(6) | Article 13 is replaced by the following:
Article 3 Amendments to Directive 2005/29/EC Directive 2005/29/EC is amended as follows: (1) | in Article 2, the first paragraph is amended as follows: (a) | point (c) is replaced by the following: ‘(c) | ‘ product’ means any good or service including immovable property, digital_service and digital_content, as well as rights and obligations;’; | | (b) | the following points are added: ‘(m) | ‘ ranking’ means the relative prominence given to products, as presented, organised or communicated by the trader, irrespective of the technological means used for such presentation, organisation or communication; | (n) | ‘ online_marketplace’ means a service using software, including a website, part of a website or an application, operated by or on behalf of a trader which allows consumers to conclude distance contracts with other traders or consumers.’; | | | (2) | in Article 3, paragraphs 5 and 6 are replaced by the following: ‘ 5. This_Directive_does_not_prevent_Member_States_from_adopting_provisions_to_protect_the_legitimate_interests_of_consumers_with_regard_to_aggressive_or_misleading_marketing_or_selling_practices_in_the_context_of_unsolicited_visits_by_a_trader_to_a_consumer’s home or excursions organised by a trader with the aim or effect of promoting or selling products to consumers. Such provisions shall be proportionate, non-discriminatory and justified on grounds of consumer protection. 6. Member States shall notify the Commission without delay of any national provisions adopted on the basis of paragraph 5 as well as of any subsequent changes. The Commission shall make this information easily accessible to consumers and traders on a dedicated website.’; | (3) | in Article 6(2), the following point is added: ‘(c) | any marketing of a good, in one Member State, as being identical to a good marketed in other Member States, while that good has significantly different composition or characteristics, unless justified by legitimate and objective factors.’; | | (4) | Article 7 is amended as follows: (a) | paragraph 4 is amended as follows: (i) | point (d) is replaced by the following: ‘(d) | the arrangements for payment, delivery and performance, if they depart from the requirements of professional diligence;’; | | (ii) | the following point is added: ‘(f) | for products offered on online_marketplaces, whether the third party offering the products is a trader or not, on the basis of the declaration of that third party to the provider of the online_marketplace.’; | | | (b) | the following paragraph is inserted: ‘4a. When providing consumers with the possibility to search for products offered by different traders or by consumers on the basis of a query in the form of a keyword, phrase or other input, irrespective of where transactions are ultimately concluded, general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the query results are presented, on the main parameters determining the ranking of products presented to the consumer as a result of the search query and the relative importance of those parameters, as opposed to other parameters, shall be regarded as material. This paragraph does not apply to providers of online search engines as defined in point (6) of Article 2 of Regulation (EU) 2019/1150 of the European Parliament and of the Council (*3). (*3) Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (OJ L 186, 11.7.2019, p. 57).’;" | (c) | the following paragraph is added: ‘6. Where a trader provides access to consumer reviews of products, information about whether and how the trader ensures that the published reviews originate from consumers who have actually used or purchased the product shall be regarded as material.’; | | (5) | the following article is inserted: ‘Article 11a Redress 1. Consumers harmed by unfair commercial practices, shall have access to proportionate and effective remedies, including compensation for damage suffered by the consumer and, where relevant, a price reduction or the termination of the contract. Member States may determine the conditions for the application and effects of those remedies. Member States may take into account, where appropriate, the gravity and nature of the unfair commercial practice, the damage suffered by the consumer and other relevant circumstances. 2. Those remedies shall be without prejudice to the application of other remedies available to consumers under Union or national law.’; | (6) | Article 13 is replaced by the following: ‘Article 6a Additional specific information requirements for contracts concluded on online_marketplaces 1. Before a consumer is bound by a distance contract, or any corresponding offer, on an online_marketplace, the provider of the online_marketplace shall, without prejudice to Directive 2005/29/EC, provide the consumer with the following information in a clear and comprehensible manner and in a way appropriate to the means of distance communication: (a) | general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the offers are presented, on the main parameters determining ranking, as defined in point (m) of Article 2(1) of Directive 2005/29/EC, of offers presented to the consumer as a result of the search query and the relative importance of those parameters as opposed to other parameters; | (b) | whether the third party offering the goods, services or digital_content is a trader or not, on the basis of the declaration of that third party to the provider