| (5) | the following article is inserted: Article 4 Amendments to Directive 2011/83/EU Directive 2011/83/EU is amended as follows: | (1) | in Article 2, the first paragraph is amended as follows: | (a) | point 3 is replaced by the following: | ‘(3) | ‘ goods’ means goods as defined in point (5) of Article 2 of Directive (EU) 2019/771 of the European Parliament and of the Council (*5); | (*5) Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC (OJ L 136, 22.5.2019, p. 28).’;" | | (b) | the following point is inserted: | ‘(4a) | ‘ personal_data’ means personal_data as defined in point (1) of Article 4 of Regulation (EU) 2016/679 of the European Parliament and of the Council (*6); | (*6) 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).’;" | | (c) | points (5) and (6) are replaced by the following: | ‘(5) | ‘ sales_contract’ means any contract under which the trader transfers or undertakes to transfer ownership of goods to the consumer, including any contract having as its object both goods and services; | | (6) | ‘ service_contract’ means any contract other than a sales_contract under which the trader supplies or undertakes to supply a service, including a digital_service, to the consumer;’; | | | (d) | point (11) is replaced by the following: | ‘(11) | ‘ digital_content’ means digital_content as defined in point (1) of Article 2 of Directive (EU) 2019/770 of the European Parliament and of the Council (*7); | (*7) 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).’;" | | (e) | the following points are added: | ‘(16) | ‘ digital_service’ means a digital_service as defined in point (2) of Article 2 of Directive (EU) 2019/770; | | (17) | ‘ 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; | | (18) | ‘provider of an online marketplace’ means any trader which provides an online marketplace to consumers; | | (19) | ‘ compatibility’ means compatibility as defined in point (10) of Article 2 of Directive (EU) 2019/770; | | (20) | ‘ functionality’ means functionality as defined in point (11) of Article 2 of Directive (EU) 2019/770; | | (21) | ‘ interoperability’ means interoperability as defined in point (12) of Article 2 of Directive (EU) 2019/770.’; | | | | (2) | Article 3 is amended as follows: | (a) | paragraph 1 is replaced by the following: ‘ 1. This_Directive_shall_apply,_under_the_conditions_and_to_the_extent_set_out_in_its_provisions,_to_any_contract_concluded_between_a_trader_and_a_consumer_where_the_consumer_pays_or_undertakes_to_pay_the_price._It_shall_apply_to_contracts_for_the_supply_of_water,_gas,_electricity_or_district_heating,_including_by_public_providers,_to_the_extent_that_these_commodities_are_provided_on_a_contractual_basis.’; | | (b) | the following paragraph is inserted: ‘1a. This Directive shall also apply where the trader supplies or undertakes to supply digital_content which is not supplied on a tangible medium or a digital_service to the consumer and 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 which is not supplied on a tangible medium or digital_service in accordance with this Directive or for allowing the trader to comply with legal requirements to which the trader is subject, and the trader does not process those data for any other purpose.’; | | (c) | paragraph 3 is amended as follows: | (i) | point (k) is replaced by the following: | ‘(k) | for passenger transport services, with the exception of Article 8(2) and Articles 19, 21 and 22;’; | | | (ii) | the following point is added: | ‘(n) | for any goods sold by way of execution or otherwise by authority of law.’; | | | | | (3) | in Article 5, paragraph 1 is amended as follows: | (a) | point (e) is replaced by the following: | ‘(e) | in addition to a reminder of the existence of the legal guarantee of conformity for goods, digital_content and digital_services, the existence and the conditions of after-sales services and commercial guarantees, where applicable;’; | | | (b) | points (g) and (h) are replaced by the following: | ‘(g) | where applicable, the functionality, including applicable technical protection measures, of goods with digital elements, digital_content and digital_services; | | (h) | where applicable, any relevant compatibility and interoperability of goods with digital elements, digital_content and digital_services that the trader is aware of or can reasonably be expected to have been aware of.’; | | | | (4) | Article 6 is amended as follows: | (a) | paragraph 1 is amended as follows: | (i) | point (c) is replaced by the following: | ‘(c) | the geographical address at which the trader is established as well as the trader’s telephone number and email address; in addition, where the trader provides other means of online communication which guarantee that the consumer can keep any written correspondence, including the date and time of such correspondence, with the trader on a durable medium, the information shall also include details of those other means; all those means of