parentheses should read as indicated:

in the case of distance or off-premises contracts for the supply of services: 'the conclusion of the contract or on the day on which you received a copy of the signed contract on a durable medium, if this is not the day of conclusion of the contract'.

 

(3) In the case of distance contracts, additional text should be inserted as follows:

(a) if the trader allows the consumer to withdraw from the contract by e-mail: 'or by e-mail';

(b) if the trader allows the consumer to fill in a model form electronically on a website: 'or via our website'.

 

(4) To be inserted: the trader’s name and business address. In the case of distance contracts, the following must also be indicated: the e-mail and/or web address of the trader which the consumer can use to withdraw from the contract.

 

(5) If the price of the goods to be returned is not more than EUR 40, the text in parentheses should read as follows: 'at your own expense'.

 

 

Amendment   198

Proposal for a directive

Annex I – part B

Text proposed by the Commission

Amendment

(complete and return this form only if you wish to withdraw from the contract)

 

To:

To: (trader’s name, business address and, where appropriate, e-mail address)(*)

I/We* hereby give notice that I/We* withdraw from my/our* contract of sale of the following goods*/provision of the following service*

I/We**hereby give notice that I/We** withdraw from my/our** contract of sale of the following goods**/provision of the following service**

Ordered on*/received on*

Ordered on (***):

Name of consumer(s)

Name(s) of consumer(s) (***):

Address of consumer(s)

Address(es) of consumer(s) (***):

Signature of consumer(s) (only if this form is notified in writing)

Consumer(s)’ signature(s) (required only if the form is sent on paper) (***):

Date

Date (***):

*Delete as appropriate.

(*) To be filled in by the trader before providing the form to the consumer

 

(**) Delete where non-applicable.

 

(***) To be filled in by the consumer(s).

Amendment  199

Proposal for a directive

Annex II – paragraph 1 – point a a (new)

Text proposed by the Commission

Amendment

 

(aa) excluding or limiting the liability of the trader for damage on the property of the consumer caused deliberately or as a result of gross negligence through an act or omission by the trader;

Amendment  200

Proposal for a directive

Annex II – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b) limiting the trader's obligation to respect commitments undertaken by his agents or making his commitments subject to compliance with a particular condition which depends exclusively on the trader;

(b) limiting the trader's obligation to respect commitments undertaken by its agents or making its commitments subject to compliance with a particular condition, the fulfilment of which depends exclusively on the trader;

Amendment 201

Proposal for a directive

Annex II – paragraph 1 – point c a (new)

Text proposed by the Commission

Amendment

 

(ca) conferring exclusive jurisdiction for all disputes arising under the contract to the place where the trader is domiciled unless the chosen court is also the court for the place where the consumer is domiciled;

Amendment 202

Proposal for a directive

Annex III – paragraph 1 – point a a (new)

Text proposed by the Commission

Amendment

 

(aa) makes binding on the consumer an obligation which is subject to a condition the fulfilment of which depends solely on the intention of the trader;

Amendment  203

Proposal for a directive

Annex III – paragraph 1 – point c a (new)

Text proposed by the Commission

Amendment

 

(ca) requiring a consumer to purchase ancillary goods or services not advertised in the price of the main contract;

Amendment  204

Proposal for a directive

Annex III – paragraph 1 – point c b (new)

Text proposed by the Commission

Amendment

 

(cb) applying contingent charges, such as penalties for breaching the contract terms, that are clearly disproportionate to the costs incurred by the trader due to the breach of terms;

Amendment  205

Proposal for a directive

Annex III – paragraph 1 – point d a (new)

Text proposed by the Commission

Amendment

 

(da) excluding or hindering the consumer’s right to instruct and authorise a third party to conclude a contract between the consumer and the trader and/or to take steps which are meant to lead to, or facilitate, the conclusion of a contract between the consumer and the trader.

Justification

Any consumer has the right to instruct and authorise a third party to conclude a contract between this consumer and a trader and/or to take steps which are meant to lead to, or facilitate, the conclusion of such a contract. Any term preventing or hindering that right must be considered unfair in all circumstances.

Amendment  206

Proposal for a directive

Annex III – paragraph 1 – point e

Text proposed by the Commission

Amendment

(e) enabling the trader to terminate an open-ended contract without reasonable notice except where the consumer has committed a serious breach of contract;

(e) enabling the trader to terminate a contractual relationship of indeterminate duration without reasonable notice, except where there are serious grounds for doing so; this does not affect terms in financial services contracts where there is a valid reason, provided the supplier is required to inform the other contracting party thereof immediately;

Amendment  207

Proposal for a directive

Annex III – paragraph 1 – point g

Text proposed by the Commission

Amendment

(g) allowing the trader to increase the price agreed with the consumer when the contract was concluded without giving the consumer the right to terminate the contract;

(g) providing that the price of goods or other assets is to be determined at the time of delivery or supply or allowing the trader to increase the price agreed with the consumer when the contract was concluded without giving the consumer the right to terminate the contract if the increased price is too high in relation to the price agreed at the conclusion of the contract; this does not affect price-indexation clauses, where lawful, provided that the method by which prices vary is explicitly described;

Amendment  208

Proposal for a directive

Annex III – paragraph 1 – point k

Text proposed by the Commission

Amendment

(k) enabling the trader to unilaterally alter the terms of the contract including the characteristics of the product or service;

(k) enabling the trader to unilaterally alter the terms of the contract including the characteristics of the product or service without a valid reason which is specified in the contract; this does not affect terms under which a supplier of financial services reserves the right to change the rate of interest to be paid by, or to, the consumer, or the amount of other charges for financial services without notice where there is a valid reason, provided that the supplier is required to inform the consumer at the earliest opportunity and that the consumer is free to terminate the contractual relationship with immediate effect; neither does it affect terms under which a trader reserves the right to alter unilaterally the conditions of a contract of indeterminate duration, provided that the trader is required to inform the consumer with reasonable notice, and that the consumer is free to terminate the contractual relationship;

Amendment  209

Proposal for a directive

Annex III – paragraph 1 – point l a (new)

Text proposed by the Commission

Amendment

 

(la) allowing a trader, where what has been ordered is unavailable, to supply an equivalent without having expressly informed the consumer of this possibility and of the fact that the trader must bear the cost of returning what the consumer has received under the contract if the consumer exercises a right to withdraw.

Amendment  210

Proposal for a directive

Annex III – paragraph 2

Text proposed by the Commission

Amendment

2. Point 1(e) shall not apply to terms by which a supplier of financial service reserves the right to terminate unilaterally an open-ended contract without notice, provided that the supplier is required to inform the other contracting party or parties thereof immediately.

deleted

Amendment  211

Proposal for a directive

Annex III – paragraph 3 – point c a (new)

Text proposed by the Commission

Amendment

 

(ca) package travel contracts regulated by Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours.

Amendment  212

Proposal for a directive

Annex III – paragraph 4 – introductory part

Text proposed by the Commission

Amendment

4. Point 1(k) shall not apply to

4. Point 1(e), (g) and (k) shall not apply to

Amendment  213

Proposal for a directive

Annex III – paragraph 4 – point a

Text proposed by the Commission

Amendment

(a) terms under which a supplier of financial services reserves the right to alter the rate of interest payable by the consumer or due to the latter, or the amount of other charges for financial services without notice where there is a valid reason, provided that the supplier is required to inform the other contracting party or parties thereof at the earliest opportunity and that the latter are free to dissolve the contract immediately;

deleted

Amendment  214

Proposal for a directive

Annex III – paragraph 4 – point b

Text proposed by the Commission

Amendment

(b) transactions in transferable securities, financial instruments and other products or services where the price is linked to fluctuations in a stock exchange quotation or index or a financial market rate that the trader does not control;

deleted

Amendment  215

Proposal for a directive

Annex III – paragraph 4 – point d

Text proposed by the Commission

Amendment

(d) terms under which the trader reserves the right to alter unilaterally the conditions of an open-ended contract, provided that he is required to inform the consumer with reasonable notice and that the consumer is free to terminate the contract.

deleted

(1)

OJ C 317, 23.12.2009, p. 54.

(2)

OJ C 200, 25.8.2009, p. 76.

(3)

(4)

 

(5)

 

(6)

 

(7)

 


EXPLANATORY STATEMENT

The Commission proposal and its aims

The Commission proposal for a directive on consumer rights merges four existing Community directives(1) in a single legal instrument. The proposal is the result of a review of the consumer acquis begun in 2004 with the aim of simplifying and completing the existing regulatory framework in the area of consumer protection. It was presented on 8 October 2008, following a consultation process and an impact assessment, and applies the 'full harmonisation' approach.

The twin aims of the proposal are to guarantee that consumers in all 27 EU Member States can rely on a high level of consumer protection and that undertakings of all sizes are in a position to provide their goods and services to consumers in all 27 EU Member States without facing unnecessary legal obstacles. In its resolution on the Green Paper on the Review of the Consumer Acquis(2) Parliament confirmed that the purpose of the review should be to increase consumer confidence and the willingness of undertakings to engage in cross-border trade.

The fragmentary nature of the existing legal provisions deters consumers and undertakings alike from participating in cross-border trade. Consumers often complain that they are unable to take full advantage of the benefits of the single market (in particular in connection with on-line purchases), since traders operating from another Member State are often not prepared, when entering a new market(3), to comply with the diverging provisions applicable in that market and are, moreover, reluctant to lay themselves open to possible legal action in another Member State. This problem could be exacerbated by the implementation of the Brussels I and Rome I regulations and the ensuing rulings handed down by the Court of Justice of the European Union(4) in connection with those regulations, since they are likely to tighten up even further the terms and conditions applicable to cross-border sales of goods in the EU.

Although most of the members of the Committee on the Internal Market and Consumer Protection acknowledge that the problem of legal fragmentation must be addressed, the general feeling is that, in view of the nature and scope of the proposal, the full harmonisation approach advocated by the Commission is not workable at present. In accordance with Parliament's resolution on the Green Paper on the Review of the Consumer Acquis, and as already noted in the working document drawn up by the Committee on the Internal Market and Consumer Protection in 2009(5), the members of the committee regard what could be termed targeted full harmonisation, i.e. full harmonisation restricted to certain aspects of certain contracts, and whilst maintaining a high level of consumer protection, as more appropriate.

The draft report

Accordingly, your rapporteur is proposing a change to the scope of the proposal for a directive: in addition to the introduction of a series of sectoral derogations, the scope of the directive would be largely restricted to contracts concluded away from business premises, which make up the bulk of cross-border transactions.

This has also necessitated structural changes. In addition to the definitions in Chapter I, the provisions on consumer information and the withdrawal right for distance and off-premises contracts should be covered by the targeted full harmonisation approach in Chapter III. By contrast, the minimum harmonisation approach applies to the provisions on consumer information for contracts concluded on business premises. The targeted full harmonisation approach also applies to the provisions of Chapter V, while Chapter IV would remain under minimum harmonisation. However, your rapporteur has taken account of the reservations expressed by many Members by incorporating in a series of articles 'flexibility clauses' designed to enable national legislators to retain higher national levels of consumer protection, where these apply.

The definitions in Article 2 establish the scope of the proposal for a directive as a whole and of its individual chapters and provisions. Whether or not a contract is covered by harmonised provisions depends largely on the wording of the definitions. Some definitions are unsatisfactory in legal terms. Your rapporteur is therefore proposing revised definitions, which are, moreover, consistent with those contained in the Draft Common Frame of Reference. In addition, definitions of the terms 'mixed purpose contract' and 'linked contract' have been added. For the sake of greater consistency among the existing directives, the definition of 'distance contract' laid down in Directive 2002/65/EC also needs to be revised. The opaque description of the scope of the proposal for a directive set out in Article 3 has been clarified. The targeted full harmonisation has been introduced in Article 4, combined with a requirement in Article 46a that Member States should inform the Commission of diverging national legal provisions.

Chapter III deals with consumer information and the withdrawal right for distance and off-premises contracts only. Article 9(1) introduces a provision requiring traders to provide consumers with information in good time before the consumer is bound by any distance or off-premises contract in a clear and intelligible manner. This seems appropriate on the grounds that setting aside the binding list of items of information given in paragraph 1, in individual cases the provision of specific warnings or details may be necessary in order to protect consumers. In addition, your rapporteur is proposing the introduction of a new requirement to provide information, concerning a trader's business address and telephone number, along with his or her fax number and e-mail address, so that consumers can contact traders quickly and communicate with them efficiently. As regards the right of withdrawal, traders should be able to use the model instructions on withdrawal and the model withdrawal form as proposed by your rapporteur in Annex I(A) and I(B). As regards Article 9, it should be pointed out that the burden of proof concerning compliance with the information requirements would rest with the trader. Pursuant to Article 10(1), the items of information stipulated in Article 9 should be given to the consumer on a durable medium, in so far seems appropriate in view of the nature of the off-premises contract. The consumer shall have the possibility to request in any event that the information be provided to him on paper Article 11 then also stipulates clearer rules for defining under which circumstances consumers should be bound by a distance contract for the provision of services, especially for contracts concluded on the internet or on the telephone. Pursuant to Article 13(1), the withdrawal period following a failure to inform the consumer of the right of withdrawal would be extended to one year, while at the same time allowing, in Article 13(2), Member States to maintain existing national legislation providing for a longer period of expiration of the withdrawal period.

Articles 16 and 17 contain further changes designed to strengthen consumer protection. Pursuant to Article 16(1), traders would be required to reimburse any payment received from consumers within 14 days from the date of receipt of the communication of withdrawal. In addition, in Article 17(1) your rapporteur proposes that consumers should also not be charged for the direct cost of returning goods if the price of the goods to be returned is more than EUR 40.

In your rapporteur's view, Chapters IV and V, which stick closely to the wording of the earlier directives, should also be covered by the principle of targeted full harmonisation. However, in the case of certain provisions he is proposing the introduction of 'flexibility clauses' designed to provide for the retention of more flexible arrangements at Member State level.

Article 22, which deals with supplies and delivery, your rapporteur proposes that the trader, in the event that the parties had not agreed on the time of delivery, would have to deliver as soon as possible but not later than thirty days after the conclusion of the contract. If the trader has failed to fulfil his obligations to deliver, the consumer shall be entitled to terminate the contract unless the goods are delivered within a new period to be determined by the consumer, which shall not exceed seven days. This period should be communicated to the trader by the consumer in writing, specifying both the new delivery period and his intention to terminate the contract in the event that the delivery does not take place by the end of that new delivery period.

The key provision of this chapter is Article 26, on remedies for lack of conformity: in principle, your rapporteur is proposing a hierarchy of remedies, although the Member States would retain the option of taking alternative measures, should they be both necessary and consistent with the principles of proportionality and effectiveness. On this basis, for example, the United Kingdom would be able to retain its rules on the 'right to reject' in their current form. In keeping with the hierarchy, consumers would first be entitled to have the lack of conformity of the goods remedied by repair or replacement. Secondarily, they would be entitled to have the price reduced appropriately or the sales contract rescinded. In addition, your rapporteur is proposing to restore certain provisions from the existing directives. These include Article 26(5a), which stipulates, with a view to ruling out abuses, that consumers will not be entitled to have a sales contract rescinded if the lack of conformity is minor, and Article 27a, which governs the right of recourse. In Article 28, which governs time limits and the burden of proof, the requirement to inform traders of the lack of conformity would be deleted, thereby making this provision more consumer-friendly. In addition, in this area as well the Member States would have the option of enacting or maintaining legal provisionswhich offer consumers a higher level of protection. As a result of this additional provision, in France, for example, the rules governing 'vices cachés' could be retained in their current form.