of the online_marketplace; | (c) | where the third party offering the goods, services or digital_content is not a trader, that the consumer rights stemming from Union consumer protection law do not apply to the contract; | (d) | where applicable, how the obligations related to the contract are shared between the third party offering the goods, services or digital_content and the provider of the online_marketplace, such information being without prejudice to any responsibility that the provider of the online_marketplace or the third-party trader has in relation to the contract under other Union or national law. | 2. Without prejudice to Directive 2000/31/EC, this Article does not prevent Member States from imposing additional information requirements for providers of online_marketplaces. Such provisions shall be proportionate, non-discriminatory and justified on grounds of consumer protection.’; | (6) | in Article 7, paragraph 3 is replaced by the following: ‘ 3. Where_a_consumer_wants_the_performance_of_services,_or_the_supply_of_water,_gas_or_electricity,_where_they_are_not_put_up_for_sale_in_a_limited_volume_or_set_quantity,_or_of_district_heating_to_begin_during_the_withdrawal_period_provided_for_in_Article_9(2),_and_the_contract_places_the_consumer_under_an_obligation_to_pay,_the_trader_shall_require_that_the_consumer_make_such_an_express_request_on_a_durable_medium_and_request_the_consumer_to_acknowledge_that,_once_the_contract_has_been_fully_performed_by_the_trader,_the_consumer_will_no_longer_have_the_right_of_withdrawal.’; | (7) | Article 8 is amended as follows: (a) | paragraph 4 is replaced by the following: ‘4. If the contract is concluded through a means of distance communication which allows limited space or time to display the information, the trader shall provide, on or through that particular means prior to the conclusion of such a contract, at least the pre-contractual information regarding the main characteristics of the goods or services, the identity of the trader, the total price, the right of withdrawal, the duration of the contract and, if the contract is of indeterminate duration, the conditions for terminating the contract, as referred to, respectively, in points (a), (b), (e), (h) and (o) of Article 6(1) except the model withdrawal form set out in Annex I(B) referred to in point (h). The other information referred to in Article 6(1), including the model withdrawal form, shall be provided by the trader to the consumer in an appropriate way in accordance with paragraph 1 of this Article.’; | (b) | paragraph 8 is replaced by the following: ‘ 8. Where_a_consumer_wants_the_performance_of_services,_or_the_supply_of_water,_gas_or_electricity,_where_they_are_not_put_up_for_sale_in_a_limited_volume_or_set_quantity,_or_of_district_heating,_to_begin_during_the_withdrawal_period_provided_for_in_Article_9(2),_and_the_contract_places_the_consumer_under_an_obligation_to_pay,_the_trader_shall_require_that_the_consumer_make_an_express_request_and_request_the_consumer_to_acknowledge_that,_once_the_contract_has_been_fully_performed_by_the_trader,_the_consumer_will_no_longer_have_the_right_of_withdrawal.’; | | (8) | Article 9 is amended as follows (a) | the following paragraph is inserted: ‘ 1a. Member_States_may_adopt_rules_in_accordance_with_which_the_withdrawal_period_of_14_days_referred_to_in_paragraph_1_is_extended_to_30_days_for_contracts_concluded_in_the_context_of_unsolicited_visits_by_a_trader_to_a_consumer’s home or excursions organised by a trader with the aim or effect of promoting or selling products to consumers for the purpose of protecting legitimate interests of consumers with regard to aggressive or misleading marketing or selling practices. Such rules shall be proportionate, non-discriminatory and justified on grounds of consumer protection.’; | (b) | in paragraph 2, the introductory part is replaced by the following: ‘ 2. Without_prejudice_to_Article_10,_the_withdrawal_period_referred_to_in_paragraph_1_of_this_Article_shall_expire_after_14_days_or,_in_cases_where_Member_States_have_adopted_rules_in_accordance_with_paragraph_1a_of_this_Article,_30_days_from:’; | | (9) | in Article 10, paragraph 2 is replaced by the following: ‘ 2. If_the_trader_has_provided_the_consumer_with_the_information_provided_for_in_paragraph_1_of_this_Article_within_12_months_from_the_day_referred_to_in_Article_9(2),_the_withdrawal_period_shall_expire_14_days_or,_in_cases_where_Member_States_have_adopted_rules_in_accordance_with_Article_9(1a),_30_days_after_the_day_upon_which_the_consumer_receives_that_information.’; | (10) | in Article 13, the following paragraphs are added: ‘4. In respect of personal_data of the consumer, the trader shall comply with the obligations applicable under Regulation (EU) 2016/679. 5. The trader shall refrain from using any content, other than personal_data, which was provided or created by the consumer when using the digital_content or digital_service supplied by the trader, except where such content: (a) | has no utility outside the context of the digital_content or digital_service supplied by the trader; | (b) | only relates to the consumer’s activity when using the digital_content or digital_service supplied by the trader; | (c) | has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts; or | (d) | has been generated jointly by the consumer and others, and other consumers are able to continue to make use of the content. | 6. Except in the situations referred to in point (a), (b) or (c) of paragraph 5, the trader shall, at the request of the consumer, make available to the consumer any content, other than personal_data, which was provided or created by the consumer when using the digital_content or digital_service supplied by the trader. 