(14) Rules on penalties should be included in Directive 93/13/EEC with a view to strengthening its deterrent effect.
Member States are free to decide on the administrative or judicial procedure for the application of penalties for infringements of that Directive.
In particular, administrative authorities or national courts could impose penalties when establishing the unfair character of contractual terms, including on the basis of legal proceedings initiated by an administrative authority.
The penalties could also be imposed by administrative authorities or national courts when the seller or supplier uses contractual terms which are expressly defined as unfair in all circumstances in national law as well as when the seller or supplier uses contractual terms which have been found to be unfair by a final binding decision.
Member States could decide that administrative authorities also have the right to establish the unfair character of contractual terms.
Administrative authorities or national courts could also impose a penalty through the same decision by which unfairness of contractual terms is established.
Member States could lay down the appropriate coordination mechanisms for actions at national level regarding individual redress and penalties.
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(16) Member States should ensure that remedies are available for consumers harmed by unfair commercial practices in order to eliminate all the effects of those unfair practices.
A clear framework for individual remedies would facilitate private enforcement.
The consumer should have access to compensation for damage and, where relevant, a price reduction or termination of the contract, in a proportionate and effective manner.
Member States should not be prevented from maintaining or introducing rights to other remedies such as repair or replacement for consumers harmed by unfair commercial practices in order to ensure full removal of the effects of such practices.
Member States should not be prevented from determining conditions for the application and effects of remedies for consumers.
When applying the remedies, the gravity and nature of the unfair commercial practice, damage suffered by the consumer and other relevant circumstances, such as the trader’s misconduct or the infringement of the contract, could be taken into account, where appropriate.
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(24) When products are offered to consumers in online_marketplaces, both the provider of the online_marketplace and the third-party supplier are involved in the provision of the pre-contractual information required by Directive 2011/83/EU.
As a result, consumers using the online_marketplace may not clearly understand who their contractual partners are and how their rights and obligations are affected.
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(26) Specific information requirements for online_marketplaces should therefore be provided in Directives 2005/29/EC and 2011/83/EU to inform consumers using online_marketplaces about the main parameters determining the ranking of offers, and whether they enter into a contract with a trader or a non-trader, such as another consumer.
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(27) Providers of online_marketplaces should inform consumers whether the third party offering goods, services or digital_content is a trader or non-trader, based on the declaration made to them by the third party.
When the third party offering the goods, services or digital_content declares its status to be that of a non-trader, providers of online_marketplaces should provide a short statement to the effect that the consumer rights stemming from Union consumer protection law do not apply to the contract concluded.
Furthermore, consumers should be informed of how obligations related to the contract are shared between third parties offering the goods, services or digital_content and providers of online_marketplaces.
The information should be provided in a clear and comprehensible manner and not merely in the standard terms and conditions or similar contractual documents.
The information requirements for providers of online_marketplaces should be proportionate.
Those requirements need to strike a balance between a high level of consumer protection and the competitiveness of providers of online_marketplaces.
Providers of online_marketplaces should not be required to list specific consumer rights when informing consumers about their non-applicability.
This is without prejudice to the consumer information requirements provided for in Directive 2011/83/EU, and in particular in Article 6(1) thereof.
The information to be provided about the responsibility for ensuring consumer rights depends on the contractual arrangements between the providers of online_marketplaces and the relevant third-party traders.
The provider of the online_marketplace could indicate that a third-party trader is solely responsible for ensuring consumer rights, or describe its own specific responsibilities where that provider assumes responsibility for certain aspects of the contract, for example, delivery or the exercise of the right of withdrawal.
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(30) The definitions of digital_content and digital_services in Directive 2011/83/EU should be aligned to those in Directive (EU) 2019/770 of the European Parliament and of the Council (15).
Digital content covered by Directive (EU) 2019/770 covers a single act of supply, a series of individual acts of supply, or continuous supply over a period of time.
The element of continuous supply should not necessarily require a long-term supply.
Cases such as web-streaming of video clips should be considered continuous supply over a period of time, regardless of the actual duration of the audiovisual file.