As regards the scope of Chapter V, in Article 30 your rapporteur proposes that this chapter should apply to contract terms in contracts which have not been individually negotiated. In connection with Article 32, it should be emphasised that it is regarded as unfair if, contrary to the requirement of good faith, it causes a significiant imbalance in the parties'rights and obligations arising under the contract. The key provisions of this chapter are Articles 34 and 35, which must be read in conjunction with Annexes II and III respectively. Your rapporteur has followed the Commission's lead in stipulating that the contract terms listed in Annex II should be regarded as unfair in all Member States, while contract terms listed in Annex II identifies contract terms which are considered in all circumstances to be unfair throughout the European Union and on whose interpretation the CJEU can hand down final rulings. However, the Member States may provide provisions designating additional terms as terms presumed to be unfair.

Finally, in Chapter VI your rapporteur outlines a procedure designed to take the simplification process started by means of this proposal for a directive further. It makes provision, first of all, for a reporting requirement on the part of Member States vis-à-vis the Commission and a mutual evaluation system based on similar provisions contained in the Services Directive. Central to the system is a stipulation that Member States must detail why diverging provisions of national law are essential and in what way they are proportionate and effective. The criteria used to assess effectiveness would be the impact on business transactions in the internal market and the actual significance of the provisions as regards the enforcement of consumer rights. In addition, persons or organisations having an interest in protecting consumers would notify the Commission of the conclusions they have reached concerning the application and impact of the directive. On that basis, the Commission would draw up a report to be submitted to Parliament and the Council along with proposals for any revisions which might be required.

(1)

Directive 93/13/EEC on unfair terms in consumer contracts, Directive 99/44/EC on certain aspects of the sale of consumer goods and associated guarantees, Directive 97/7/EC on the protection of consumers in respect of distance contracts and Directive 85/577/EEC to protect the consumer in respect of contracts negotiated away from business premises.

(2)

Report on the Green Paper on the Review of the Consumer Acquis, A6-0281/2007, rapporteur: Béatrice Patrie.

(3)

An IMCO committee hearing revealed that the costs for undertakings are disproportionately high: the costs of complying with the law alone amount to EUR 20 000 per year and national market.

(4)

Case C-144/09: requests for preliminary rulings, submitted on 24 April 2009 – Alpenhof v Heller, hearing before the CJEU on 16 March 2010, and Case C-585/08: requests for preliminary rulings, submitted on 24 December 2008 – Pammer v Reederei Karl Schlüter.

(5)

Working document on the proposal for a directive on consumer rights – IMCO/6/68476, rapporteur: Arlene McCarthy.


OPINION of the Committee on Legal Affairs(*) (24.1.2011)

for the Committee on the Internal Market and Consumer Protection

on the proposal for a directive of the European Parliament and of the Council on consumer rights

(COM(2008)0614 – C6-0349/2008 – 2008/0196(COD))

Rapporteur(*): Diana Wallis

(*) Procedure with associated committees – Rule 50 of the Rules of Procedure

SHORT JUSTIFICATION

Degree of harmonisation

The intention of the Commission to increase cross-border transactions by eliminating legal fragmentation has to be highly welcomed. However, this aim is almost certainly impossible to achieve given the current circumstances surrounding the consumer acquis; there is a certain sense that we would not have started from where we are now if this was the aim we had in view, it having become abundantly clear that the proposed rules cannot function in isolation from national systems of private law. Furthermore, as the proposal is not a comprehensive harmonisation of contract law, it inevitably would have unintended repercussions on national law. Even more, the full harmonisation as proposed would lead in many cases to paradoxical effects, where the fully harmonised provisions of consumer contract law would contrast with other not fully harmonised provisions of b2c and b2b contract law at Member State level(1). As a result, the goal of a “single set of rules” is highly unlikely to be achievable, and endless litigation around delineation issues is predictable(2).

Therefore, your rapporteur proposes minimum harmonisation at a high level of consumer protection as a rule - coupled with full harmonisation of some specific, technical rules as set out as an exception of the general rule in a new paragraph 2 of Article 4. By this new paragraph, your rapporteur proposes full harmonisation only for the provisions in Chapter III on exercise and effects of the right of withdrawal. Full harmonisation is not appropriate for general information duties and a number of specific information duties. As regards unfair terms, your rapporteur proposes not to use full harmonisation and to make clear that the black and grey lists are not exhaustive. Your rapporteur also opts for minimum harmonisation as regards consumer sales of goods and remedies for non-performance.

Level of consumer protection

The proposal as it stands would result, as a consequence of the full harmonisation approach, in a lowering of the level of consumer protection in many Member States. It would lead to the paradoxical situation where consumers would be less protected than businesses when acting in the areas of contract law covered by the proposal. In order to avoid this result, Member States should have as much as possible room to decide how to integrate consumer protection legislation in the field of contract law into their legal systems.

Consistency with the DCFR

Even though the main purpose of the Common Frame of Reference was that it could serve as a toolbox for the Commission when revising the acquis in the area of contract law, the proposal does not contain any single reference to the DCFR. Based on the study on the comparison between the provisions of the DCFR and the proposal for a CRD(3) your rapporteur proposes a number of amendments, inspired by the DCFR, in order to improve consistency with national contract law as well as with other EU legislation in the field of consumer law and at the same time provide for a higher level of consumer protection.

A possible optional instrument for contract law as an alternative to full harmonisation and its relationship wit the CRD

The proposed Consumer Rights Directive has a number of characteristics that could further distance EU consumer contract law from general contract law and make it fit into a scenario that could lead to a European Consumer Code. Such a scenario would shift consumer law almost entirely from the national to the European level and it would also effectively lead to a sharper distinction between b2c and b2b (and c2c) contracts. Your rapporteur has political and process-related reservations about such an approach unless carried out in complete transparency by the Commission first putting forward and consulting on a proposal making it clear that such a separate European Code was a longer term policy goal.

However, the question remains of whether a less troublesome solution (and less intrusive on national law) can be found through the introduction of an "Optional Instrument", which would allow businesses to offer consumers the opportunity to have their purchase governed by European contract and sales law, and therefore covered by the relevant consumer protection measures. The consumer could make this choice through simply clicking on a 'blue button'.

If, as it is being discussed, the DCFR will be used as model for an optional European code of contracts, consistency between the provisions of the CRD and the DCFR is of utmost importance. However, the text of the CFR in the area of contract law, which could possibly serve for an optional instrument, is not yet available. Therefore, further amendments might be necessary at a later stage to clarify the relationship between a possible optional instrument and the provisions of the CRD.

Some specific amendments:

Amendments are proposed to the definitions of consumer and trader in accordance with the definitions of the DCFR. Some amendments are proposed in order to complete the provisions on general information requirements. A maximum one-year period for the exercise of the right of withdrawal is being proposed for the cases where the business has not provided the consumer with the information on the right to withdraw. Article 26 on remedies has been deleted to a great extent. Article 29 on commercial guarantees has been redrafted, and your rapporteur would like to invite further discussion in the Committee on the possibility of introducing an optional European Guarantee. It has been made clear that the black and grey lists on unfair terms are non-exhaustive. The provisions referring to comitology have been deleted.

AMENDMENTS

The Committee on Legal Affairs calls on the Committee on the Internal Market and Consumer Protection, as the committee responsible, to incorporate the following amendments in its report:

Amendment  1

Proposal for a directive

Citation 1

Text proposed by the Commission

Amendment

Having regard to the Treaty establishing the European Community, and in particular Article 95 thereof,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof,

Amendment  2

Proposal for a directive

Citation 4

Text proposed by the Commission

Amendment

Acting in accordance with the procedure laid down in Article 251 of the Treaty,

Acting in accordance with the ordinary legislative procedure,

Amendment  3

Proposal for a directive

Recital 2

Text proposed by the Commission

Amendment

(2) Those Directives have been reviewed in the light of experience with a view to simplifying and updating the applicable rules, removing inconsistencies and closing unwanted gaps in the rules. That review has shown that it is appropriate to replace those four Directives by this single Directive. This Directive should accordingly lay down standard rules for the common aspects and move away from the minimum harmonisation approach in the former Directives under which Member States could maintain or adopt stricter national rules.

(2) Those Directives have been reviewed in the light of experience with a view to simplifying and updating the applicable rules, removing inconsistencies and closing unwanted gaps in the rules. That review has shown that it is appropriate to replace those four Directives by this single Directive. This Directive should accordingly lay down standard rules for the common aspects and move away from the minimum harmonisation approach in the former Directives towards targeted full harmonisation.

Amendment  4

Proposal for a directive

Recital 3

Text proposed by the Commission

Amendment

(3) Article 153(1) and (3)(a) of the Treaty provides that the Community is to contribute to the attainment of a high level of consumer protection by the measures it adopts pursuant to Article 95 thereof.

(3) Article 169(1) and (2)(a) of the Treaty on the Functioning of the European Union provides that the Union is to contribute to the attainment of a high level of consumer protection by the measures it adopts pursuant to Article 114 thereof.

Amendment  5

Proposal for a directive

Recital 4

Text proposed by the Commission

Amendment

(4) In accordance with Article 14(2) of the Treaty, the internal market comprises an area without internal frontiers in which the free movement of goods and services and freedom of establishment are ensured. The harmonisation of certain aspects of consumer contract law is necessary for the promotion of a real consumer internal market striking the right balance between a high level of consumer protection and the competitiveness of enterprises, while ensuring the respect of the principle of subsidiarity.

(4) In accordance with Article 26 of the Treaty on the Functioning of the European Union, the internal market comprises an area without internal frontiers in which the free movement of goods and services and freedom of establishment are ensured. The harmonisation of certain aspects of consumer contract law is necessary for the promotion of a real consumer internal market striking the right balance between a high level of consumer protection and the competitiveness of enterprises, while ensuring the respect of the principle of subsidiarity.

Amendment  6

Proposal for a directive

Recital 5

Text proposed by the Commission

Amendment

(5) The cross-border potential of distance selling which should be one of the main tangible results of the internal market is not fully exploited by consumers. Compared with the significant growth of domestic distance sales over the last few years, the growth in cross-border distance sales has been limited. This discrepancy is particularly significant for Internet sales for which the potential of further growth is high. The cross-border potential of contracts negotiated away from business premises (direct selling) is constrained by a number of factors including the different national consumer protection rules imposed upon the industry. Compared with the growth of domestic direct selling over the last few years, in particular in the services sector (e.g. utilities), the number of consumers using this channel for cross-border purchases has remained flat. Responding to increased business opportunities in many Member States, small and medium size enterprises (including individual entrepreneurs) or agents of direct selling companies should be more inclined to seek business opportunities in other Member States, in particular in border regions. Therefore the full harmonisation of consumer information and the right of withdrawal in distance and off-premises contracts will contribute to the better functioning of the business to consumer internal market.

(5) The cross-border potential of distance selling which should be one of the main tangible results of the internal market is not fully exploited by consumers. Compared with the significant growth of domestic distance sales over the last few years, the growth in cross-border distance sales has been limited. This discrepancy is particularly significant for Internet sales for which the potential of further growth is high. The cross-border potential of contracts negotiated away from business premises (direct selling) is constrained by a number of factors including the different national consumer protection rules imposed upon the industry. Compared with the growth of domestic direct selling over the last few years, in particular in the services sector (e.g. utilities), the number of consumers using this channel for cross-border purchases has remained flat. Responding to increased business opportunities in many Member States, small and medium size enterprises (including individual entrepreneurs) or agents of direct selling companies should be more inclined to seek business opportunities in other Member States, in particular in border regions. Therefore the full harmonisation of certain aspects of consumer information and of the right of withdrawal in distance and off-premises contracts can contribute to the better functioning of the business to consumer internal market.

Amendment   7

Proposal for a directive

Recital 6

Text proposed by the Commission

Amendment

(6) The laws of the Member States on consumer contracts show marked differences which can generate appreciable distortions of competition and obstacles to the smooth functioning of the internal market. The existing Community legislation in the field of consumer contracts concluded at a distance or away from business premises, consumer goods and guarantees as well as unfair contract terms establishes minimum standards for harmonising legislation allowing the Member States the possibility to maintain or introduce more stringent measures which ensure a higher level of consumer protection in their territories. Furthermore, many issues are regulated inconsistently between directives or have been left open. These issues have been addressed differently by the Member States. As a result, the national provisions implementing directives on consumer contract law diverge significantly.

(6) The laws of the Member States on consumer contracts show marked differences which can generate appreciable distortions of competition and obstacles to the smooth functioning of the internal market. The existing Union legislation in the field of consumer contracts concluded at a distance or away from business premises, consumer goods and guarantees as well as unfair contract terms establishes minimum standards for harmonising legislation allowing the Member States the possibility to maintain or introduce more stringent measures which ensure a higher level of consumer protection in their territories. Furthermore, many issues are regulated inconsistently between directives or have been left open. These issues have been addressed differently by the Member States. As a result, the national provisions implementing directives on consumer contract law diverge significantly.

Amendment   8

Proposal for a directive

Recital 7

Text proposed by the Commission

Amendment

(7) These disparities create significant internal market barriers affecting business and consumers. They increase compliance costs to business wishing to engage in cross border sale of goods or provision of services. Fragmentation also undermines consumer confidence in the internal market. The negative effect on consumer confidence is strengthened by an uneven level of consumer protection across the Community. This problem is particularly acute in the light of new market developments.

(7) These disparities create significant internal market barriers affecting business and consumers. They increase compliance costs to business wishing to engage in cross border sale of goods or provision of services. Fragmentation also undermines consumer confidence in the internal market. The negative effect on consumer confidence is strengthened by an uneven level of consumer protection across the Union. This problem is particularly acute in the light of new market developments.

Amendment  9

Proposal for a directive

Recital 8

Text proposed by the Commission

Amendment

(8) Full harmonisation of some key regulatory aspects will considerably increase legal certainty for both consumers and business. Both consumers and business will be able to rely on a single regulatory framework based on clearly defined legal concepts regulating certain aspects of business-to-consumer contracts across the Community. The effect will be to eliminate the barriers stemming from the fragmentation of the rules and to complete the internal market in this area. These barriers can only be eliminated by establishing uniform rules at Community level. Furthermore consumers will enjoy a high common level of protection across the Community.

(8) Full harmonisation of some key regulatory aspects will considerably increase legal certainty for both consumers and business. Both consumers and business will be able to rely on the harmonisation of certain specific aspects of business-to-consumer contracts across the Union. The effect will be to eliminate important barriers stemming from the fragmentation of rules and to advance the internal market in this area. These barriers can only be eliminated by establishing uniform rules at Union level. Furthermore consumers will enjoy a higher common level of protection across the Union.

Amendment  10

Proposal for a directive

Recital 9

Text proposed by the Commission

Amendment

(9) The field harmonised by this Directive should cover certain aspects of business to consumer contracts. These are rules on information to be provided before conclusion and during performance of the contract, the right of withdrawal for distance and off-premises contracts, consumer rights specific to contracts of sale and unfair contract terms in consumer contracts.

(9) The field harmonised by this Directive should cover certain aspects of business to consumer contracts. These are rules on information to be provided before conclusion and during performance of the contract, the right of withdrawal for distance and off-premises contracts and unfair contract terms in consumer contracts. Member States should remain able to adopt or maintain in force more stringent provisions for consumer rights specific to contracts of sale, unless otherwise provided.

Amendment  11

Proposal for a directive

Recital 9 a (new)

Text proposed by the Commission

Amendment

 

(9a) This Directive should not affect national law in the area of general contract law, in so far as this is not harmonised in this Directive.

Amendment  12

Proposal for a directive

Recital 10 a (new)

Text proposed by the Commission

Amendment

 

(10a) Digital content, such as computer programs, games or music that is not burned on a tangible medium, is not considered as a tangible item. It should thus not be considered as a good within the meaning of this Directive. On the contrary, media containing digital content such as CDs and DVDs are tangible items and should thus be considered as goods within the meaning of this Directive. The downloading of digital content by a consumer from the Internet should be regarded, for the purpose of this Directive, as a contract which falls within the scope of this Directive, but without a right of withdrawal where performance of the contract has already begun with consumer's prior consent. The Commission should examine the need for harmonised detailed provisions in this respect and submit, if necessary, a proposal to address this matter.

