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 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

(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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(37) Article 7(3) and Article 8(8) of Directive 2011/83/EU require traders, for off-premises and distance contracts respectively, to obtain the consumer’s prior express consent to begin performance before the expiry of the right of withdrawal period.
Point (a) of Article 14(4) of that Directive provides for a contractual sanction when this requirement is not fulfilled by the trader, namely that the consumer does not have to pay for the services provided.
The requirement to obtain the consumer’s prior express consent is accordingly only relevant for services, including digital_services, which are provided against the payment of the price.
It is therefore necessary to amend Article 7(3) and Article 8(8) to the effect that the requirement for traders to obtain the consumer’s prior express consent only applies to service_contracts that place the consumer under an obligation to pay.

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(38) Point (m) of the first paragraph of Article 16 of Directive 2011/83/EU provides for an exception to the right of withdrawal in respect of digital_content which is not supplied on a tangible medium if the consumer has given prior express consent to begin the performance before the expiry of the right of withdrawal period and acknowledged that he thereby loses his right of withdrawal.
Point (b) of Article 14(4) of that Directive provides for a contractual sanction when this requirement is not fulfilled by the trader, namely, the consumer does not have to pay for the digital_content consumed.
The requirement to obtain the consumer’s prior express consent and acknowledgment is accordingly only relevant for digital_content which is provided against the payment of the price.
It is therefore necessary to amend point (m) of the first paragraph of Article 16 to the effect that the requirement for traders to obtain the consumer’s prior express consent and acknowledgment only applies to contracts that place the consumer under an obligation to pay.

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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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(44) Article 14(4) of Directive 2011/83/EU stipulates the conditions under which, in the event of exercising the right of withdrawal, the consumer does not bear the cost for the performance of services, supply of public utilities and supply of digital_content which is not supplied on a tangible medium.
When any of those conditions is met, the consumer does not have to pay the price of the service, public utilities or digital_content received before the exercise of the right of withdrawal.
As regards digital_content, one of those non-cumulative conditions, namely under point (b)(iii) of Article 14(4), is a failure to provide the confirmation of the contract, which includes confirmation of the consumer’s prior express consent to begin the performance of the contract before the expiry of the right of withdrawal period and acknowledgement that the right of withdrawal is lost as a result.
However, that condition is not included among the conditions for the loss of the right of withdrawal in point (m) of the first paragraph of Article 16 of that Directive, creating uncertainty as regards the possibility for consumers to invoke point (b)(iii) of Article 14(4) when the other two conditions provided for in point (b) of Article 14(4) are met and, as a result, the right of withdrawal is lost in accordance with point (m) of the first paragraph of Article 16.
The condition provided for in point (b)(iii) of Article 14(4) should therefore be added to point (m) of the first paragraph of Article 16 to enable the consumer to exercise the right of withdrawal when that condition is not met and accordingly claim the rights provided for in Article 14(4).

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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