Clausole e vendite online Direttiva EU 2019/2161 EN

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 may restrict such penalties to situations where the contractual terms are expressly defined as unfair in all circumstances in national law or where a seller or supplier continues to use contractual terms that have been found to be unfair in a final decision taken in accordance with Article 7(2).

3. 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 seller or supplier to mitigate or remedy the damage suffered by consumers;

(c)	any previous infringements by the seller or supplier;

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

(e)	penalties imposed on the seller or supplier 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 (*1);

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

4. Without prejudice to paragraph 2 of this Article, 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 seller’s or supplier’s annual turnover in the Member State or Member States concerned.

5. For cases where a fine is to be imposed in accordance with paragraph 4, but information on the seller’s or supplier’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.

6. 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.

‘Article 8

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 (*2);

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

3. 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.

(*2) 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).’."

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 13

Penalties

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 24

Penalties

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 (*8);

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

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.

(*8) 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).’;"

(14)

in Article 29, paragraph 1 is replaced by the following:

‘ 1. Where_a_Member_State_makes_use_of_any_of_the_regulatory_choices_referred_to_in_Article_3(4),_Article_6(7),_Article_6(8),_Article_7(4),_Article_8(6),_Article_9(1a),_Article_9(3)_and_the_second_and_third_paragraphs_of_Article_16,_it_shall_inform_the_commission_thereof_by_28_November_2021,_as_well_as_of_any_subsequent_changes.’;

(15)

Annex I is amended as follows:

(a)

part A is amended as follows:

(i)

the third paragraph under ‘Right of withdrawal’ is replaced by the following:

‘ To_exercise_the_right_of_withdrawal,_you_must_inform_us_[2]_of_your_decision_to_withdraw_from_this_contract_by_an_unequivocal_statement_(e.g._a_letter_sent_by_post_or_email)._You_may_use_the_attached_model_withdrawal_form,_but_it_is_not_obligatory._[3]’;

(ii)	point 2 under ‘Instructions for completion’ is replaced by the following: ‘ [2.]_Insert_your_name,_geographical_address,_telephone_number_and_email_address.’;

(b)	in part B, the first indent is replaced by the following: ‘ To_[here_the_trader’s name, geographical address and email address are to be inserted by the trader]:’.

Article 5

Information on consumer rights

The commission shall ensure that citizens seeking information on their consumer rights or on out-of-court dispute resolution benefit from an online entry point, through the single digital gateway established by Regulation (EU) 2018/1724 of the European Parliament and of the Council (18), enabling them to:

(a)	access up-to-date information about their Union consumer rights in a clear, understandable and easily accessible manner; and

(b)	submit a complaint through the online dispute resolution platform established under Regulation (EU) No 524/2013 and to the competent centre of the European Consumer Centres Network, depending on the parties involved.

Article 6

Reporting by the commission and review

By 28 May 2024, the commission shall submit a report on the application of this Directive to the European Parliament and to the Council. That report shall include in particular an assessment of the provisions of this Directive regarding:

(a)	events organised at places other than the trader’s business premises; and

(b)

cases of goods marketed as identical but having significantly different composition or characteristics, including whether those cases should be subject to more stringent requirements, including prohibition in Annex I to Directive 2005/29/EC and whether more detailed provisions on information about the differentiation of goods are necessary.

That report shall be accompanied, where necessary, by a legislative proposal.

Article 7

Transposition

1. By 28 November 2021, Member States shall adopt and publish the measures necessary to comply with this Directive. They shall immediately inform the commission thereof.

They shall apply those measures from 28 May 2022.

When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2. Member States shall communicate to the commission the text of the main measures of national law which they adopt in the field covered by this Directive.

whereas

(2) Consumer protection law should be applied effectively throughout the Union.
Yet, the comprehensive Fitness Check of consumer and marketing law carried out by the commission in 2016 and 2017 in the framework of the Regulatory Fitness and Performance (REFIT) programme concluded that the effectiveness of Union consumer protection law is compromised by a lack of awareness among both traders and consumers and that existing means of redress could be taken advantage of more often.

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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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(49) Traders should also be prohibited from submitting fake consumer reviews and endorsements, such as ‘likes’ on social media, or commissioning others to do so in order to promote their products, as well as from manipulating consumer reviews and endorsements, such as publishing only positive reviews and deleting the negative ones.
Such practice could also occur through the extrapolation of social endorsements, where a user’s positive interaction with certain online content is linked or transferred to different but related content, creating the appearance that that user also takes a positive stance towards the related content.

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(52) Such a practice can therefore be regarded as contrary to Directive 2005/29/EC based on a case-by-case assessment of relevant elements.
In order to facilitate the application of existing Union law by Member States’ consumer and food authorities, guidance on the application of current Union rules to situations of dual quality of food was provided in the commission Notice of 29 September 2017‘on the application of EU food and consumer protection law to issues of Dual Quality of products – The specific case of food’.
In this context, the commission’s Joint Research Centre presented, on 25 April 2018, a ‘Framework for selecting and testing of food products to assess quality related characteristics: EU harmonised testing methodology’.

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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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(58) In order to ensure that citizens have access to up-to-date information on their consumer rights and on out-of-court dispute resolution, the online entry point to be developed by the commission should, as far as possible, be user-friendly, mobile-responsive, easily accessible and usable by all, including persons with disabilities (‘design for all’).

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(59) In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the commission on explanatory documents (17), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments.
With regard to this Directive, the legislator considers the transmission of such documents to be justified.

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keyboard_tab Clausole e vendite online Direttiva EU 2019/2161 EN

Clausole e vendite online Direttiva EU 2019/2161 EN