Amendment  13

Proposal for a directive

Recital 11

Text proposed by the Commission

Amendment

(11) The existing Community legislation on consumer financial services contains numerous rules on consumer protection. For this reason the provisions of this Directive cover contracts relating to financial services only insofar as this is necessary to fill the regulatory gaps.

(11) The existing Union legislation on consumer financial services contains numerous rules on consumer protection. Contracts related to the transfer of rights in immovable property or for the construction of immovable property, including the construction of annexes to immovable property, accommodation and transport services as well as healthcare and social services, are subject to a number of specific requirements in national legislation. For that reason, such contracts should be excluded from the scope of Chapter II.

Amendment  14

Proposal for a directive

Recital 12

Text proposed by the Commission

Amendment

(12) The new definition of distance contract should cover all cases where sales and service contracts are concluded using exclusively one or more means of distance communication (such as mail order, Internet, telephone or fax). This should create a level playing field for all distance traders. It should also improve legal certainty as compared to the current definition requiring the presence of an organised distance selling scheme run by the trader up to the conclusion of the contract.

(12) The new definition of distance contract should cover all cases where contracts concerning the provision of a good or supply of a service are concluded without the simultaneous physical presence of the parties and using exclusively one or more means of distance communication (such as mail order, Internet, telephone or fax). This should create a level playing field for all distance businesses.

 

(This amendment (from "trader" to "business") applies throughout the text. Adopting it will necessitate corresponding changes throughout.)

Amendment  15

Proposal for a directive – amending act

Recital 14

Text proposed by the Commission

Amendment

(14)     An off-premises contract should be defined as a contract concluded with the simultaneous physical presence of the trader and the consumer, away from business premises, for example at the consumer's home or workplace. In an off-premises context, consumers are under psychological pressure no matter whether they have solicited the trader's visit or not. Furthermore, in order to prevent circumventions of rules when consumers are approached away from business premises, a contract negotiated, for example at the consumer's home but concluded in a shop should be regarded as an off-premises contract.

(14) An off-premises contract should be defined as a contract concluded with the simultaneous physical presence of the business and the consumer, away from business premises, for example at the consumer's home or workplace. In an off-premises context, consumers are temporarily in a special situation which is different from the situation in a shop, for instance from a psychological point of view and as regards the scope for comparing goods and prices, no matter whether they have solicited the business' visit or not. Furthermore, in order to prevent circumventions of rules when consumers are approached away from business premises, a contract negotiated, for example at the consumer's home but concluded in a shop should be regarded as an off-premises contract. Member States should, however, be able to establish in their national legislation that the value of a contract not exceeding 60 EUR should be excluded from the scope of Chapter II as the information requirements would be disproportionate to the value of the contract. Contracts which, in accordance with the provisions of the Member States, are established by a public official, do not present a situation where the consumer is put under exceptional psychological pressure. Such contracts should be excluded from the scope of Chapter II.

Amendment  16

Proposal for a directive

Recital 15

Text proposed by the Commission

Amendment

(15) Business premises should include premises in whatever form (such as shops or lorries) which serve as a permanent place of business for the trader. Market stalls and fair stands should be treated as business premises even though they may be used by the trader on a temporary basis. Other premises which are rented for a short time only and where the trader is not established (such as hotels, restaurants, conference centres, cinemas rented by traders who are not established there) should not be regarded as business premises. Similarly, all public spaces including public transport or facilities as well as private homes or workplaces should not be regarded as business premises.

(15) Business premises should include premises in whatever form (such as shops or lorries) which serve as a permanent place of business for the business. Premises which are rented for a short time only and where the business is not established (such as hotels, restaurants, conference centres, cinemas rented by businesses which are not established there) should not be regarded as business premises. Similarly, all public spaces including public transport or facilities as well as private homes or workplaces should not be regarded as business premises.

Amendment  17

Proposal for a directive – amending act

Recital 16

Text proposed by the Commission

Amendment

(16) The definition of durable medium should include in particular documents on paper, USB sticks, CD-ROMs, DVDs, memory cards and the hard drive of the computer on which the electronic mail or a pdf file is stored.

(16) The definition of durable medium should include in particular documents on paper, USB sticks, CD-ROMs, DVDs, memory cards and the hard drive of the computer on which the electronic mail or a pdf file, or other files which allow the unchanged reproduction of the information they contain, is stored. Internet sites as such should not be regarded as durable media unless such sites meet the criterion of allowing the unchanged reproduction of the information stored. Information on a durable medium should be made available upon request in a format that is accessible to consumers with disabilities or visual impairments.

Amendment  18

Proposal for a directive

Recital 17

Text proposed by the Commission

Amendment

(17) Consumers should be entitled to receive information before the conclusion of the contract. However traders should not have to provide the information when already apparent from the context. For example in an on-premises transaction, the main characteristics of a product, the identity of the trader and the arrangements for delivery may be apparent from the context. In distance and off-premises transactions, the trader should always provide the information on arrangements for payment, delivery, performance and the complaint handling policy, since these might not be apparent from the context.

(17) Consumers should be entitled to receive information in good time before the consumer is bound by any distance or off-premises contract or offer. The business should always provide certain information, such as on the main characteristic of the good or service or arrangements for payment, delivery, performance and the complaint handling policy.

Amendment  19

Proposal for a directive

Recital 17 a (new)

Text proposed by the Commission

Amendment

 

(17a) In order to guarantee a high level of consumer protection in relation to information requirements for distance and off-premises contracts, Member States should be able to introduce stricter requirements than those set out in this Directive for cases where there is a demonstrable risk to consumers' health and safety.

Amendment  20

Proposal for a directive

Recital 22

Text proposed by the Commission

Amendment

(22) Since in the case of distance sales, the consumer is not able to see the good before concluding the contract he should have a right of withdrawal, which allows him to ascertain the nature and functioning of the goods.

(22) Since, in the case of distance sales, the consumer is not able to see the good before concluding the contract he should have a right of withdrawal, allowing him, until expiry of the withdrawal period, to ascertain the nature, quality and functioning of the goods.

Amendment  21

Proposal for a directive

Recital 22 a (new)

Text proposed by the Commission

Amendment

 

(22a) The provisions regarding information and the right of withdrawal for distance sales should, due to the nature of those services, not apply when a consumer uses a public pay phone, pays to use an Internet connection or chooses a specific provider for one single telephone call, for instance by dialling a prefix, in contrast to what is the case for telephone or Internet subscriptions.

Amendment  22

Proposal for a directive

Recital 26

Text proposed by the Commission

Amendment

(26) When the consumer orders more than one good from the same trader, he should be entitled to exercise the right of withdrawal in respect of each of these goods. If the goods are delivered separately, the withdrawal period should start when the consumer acquires the material possession of each individual good. Where a good is delivered in different lots or pieces, the withdrawal period should start when the consumer or a third party indicated by the consumer acquires the material possession of the last lot or piece.

deleted

Amendment  23

Proposal for a directive

Recital 27

Text proposed by the Commission

Amendment

(27) If the trader has not informed the consumer on the right of withdrawal prior to the conclusion of a distance or off-premises contract, the withdrawal period should be extended. However, in order to ensure legal certainty over time, a three-month limitation period should be introduced, provided that the trader has fully performed his contractual obligations. The trader should be regarded as having fully performed his obligations when he has delivered the goods or has fully provided the services ordered by the consumer.

(27) If the business has not informed the consumer on the right of withdrawal prior to the conclusion of a distance or off-premises contract, the withdrawal period should be extended. However, in order to ensure legal certainty over time, a one-year limitation period should be introduced.

Amendment  24

Proposal for a directive

Recital 28

Text proposed by the Commission

Amendment

(28) Differences in the ways in which the right of withdrawal is exercised in the Member States have caused costs for businesses selling cross-border. The introduction of a harmonised standard withdrawal form to be used by the consumer should simplify the withdrawal process and bring legal certainty. For these reasons, Member States should refrain from adding any presentational requirements to the Community-wide standard form relating for example to the font size.

(28) Differences in the ways in which the right of withdrawal is exercised in the Member States have caused costs for businesses selling cross-border. The introduction of a harmonised model withdrawal form to be used by the consumer should simplify the withdrawal process and bring legal certainty. For these reasons, Member States should refrain from adding any presentational requirements to the Union-wide standard form relating for example to the font size. By using the model instructions on withdrawal set out in Annex I(A) the business will also comply with the information requirements for distance and off-premises contracts.

Amendment  25

Proposal for a directive

Recital 30

Text proposed by the Commission

Amendment

(30) In case of withdrawal the trader should reimburse all payments received from the consumer, including those covering the expenses born by the trader to deliver goods to the consumer.

(30) In case of withdrawal the business should reimburse all payments received from the consumer, including those covering the expenses borne by the business to deliver goods to the consumer, with the exception of payments for express deliveries made at the express wish of the consumer.

Amendment  26

Proposal for a directive

Recital 33

Text proposed by the Commission

Amendment

(33) Certain exemptions should exist from the right of withdrawal, such as in cases where a right of withdrawal would be inappropriate given the nature of the product. That is applicable for example to wine supplied a long time after the conclusion of the contract of a speculative nature where the value is dependent on fluctuations in the market (vin en primeur).

(33) Certain exemptions should exist from the right of withdrawal, such as in cases where a right of withdrawal would be inappropriate given the nature of the product and exercising a right of withdrawal would unfairly disadvantage the business. That is applicable in particular to foodstuffs and other hygienically sensitive or perishable goods which by their nature cannot be re-sold after having been opened. Exemptions from the right of withdrawal should also exist for certain other goods and services where the value is dependent on fluctuations in the market, for example wine supplied a long time after the conclusion of the contract of a speculative nature (vin en primeur) or commodities.

Amendment  27

Proposal for a directive

Recital 34

Text proposed by the Commission

Amendment

(34) Furthermore, in case of distance contracts for the provision of services, for which the performance begins during the withdrawal period (e.g. data files downloaded by the consumer during that period), it would be unfair to allow the consumer to withdraw after the service has been enjoyed by the consumer in full or in part. Therefore the consumer should lose his right of withdrawal when performance begins with his prior express agreement.

(34) Considering that the consumer when withdrawing from a service contract is not obliged to pay for the services supplied, certain service providers might prefer not to perform until the withdrawal period has expired to ensure being paid. Therefore a consumer should be able to request the supply of services before the end of the withdrawal period. He should retain the right to withdraw from the contract during the withdrawal period, but should be prepared to bear the costs for any services provided up to the point of withdrawal from the contract. Before the performance begins the business should inform the consumer of any obligation to pay such costs.

Amendment  28

Proposal for a directive

Recital 35

Text proposed by the Commission

Amendment

(35) The Commission has found some key consumer problems in the home improvement sector where consumers are under high pressure to order expensive renovation works. The scope of the information and withdrawal rules should be clarified and extended in order to cover this kind of contract. Only contracts for the conveyance of interests in real property should be excluded from the scope of the rules on information and withdrawal rights applicable to distance and off-premises contracts.

(35) Contracts related to the transfer of rights in immovable property or the creation of such rights (including rights or interests under a trust or similar arrangement), contracts for the construction of new dwellings, for the substantial conversion of existing buildings as well as contracts for rental of accommodation for residential purposes are already subject to a number of specific requirements in national legislation. The provisions of this Directive are not appropriate for those contracts. For that reason, this Directive should not apply to such contracts. A substantial conversion is a conversion comparable to the construction of a new dwelling, for example where only the façade of an old building is retained. Service contracts in particular related to the construction of annexes to buildings (for example a garage or a veranda) and related to repair and renovation of buildings other than substantial conversion are included in the scope of this Directive, as well as contracts related to real estate agency services and contracts related to the rental of accommodation for non- residential purposes.

Amendment  29

Proposal for a directive

Recital 36

Text proposed by the Commission

Amendment

(36) The application of a right of withdrawal may be inappropriate for certain services relating to accommodation, transport and leisure. The conclusion of the corresponding contracts implies the setting aside of capacity which, if a right of withdrawal was introduced, the trader may find difficult to fill. Therefore these distance contracts should not be covered by the provisions on consumer information and the right of withdrawal.

deleted

Amendment  30

Proposal for a directive

Recital 37

Text proposed by the Commission

Amendment

(37) For the purpose of simplification and legal certainty, the right of withdrawal should apply to all types of off-premises contracts, except under strictly defined circumstances which can easily be proved. Therefore, no right of withdrawal should apply for urgent repairs at the consumer's home for which such a right of withdrawal would be incompatible with the emergency situation as well as for supermarket home-delivery schemes which allow consumers to select food, drinks and other goods intended for current consumption in the household through the supermarket's website and have them delivered at their home. These are goods, which are inexpensive and bought regularly by consumers for their every day's consumption or everyday use in the household and should therefore not be subject to a right of withdrawal. The main difficulties encountered by consumers and the main source of disputes with traders are about delivery of goods, including goods getting lost or damaged during transport and late and partial delivery. Therefore it is appropriate to clarify and harmonise the national rules on delivery and passing of risk.

(37) For the purpose of simplification and legal certainty, the right of withdrawal should apply to all types of distance and off-premises contracts, except under strictly defined circumstances which can easily be proved Therefore, no right of withdrawal should apply for urgent repairs at the consumer's home for which such a right of withdrawal would be incompatible with the emergency situation.

Amendment  31

Proposal for a directive

Recital 37 a (new)

Text proposed by the Commission

Amendment

 

(37a) The main difficulties encountered by consumers and the main source of disputes with businesses concern delivery of goods, including goods getting lost or damaged during transport and late and partial delivery. It is therefore appropriate to harmonise the national rules on delivery and passing of risk. However, the rules concerning the determination of the conditions for and the moment at which the ownership in the goods is transferred remain subject to national law.

Amendment  32

Proposal for a directive

Recital 37 b (new)

Text proposed by the Commission

Amendment

 

(37b) Where the business has failed to fulfil its obligations to deliver, the consumer should call upon it to make the delivery within a period appropriate to the circumstances. The consumer can withdraw from the contract on expiry of that period if no action has been taken. However, this rule should not apply when the business has refused to deliver the goods or in certain circumstances where time is of the essence, such as, for example, a wedding dress which should be delivered before the wedding or Christmas presents. In those specific cases, if the business fails to deliver the goods on time, the consumer should be entitled to terminate the contract immediately after the expiry of the delivery period initially agreed.

Amendment  33

Proposal for a directive

Recital 38

Text proposed by the Commission

Amendment

(38) In the context of consumer sales, the delivery of goods can take place in various ways. Only a rule which may be freely derogated from will allow the necessary flexibility to take into account those variations. The consumer should be protected against any risk of loss or damage of the goods occurring during the transport arranged or carried out by the trader. The rule introduced on the passing of risk should not apply where the consumer unduly delays taking possession of the goods (for example, when the goods are not collected by the consumer from the post-office within the deadline fixed by the latter). In those circumstances, the consumer should bear the risk of loss or deterioration after the time of delivery as agreed with the trader.

(38) In the context of consumer sales, the delivery of goods can take place in various ways. Only a rule which may be freely derogated from will allow the necessary flexibility to take into account those variations. The consumer should be protected against any risk of loss or damage of the goods occurring during the transport arranged or carried out by the business. The rule introduced on the passing of risk should not apply where the consumer unduly delays taking over of the goods (for example, when the goods are not collected by the consumer from the post-office within the deadline fixed by the latter). In those circumstances, the consumer should bear the risk of loss or deterioration after the time of delivery as agreed with the business.