It may therefore be difficult to distinguish between certain types of digital_content and digital_services, since both can involve continuous supply by the trader over the duration of the contract.
Examples of digital_services are video and audio sharing services and other file hosting, word processing or games offered in the cloud, cloud storage, webmail, social media and cloud applications.
The continuous involvement of the service provider justifies the application of the rules on the right of withdrawal provided for in Directive 2011/83/EU that effectively allow the consumer to test the service and decide, during the 14-day period from the conclusion of the contract, whether to keep it or not.
Many contracts for the supply of digital_content which is not supplied on a tangible medium are characterised by a single act of supply to the consumer of a specific piece or pieces of digital_content, such as specific music or video files.
contracts for the supply of digital_content which is not supplied on a tangible medium remain subject to the exception from the right of withdrawal set out in point (m) of the first paragraph of Article 16 of Directive 2011/83/EU, which provides that the consumer loses the right of withdrawal when the performance of the contract is started, such as download or streaming of the content, subject to the consumer’s prior express consent to begin the performance during the right of withdrawal period and acknowledgement that he has thereby lost his right of withdrawal.
Where there is doubt as to whether the contract is a service_contract or a contract for the supply of digital_content which is not supplied on a tangible medium, the rules on right of withdrawal for services should apply.
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(31) Digital content and digital_services are often supplied online under contracts under which the consumer does not pay a price but provides personal_data to the trader.
Directive 2011/83/EU already applies to contracts for the supply of digital_content which is not supplied on a tangible medium (i.e.
supply of online digital_content) regardless of whether the consumer pays a price in money or provides personal_data.
However, that Directive only applies to service_contracts, including contracts for digital_services, under which the consumer pays or undertakes to pay a price.
Consequently, that Directive does not apply to contracts for digital_services under which the consumer provides personal_data to the trader without paying a price.
Given their similarities and the interchangeability of paid digital_services and digital_services provided in exchange for personal_data, they should be subject to the same rules under that Directive.
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(32) Consistency should be ensured between the scope of application of Directive 2011/83/EU and Directive (EU) 2019/770, which applies to contracts for the supply of digital_content or digital_services under which the consumer provides or undertakes to provide personal_data to the trader.
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(33) Therefore, the scope of Directive 2011/83/EU should be extended to cover also contracts under which the trader supplies or undertakes to supply a digital_service to the consumer, and the consumer provides or undertakes to provide personal_data.
Similar to contracts for the supply of digital_content which is not supplied on a tangible medium, that Directive should apply whenever the consumer provides or undertakes to provide personal_data to the trader, except where the personal_data provided by the consumer are exclusively processed by the trader for the purpose of supplying the digital_content or digital_service, and the trader does not process those data for any other purpose.
Any processing of personal_data should comply with Regulation (EU) 2016/679 of the European Parliament and of the Council (16).
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(35) Directive 2011/83/EU should also not apply to situations where the trader only collects metadata, such as information concerning the consumer’s device or browsing history, except where this situation is considered to be a contract under national law.
It should also not apply to situations where the consumer, without having concluded a contract with the trader, is exposed to advertisements exclusively in order to gain access to digital_content or a digital_service.
However, Member States should remain free to extend the application of that Directive to such situations, or to otherwise regulate such situations, which are excluded from the scope of that Directive.
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(37) Article 7(3) and Article 8(8) of Directive 2011/83/EU require traders, for off-premises and distance contracts respectively, to obtain the consumer’s prior express consent to begin performance before the expiry of the right of withdrawal period.
Point (a) of Article 14(4) of that Directive provides for a contractual sanction when this requirement is not fulfilled by the trader, namely that the consumer does not have to pay for the services provided.
The requirement to obtain the consumer’s prior express consent is accordingly only relevant for services, including digital_services, which are provided against the payment of the price.
It is therefore necessary to amend Article 7(3) and Article 8(8) to the effect that the requirement for traders to obtain the consumer’s prior express consent only applies to service_contracts that place the consumer under an obligation to pay.