7. The consumer shall be entitled to retrieve that digital_content free of charge, without hindrance from the trader, within a reasonable time and in a commonly used and machine-readable format. 8. In the event of withdrawal from the contract, the trader may prevent any further use of the digital_content or digital_service by the consumer, in particular by making the digital_content or digital_service inaccessible to the consumer or disabling the user account of the consumer, without prejudice to paragraph 6.’; | (11) | Article 14 is amended as follows: (a) | the following paragraph is inserted: ‘2a. In the event of withdrawal from the contract, the consumer shall refrain from using the digital_content or digital_service and from making it available to third parties.’; | (b) | in paragraph 4, point (b)(i) is replaced by the following: ‘(i) | the consumer has not given prior express consent to the beginning of the performance before the end of the 14-day or 30-day period referred to in Article 9;’; | | | (12) | Article 16 is amended as follows: (a) | the first paragraph is amended as follows: (i) | point (a) is replaced by the following: ‘(a) | service_contracts after the service has been fully performed but, if the contract places the consumer under an obligation to pay, only 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;’; | | (ii) | point (m) is replaced by the following: ‘(m) | contracts for the supply of digital_content which is not supplied on a tangible medium if the performance has begun and, if the contract places the consumer under an obligation to pay, where: (i) | the consumer has provided prior express consent to begin the performance during the right of withdrawal period; | (ii) | the consumer has provided acknowledgement that he thereby loses his right of withdrawal; and | (iii) | the trader has provided confirmation in accordance with Article 7(2) or Article 8(7).’; | | | | (b) | the following paragraphs are added: ‘ Member_States_may_derogate_from_the_exceptions_from_the_right_of_withdrawal_set_out_in_points_(a),_(b),_(c)_and_(e)_of_the_first_paragraph_for_contracts_concluded_in_the_context_of_unsolicited_visits_by_a_trader_to_a_consumer’s home or excursions organised by a trader with the aim or effect of promoting or selling products to consumers for the purpose of protecting the legitimate interests of consumers with regard to aggressive or misleading marketing or selling practices. Such provisions shall be proportionate, non-discriminatory and justified on grounds of consumer protection. In the case of service_contracts which place the consumer under an obligation to pay where the consumer has specifically requested a visit from the trader for the purpose of carrying out repairs, Member States may provide that the consumer loses the right of withdrawal after the service has been fully performed provided that the performance has begun with the consumer’s prior express consent.’; | | (13) | Article 24 is replaced by the following: Article 9 Addressees This Directive is addressed to the Member States. Done at Strasbourg, 27 November 2019. For the European Parliament The President D. M. SASSOLI For the Council The President T. TUPPURAINEN (1) OJ C 440, 6.12.2018, p. 66. (2) Position of the European Parliament of 17 April 2019 (not yet published in the Official Journal) and decision of the Council of 8 November 2019. (3) Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ L 149, 11.6.2005, p. 22). (4) Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests (OJ L 110, 1.5.2009, p. 30). (5) Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers (OJ L 80, 18.3.1998, p. 27). (6) Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ L 304, 22.11.2011, p. 64). (7) Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004 (OJ L 345, 27.12.2017, p. 1). (8) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29). (9) Regulation (EU) 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services (OJ L 186, 11.7.2019, p. 57). (10) Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (OJ L 157, 15.6.2016, p. 1). (11) Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR) (OJ L 165, 18.6.2013, p. 1). (12) Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union (OJ L 194, 19.7.2016, p. 1). (13) Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on addressing unjustified geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market and amending Regulations (EC) No 2006/2004 and (EU) No 2017/2394 and Directive 2009/22/EC (OJ L 60 I, 2.3.2018, p. 1). (14) Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ L 178, 17.7.2000, p. 1). (15) Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital_content and digital_services (OJ L 136, 22.5.2019, p. 1). (16) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal_data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1). (17) OJ C 369, 17.12.2011, p. 14. (18) Regulation (EU) 2018/1724 of the European Parliament and of the Council of 2 October 2018 establishing a single digital gateway to provide access to information, to procedures and to assistance and problem-solving services and amending Regulation (EU) No 1024/2012 (OJ L 295, 21.11.2018, p. 1).