Amendment  34

Proposal for a directive

Recital 38 a (new)

Text proposed by the Commission

Amendment

 

(38a) A single, common concept of conformity which provides a high level of consumer protection will provide businesses and consumers with greater legal certainty and reduce barriers to trade. Member States should, however, remain able to adopt or maintain more stringent rules than those laid down in this Directive for the issues of liability and consequent remedies in cases of non-conformity.

Amendment  35

Proposal for a directive

Recital 40

Text proposed by the Commission

Amendment

(40) If the good is not in conformity with the contract, firstly, the consumer should have the possibility to require the trader to repair the goods or to replace them at the trader's choice unless the trader proves that those remedies are unlawful, impossible or causes the trader disproportionate effort. The trader's effort should be determined objectively considering costs incurred by the trader when remedying the lack of conformity, the value of the goods and the significance of the lack of conformity. The lack of spare parts should not be a valid ground to justify the trader's failure to remedy the lack of conformity within a reasonable time or without a disproportionate effort.

(40) If the good is not in conformity with the contract, the consumer should have the possibility to require the business to repair the goods or to replace them. The lack of spare parts should not be a valid ground to justify the business's failure to remedy the lack of conformity within a reasonable time or without a disproportionate effort.

Amendment  36

Proposal for a directive

Recital 43

Text proposed by the Commission

Amendment

(43) Directive 1999/44/EC allowed the Member States to set a period of at least two months during which the consumer was to inform the trader of any lack of conformity. The diverging transposition laws have created barriers to trade. Therefore, it is necessary to remove this regulatory option and improve legal certainty by obliging consumers to inform the trader of the lack of conformity within two months from the date of detection.

deleted

Amendment  37

Proposal for a directive

Recital 45 a (new)

Text proposed by the Commission

Amendment

 

(45a) The harmonised regulatory aspects concern only contracts concluded between businesses and consumers. Therefore, this Directive should not affect national law in the area of contracts relating to employment, contracts relating to succession rights, contracts relating to family law and contracts relating to the incorporation and organisation of companies or partnership agreements and bond terms.

Amendment  38

Proposal for a directive

Recital 46

Text proposed by the Commission

Amendment

(46) Provisions on unfair contract terms should not apply to contract terms, which directly or indirectly reflect mandatory statutory or regulatory provisions of the Member States which comply with Community law. Similarly terms which reflect the principles or provisions of international conventions to which the Community or the Member States are party, particularly in the transport area, should not be subject to the unfairness test.

(46) Provisions on unfair contract terms should not apply to contract terms, which directly or indirectly reflect statutory, regulatory or public policy provisions of the Member States which comply with Union law. Similarly, contract terms should reflect the principles and provisions of the Charter of Fundamental Rights of the European Union. Terms which reflect the principles or provisions of international conventions to which the Union or the Member States are party, particularly in the transport area, should not be subject to the unfairness test.

Amendment  39

Proposal for a directive

Recital 47

Text proposed by the Commission

Amendment

(47) Consumer contracts should be drafted in plain, intelligible language and be legible. Traders should be free to choose the font type or size in which the contract terms are drafted. The consumer should be given an opportunity to read the terms before concluding the contract. This opportunity could be given to the consumer by providing him with the terms on request (for on-premises contracts) or making those terms otherwise available (e.g. on the trader's website in respect of distance contracts) or attaching standard terms to the order form (in respect of off-premises contracts). The trader should seek the consumer's express consent to any payment in addition to the remuneration for the trader's main contractual obligation. Inferring consent by using opt-out systems, such as pre-ticked boxes online should be prohibited.

(47) All contract terms should be expressed in a clear and comprehensible manner. If a contract term is in writing, it must always be drafted in plain, intelligible language. Businesses should be free to choose the font type or size in which the contract terms are drafted. The consumer should be given an opportunity to read the terms before concluding the contract. This opportunity could be given to the consumer by providing him with the terms on request (for on-premises contracts) or making those terms otherwise available (e.g. on the business's website in respect of distance contracts) or attaching standard terms to the order form (in respect of off-premises contracts). The business should seek the consumer's express consent to any payment in addition to the remuneration for the business's main contractual obligation. Inferring consent by using opt-out systems, such as pre-ticked boxes online should be prohibited.

Amendment  40

Proposal for a directive

Recital 47 a (new)

Text proposed by the Commission

Amendment

 

(47a) Businesses should be free to choose the way in which contract terms are communicated, for example the font type or size in which the contract terms are drafted. Member States should refrain from imposing any presentational requirements, except for those related to persons with disabilities or where the goods or services may present a particular risk to the health and safety of the consumer or a third person. Member States may also seek to impose additional requirements where due to complexities inherent in contracts for those goods or services, there is a risk of consumer detriment including issues arising which relate to competition in that sector. This may apply, for example, to contracts relating to financial services, gas, electricity and water, telecoms and immovable property. However, this should not apply to formal national requirements concerning the conclusion of the contract or other formal requirements such as for instance the language of the terms, requirements on the content of the terms or the formulation of certain contract terms for specific sectors. This Directive does not harmonise language requirements applicable to consumer contracts. Therefore, Member States should be able to maintain or introduce in their national law linguistic requirements regarding the contractual terms.

Amendment  41

Proposal for a directive

Recital 49

Text proposed by the Commission

Amendment

(49) For the purposes of this Directive, neither the fairness of terms which describe the main subject matter of the contract, nor the quality/price ratio of the goods or services supplied should be assessed unless these terms did not meet transparency requirements. The main subject matter of the contract and the price/quality ratio should nevertheless be taken into account in assessing the fairness of other terms. For example, in insurance contracts, the terms which clearly define or circumscribe the insured risk and the insurer's liability should not be subject to such an assessment since these restrictions are taken into account in calculating the premium paid by the consumer.

(49) For the purposes of this Directive, neither the fairness of terms which describe the main subject matter of the contract, nor the quality/price ratio of the goods or services supplied should be assessed unless these terms did not meet transparency requirements. The main subject matter of the contract and the price/quality ratio should nevertheless be taken into account in assessing the fairness of other terms. For example, in insurance contracts, the terms which clearly define or circumscribe the insured risk and the insurer's liability should not be subject to such an assessment since these restrictions are taken into account in calculating the premium paid by the consumer. This exclusion does not apply to the remuneration foreseen for the business from ancillary or contingent charges set out in the contract, including fees or charges for breaching any of the terms of the contract, which should be fully subject to the fairness test.

Amendment  42

Proposal for a directive

Recital 50

Text proposed by the Commission

Amendment

(50) In order to ensure legal certainty and improve the functioning of the internal market, the Directive should contain two lists of unfair terms. Annex II contains a list of terms which should in all circumstances be considered unfair. Annex III contains a list of terms which should be deemed unfair unless the trader proves otherwise. These same lists should apply in all Member States.

(50) In order to ensure legal certainty and improve the functioning of the internal market, the Directive should contain two non-exhaustive lists of unfair terms. Annex II contains a list of terms which should in all circumstances be considered unfair. Annex III contains a list of terms which should be deemed unfair unless the business proves otherwise.

Amendment  43

Proposal for a directive

Recital 51

Text proposed by the Commission

Amendment

(51) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission10.

deleted

10 OJ L 184, 17.7.1999, p. 23.

 

Amendment  44

Proposal for a directive

Recital 52

Text proposed by the Commission

Amendment

(52) In particular, the Commission should be empowered to amend Annexes II and III on contract terms to be considered or presumed unfair. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

deleted

Amendment  45

Proposal for a directive

Recital 53

Text proposed by the Commission

Amendment

(53) The Commission's power to amend Annexes II and III should be used to ensure consistent implementation of the rules on unfair terms by supplementing those Annexes with contractual terms, which should be considered unfair in all circumstances or which should be deemed unfair unless the trader has proved otherwise.

deleted

Amendment  46

Proposal for a directive

Recital 64 a (new)

Text proposed by the Commission

Amendment

 

(64a) In accordance with point 34 of the Interinstitutional Agreement on better law-making1, Member States are encouraged to draw up, for themselves and in the interests of the Union, their own tables illustrating, as far as possible, the correlation between this Directive and the transposition measures, and to make them public.

 

1 OJ C 321, 31.12.2003, p. 1.

Amendment  47

Proposal for a directive

Recital 65

Text proposed by the Commission

Amendment

(65) Since the objectives of this Directive cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to eliminate the internal market barriers and achieve a high common level of consumer protection.

(65) Since the objectives of this Directive cannot be sufficiently achieved by the Member States and can therefore 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. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to eliminate the internal market barriers and achieve a high common level of consumer protection.

Amendment  48

Proposal for a directive

Article 1 a (new)

Text proposed by the Commission

Amendment

 

Article 1a

 

Degree of harmonisation

 

Unless otherwise provided, Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Chapter, including more or less stringent provisions to ensure a different level of consumer protection.

Amendment  49

Proposal for a directive

Article 2 – point 1

Text proposed by the Commission

Amendment

(1) "consumer" means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession;

(1) "consumer" means any natural person who, in contracts covered by this Directive, is acting primarily for purposes which are not related to his trade, business, craft or profession;

Amendment  50

Proposal for a directive

Article 2 – point 2

Text proposed by the Commission

Amendment

(2) "trader" means any natural or legal person who, in contracts covered by this Directive, is acting for purposes relating to his trade, business, craft or profession and anyone acting in the name of or on behalf of a trader;

(2) "business" means any natural or legal person, irrespective of whether it is publicly or privately owned, which, in contracts covered by this Directive, is acting for purposes relating to that person's trade, business, craft or profession and anyone acting in the name of or on behalf of a business, even if that person does not intend to make a profit in the course of the activity;

Amendment  51

Proposal for a directive

Article 2 – point 3

Text proposed by the Commission

Amendment

(3) "sales contract' means any contract for the sale of goods by the trader to the consumer including any mixed-purpose contract having as its object both goods and services;

(3) "sales contract' means any contract under which a business, in accordance with the applicable national law, transfers ownership of the goods to a consumer either immediately upon conclusion of the contract or at some point in the future, and under which the consumer undertakes to pay the price;

Amendment  52

Proposal for a directive

Article 2 – point 4 –point b

Text proposed by the Commission

Amendment

(b) water and gas where they are not put up for sale in a limited volume or set quantity,

deleted

Amendment  53

Proposal for a directive

Article 2 – point 4 –point c

Text proposed by the Commission

Amendment

(c) electricity;

deleted

Amendment  54

Proposal for a directive

Article 2 – point 4 a (new)

Text proposed by the Commission

Amendment

 

(4a) 'good made to the customer's specifications' means any non-prefabricated good made on the basis of an individual choice or decision by the consumer;

Amendment  55

Proposal for a directive

Article 2 – point 5

Text proposed by the Commission

Amendment

(5) "service contract' means any contract other than a sales contract whereby a service is provided by the trader to the consumer;

(5) "service contract' means any contract under which a business undertakes to supply a service to the consumer in exchange for a price;

Amendment  56

Proposal for a directive

Article 2 – point 5 a (new)

Text proposed by the Commission

Amendment

 

(5a) 'mixed purpose contract' means any contract concerning both the supply of services and the provision of goods;

Amendment  57

Proposal for a directive

Article 2 – point 6

Text proposed by the Commission

Amendment

(6) "distance contract' means any sales or service contract where the trader, for the conclusion of the contract, makes exclusive use of one or more means of distance communication;

(6) "distance contract' means any sales or service contract where the business and the consumer, for the conclusion of the contract, are not simultaneously physically present, but make exclusive use of one or more means of distance communication;

Amendment  58

Proposal for a directive

Article 2 – point 7

Text proposed by the Commission

Amendment

(7) "means of distance communication' means any means which, without the simultaneous physical presence of the trader and the consumer, may be used for the conclusion of a contract between those parties;

deleted

Amendment  59

Proposal for a directive

Article 2 – point 8

Text proposed by the Commission

Amendment

(8) 'off-premises contract' means:

(8) "off-premises contract' means any sales or service contract which is concluded :

(a) any sales or service contract concluded away from business premises with the simultaneous physical presence of the trader and the consumer or any sales or service contract for which an offer was made by the consumer in the same circumstances, or

(a) away from business premises with the simultaneous physical presence of the business and the consumer or for which an offer was made by the consumer in the same circumstances, or

(b) any sales or service contract concluded on business premises but negotiated away from business premises, with the simultaneous physical presence of the trader and the consumer.

(b) on business premises but where the main components have been determined away from business premises, with the simultaneous physical presence of the business and the consumer.

 

Member States may decide that contracts for the provision of goods or supply of services which have been concluded or negotiated away from the business premises at the explicit and initial request of the consumer are not to be considered as off-premises contracts.

Amendment  60

Proposal for a directive

Article 2 – point 10 a (new)

Text proposed by the Commission

Amendment

 

(10a) 'textual form' means a text which is expressed in alphabetical or other intelligible characters by means of any support which permits reading, recording of the information contained in the text and its reproduction in tangible form.

Amendment  61

Proposal for a directive

Article 2 – point 11

Text proposed by the Commission

Amendment

(11) "order form' means an instrument setting out the contract terms, to be signed by the consumer with a view to concluding an off-premises contract;

deleted

Amendment  62

Proposal for a directive

Article 2 – point 12

Text proposed by the Commission

Amendment

(12) "product' means any good or service including immoveable property, rights and obligations;

deleted

Amendment  63

Proposal for a directive

Article 2 – point 14

Text proposed by the Commission

Amendment

(14) "professional diligence' means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers, commensurate with honest market practice and/or the general principle of good faith in the trader's field of activity;

deleted

Amendment  64

Proposal for a directive

Article 2 – point 15

Text proposed by the Commission

Amendment

(15) 'auction' means a method of sale where goods or services are offered by the trader through a competitive bidding procedure which may include the use of means of distance communication and where the highest bidder is bound to purchase the goods or the services. A transaction concluded on the basis of a fixed-price offer, despite the option given to the consumer to conclude it through a bidding procedure is not an auction;

(15) 'auction' means a method of sale where goods or services are offered by the business through a competitive bidding procedure which may include the use of means of distance communication and where the successful bidder is bound to purchase the goods or the services. A transaction concluded on the basis of a fixed-price offer, despite the option given to the consumer to conclude it through a bidding procedure is not an auction;

Amendment  65

Proposal for a directive

Article 2 – point 16

Text proposed by the Commission

Amendment

(16) 'public auction' means a method of sale where goods are offered by the trader to consumers, who attend or are given the possibility to attend the auction in person, through a competitive bidding procedure run by an auctioneer and where the highest bidder is bound to purchase the goods;

(16) 'public auction' means a method of sale where goods or services are offered by the business to consumers, who attend or are given the possibility to attend the auction in person, through a competitive bidding procedure run by an auctioneer and where the successful bidder is bound to purchase the goods or services;

Amendment  66

Proposal for a directive

Article 2 – point 17

Text proposed by the Commission

Amendment

(17) 'producer' means the manufacturer of goods, the importer of goods into the territory of the Community or any person purporting to be a producer by placing his name, trade mark or other distinctive sign on the goods;

(17) "producer' means the manufacturer of goods, the importer of goods into the territory of the Union or any person purporting to be a producer by placing his name, trade mark or other distinctive sign on the goods;

Amendment  67

Proposal for a directive

Article 2 – point 18

Text proposed by the Commission

Amendment

(18) 'commercial guarantee' means any undertaking by the trader or producer (the 'guarantor')to the consumer to reimburse the price paid or to replace, repair or service goods in any way if they do not meet the specifications set out in the guarantee statement or in the relevant advertising available at the time of, or before the conclusion of the contract;

(18) 'commercial guarantee' means any undertaking by the business or producer (the 'guarantor') to the consumer, in addition to discharging its legal obligations, to reimburse the price paid or to replace, repair or service goods in any way if they do not meet the specifications set out in the guarantee statement or in the relevant advertising available at the time of, or before the conclusion of the contract;

Amendment  68

Proposal for a directive

Article 2 – point 20

Text proposed by the Commission

Amendment

(20) 'ancillary contract' means a contract by which the consumer acquires goods or services related to a distance contract or an off-premises contract and these goods or services are provided by the trader or a third party on the basis of an arrangement between that third party and the trader.

