(13) Member States should not be prevented from maintaining or introducing in their national law higher maximum turnover-based fines for widespread infringements and widespread infringements with a Union dimension.
It should also be possible for Member States to base such fines on the trader’s worldwide turnover, or to extend the rules on fines to other infringements not covered by provisions of this Directive related to Article 21 of Regulation (EU) 2017/2394.
The requirement to set the fine at a level of not less than 4 % of the trader’s annual turnover should not apply to any additional Member State rules on periodic penalty payments, such as daily fines, for non-compliance with any decision, order, interim measure, trader’s commitment or other measure with the aim of bringing to an end the infringement.
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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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(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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(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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(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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(34) In order to ensure full alignment with Directive (EU) 2019/770, where digital_content and digital_services are not supplied in exchange for a price, Directive 2011/83/EU should also not apply to situations where the trader collects personal_data for the sole purpose of meeting legal requirements to which the trader is subject.
Such situations can include, for instance, cases where the registration of the consumer is required by applicable laws for security and identification purposes.
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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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(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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(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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(45) Traders may personalise the price of their offers for specific consumers or specific categories of consumer based on automated decision-making and profiling of consumer behaviour allowing traders to assess the consumer’s purchasing power.
Consumers should therefore be clearly informed when the price presented to them is personalised on the basis of automated decision-making, so that they can take into account the potential risks in their purchasing decision.
Consequently, a specific information requirement should be added to Directive 2011/83/EU to inform the consumer when the price is personalised, on the basis of automated decision-making.
This information requirement should not apply to techniques such as ‘dynamic’ or ‘real-time’ pricing that involve changing the price in a highly flexible and quick manner in response to market demands when those techniques do not involve personalisation based on automated decision-making.
This information requirement is without prejudice to Regulation (EU) 2016/679, which provides, inter alia, for the right of the individual not to be subjected to automated individual decision-making, including profiling.
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