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(38) Point (m) of the first paragraph of Article 16 of Directive 2011/83/EU provides for an exception to the right of withdrawal in respect of digital_content which is not supplied on a tangible medium if the consumer has given prior express consent to begin the performance before the expiry of the right of withdrawal period and acknowledged that he thereby loses his right of withdrawal.
Point (b) of Article 14(4) of that Directive provides for a contractual sanction when this requirement is not fulfilled by the trader, namely, the consumer does not have to pay for the digital_content consumed.
The requirement to obtain the consumer’s prior express consent and acknowledgment is accordingly only relevant for digital_content which is provided against the payment of the price.
It is therefore necessary to amend point (m) of the first paragraph of Article 16 to the effect that the requirement for traders to obtain the consumer’s prior express consent and acknowledgment only applies to contracts that place the consumer under an obligation to pay.
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(39) Article 7(4) of Directive 2005/29/EC sets out information requirements for the invitation to purchase a product at a specific price.
Those information requirements apply already at the advertising stage, whilst Directive 2011/83/EU imposes the same and other, more detailed information requirements at the later pre-contractual stage (i.e.
just before the consumer enters into a contract).
Consequently, traders may be required to provide the same information at the advertising stage (e.g.
an online advertisement on a media website) and at the pre-contractual stage (e.g.
on the pages of their online web-shops).
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(40) The information requirements under Article 7(4) of Directive 2005/29/EC include informing the consumer about the trader’s complaint handling policy.
The Fitness Check of consumer and marketing law findings show that that information is most relevant at the pre-contractual stage, which is regulated by Directive 2011/83/EU.
The requirement to provide that information in invitations to purchase at the advertising stage under Directive 2005/29/EC should therefore be deleted.
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(41) Point (h) of Article 6(1) of Directive 2011/83/EU requires traders to provide consumers with pre-contractual information about the right of withdrawal, including the model withdrawal form set out in Annex I(B) to that Directive.
Article 8(4) of that Directive provides for simpler pre-contractual information requirements if the contract is concluded through a means of distance communication which allows limited space or time to display the information, such as over the telephone, via voice operated shopping assistants or by SMS.
The mandatory pre-contractual information to be provided on or through that particular means of distance communication includes information regarding the right of withdrawal as referred to in point (h) of Article 6(1).
Accordingly, it also includes the provision of the model withdrawal form set out in Annex I(B).
However, the provision of the withdrawal form is impossible when the contract is concluded by means such as telephone or voice operated shopping assistant and it may not be technically feasible in a user-friendly way on other means of distance communication covered by Article 8(4).
It is therefore appropriate to exclude the provision of the model withdrawal form from the information that traders have to provide in any case on or through the particular means of distance communication used for the conclusion of the contract under Article 8(4).
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(42) Point (a) of the first paragraph of Article 16 of Directive 2011/83/EU provides for an exception from the right of withdrawal regarding service_contracts that have been fully performed if the performance has begun with the consumer’s prior express consent and acknowledgement that he will lose his right of withdrawal once the contract has been fully performed by the trader.
In contrast, Article 7(3) and Article 8(8) of that Directive, which deal with the trader’s obligations in situations where the performance of the contract has begun before the expiry of the right of withdrawal period, only require traders to obtain the consumer’s prior express consent but not acknowledgment that the right of withdrawal will be lost when the performance is completed.
To ensure consistency between those provisions, it is necessary to add an obligation in Article 7(3) and Article 8(8) for the trader also to obtain the acknowledgement from the consumer that the right of withdrawal will be lost when the performance is completed, if the contract places the consumer under an obligation to pay.
In addition, the wording of point (a) of the first paragraph of Article 16 should be amended to take into account the changes to Article 7(3) and Article 8(8) whereby the requirement for traders to obtain the consumer’s prior express consent and acknowledgment only applies to service_contracts that place the consumer under an obligation to pay.