(20) 'linked contract' means a contract by which the consumer acquires goods or services and which forms a single commercial transaction with a distance contract or an off-premises contract and these goods or services are provided by the business or a third party on the basis of an arrangement between that third party and the business. A single commercial transaction exists where the good or service covered by the linked contract serves to perform the other contract or is intended for use of the good or service covered by the other contract.

 

(This amendment (from "ancillary" to "linked") applies throughout the text. Adopting it will necessitate corresponding changes throughout)

Amendment  69

Proposal for a directive

Article 3 – paragraph 1

Text proposed by the Commission

Amendment

1. This Directive shall apply, under the conditions and to the extent set out in its provisions, to sales and service contracts concluded between the trader and the consumer.

1. This Directive shall apply, under the conditions and to the extent set out in its provisions, to contracts concluded between the business and the consumer.

Amendment  70

Proposal for a directive

Article 3 – paragraph 2

Text proposed by the Commission

Amendment

2. This Directive shall only apply to financial services as regards certain off-premises contracts as provided for by Articles 8 to 20, unfair contract terms as provided for by Articles 30 to 39 and general provisions as provided for by Articles 40 to 46, read in conjunction with Article 4 on full harmonisation.

deleted

Amendment  71

Proposal for a directive

Article 3 – paragraph 3

Text proposed by the Commission

Amendment

3. Only Articles 30 to 39 on consumer rights concerning unfair contract terms, read in conjunction with Article 4 on full harmonisation, shall apply to contracts which fall within the scope of Directive 94/47/EC of the European Parliament and of the Council12 and of Council Directive 90/314/EEC13 .

deleted

12 OJ L 280, 29.10.1994, p. 83.

 

13 OJ L 158, 23.6.1990, p. 59.

 

Amendment  72

Proposal for a directive

Article 3 – paragraph 4

Text proposed by the Commission

Amendment

4. Articles 5, 7, 9 and 11 shall be without prejudice to the provisions concerning information requirements contained in Directive 2006/123/EC of the European Parliament and of the Council14 and Directive 2000/31/EC of the European Parliament and of the Council15 .

deleted

14 OJ L 376, 27.12.2006, p. 36.

 

15 OJ L 178, 17.7.2000, p. 1.

 

Amendment  73

Proposal for a directive

Article 4

Text proposed by the Commission

Amendment

Article 4

deleted

Full harmonisation

 

Member States may not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more or less stringent provisions to ensure a different level of consumer protection.

 

Amendment  74

Proposal for a directive

Chapter 2 – title

Text proposed by the Commission

Amendment

Consumer information

Consumer information and right of withdrawal for distance and off-premises contracts

Amendment  75

Proposal for a directive

Article 4 a (new)

Text proposed by the Commission

Amendment

 

Article 4a

 

Scope

 

1. This Chapter shall apply to distance and off-premises contracts.

 

2. This Chapter shall not apply to distance and off-premises contracts:

(a) for the creation, transfer or termination of rights or interests in immoveable property, and rental of accommodation for residential purposes;

(b) falling within the scope of Council Directive 90/314/EEC or Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts1;

(c) concluded for the construction of a new dwelling, where the contract, or a linked contract, provides for the sale or transfer of rights in immoveable property;

(d) for financial services;

(e) for healthcare services falling within the scope of Directive 2011/../EU of the European Parliament and of the Council of … on the application of patients rights in cross-border healthcare2, whether or not they are provided via healthcare facilities;

(f) for social services.

 

3. This Chapter shall not apply to off-premises contracts:

(a) concluded by means of automatic vending machines or automated commercial premises;

(b) which, in accordance with the provisions of the Member States, are established by a public official who is bound by the law to be independent and impartial and to guarantee, by providing detailed legal information, that the consumer only concludes the contract after due reflection and in full awareness of its legal scope;

(c) where the value of the contract does not exceed 60 EUR. Member States may choose to apply a threshold lower than 60 EUR, in which case Member States shall notify the adopted threshold to the Commission, which shall make that information publicly available in an easily accessible way.

 

4. This Chapter shall not apply to distance contracts:

(a) concluded with telecommunications operators through public payphones for their use, in so far as they relate to the use thereof or concluded for the use of a single connection by telephone, Internet or fax established by the consumer;

(b) falling within the scope of Directive 2002/65/EC of the European Parliament and Council.

 

1 Text to be adopted.

 

2 OJ L 33, 3.2.2009, p. 10

Amendment  76

Proposal for a directive

Article 4 b (new)

Text proposed by the Commission

Amendment

 

Article 4b

 

Degree of harmonisation

 

Unless otherwise provided, Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Chapter, including more or less stringent provisions to ensure a different level of consumer protection.

Amendment  77

Proposal for a directive

Article 5 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1. Prior to the conclusion of any sales or service contract, the trader shall provide the consumer with the following information, if not already apparent from the context:

1. In good time before the consumer is bound by any distance or off-premises contract or offer, the business or any person acting in his name or on his behalf shall provide the consumer with such information as the consumer may reasonably expect, taking into account the standards of quality and performance which would be normal under the circumstances. The information shall be clear and precise, and expressed in plain and intelligible language. The information must include, in particular, the following information, if not already apparent from the context:

Amendment  78

Proposal for a directive

Article 5 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a) the main characteristics of the product, to an extent appropriate to the medium and the product;

(a) the main characteristics of the goods or services, to an extent appropriate to the medium and the goods or services;

Amendment  79

Proposal for a directive

Article 5 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b)the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;

(b) the geographical address and the identity of the business, such as its trading name and, where applicable, the geographical address of the place of business and the identity of the business on whose behalf it is acting;

Amendment  80

Proposal for a directive

Article 5 – paragraph 1 – point b a (new)

Text proposed by the Commission

Amendment

 

(ba) contact details including the telephone and fax number and e-mail address where available, and any other means of distance communication enabling the consumer to contact and communicate with the business rapidly and directly;

Amendment  81

Proposal for a directive

Article 5 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;

(c) the final price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;

Amendment  82

Proposal for a directive

Article 5 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d) the arrangements for payment, delivery, performance and the complaint handling policy, if they depart from the requirements of professional diligence;

(d) the arrangements for payment, delivery and performance;

Amendment  83

Proposal for a directive

Article 5 – paragraph 1 – point d a (new)

Text proposed by the Commission

Amendment

 

(da) the complaint handling policy and the geographical address to which the consumer can direct any complaints, including where applicable the address of a body dealing with complaints on behalf of the business;

Amendment  84

Proposal for a directive

Article 5 – paragraph 1 – point d b (new)

Text proposed by the Commission

Amendment

 

(db) the possibility of having recourse to an amicable dispute settlement mechanism, where such a possibility exists;

Amendment  85

Proposal for a directive

Article 5 – paragraph 1 – point e

Text proposed by the Commission

Amendment

(e) the existence of a right of withdrawal, where applicable;

(e) in so far as a right of withdrawal, where applicable, exists, the conditions and procedure for exercising that right; including the withdrawal period and the name and address of the business to which the withdrawal is to be communicated, and the possible costs of returning the goods; the business may use the model instructions on withdrawal and the model withdrawal form set out in Annex I(A) and I(B) respectively or any other clearly worded statement;

Amendment  86

Proposal for a directive

Article 5 – paragraph 1 – point e a (new)

Text proposed by the Commission

Amendment

 

(ea) where a right of withdrawal does not apply in accordance with Article 19(1) that the consumer will not benefit from a right of withdrawal;

Amendment  87

Proposal for a directive

Article 5 – paragraph 1 – point e b (new)

Text proposed by the Commission

Amendment

 

(eb) where applicable, information about the financial guarantees to recover payments made in advance, in the event of withdrawal or cancellation;

Amendment  88

Proposal for a directive

Article 5 – paragraph 1 – point h

Text proposed by the Commission

Amendment

(h) the minimum duration of the consumer's obligations under the contract, where applicable;

(h) the minimum duration of the consumer's and business´s obligations under the contract, where applicable;

Amendment  89

Proposal for a directive

Article 5 – paragraph 1 – point i a (new)

Text proposed by the Commission

Amendment

 

(ia) that the contract will be concluded with a business and that, as a result, the consumer will benefit from the protection provided for in this Directive;

Amendment  90

Proposal for a directive

Article 5 – paragraph 1 – point i b (new)

Text proposed by the Commission

Amendment

 

(ib) the obligation of the consumer for payment in accordance with Article 17(3) where performance of services has begun during the withdrawal period with the consumer's prior express consent, where applicable;

Amendment  91

Proposal for a directive

Article 5 – paragraph 1 – point i c (new)

Text proposed by the Commission

Amendment

 

(ic) the period of time within which the offer will remain available, where applicable;

Amendment  92

Proposal for a directive

Article 5 – paragraph 1 – point i d (new)

Text proposed by the Commission

Amendment

 

(id) the application of technical protection measures for digital products, where applicable;

Amendment  93

Proposal for a directive

Article 5 – paragraph 2

Text proposed by the Commission

Amendment

2. In the case of a public auction, the information in paragraph 1(b) may be replaced by the geographical address and the identity of the auctioneer.

2. In the case of a public auction, the information in points (b) and (ba) of paragraph 1 may be replaced by the equivalent details for the auctioneer.

Amendment  94

Proposal for a directive

Article 5 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a. Member States shall not provide for any other formal requirements applicable to the model instructions on withdrawal set out in Annex I(A).

Amendment  95

Proposal for a directive

Article 5 – paragraph 2 b (new)

Text proposed by the Commission

Amendment

 

2b. If the business uses the model instructions on withdrawal set out in Annex I(A) it will comply with the information requirements for distance and off-premises contracts set out in paragraph 1(e).

Amendment  96

Proposal for a directive

Article 5 – paragraph 3

Text proposed by the Commission

Amendment

3. The information referred to in paragraph 1 shall form an integral part of the sales or service contract.

3. The information referred to in paragraph 1 shall form an integral part of the sales or service distance or off-premises contract.

Amendment  97

Proposal for a directive

Article 5 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

 

3a. The business shall bear the burden of proving that it has provided the information required under this Article.

Amendment  98

Proposal for a directive

Article 5 – paragraph 3 b (new)

Text proposed by the Commission

Amendment

 

3b. Should the provisions of this Article run counter to other legislative provisions of the Union which regulate special contracts, the latter provisions shall take precedence and shall govern those special contracts.

Amendment  99

Proposal for a directive

Article 6 – paragraph 2

Text proposed by the Commission

Amendment

2. Without prejudice to Articles 7(2), 13 and 42, the consequences of any breach of Article 5, shall be determined in accordance with the applicable national law. Member States shall provide in their national laws for effective contract law remedies for any breach of Article 5.

2. Without prejudice to Articles 7(2), 13 and 42, the consequences of any breach of Article 5 shall be determined in accordance with the applicable national law, save those breaches of a de minimis, technical nature where the effects of the breach under the applicable national law would be disproportionate to the harm actually incurred. Member States shall provide in their national laws for effective remedies for any breach of Article 5.

Amendment  100

Proposal for a directive

Article 7 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a. This Article shall be without prejudice to national legislation under which certain contracts concluded through an intermediary are considered to be business-to-consumer contracts.

Amendment  101

Proposal for a directive

Chapter III – title

Text proposed by the Commission

Amendment

Consumer information and withdrawal right for distance and off-premises contracts

deleted

Amendment  102

Proposal for a directive

Article 8

Text proposed by the Commission

Amendment

Article 8

deleted

Scope

 

This Chapter shall apply to distance and off-premises contracts.

 

Amendment  103

Proposal for a directive

Article 9

Text proposed by the Commission

Amendment

Information requirements for distance and off-premises contracts

deleted

As regards distance or off-premises contracts, the trader shall provide the following information which shall form an integral part of the contract:

 

(a) the information referred to in Articles 5 and 7 and, by way of derogation from Article 5(1)(d), the arrangements for payment, delivery and performance in all cases;

 

(b) where a right of withdrawal applies, the conditions and procedures for exercising that right in accordance with Annex I;

 

(c) if different from his geographical address, the geographical address of the place of business of the trader (and where applicable that of the trader on whose behalf he is acting) where the consumer can address any complaints;

 

(d) the existence of codes of conduct and how they can be obtained, where applicable;

 

(e) the possibility of having recourse to an amicable dispute settlement, where applicable;

 

(f) that the contract will be concluded with a trader and as a result that the consumer will benefit from the protection afforded by this Directive.

 

Amendment  104

Proposal for a directive

Article 10 – paragraph 1

Text proposed by the Commission

Amendment

1. With respect to off-premises contracts, the information provided for in Article 9 shall be given in the order form in plain and intelligible language and be legible. The order form shall include the standard withdrawal form set out in Annex I(B).

1. With respect to off-premises contracts, the information provided for in Article 5 shall be given in good time before the consumer is bound by any contract or offer, in so far as this appears appropriate in view of the nature of the contract, in the contract document or on another durable medium in plain and intelligible language and be legible in textual form. At the consumer's request, the business shall provide the information on paper.

Amendment  105

Proposal for a directive

Article 10 – paragraph 2

Text proposed by the Commission

Amendment

2. An off-premises contract shall only be valid if the consumer signs an order form and in cases where the order form is not on paper, receives a copy of the order form on another durable medium.

deleted

Amendment  106

Proposal for a directive

Article 10 – paragraph 3

Text proposed by the Commission

Amendment

3. Member States shall not impose any formal requirements other than those provided for in paragraphs 1 and 2.

3. Member States shall not impose any formal or information requirements other than those provided for in Article 5(1). This shall be without prejudice to objectively justified requirements which are unrelated to off-premises contracts, in particular regarding health and safety risks.

Amendment  107

Proposal for a directive

Article 11 – paragraph 1

Text proposed by the Commission

Amendment

1. With respect to distance contracts, the information provided for in Article 9(a) shall be given or made available to the consumer prior to the conclusion of the contract, in plain and intelligible language and be legible, in a way appropriate to the means of distance communication used.

1. With respect to distance contracts, the information provided for in Article 5 shall be given or made available in good time before the consumer is bound by any contract or offer, in plain and intelligible language and be legible, in a way appropriate to the means of distance communication used.

Amendment  108

Proposal for a directive

Article 11 – paragraph 2

Text proposed by the Commission

Amendment

2. If the trader makes a telephone call to the consumer with a view to concluding a distance contract, he shall disclose his identity and the commercial purpose of the call at the beginning of the conversation with the consumer.

2. If the business makes a telephone call to the consumer with a view to concluding a distance contract by telephone, the business shall disclose its identity and, where applicable, the identity of the person on whose behalf it makes the call and the commercial purpose of the call at the beginning of the conversation with the consumer.

Amendment  109

Proposal for a directive

Article 11 – paragraph 3

Text proposed by the Commission

Amendment

3. If the contract is concluded through a medium which allows limited space or time to display the information, the trader shall provide at least the information regarding the main characteristics of the product and the total price referred to in Articles 5(1)(a) and (c) on that particular medium prior to the conclusion of such a contract. The other information referred to in Articles 5 and 7 shall be provided by the trader to the consumer in an appropriate way in accordance with paragraph 1.

3. If the contract is concluded through a medium which allows limited space or time to display the information, the business shall provide at least the information regarding the main characteristics of the product and the final price referred to in Articles 5(1)(a) and (c) on that particular medium prior to the conclusion of such a contract. The other information referred to in Article 5 shall be provided by the business to the consumer in an appropriate way in accordance with paragraph 1.

