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 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 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 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 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

(6) It should remain a matter for the Member States to choose the types of penalty to be imposed and to lay down in their national law the relevant procedures for the imposition of penalties in the event of infringements of Directives 93/13/EEC, 98/6/EC, 2005/29/EC and 2011/83/EU as amended by this Directive.

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(11) As laid down in Articles 9 and 10 of Regulation (EU) 2017/2394, when imposing penalties due regard should be given, as appropriate, to the nature, gravity and duration of the infringement in question.
The imposition of penalties should be proportionate and should comply with Union and national law, including with applicable procedural safeguards and with the principles of the Charter.
Finally, the penalties imposed should be appropriate to the nature and the overall actual or potential harm of the infringement of Union laws that protect consumers’ interests.
The power to impose penalties is to be exercised either directly by competent authorities under their own authority, or, where appropriate, by recourse to other competent authorities or other public authorities, or by instructing designated bodies, if applicable, or by application to courts competent to grant the necessary decision, including, where appropriate, by appeal, if the application to grant the necessary decision is not successful.

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(14) Rules on penalties should be included in Directive 93/13/EEC with a view to strengthening its deterrent effect.
Member States are free to decide on the administrative or judicial procedure for the application of penalties for infringements of that Directive.
In particular, administrative authorities or national courts could impose penalties when establishing the unfair character of contractual terms, including on the basis of legal proceedings initiated by an administrative authority.
The penalties could also be imposed by administrative authorities or national courts when the seller or supplier uses contractual terms which are expressly defined as unfair in all circumstances in national law as well as when the seller or supplier uses contractual terms which have been found to be unfair by a final binding decision.
Member States could decide that administrative authorities also have the right to establish the unfair character of contractual terms.
Administrative authorities or national courts could also impose a penalty through the same decision by which unfairness of contractual terms is established.
Member States could lay down the appropriate coordination mechanisms for actions at national level regarding individual redress and penalties.

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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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(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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keyboard_tab Clausole e vendite online Direttiva EU 2019/2161 EN

Clausole e vendite online Direttiva EU 2019/2161 EN