(6) | Article 13 is replaced by the following: 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 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: Article 9 Addressees This Directive is addressed to the Member States. Done at Strasbourg, 27 November 2019. For the European Parliament The President D. M. SASSOLI For the Council The President T. TUPPURAINEN (1) OJ C 440, 6.12.2018, p. 66. (2) Position of the European Parliament of 17 April 2019 (not yet published in the Official Journal) and decision of the Council of 8 November 2019. (3) Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ L 149, 11.6.2005, p. 22). (4) Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests (OJ L 110, 1.5.2009, p. 30). (5) Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers (OJ L 80, 18.3.1998, p. 27). (6) Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ L 304, 22.11.2011, p. 64). (7) 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). (8) Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29). (9) 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). (10) Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure (OJ L 157, 15.6.2016, p. 1). (11) Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR) (OJ L 165, 18.6.2013, p. 1). (12) Directive (EU) 2016/1148 of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union (OJ L 194, 19.7.2016, p. 1). (13) Regulation (EU) 2018/302 of the European Parliament and of the Council of 28 February 2018 on addressing unjustified geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment within the internal market and amending Regulations (EC) No 2006/2004 and (EU) No 2017/2394 and Directive 2009/22/EC (OJ L 60 I, 2.3.2018, p. 1). (14) Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ L 178, 17.7.2000, p. 1). (15) 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). (16) 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). (17) OJ C 369, 17.12.2011, p. 14. (18) Regulation (EU) 2018/1724 of the European Parliament and of the Council of 2 October 2018 establishing a single digital gateway to provide access to information, to procedures and to assistance and problem-solving services and amending Regulation (EU) No 1024/2012 (OJ L 295, 21.11.2018, p. 1).
whereas
(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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(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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(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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(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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(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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(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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(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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(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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(50) Traders should be prohibited from reselling to consumers tickets to cultural and sports events that they have acquired by using software such as ‘bots’ enabling them to buy tickets in excess of the technical limits imposed by the primary ticket seller or to bypass any other technical means put in place by the primary seller to ensure accessibility of tickets for all individuals. That prohibition is without prejudice to any other national measures that Member States can take to protect the legitimate interests of consumers and to secure cultural policy and broad access of all individuals to cultural and sports events, such as regulating the resale price of the tickets.
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(54) While off-premises sales constitute a legitimate and well-established sales channel, like sales at a trader’s business premises and distance–selling, some particularly aggressive or misleading marketing or selling practices in the context of visits to a consumer’s home or excursions as referred to in point (8) of Article 2 of Directive 2011/83/EU can put consumers under pressure to make purchases of goods or services that they would not otherwise buy or purchases at excessive prices, often involving immediate payment. Such practices often target elderly or other vulnerable consumers. Some Member States consider those practices undesirable and deem it necessary to restrict certain forms and aspects of off-premises sales within the meaning of Directive 2011/83/EU, such as aggressive and misleading marketing or selling of a product in the context of unsolicited visits to a consumer’s home or excursions. Where such restrictions are adopted on grounds other than consumer protection, such as public interest or the respect for consumers’ private life protected by Article 7 of the Charter, they fall outside the scope of Directive 2005/29/EC.
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