Amendment  110

Proposal for a directive

Article 11 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

 

3a. If a distance contract concluded on the internet places the consumer under an obligation to make a payment, the consumer shall only be bound by the contract if the business:

 

(a) indicates clearly and prominently the total price including all price components; and

 

(b) designs its Internet presentation in such a manner that a binding order is only possible after the consumer has confirmed recognition of the indication required in point (a).

Amendment  111

Proposal for a directive

Article 11 – paragraph 4

Text proposed by the Commission

Amendment

4. The consumer shall receive confirmation of all the information referred to in Article 9(a) to (f), on a durable medium, in reasonable time after the conclusion of any distance contract, and at the latest at the time of the delivery of the goods or when the performance of the service has begun, unless the information has already been given to the consumer prior to the conclusion of any distance contract on a durable medium.

4. The consumer shall receive confirmation of all the information referred to in Article 5 in textual form on a durable medium, in reasonable time after the conclusion of any distance contract, and at the latest at the time of the delivery of the goods or when the performance of the service has begun, unless the information has already been given to the consumer prior to the conclusion of any distance contract on a durable medium.

Amendment  112

Proposal for a directive

Article 11 – paragraph 5

Text proposed by the Commission

Amendment

5. Member States shall not impose any formal requirements other than those provided for in paragraphs 1 to 4.

5. Member States shall not impose any formal or information requirements other than those provided for in Article 5(1). This shall be without prejudice to objectively justified requirements which are unrelated to distance contracts, in particular regarding health and safety risks.

Amendment  113

Proposal for a directive

Article 12 – paragraph 2

Text proposed by the Commission

Amendment

2. In the case of an off-premises contract, the withdrawal period shall begin from the day when the consumer signs the order form or in cases where the order form is not on paper, when the consumer receives a copy of the order form on another durable medium.

The withdrawal period ends 14 days after the latest of the following times:

 

 

(a) the time of conclusion of the contract;

In the case of a distance contract for the sale of goods, the withdrawal period shall begin from the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires the material possession of each of the goods ordered.

 

(b) if the subject matter of the contract is the delivery of goods, the time when the goods are taken over;

In the case of a distance contract for the provision of services, the withdrawal period shall begin from the day of the conclusion of the contract.

 

(c) in the case of a mixed-purpose contract, the delivery of goods or the supply of services, whichever is later;

 

(d) if the subject matter of the contract is the delivery of multiple goods which are to be delivered separately, the time when the last of the goods is taken over;

 

(e) if the subject matter of the contract is the delivery of a good consisting of multiple lots or pieces, the time when the last lot or piece is taken over;

 

(f) if the subject matter of the contract is the recurring delivery of goods of the same kind during a defined period of time, the time when the first good is taken over;

Amendment  114

Proposal for a directive

Article 12 – paragraph 4

Text proposed by the Commission

Amendment

4. The Member States shall not prohibit the parties from performing their obligations under the contract during the withdrawal period.

4. The Member States shall not prohibit the parties from performing their obligations under the contract during the withdrawal period. In the case of off-premises contracts, Member States may maintain provisions in their national legislation that prohibit payment within the withdrawal period.

Amendment  115

Proposal for a directive

Article 13

Text proposed by the Commission

Amendment

If the trader has not provided the consumer with the information on the right of withdrawal in breach of Articles 9(b), 10(1) and 11(4), the withdrawal period shall expire three months after the trader has fully performed his other contractual obligations.

If the business has not provided the consumer with the information on the right of withdrawal in breach of point (e) of Article 5(1) and Articles 10(1) and 11(4), the withdrawal period shall expire one year from the day referred to in Article 12(2).

 

If the business has provided the consumer with the information on the right of withdrawal within one year from the day referred to in Article 12(2) and the withdrawal period shall expire 14 days from the day on which the consumer receives the information.

Amendment  116

Proposal for a directive

Article 14

Text proposed by the Commission

Amendment

1. The consumer shall inform the trader of his decision to withdraw on a durable medium either in a statement addressed to the trader drafted in his own words or using the standard withdrawal form as set out in Annex I(B).

1. Before expiry of the withdrawal period, the consumer shall inform the business of his decision to withdraw on a durable medium. For this purpose, the consumer may either use the model withdrawal form set out in Annex I(B) or make any other clearly worded statement .

Member States shall not provide for any other formal requirements applicable to this standard withdrawal form.

Member States shall not provide for any formal requirements applicable to the communication of withdrawal.

2. For distance contracts concluded on the Internet, the trader may, in addition to the possibilities referred to in paragraph 1, give the option to the consumer to electronically fill in and submit the standard withdrawal form on the trader's website. In that case the trader shall communicate to the consumer an acknowledgement of receipt of such a withdrawal by email without delay.

2. The business may, in addition to the possibilities referred to in paragraph 1, give the option to the consumer to submit the model withdrawal form set out in Annex I(B) or any other withdrawal statement, or to electronically fill in and submit the form on a website. The business shall communicate to the consumer an acknowledgement of receipt of such a withdrawal by email without delay.

Amendment  117

Proposal for a directive

Article 15 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b) to conclude an off-premises contract, in cases where an offer was made by the consumer.

(b) to conclude a distance or off-premises contract, in cases where an offer was made by the consumer.

Amendment  118

Proposal for a directive

Article 16 – title

Text proposed by the Commission

Amendment

Obligations of the trader in case of withdrawal

Reimbursement by the business in case of withdrawal

Amendment  119

Proposal for a directive

Article 16 – paragraph 1

Text proposed by the Commission

Amendment

1. The trader shall reimburse any payment received from the consumer within thirty days from the day on which he receives the communication of withdrawal.

1. The business shall reimburse any payment received from the consumer within 14 days from the day on which he receives the communication of withdrawal.

Amendment  120

Proposal for a directive

Article 16 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

 

1a. If the consumer has expressly opted for a type of delivery other than a standard delivery, the business shall not be required to reimburse the resulting additional costs.

Amendment  121

Proposal for a directive

Article 16 – paragraph 2

Text proposed by the Commission

Amendment

2. For sales contracts, the trader may withhold the reimbursement until he has received or collected the goods back, or the consumer has supplied evidence of having sent back the goods, whichever is the earliest.

2. For distance and off-premises contracts for the supply of goods, the business may withhold reimbursement until it has received or collected the goods back, or the consumer has supplied evidence of having sent back the goods, whichever is the earliest.

Amendment  122

Proposal for a directive

Article 17 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

For sales contracts for which the material possession of the goods has been transferred to the consumer or at his request, to a third party before the expiration of the withdrawal period, the consumer shall send back the goods or hand them over to the trader or to a person authorised by the trader to receive them, within fourteen days from the day on which he communicates his withdrawal to the trader, unless the trader has offered to collect the goods himself.

For distance and off-premises contracts for the supply of goods where consumer or at his request, to a third party has taken over the goods before the expiration of the withdrawal period, the consumer shall send back the goods or hand them over to the business or to a person authorised by the business to receive them, within 14 days from the day on which he communicates his withdrawal to the business, unless the business has offered to collect the goods itself.

Amendment  123

Proposal for a directive

Article 17 – paragraph 2

Text proposed by the Commission

Amendment

2. The consumer shall only be liable for any diminished value of the goods resulting from the handling other than what is necessary to ascertain the nature and functioning of the goods. He shall not be liable for diminished value where the trader has failed to provide notice of the withdrawal right in accordance with Article 9(b). For service contracts subject to a right of withdrawal, the consumer shall bear no cost for services performed, in full or in part, during the withdrawal period.

2. The consumer shall only be liable for any diminished value of the goods resulting from the handling other than what is necessary to ascertain the nature and functioning of the goods. He shall not be liable for diminished value where the business has failed to provide notice of the withdrawal right in accordance with point (e) of Article (5)(1).

Amendment  124

Proposal for a directive

Article 17 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a. For service contracts, the consumer shall bear the costs for services supplied, in full or in part, during the withdrawal period where the business provided the information in accordance with Article 5(1)(ib) and where performance of services has begun during the withdrawal period with the consumer's prior express consent.

Amendment  125

Proposal for a directive

Article 17 – paragraph 2 b (new)

Text proposed by the Commission

Amendment

 

2b. Except as provided for in this Article, the consumer shall not incur any liability through the exercise of the right of withdrawal.

Amendment  126

Proposal for a directive

Article 19 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1. In respect of distance contracts, the right of withdrawal shall not apply as regards the following:

1. In respect of distance and off-premises contracts, the right of withdrawal shall not apply as regards the following:

Amendment  127

Proposal for a directive

Article 19 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a) services where performance has begun, with the consumer's prior express consent, before the end of the fourteen day period referred to in Article 12;

deleted

Amendment  128

Proposal for a directive

Article 19 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b) the supply of goods or services for which the price is dependent on fluctuations in the financial market which cannot be controlled by the trader;

(b) the supply of goods or services for which the price is dependent on fluctuations in the market which cannot be controlled by the business and which may occur within the withdrawal period;

Amendment  129

Proposal for a directive

Article 19 – paragraph 1 – point c

Text proposed by the Commission

Amendment

(c) the supply of goods made to the consumer's specifications or clearly personalized or which are liable to deteriorate or expire rapidly;

(c) the supply of goods or services made or tailored to the consumer's specifications or clearly personalized, or goods which are liable to deteriorate or expire rapidly;

Amendment  130

Proposal for a directive

Article 19 – paragraph 1 – point c a (new)

Text proposed by the Commission

Amendment

 

(ca) the supply of foodstuffs, beverages or other hygienically sensitive goods whose packaging or sealing has already been opened by the consumer;

Amendment  131

Proposal for a directive

Article 19 – paragraph 1 – point c b (new)

Text proposed by the Commission

Amendment

 

(cb) contracts for which the consumer, in order to respond to an immediate emergency, has requested the immediate performance of the contract by the business; if, on this occasion, the business supplies or sells additional services or goods other than those which are strictly necessary to meet the immediate emergency of the consumer, the right of withdrawal shall apply to those additional services or goods;

Amendment  132

Proposal for a directive

Article 19 – paragraph 1 – point c c (new)

Text proposed by the Commission

Amendment

 

(cc) contracts for which the consumer has specifically requested the business to visit him at home for the purpose of carrying out repairs or maintenance; if on this occasion, the business supplies services in addition to those specifically requested by the consumer or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the right of withdrawal shall apply to those additional services or goods;

Amendment  133

Proposal for a directive

Article 19 – paragraph 1 – point c d (new)

Text proposed by the Commission

Amendment

 

(cd) for the provision of accommodation, transport, car rental services, catering or leisure services as regards contracts providing for a specific date or period of performance;

Amendment  134

Proposal for a directive

Article 19 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d) the supply of wine, the price of which has been agreed upon at the time of the conclusion of the sales contract, the delivery of which can only take place beyond the time-limit referred to in Article 22(1) and the actual value of which is dependent on fluctuations in the market which cannot be controlled by the trader;

(d) the supply of wine and other beverages, the price of which has been agreed upon at the time of the conclusion of the contract, the delivery of which can only take place beyond the time-limit referred to in Article 22(1) and the actual value of which is dependent on fluctuations in the market which cannot be controlled by the business;

Amendment  135

Proposal for a directive

Article 19 – paragraph 1 – point e

Text proposed by the Commission

Amendment

(e) the supply of sealed audio or video recordings or computer software which were unsealed by the consumer;

(e) the supply of sealed audio or video recordings or sealed computer software which were unsealed by the consumer;

Amendment  136

Proposal for a directive

Article 19 – paragraph 1 – point f

Text proposed by the Commission

Amendment

(f) the supply of newspapers, periodicals and magazines;

(f) the supply of newspapers, periodicals and magazines with the exception of subscription contracts;

Justification

One of the objectives of the revision of the Consumer Acquis under civil law within the EU, the development and strengthening of consumer protection, also requires the critical analysis and reduction of the myriad of exceptions from the right of withdrawal as well as the clarification of some definition of exceptions. It is their objective justification to question and to take up on the promises of other sectors. Apart from that, these exceptions are always cited in practice as an argument against a right of withdrawal of the consumer and are therefore to their disadvantage.

Amendment  137

Proposal for a directive

Article 19 – paragraph 1 – point h a (new)

Text proposed by the Commission

Amendment

 

(ha) contracts concluded by electronic means and performed immediately and fully through the same means of distance communication such as downloading from the Internet, where the performance has begun with the consumer’s prior express consent.

Amendment  138

Proposal for a directive

Article 19 – paragraph 2

Text proposed by the Commission

Amendment

2. In respect of off-premises contracts, the right of withdrawal shall not apply as regards the following:

deleted

(a) contracts for the supply of foodstuffs, beverages or other goods intended for current consumption in the household, selected in advance by the consumer by means of distance communication and physically supplied to the consumer's home, residence or workplace by the trader who usually sells such goods on his own business premises;

 

(b) contracts for which the consumer, in order to respond to an immediate emergency, has requested the immediate performance of the contract by the trader; if, on this occasion, the trader provides or sells additional services or goods other than those which are strictly necessary to meet the immediate emergency of the consumer, the right of withdrawal shall apply to those additional services or goods;

 

(c) contracts for which the consumer has specifically requested the trader, by means of distance communication, to visit his home for the purpose of repairing or performing maintenance upon his property; if on this occasion, the trader provides services in addition to those specifically requested by the consumer or goods other than replacement parts necessarily used in performing the maintenance or in making the repairs, the right of withdrawal shall apply to those additional services or goods.

 

Amendment  139

Proposal for a directive

Article 19 – paragraph 3

Text proposed by the Commission

Amendment

3. The parties may agree not to apply paragraphs 1 and 2.

3. The parties may agree not to apply paragraph 1.

Amendment  140

Proposal for a directive

Article 20

Text proposed by the Commission

Amendment

Excluded distance and off-premises contracts

deleted

1. Articles 8 to 19 shall not apply to distance and off-premises contracts:

 

(a) for the sale of immovable property or relating to other immovable property rights, except for rental and works relating to immovable property;

 

(b) concluded by means of automatic vending machines or automated commercial premises;

 

(c) concluded with telecommunications operators through public payphones for their use;

 

(d) for the supply of foodstuffs or beverages by a trader on frequent and regular rounds in the neighbourhood of his business premises.

 

2. Articles 8 to 19 shall not apply to off-premises contracts relating to:

 

(a) insurance,

 

(b) financial services whose price depends on fluctuations in the financial market outside the trader's control, which may occur during the withdrawal period, as defined in Article 6(2)(a) of Directive 2002/65/EC16 and

 

(c) credit which falls within the scope of Directive 2008/48/EC.

 

3. Articles 8 to 19 shall not apply to distance contracts for the provision of accommodation, transport, car rental services, catering or leisure services as regards contracts providing for a specific date or period of performance.

 

16 OJ L 271, 09.10.2002, p. 16.

 

Amendment  141

Proposal for a directive

Article 21 – paragraph 3

Text proposed by the Commission

Amendment

3. This Chapter shall not apply to the spare parts replaced by the trader when he has remedied the lack of conformity of the goods by repair under Article 26.

deleted

Amendment  142

Proposal for a directive

Article 21 – paragraph 4

Text proposed by the Commission

Amendment

4. Member States may decide not to apply this Chapter to the sale of second-hand goods at public auctions.

deleted

Amendment  143

Proposal for a directive

Article 21 a (new)

Text proposed by the Commission

Amendment

 

Article 21a

 

Degree of harmonisation

 

Unless otherwise provided, Member States may adopt or maintain in force more stringent provisions, compatible with the Treaty on the Functioning of the European Union, in the field covered by this Chapter, to ensure a higher level of consumer protection. Member States shall notify those provisions to the Commission which shall make that information public in an easily accessible way.

Amendment  144

Proposal for a directive

Article 22 – paragraph 1

Text proposed by the Commission

Amendment

1. Unless the parties have agreed otherwise, the trader shall deliver the goods by transferring the material possession of the goods to the consumer or to a third party, other than the carrier and indicated by the consumer, within a maximum of thirty days from the day of the conclusion of the contract.

