Clausole e vendite online Direttiva EU 2019/2161 EN

‘(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 13

Penalties

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

2. Member States shall ensure that the following non-exhaustive and indicative criteria are taken into account for the imposition of penalties, where appropriate:

(a)	the nature, gravity, scale and duration of the infringement;

(b)	any action taken by the trader to mitigate or remedy the damage suffered by consumers;

(c)	any previous infringements by the trader;

(d)	the financial benefits gained or losses avoided by the trader due to the infringement, if the relevant data are available;

(e)	penalties imposed on the trader for the same infringement in other Member States in cross-border cases where information about such penalties is available through the mechanism established by Regulation (EU) 2017/2394 of the European Parliament and of the Council (*4);

(f)	any other aggravating or mitigating factors applicable to the circumstances of the case.

3. Member States shall ensure that when penalties are to be imposed in accordance with Article 21 of Regulation (EU) 2017/2394, they include the possibility either to impose fines through administrative procedures or to initiate legal proceedings for the imposition of fines, or both, the maximum amount of such fines being at least 4 % of the trader’s annual turnover in the Member State or Member States concerned. Without prejudice to that Regulation, Member States may, for national constitutional reasons, restrict the imposition of fines to:

(a)	infringements of Articles 6, 7, 8, 9 and of Annex I to this Directive; and

(b)	a trader’s continued use of a commercial practice that has been found to be unfair by the competent national authority or court, when that commercial practice is not an infringement referred to in point (a).

4. For cases where a fine is to be imposed in accordance with paragraph 3, but information on the trader’s annual turnover is not available, Member States shall introduce the possibility to impose fines, the maximum amount of which shall be at least EUR 2 million.

5. Member States shall, by 28 November 2021, notify the Commission of the rules and measures referred to in paragraph 1 and shall notify it, without delay, of any subsequent amendment affecting them.

(*4) 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).’;"

(7)

Annex I is amended as follows:

(a)

the following point is inserted:

‘11a.

Providing search results in response to a consumer’s online search query without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results.’;

(b)

the following points are inserted:

‘23a.

Reselling events tickets to consumers if the trader acquired them by using automated means to circumvent any limit imposed on the number of tickets that a person can buy or any other rules applicable to the purchase of tickets.

23b.	Stating that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to check that they originate from such consumers.

23c.	Submitting or commissioning another legal or natural person to submit false consumer reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products.’.

‘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

(18) Higher ranking or any prominent placement of commercial offers within online search results by the providers of online search functionality has an important impact on consumers.

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(19) ranking refers to the relative prominence of the offers of traders or the relevance given to search results as presented, organised or communicated by providers of online search functionality, including resulting from the use of algorithmic sequencing, rating or review mechanisms, visual highlights, or other saliency tools, or combinations thereof.

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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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(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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(22) Traders enabling consumers to search for goods and services, such as travel, accommodation and leisure activities, offered by different traders or by consumers should inform consumers about the default main parameters determining the ranking of offers presented to the consumer as a result of the search query and their relative importance as opposed to other parameters.
That information should be succinct and made easily, prominently and directly available.
Parameters determining the ranking mean any general criteria, processes, specific signals incorporated into algorithms or other adjustment or demotion mechanisms used in connection with the ranking.

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(23) The information requirement regarding the main parameters determining the ranking is without prejudice to Directive (EU) 2016/943 of the European Parliament and of the Council (10).
Traders should not be required to disclose the detailed functioning of their ranking mechanisms, including algorithms.
Traders should provide a general description of the main parameters determining the ranking that explains the default main parameters used by the trader and their relative importance as opposed to other parameters, but that description does not have to be presented in a customised manner for each individual search query.

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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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keyboard_tab Clausole e vendite online Direttiva EU 2019/2161 EN

Clausole e vendite online Direttiva EU 2019/2161 EN