whereas
(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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(20) In this regard, Annex I to Directive 2005/29/EC should be amended in order to make it clear that practices where a trader provides information to a consumer in the form of search results in response to the consumer’s online search query without clearly disclosing any paid advertising or payment specifically for achieving higher ranking of products within the search results should be prohibited. When a trader has directly or indirectly paid the provider of the online search functionality for a higher ranking of a product within the search results, the provider of the online search functionality should inform consumers of that fact in a concise, easily accessible and intelligible form. Indirect payment could be in the form of the acceptance by a trader of additional obligations towards the provider of the online search functionality of any kind which have higher ranking as its specific effect. The indirect payment could consist of increased commission per transaction as well as different compensation schemes that specifically lead to higher ranking. Payments for general services, such as listing fees or membership subscriptions, which address a broad range of functionalities offered by the provider of the online search functionality to the trader, should not be considered to be a payment for specifically achieving higher ranking of products, provided that such payments are not dedicated to achieving higher ranking. Online search functionality can be provided by different types of online trader, including intermediaries, such as online_marketplaces, search engines and comparison websites.
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(51) Article 16 of the Charter guarantees the freedom to conduct a business in accordance with Union law and national laws and practices. However, marketing across Member States of goods as being identical when, in reality, they have a significantly different composition or characteristics may mislead consumers and cause them to take a transactional decision that they would not have taken otherwise.
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(53) However, in the absence of an explicit provision, the enforcement experience has shown that it might be unclear to consumers, traders and national competent authorities which commercial practices could be contrary to Directive 2005/29/EC. Therefore, that Directive should be amended to ensure legal certainty for both traders and enforcement authorities by addressing explicitly the marketing of a good as being identical to a good marketed in other Member States, where that good has significantly different composition or characteristics. Competent authorities should assess and address on a case- by-case basis such practices in accordance with Directive 2005/29/EC, as amended by this Directive. In undertaking its assessment the competent authority should take into account whether such differentiation is easily identifiable by consumers, a trader’s right to adapt goods of the same brand for different geographical markets due to legitimate and objective factors, such as national law, availability or seasonality of raw materials or voluntary strategies to improve access to healthy and nutritious food as well as the traders’ right to offer goods of the same brand in packages of different weight or volume in different geographical markets. The competent authorities should assess whether such differentiation is easily identifiable by consumers by looking at the availability and adequacy of information. It is important that consumers are informed about the differentiation of goods due to legitimate and objective factors. Traders should be free to provide such information in different ways that allow consumers to access the necessary information. Alternatives to providing information on the label of goods should generally be preferred by traders. The relevant Union sectorial rules and rules on free movement of goods should be respected.
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(54) While off-premises sales constitute a legitimate and well-established sales channel, like sales at a trader’s business premises and distance–selling, some particularly aggressive or misleading marketing or selling practices in the context of visits to a consumer’s home or excursions as referred to in point (8) of Article 2 of Directive 2011/83/EU can put consumers under pressure to make purchases of goods or services that they would not otherwise buy or purchases at excessive prices, often involving immediate payment. Such practices often target elderly or other vulnerable consumers. Some Member States consider those practices undesirable and deem it necessary to restrict certain forms and aspects of off-premises sales within the meaning of Directive 2011/83/EU, such as aggressive and misleading marketing or selling of a product in the context of unsolicited visits to a consumer’s home or excursions. Where such restrictions are adopted on grounds other than consumer protection, such as public interest or the respect for consumers’ private life protected by Article 7 of the Charter, they fall outside the scope of Directive 2005/29/EC.
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(55) In accordance with the principle of subsidiarity and in order to facilitate enforcement, it should be clarified that Directive 2005/29/EC is without prejudice to Member States’ freedom to adopt national provisions to further protect the legitimate interests of consumers against unfair commercial practices in the context of unsolicited visits at their homes by a trader in order to offer or sell products or excursions organised by a trader with the aim or effect of promoting or selling products to consumers where such provisions are justified on grounds of consumer protection. Any such provisions should be proportionate and non-discriminatory and should not prohibit those sales channels as such. National provisions adopted by Member States could, for example, define time of the day when visits to consumers’ homes without their express request are not allowed or prohibit such visits when the consumer has visibly indicated that such visits are not acceptable or prescribe the payment procedure. Furthermore, such provisions could lay down more protective rules in the areas harmonised by Directive 2011/83/EU. Directive 2011/83/EU should therefore be amended to allow Member States to adopt national measures to provide a longer period for the right of withdrawal and to derogate from specific exceptions from the right of withdrawal. Member States should be required to notify any national provisions adopted in this regard to the Commission so that the Commission can make this information available to all interested parties and monitor the proportionate nature and legality of those measures.
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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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