1. Unless the parties have agreed otherwise, the business shall deliver the goods by making the goods available to the consumer or to a third party, other than the carrier and indicated by the consumer, within a reasonable time which in any event shall not be more than 30 days from the day of the conclusion of the contract.

Amendment  145

Proposal for a directive

Article 22 – paragraph 2

Text proposed by the Commission

Amendment

2. Where the trader has failed to fulfil his obligations to deliver, the consumer shall be entitled to a refund of any sums paid within seven days from the date of delivery provided for in paragraph 1.

2. Where the business has failed to fulfil its obligations to deliver in time in accordance with paragraph 1, the consumer shall be entitled call upon him to make the delivery within a period appropriate to the circumstances. If the business fails to deliver the goods within the appropriate time, the consumer shall be entitled to terminate the contract.

Amendment  146

Proposal for a directive

Article 22 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a. The consumer shall be entitled to terminate the contract where the business has failed to fulfil its obligation to deliver on time in accordance with paragraph 1, where:

 

(a) the business has refused to deliver the goods; or

 

(b) the delivery period is essential taking into account all the circumstances attending the conclusion of the contract; or

 

(c) the consumer informs the business, prior to the conclusion of the contract, that delivery by or on a specified date is essential.

Amendment  147

Proposal for a directive

Article 22 – paragraph 2 b (new)

Text proposed by the Commission

Amendment

 

2b. In addition to the termination of the contract in accordance with paragraphs 2 and 2a, the consumer may have recourse to other remedies provided by national law.

Amendment  148

Proposal for a directive

Article 22 – paragraph 2 c (new)

Text proposed by the Commission

Amendment

 

2c. Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Article.

Amendment  149

Proposal for a directive

Article 23 – paragraph 1

Text proposed by the Commission

Amendment

1. The risk of loss of or damage to the goods shall pass to the consumer when he or a third party, other than the carrier and indicated by the consumer has acquired the material possession of the goods.

1. The risk of loss of or damage to the goods shall pass to the consumer when he or a third party indicated by the consumer has taken over the goods.

Amendment  150

Proposal for a directive

Article 23 – paragraph 2

Text proposed by the Commission

Amendment

2. The risk referred to in paragraph 1 shall pass to the consumer at the time of delivery as agreed by the parties, if the consumer or a third party, other than the carrier and indicated by the consumer has failed to take reasonable steps to acquire the material possession of the goods.

2. The risk referred to in paragraph 1 shall pass to the consumer from the time when the goods should have been taken over if the consumer or a third party indicated by the consumer has failed to perform the obligation to take over the goods and such non-performance is not excused due to an impediment.

Amendment  151

Proposal for a directive

Article 23 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a. The parties shall not, to the detriment of the consumer, exclude the application of this Article, derogate from it or vary its effects.

Amendment  152

Proposal for a directive

Article 23 – paragraph 2 b (new)

Text proposed by the Commission

Amendment

 

2b. Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Article.

Amendment  153

Proposal for a directive

Article 24 – paragraph 1

Text proposed by the Commission

Amendment

1. The trader shall deliver the goods in conformity with the sales contract.

1. The business shall deliver the goods to the consumer in conformity with the sales contract.

Amendment  154

Proposal for a directive

Article 24 – paragraph 2 – introductory part

Text proposed by the Commission

Amendment

2. Delivered goods shall be presumed to be in conformity with the contract if they satisfy the following conditions:

2. Delivered goods shall be presumed to be in conformity with the sales contract if they satisfy the following conditions:

Amendment  155

Proposal for a directive

Article 24 – paragraph 2 – point c

Text proposed by the Commission

Amendment

(c) they are fit for the purposes for which goods of the same type are normally used or

(c) they are fit for the purposes for which goods of the same type are normally used; and

Justification

Regarding the principle of conformity with the contract, the list of criteria of non-conformity should be strengthened and improved.

Amendment  156

Proposal for a directive

Article 24 – paragraph 3

Text proposed by the Commission

Amendment

3. There shall be no lack of conformity for the purposes of this Article if, at the time the contract was concluded, the consumer was aware, or should reasonably have been aware of, the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer.

3. There shall be no lack of conformity for the purposes of this Article where, at the time the contract was concluded, the consumer was aware, or should reasonably have been aware of, the lack of conformity, or where the lack of conformity has its origin in materials supplied by the consumer.

Amendment  157

Proposal for a directive

Article 24 – paragraph 4 – introductory part

Text proposed by the Commission

Amendment

4. The trader shall not be bound by public statements, as referred to in paragraph 2(d) if he shows that one of the following situations existed:

4. The business shall not be bound by public statements, as referred to in paragraph 2(d) where one of the following situations existed:

Amendment  158

Proposal for a directive

Article 24 – paragraph 4 – point b

Text proposed by the Commission

Amendment

(b) by the time of conclusion of the contract the statement had been corrected;

(b) by the time of conclusion of the contract the statement had been corrected and the consumer can reasonably be expected to have become aware of the correction;

Amendment  159

Proposal for a directive

Article 24 – paragraph 5

Text proposed by the Commission

Amendment

5. Any lack of conformity resulting from the incorrect installation of the goods shall be considered as a lack of conformity of the goods where the installation forms part of the sales contract and the goods were installed by the trader or under his responsibility. The same shall apply equally if the goods, intended to be installed by the consumer, are installed by the consumer and the incorrect installation is due to a shortcoming in the installation instructions.

5. Any lack of conformity resulting from the incorrect installation of the goods shall be considered as a lack of conformity of the goods where the goods were installed by the business or under its responsibility. The same shall apply equally if the goods, intended to be installed by the consumer, are installed by the consumer and the incorrect installation is due to a shortcoming in the installation instructions.

Amendment  160

Proposal for a directive

Article 24 – paragraph 5 b (new)

Text proposed by the Commission

Amendment

 

5b. Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Article.

Amendment  161

Proposal for a directive

Article 26 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to:

1. Under the conditions provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer shall be entitled to:

Amendment  162

Proposal for a directive

Article 26 – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b) have the price reduced,

(b) have the price reduced, or

Amendment  163

Proposal for a directive

Article 26 – paragraph 2

Text proposed by the Commission

Amendment

2. The trader shall remedy the lack of conformity by either repair or replacement according to his choice.

2. The business shall remedy the lack of conformity by either repair or replacement according to the consumer's choice.

Amendment  164

Proposal for a directive

Article 26 – paragraph 3 – subparagraph 1

Text proposed by the Commission

Amendment

3. Where the trader has proved that remedying the lack of conformity by repair or replacement is unlawful, impossible or would cause the trader a disproportionate effort, the consumer may choose to have the price reduced or the contract rescinded. A trader's effort is disproportionate if it imposes costs on him which, in comparison with the price reduction or the rescission of the contract, are excessive, taking into account the value of the goods if there was no lack of conformity and the significance of the lack of conformity.

3. Where the business has proved that remedying the lack of conformity by both repair and replacement is unlawful, impossible or would cause the business a disproportionate effort, the consumer choose to have the price reduced or the contract rescinded. A business's effort is disproportionate where it imposes costs on it which, in comparison with the price reduction or the rescission of the contract, are excessive, taking into account the value of the goods where there was no lack of conformity and the significance of the lack of conformity.

Amendment  165

Proposal for a directive

Article 26 – paragraph 4 – point d

Text proposed by the Commission

Amendment

(d) the same defect has reappeared more than once within a short period of time.

(d) after repair or replacement the same defect has reappeared more than once within a short period of time.

Amendment  166

Proposal for a directive

Article 26 – paragraph 5

Text proposed by the Commission

Amendment

5. The significant inconvenience for the consumer and the reasonable time needed for the trader to remedy the lack of conformity shall be assessed taking into account the nature of the goods or the purpose for which the consumer acquired the goods as provided for by Article 24(2)(b).

5. The significant inconvenience for the consumer and the reasonable time needed for the business to remedy the lack of conformity shall be assessed taking into account the nature of the goods and the purpose for which the consumer acquired the goods as provided for by Article 24(2)(b).

Amendment  167

Proposal for a directive

Article 27 – paragraph 2

Text proposed by the Commission

Amendment

2. Without prejudice to the provisions of this Chapter, the consumer may claim damages for any loss not remedied in accordance with Article 26.

2. Without prejudice to the provisions of this Chapter, the consumer may claim damages provided for by national law for any loss not remedied in accordance with Article 26.

Amendment  168

Proposal for a directive

Article 28 – paragraph 2

Text proposed by the Commission

Amendment

2. When the trader has remedied the lack of conformity by replacement, he shall be held liable under Article 25 where the lack of conformity becomes apparent within two years as from the time the consumer or a third party indicated by the consumer has acquired the material possession of the replaced goods.

2. When the business has remedied the lack of conformity by replacement, it shall be held liable under Article 25 where the lack of conformity becomes apparent within two years as from the time the consumer or a third party indicated by the consumer has taken over the replaced goods.

Amendment  169

Proposal for a directive

Article 28 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a. When the business has remedied the lack of conformity by repair, the business shall be held liable for the lack of conformity of any spare parts replaced by the business during the remaining duration of its liability for the main good, and always at least six months after the repair.

Amendment  170

Proposal for a directive

Article 28 – paragraph 4

Text proposed by the Commission

Amendment

4. In order to benefit from his rights under Article 25, the consumer shall inform the trader of the lack of conformity within two months from the date on which he detected the lack of conformity.

deleted

Amendment  171

Proposal for a directive

Article 28 – paragraph 5

Text proposed by the Commission

Amendment

5. Unless proved otherwise, any lack of conformity which becomes apparent within six months of the time when the risk passed to the consumer, shall be presumed to have existed at that time unless this presumption is incompatible with the nature of the goods and the nature of the lack of conformity.

5. Unless proved otherwise, any lack of conformity which becomes apparent within one year of the time when the risk passed to the consumer, shall be presumed to have existed at that time unless this presumption is incompatible with the nature of the goods or the nature of the lack of conformity

Amendment  172

Proposal for a directive

Article 29 – paragraph 2 – introductory part

Text proposed by the Commission

Amendment

2. The guarantee statement shall be drafted in plain intelligible language and be legible. It shall include the following:

2. The guarantee statement shall be drafted in plain intelligible language and be legible. It shall also be drafted in the same languages as those in which the goods were offered and shall include the following:

(a) legal rights of the consumer, as provided for in Article 26 and a clear statement that those rights are not affected by the commercial guarantee,

(a) the rights of the consumer, as provided for in Article 26 and Article 28 and a clear statement that those rights are not affected by the commercial guarantee, and

(b) set the contents of the commercial guarantee and the conditions for making claims, notably the duration, territorial scope and the name and address of the guarantor,

(b) the terms of the commercial guarantee, in particular those relating to its duration, transferability and territorial scope, the name and address of the guarantor and, if different from the guarantor, the person to whom any claim is to be made and the procedure by which the claim is to be made,

(c) without prejudice to Articles 32 and 35 and Annex III(1)(j), set out, where applicable, that the commercial guarantee cannot be transferred to a subsequent buyer.

 

 

2a. The consumer may transfer the guarantee to a subsequent buyer. The guarantee statement may provide otherwise, unless such an exclusion would be unfair under Articles 32 and 35 and point (j) of paragraph 1 of Annex III.

3. If the consumer so requests, the trader shall make the guarantee statement available in a durable medium.

3. At the consumer's request, the business shall provide the guarantee statement in textual form on a durable medium.

4. Non compliance with paragraph 2 or 3 shall not affect the validity of the guarantee.

4. Non compliance with paragraph 2, 2 a or 3 shall not affect the validity of a commercial guarantee.

Amendment  173

Proposal for a directive

Article 30 – paragraph 1

Text proposed by the Commission

Amendment

1. This Chapter shall apply to contract terms drafted in advance by the trader or a third party, which the consumer agreed to without having the possibility of influencing their content, in particular where such contract terms are part of a pre-formulated standard contract.

1. This Chapter shall apply to contract terms drafted in advance by the business or a third party, which have not been individually negotiated. A term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, in particular where such contract term is part of a pre-formulated standard contract.

Amendment  174

Proposal for a directive

Article 30 – paragraph 2

Text proposed by the Commission

Amendment

2. The fact that the consumer had the possibility of influencing the content of certain aspects of a contract term or one specific term, shall not exclude the application of this Chapter to other contract terms which form part of the contract.

2. The fact that the content of certain aspects of a contract term or one specific term have been individually negotiated, shall not exclude the application of this Chapter to other contract terms which form part of the contract.

Amendment  175

Proposal for a directive

Article 30 – paragraph 3

Text proposed by the Commission

Amendment

3. This Chapter shall not apply to contract terms reflecting mandatory statutory or regulatory provisions, which comply with Community law and the provisions or principles of international conventions to which the Community or the Member States are party.

3. This Chapter shall not apply to contract terms reflecting statutory, regulatory or public policy provisions, which comply with Union law and the provisions or principles of international conventions to which the Union or the Member States are party.

Amendment  176

Proposal for a directive

Article 30 a (new)

Text proposed by the Commission

Amendment

 

Article 30a

 

Degree of harmonisation

 

Unless otherwise provided, Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Chapter, including more or less stringent provisions to ensure a different level of consumer protection.

Amendment  177

Proposal for a directive

Article 31 – paragraph 1

Text proposed by the Commission

Amendment

1. Contract terms shall be expressed in plain, intelligible language and be legible.

1. All contract terms shall be expressed in a clear and comprehensible manner. If a contract term is in writing, it shall always be drafted in plain, intelligible language and be legible.

Amendment  178

Proposal for a directive

Article 31 – paragraph 4

Text proposed by the Commission

Amendment

4. Member States shall refrain from imposing any presentational requirements as to the way the contract terms are expressed or made available to the consumer.

4. Member States shall refrain from imposing any requirements on the presentation of contract terms, except for presentational requirements in relation to persons with disabilities or where the goods or services may present a particular risk to the health and safety of the consumer or a third person or in respect of specific goods or services where there is evidence that demonstrates consumer detriment.

Amendment  179

Proposal for a directive

Article 32 – paragraph 2

Text proposed by the Commission

Amendment

2. Without prejudice to Articles 34 and 38, the unfairness of a contract term shall be assessed, taking into account the nature of the products for which the contract was concluded and by referring, at the time of the conclusion of the contract, to all the circumstances attending the conclusion and to all the other terms of the contract or of another contract on which the former is dependent. When assessing the fairness of a contract term, the competent national authority shall also take into account the manner in which the contract was drafted and communicated to the consumer by the trader in accordance with Article 31.

2. Without prejudice to Articles 34 and 38, the unfairness of a contract term shall be assessed, taking into account the nature of the products for which the contract was concluded and by referring, at the time of the conclusion of the contract, to all the circumstances attending the conclusion and to all the other terms of the contract or of another contract on which the former is dependent.

Amendment  180

Proposal for a directive

Article 32 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

 

2a. When assessing the fairness of a contract term, the competent national authority shall also take into account the manner in which the contract was drafted and communicated to the consumer by the business in accordance with Article 31(1) and (2). A term which has been supplied by the business in breach of the duty of transparency imposed by Article 31(1) and 31(2) may on that ground alone be considered unfair.

Amendment  181

Proposal for a directive

Article 32 – paragraph 3

Text proposed by the Commission

Amendment

3. Paragraphs 1 and 2 shall not apply to the assessment of the main subject matter of the contract or to the adequacy of the remuneration foreseen for the trader's main contractual obligation, provided that the trader fully complies with Article 31.

3. Paragraphs 1, 2, and 2(a) of this Article shall not apply to the assessment of the main subject matter of the contract or to the adequacy of the remuneration foreseen for the business's main contractual obligation, provided that the business fully complies with Article 31(1), (2) and (3).