communication provided by the trader shall enable the consumer to contact the trader quickly and communicate with him efficiently; where applicable, the trader shall also provide the geographical address and identity of the trader on whose behalf he is acting.’; | | | (ii) | the following point is inserted: | ‘(ea) | where applicable, that the price was personalised on the basis of automated decision-making;’; | | | (iii) | point (l) is replaced by the following: | ‘(l) | a reminder of the existence of a legal guarantee of conformity for goods, digital_content and digital_services;’; | | | (iv) | points (r) and (s) are replaced by the following: | ‘(r) | where applicable, the functionality, including applicable technical protection measures, of goods with digital elements, digital_content and digital_services; | | (s) | where applicable, any relevant compatibility and interoperability of goods with digital elements, digital_content and digital_services that the trader is aware of or can reasonably be expected to have been aware of.’; | | | | (b) | paragraph 4 is replaced by the following: ‘ 4. The_information_referred_to_in_points_(h),_(i)_and_(j)_of_paragraph_1_of_this_Article_may_be_provided_by_means_of_the_model_instructions_on_withdrawal_set_out_in_Annex_I(A)._The_trader_shall_have_fulfilled_the_information_requirements_laid_down_in_points_(h),_(i)_and_(j)_of_paragraph_1_of_this_Article_if_the_trader_has_supplied_these_instructions_to_the_consumer,_correctly_filled_in._The_references_to_the_withdrawal_period_of_14_days_in_the_model_instructions_on_withdrawal_set_out_in_Annex_I(A)_shall_be_replaced_by_references_to_a_withdrawal_period_of_30_days_in_cases_where_Member_States_have_adopted_rules_in_accordance_with_Article_9(1a).’; | | | (5) | the following article is inserted: ‘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:
whereas
(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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(21) Transparency requirements with regard to the main parameters determining ranking are also regulated by Regulation (EU) 2019/1150 of the European Parliament and of the Council (9). The transparency requirements under that Regulation cover a broad range of online intermediaries, including online marketplaces, but they only apply between traders and online intermediaries. Similar transparency requirements should therefore be introduced in Directive 2005/29/EC to ensure adequate transparency towards the consumers, except in the case of providers of online search engines, which are already required by that Regulation to set out the main parameters which individually or collectively are most significant in determining ranking and the relative importance of those main parameters, by providing an easily and publicly available description, drafted in plain and intelligible language on the online search engines of those providers.
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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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(25) Online marketplaces should be defined for the purposes of Directives 2005/29/EC and 2011/83/EU in a similar manner as in Regulation (EU) No 524/2013 of the European Parliament and of the Council (11) and Directive (EU) 2016/1148 of the European Parliament and of the Council (12). However, the definition of ‘ online marketplace’ should be updated and rendered more technologically neutral in order to cover new technologies. It is therefore appropriate to refer, instead of to a ‘website’, to software, including a website, part of a website or an application, operated by or on behalf of the trader, in accordance with the notion of an ‘online interface’ as provided by Regulation (EU) 2017/2394 and Regulation (EU) 2018/302 of the European Parliament and of the Council (13).
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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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(28) In accordance with Article 15(1) of Directive 2000/31/EC of the European Parliament and of the Council (14), providers of online marketplaces should not be required to verify the legal status of third-party suppliers. Instead, providers of online marketplaces should require third-party suppliers on the online marketplace to indicate their status as traders or non-traders for the purposes of consumer protection law and to provide this information to the provider of online marketplace.
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(29) Taking into account the rapid technological developments concerning online marketplaces and the need to ensure a high level of consumer protection, Member States should be able to adopt or maintain specific additional measures for that purpose. Such provisions should be proportionate, non-discriminatory and without prejudice to Directive 2000/31/EC.
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