However, Member States should be given the option not to apply the requirement to obtain the consumer’s acknowledgment that the right of withdrawal will be lost when the performance is completed to service_contracts where the consumer has specifically requested a visit from the trader for the purpose of carrying out repairs.
Point (c) of the first paragraph of Article 16 of that Directive provides for an exception to the right of withdrawal in respect of contracts regarding the supply of goods made to the consumer’s specifications or clearly personalised.
That exception covers, for example, the manufacturing and installation of customised furniture at the consumer’s home when provided under a single sales_contract.
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(43) The exception from the right of withdrawal provided in point (b) of the first paragraph of Article 16 of Directive 2011/83/EU, should also be considered to apply to contracts for individual deliveries of non-network energy, because its price is dependent on fluctuations in the commodity markets or energy markets which cannot be controlled by the trader and which may occur within the withdrawal period.
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(44) Article 14(4) of Directive 2011/83/EU stipulates the conditions under which, in the event of exercising the right of withdrawal, the consumer does not bear the cost for the performance of services, supply of public utilities and supply of digital_content which is not supplied on a tangible medium.
When any of those conditions is met, the consumer does not have to pay the price of the service, public utilities or digital_content received before the exercise of the right of withdrawal.
As regards digital_content, one of those non-cumulative conditions, namely under point (b)(iii) of Article 14(4), is a failure to provide the confirmation of the contract, which includes confirmation of the consumer’s prior express consent to begin the performance of the contract before the expiry of the right of withdrawal period and acknowledgement that the right of withdrawal is lost as a result.
However, that condition is not included among the conditions for the loss of the right of withdrawal in point (m) of the first paragraph of Article 16 of that Directive, creating uncertainty as regards the possibility for consumers to invoke point (b)(iii) of Article 14(4) when the other two conditions provided for in point (b) of Article 14(4) are met and, as a result, the right of withdrawal is lost in accordance with point (m) of the first paragraph of Article 16.
The condition provided for in point (b)(iii) of Article 14(4) should therefore be added to point (m) of the first paragraph of Article 16 to enable the consumer to exercise the right of withdrawal when that condition is not met and accordingly claim the rights provided for in Article 14(4).
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(47) Consumers increasingly rely on consumer reviews and endorsements when they make purchasing decisions.
Therefore, when traders provide access to consumer reviews of products, they should inform consumers whether processes or procedures are in place to ensure that the published reviews originate from consumers who have actually used or purchased the products.
If such processes or procedures are in place, traders should provide information on how the checks are made and provide clear information to consumers on how reviews are processed, for example, if all reviews, either positive or negative, are posted or whether those reviews have been sponsored or influenced by a contractual relationship with a trader.
Moreover, it should therefore be considered to be an unfair commercial practice to mislead consumers by stating that reviews of a product were submitted by consumers who actually used or purchased that product when no reasonable and proportionate steps were taken to ensure that they originate from such consumers.
Such steps could include technical means to verify the reliability of the person posting a review, for example by requesting information to verify that the consumer has actually used or purchased the product.
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(56) As regards aggressive and misleading practices in the context of events organised at places other than trader’s premises, Directive 2005/29/EC is without prejudice to any conditions of establishment or of authorisation regimes that Member States can impose on traders.
Furthermore, that Directive is without prejudice to national contract law, and in particular to the rules on validity, formation or effect of a contract.
Aggressive and misleading practices in the context of events organised at places other than trader’s premises can be prohibited on the basis of a case-by-case assessment under Articles 5 to 9 of that Directive.
In addition, Annex I to that Directive contains a general prohibition of practices where the trader creates the impression that the trader is not acting for purposes relating to the trader’s profession, and practices that create the impression that the consumer cannot leave the premises until a contract is formed.
The Commission should assess whether the current rules provide an adequate level of consumer protection and adequate tools for Member States to effectively address such practices.
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(57) This Directive should not affect aspects of national contract law that are not regulated by it.
Therefore, this Directive should be without prejudice to national contract law regulating for instance the conclusion or the validity of a contract in cases such as lack of consent or unauthorised commercial activity.
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