Amendment  182

Proposal for a directive

Article 33

Text proposed by the Commission

Amendment

Where the trader claims that a contract term has been individually negotiated, the burden of proof shall be incumbent on him.

Where the business claims that a contract term has been individually negotiated, or that a contract term is compliant with the transparency requirement of Article 31(1) and 31(2), the burden of proof shall be incumbent on him.

Amendment  183

Proposal for a directive

Article 34

Text proposed by the Commission

Amendment

Member States shall ensure that contract terms, as set out in the list in Annex II, are considered unfair in all circumstances. That list of contract terms shall apply in all Member States and may only be amended in accordance with Articles 39(2) and 40.

1. Member States shall ensure that contract terms, as set out in the list in Annex II, are considered unfair in all circumstances.

 

2. Member States may provide in their national legislation for additional contract terms considered unfair in all circumstances. Member States shall notify to the Commission the contract terms referred to in paragraph 1.

The Commission shall make that information public in an easily accessible way.

Amendment  184

Proposal for a directive

Article 35

Text proposed by the Commission

Amendment

Member States shall ensure that contract terms, as set out in the list in point 1 of Annex III, are considered unfair, unless the trader has proved that such contract terms are fair in accordance with Article 32. That list of contract terms shall apply in all Member States and may only be amended in accordance with Articles 39(2) and 40.

1. Member States shall ensure that contract terms, as set out in the list point 1 of Annex III, are considered unfair, unless the business has proved that such contract terms are fair in accordance with Article 32.

 

2. Member States may provide in their national legislation for additional contract terms considered unfair in all circumstances. Member States shall notify to the Commission the contract terms referred to in paragraph 1.

The Commission shall make that information public in an easily accessible way.

Amendment  185

Proposal for a directive

Article 37

Text proposed by the Commission

Amendment

Contract terms which are unfair shall not be binding on the consumer. The contract shall continue to bind the parties if it can remain in force without the unfair terms.

Contract terms which are unfair under this Directive shall not be binding on the consumer in accordance with national law. The contract shall continue to bind the parties if it can remain in force without the unfair terms.

Amendment  186

Proposal for a directive

Article 38 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall ensure that, in the interests of consumers and competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by traders.

1. Member States shall ensure that, in the interests of consumers and competitors, adequate and effective means exist to prevent the use of unfair terms in contracts concluded with consumers by businesses.

Amendment  187

Proposal for a directive

Article 38 – paragraph 3

Text proposed by the Commission

Amendment

3. Member States shall enable the courts or administrative authorities to apply appropriate and effective means to prevent traders from continuing to use terms which have been found unfair.

3. Member States shall enable the courts or administrative authorities to apply appropriate and effective means to prevent businesses from the use of terms which have been found unfair.

Amendment  188

Proposal for a directive

Article 39

Text proposed by the Commission

Amendment

Article 39

deleted

Review of the terms in Annexes 2 and 3

 

1. Member States shall notify to the Commission the terms which have been found unfair by the competent national authorities and which they deem to be relevant for the purpose of amending this Directive as provided for by paragraph 2.

 

2. In the light of the notifications received under paragraph 1, the Commission shall amend Annex II and III. Those measures designed to amend non essential elements of this Directive shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 40(2).

 

Amendment  189

Proposal for a directive

Article 40

Text proposed by the Commission

Amendment

Article 40

The Committee

deleted

1. The Commission shall be assisted by the Committee on unfair terms in consumer contracts (hereinafter referred to as "the Committee").

 

2. Where reference is made to this paragraph, Article 5a(1) to (4), and Article 7 of Decision 1999/468/EC17 shall apply, having regard to the provisions of Article 8 thereof.

 

17 OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 11).

 

Amendment  190

Proposal for a directive

Article 45

Text proposed by the Commission

Amendment

The consumer shall be exempted from the provision of any consideration in cases of unsolicited supply of a product as prohibited by Article 5(5) and point 29 of Annex I of Directive 2005/29/EC. The absence of a response from the consumer following such an unsolicited supply shall not constitute consent.

The consumer shall be exempted from the provision of any consideration in cases of unsolicited supply of a good or service as prohibited by Article 5(5) and point 29 of Annex I of Directive 2005/29/EC. The absence of a response from the consumer following such an unsolicited supply shall not constitute consent.

Amendment  191

Proposal for a directive

Article 47 – paragraph 1

Text proposed by the Commission

Amendment

Directives 85/577/EEC 93/13/EEC and 97/7/EC and Directive 1999/44/EC, as amended by the Directives listed in Annex IV, are repealed.

Directives 85/577/EEC 93/13/EEC and 97/7/EC and Directive 1999/44/EC, as amended by the Directives listed in Annex IV, are repealed as of [date of transposition].

Amendment  192

Proposal for a directive

Annex I – part A

Text proposed by the Commission

Amendment

A. Information to be provided with the withdrawal form

A. Model instructions on withdrawal

1. The name, geographical address and the email address of the trader to whom the withdrawal form must be sent.

Right of withdrawal

2. A statement that the consumer has a right to withdraw from the contract and that this right can be exercised by sending the withdrawal form below on a durable medium to the trader referred to in paragraph 1:

You may withdraw on a durable medium from this contract within a period of 14 days without giving any reason.

(a) for off-premises contracts, within a period of fourteen days following his signature of the order form;

The period for withdrawal shall begin [on receipt of the goods ordered] ]*1. . The day [on which the goods are received] ]*2shall not be counted as part of the period for withdrawal. If the last 14th day of the period for withdrawal falls on a public holiday, a Saturday or a Sunday, the right of withdrawal period shall end with the expiry of the last hour of the following working day.

(b) for distance sales contracts, within a period of fourteen days following the material possession of the goods by the consumer or a third party, other than the carrier and indicated by the consumer;

 

Notice of withdrawal may be sent at any point before the expiry of the withdrawal period, in which case the period for withdrawal shall be deemed to have been observed if notice of withdrawal is sent before its expiry.

(c) for distance service contracts:

Notice of withdrawal should be sent on a durable medium (for example in the form of a posted letter or an email*3 ) . You may use the model withdrawal form below, although you are not required to do so.

 

Notice of withdrawal should be sent to the following address:

[Name and address of business to which the withdrawal is to be communicated]

[where applicable, the email and/or web address of the business which the consumer can use to withdraw from the contract.]

- within a period of fourteen days following the conclusion of the contract, where the consumer has not given his prior express consent for the performance of the contract to begin before the end of this fourteen day period;

Effects of withdrawal

- within a period ending when the performance of the contract begins, where the consumer has given his prior express consent for the performance of the contract to begin before the end of the fourteen day period.

For withdrawal to be valid you must send the goods back or hand them over [name of business] or a person authorised by [name of business] to receive the goods within a period of 14 days of sending your notice of withdrawal, at [our expense]*4. , Where the 14th day falls on a public holiday, a Saturday or a Sunday, this period shall end with the expiry of the last hour of the following working day. The day on which you send the notice of withdrawal shall not be counted as part of the period for return of the goods. If the last day of this period falls on a public holiday, a Saturday or a Sunday, the period shall end on the first working day thereafter*5.

3. For all sales contracts, a statement informing the consumer about the time-limits and modalities to send back the goods to the trader and the conditions for the reimbursement in accordance with Articles 16 and 17(2).

If you are unable to return the goods in their original condition, you shall be liable for any deterioration in their value. This provision shall apply only if the deterioration in value is attributable to the goods having been handled in a manner other than that necessary for ascertaining their nature, qualities and functioning. You can prevent deterioration by refraining from using the goods as you would your own property and by avoiding any form of handling liable to reduce their value.

4. For distance contracts concluded on the Internet, a statement that the consumer can electronically fill in and submit the standard withdrawal form on the trader's website and that he will receive an acknowledgement of receipt of such a withdrawal from the trader by email without delay.

In the case of valid withdrawal, we must reimburse within a period of 14 days any payment you have made to us. The period for reimbursement shall begin when we receive your notice of withdrawal. The day on which we receive the notice of withdrawal shall not be counted as part of the period for reimbursement. Where the 14th day falls on a public holiday, a Saturday or a Sunday, this period shall end with the expiry of the last hour of the following working day.

5. A statement that the consumer can use the withdrawal form set out in Part B.

We may refuse to reimburse you until we have [received the returned goods]*6

 

*7

 

Advice on alternative wording:

 

*1. In the following specific cases, the text in parentheses should read as indicated:

 

For distance or off-premises contracts solely for the supply of services: 'from the day of the conclusion of the contract'

For distance or off-premises contracts concerning both the supply of services and the provision of goods: 'on receipt of the goods or from the day when the service is supplied, whichever is later.'

For distance or off-premises contracts concerning the delivery of multiple goods which are to be delivered separately: 'at the time when the last of the goods is taken over'

For distance or off-premises contracts concerning the delivery of a good consisting of multiple lots or pieces: 'at the time when the last lot or piece is taken over'

For distance or off-premises contracts concerning the recurring delivery of goods of the same kind during a defined period of time: ' at the time when the first good is taken over'.

 

*2 In the following specific cases, the text in parentheses should read as indicated:

 

Unless provided otherwise for distance or off-premises contracts for the supply of services: 'from the day of the conclusion of the contract or on the day on which the consumer receives a copy of the signed contract on a durable medium, if this is not the day of conclusion of the contract'.

 

*3 In the case of distance and off-premises contracts, where the business allows the consumer to fill in a withdrawal form electronically on a website, additional text should be the inserted as follows: : 'or via our website'.

 

*4 If the business has not agreed to bear the cost of returning the goods, the text in parentheses should read as follows: ' at your own expense'.

 

*5 If the business offers to collect the goods, the following sentence should be added: 'Should you choose to withdraw from this contract [name of business] offers to collect the goods.'

 

*6. If the business offers to collect the goods from the consumer, the text in parentheses should read as follows: 'collected the goods from you'.

 

*7 In the case of distance or off-premises contracts concerning the supply of services, the following should be added: 'You will have to bear the costs for services supplied, in full or in part, if performance of services begins during the withdrawal period prior to your express consent'.

Amendment  193

Proposal for a directive

Annex I – part B

Text proposed by the Commission

Amendment

B. Model withdrawal form

B. Model withdrawal form

(complete and return this form only if you wish to withdraw from the contract)

complete and return this form only if you wish to withdraw from the contract)

– To

– To: (Name of business, business address and, where appropriate, e-mail address)(*)

– I/We* hereby give notice that I/We* withdraw from my/our* contract of sale of the following goods*/provision of the following service*

– I/We(**)hereby give notice that I/We* withdraw from my/our* contract of with you for the sale of the following goods(**)/or supply of the following services(**):

Ordered on*/received on*

– Date contract concluded (***)

– Name of consumer(s)

– Name of consumer(s) (***)

Address of consumer(s)

– Address of consumer(s) (***)

– Signature of consumer(s) (only if this form is notified in writing)

– Consumer('s )Signature of (required only if the form is sent on paper ) (***)

– Date

– Date(***)

*Delete as appropriate.

(*) To be filled in by the business before providing the form to the consumer.

 

(**) Delete where non-applicable.

 

(***) To be filled in by the consumer(s) if this form is used for withdrawal from the contract

Amendment  194

Proposal for a directive

Annex II – paragraph 1 – point a a (new)

Text proposed by the Commission

Amendment

 

(aa) excluding or limiting the liability of the business for damage on the property of the consumer caused deliberately or as a result of gross negligence through an act or omission by the business;

Amendment  195

Proposal for a directive

Annex II – paragraph 1 – point b

Text proposed by the Commission

Amendment

(b) limiting the trader's obligation to respect commitments undertaken by his agents or making his commitments subject to compliance with a particular condition which depends exclusively on the trader;

(b) limiting the business' obligation to respect commitments undertaken by its agents or making its commitments subject to compliance with a particular condition, the fulfilment of which depends exclusively on the business;

Amendment  196

Proposal for a directive

Annex II – paragraph 1 – point c a (new)

Text proposed by the Commission

Amendment

 

(ca) conferring exclusive jurisdiction for all disputes arising under the contract to the place where the business is domiciled unless the chosen court is also the court for the place where the consumer is domiciled;

Amendment  197

Proposal for a directive

Annex III – paragraph 1 – point a a (new)

Text proposed by the Commission

Amendment

 

(aa) makes binding on the consumer an obligation which is subject to a condition the fulfilment of which depends solely on the intention of the business;

Amendment  198

Proposal for a directive

Annex III – paragraph 1 – point c a (new)

Text proposed by the Commission

Amendment

 

(ca) requiring a consumer to purchase ancillary goods or services not advertised in the price of the main contract;

Amendment  199

Proposal for a directive

Annex III – paragraph 1 – point c b (new)

Text proposed by the Commission

Amendment

 

(cb) applying contingent charges, such as penalties for breaching the contract terms, that are clearly disproportionate to the costs incurred by the business due to the breach of terms;

Amendment  200

Proposal for a directive

Annex III – paragraph 1 – point d a (new)

Text proposed by the Commission

Amendment

 

(da) excluding or hindering the consumer’s right to instruct and authorise a third party to conclude a contract between the consumer and the business and/or to take steps which are meant to lead to, or facilitate, the conclusion of a contract between the consumer and the business.

Justification

Any consumer has the right to instruct and authorise a third party to conclude a contract between this consumer and a trader and/or to take steps which are meant to lead to, or facilitate, the conclusion of such a contract. Any term preventing or hindering that right must be considered unfair in all circumstances.

Amendment  201

Proposal for a directive

Annex III – paragraph 1 – point e

Text proposed by the Commission

Amendment

(e) enabling the trader to terminate an open-ended contract without reasonable notice except where the consumer has committed a serious breach of contract;

(e) enabling the business to terminate a contractual relationship of indeterminate duration without reasonable notice, except where there are serious grounds for doing so; this does not affect terms in financial services contracts where there is a valid reason, provided the supplier is required to inform the other contracting party thereof immediately;

Amendment  202

Proposal for a directive

Annex III – paragraph 1 – point g

Text proposed by the Commission

Amendment

(g) allowing the trader to increase the price agreed with the consumer when the contract was concluded without giving the consumer the right to terminate the contract;

(g) providing that the price of goods or other assets is to be determined at the time of delivery or supply or allowing the business to increase the price agreed with the consumer when the contract was concluded without giving the consumer the right to terminate the contract if the increased price is too high in relation to the price agreed at the conclusion of the contract; this does not affect price-indexation clauses, where lawful, provided that the method by which prices vary is explicitly described;

Amendment  203

Proposal for a directive

Annex III – paragraph 1 – point k

Text proposed by the Commission

Amendment

(k) enabling the trader to unilaterally alter the terms of the contract including the characteristics of the product or service;

(k) enabling the business to unilaterally alter the terms of the contract including the characteristics of the product or service without a valid reason which is specified in the contract; this does not affect terms under which a supplier of financial services reserves the right to change the rate of interest to be paid by, or to, the consumer, or the amount of other charges for financial services without notice where there is a valid reason, provided that the supplier is required to inform the consumer at the earliest opportunity and that the consumer is free to terminate the contractual relationship with immediate effect; neither does it affect terms under which a business reserves the right to alter unilaterally the conditions of a contract of indeterminate duration, provided that the business is required to inform the consumer with reasonable notice, and that the consumer is free to terminate the contractual relationship;

Amendment  204

Proposal for a directive

Annex III – paragraph 1 – point l a (new)

Text proposed by the Commission

Amendment

 

(la) allowing a business, where what has been ordered is unavailable, to supply an equivalent without having expressly informed the consumer of this possibility and of the fact that the business must bear the cost of returning what the consumer has received under the contract if the consumer exercises a right to withdraw.

Amendment  205

Proposal for a directive

Annex III – paragraph 2

Text proposed by the Commission