(3) The Union has already taken a number of measures to improve awareness among consumers, traders and legal practitioners about consumer rights and to improve enforcement of consumer rights and consumer redress.
However, there are remaining gaps in national law regarding truly effective and proportionate penalties to deter and sanction intra-Union infringements, insufficient individual remedies for consumers harmed by breaches of national legislation transposing Directive 2005/29/EC of the European Parliament and of the Council (3) and shortcomings with regard to the injunction procedure under Directive 2009/22/EC of the European Parliament and of the Council (4).
Revision of the injunction procedure should be addressed by a separate instrument amending and replacing Directive 2009/22/EC.
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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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(12) Where, as a result of the coordinated action under Regulation (EU) 2017/2394, a single competent authority within the meaning of that Regulation imposes a fine on the trader responsible for the widespread infringement or the widespread infringement with a Union dimension, it should be able to impose a fine of at least 4 % of the trader’s annual turnover in all Member States concerned by the coordinated enforcement action.
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(21) Transparency requirements with regard to the main parameters determining ranking are also regulated by Regulation (EU) 2019/1150 of the European Parliament and of the Council (9).
The transparency requirements under that Regulation cover a broad range of online intermediaries, including online_marketplaces, but they only apply between traders and online intermediaries.
Similar transparency requirements should therefore be introduced in Directive 2005/29/EC to ensure adequate transparency towards the consumers, except in the case of providers of online search engines, which are already required by that Regulation to set out the main parameters which individually or collectively are most significant in determining ranking and the relative importance of those main parameters, by providing an easily and publicly available description, drafted in plain and intelligible language on the online search engines of those providers.
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(24) When products are offered to consumers in online_marketplaces, both the provider of the online_marketplace and the third-party supplier are involved in the provision of the pre-contractual information required by Directive 2011/83/EU.
As a result, consumers using the online_marketplace may not clearly understand who their contractual partners are and how their rights and obligations are affected.
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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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(32) Consistency should be ensured between the scope of application of Directive 2011/83/EU and Directive (EU) 2019/770, which applies to contracts for the supply of digital_content or digital_services under which the consumer provides or undertakes to provide personal_data to the trader.
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(33) Therefore, the scope of Directive 2011/83/EU should be extended to cover also contracts under which the trader supplies or undertakes to supply a digital_service to the consumer, and the consumer provides or undertakes to provide personal_data.
Similar to contracts for the supply of digital_content which is not supplied on a tangible medium, that Directive should apply whenever the consumer provides or undertakes to provide personal_data to the trader, except where the personal_data provided by the consumer are exclusively processed by the trader for the purpose of supplying the digital_content or digital_service, and the trader does not process those data for any other purpose.
Any processing of personal_data should comply with Regulation (EU) 2016/679 of the European Parliament and of the Council (16).
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(35) Directive 2011/83/EU should also not apply to situations where the trader only collects metadata, such as information concerning the consumer’s device or browsing history, except where this situation is considered to be a contract under national law.
It should also not apply to situations where the consumer, without having concluded a contract with the trader, is exposed to advertisements exclusively in order to gain access to digital_content or a digital_service.
However, Member States should remain free to extend the application of that Directive to such situations, or to otherwise regulate such situations, which are excluded from the scope of that Directive.
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(36) The notion of functionality should be understood to refer to the ways in which digital_content or a digital_service can be used.
For instance, the absence or presence of any technical restrictions such as protection via Digital Rights Management or region coding could have an impact on the ability of the digital_content or digital_service to perform all its functions having regard to its purpose.
The notion of interoperability relates to whether and to what extent digital_content or a digital_service is able to function with hardware or software that is different from those with which digital_content or digital_services of the same type are normally used.
Successful functioning could include, for instance, the ability of the digital_content or digital_service to exchange information with such other software or hardware and to use the information exchanged.
The notion of compatibility is defined in Directive (EU) 2019/770.
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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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(40) The information requirements under Article 7(4) of Directive 2005/29/EC include informing the consumer about the trader’s complaint handling policy.
The Fitness Check of consumer and marketing law findings show that that information is most relevant at the pre-contractual stage, which is regulated by Directive 2011/83/EU.
The requirement to provide that information in invitations to purchase at the advertising stage under Directive 2005/29/EC should therefore be deleted.
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(41) Point (h) of Article 6(1) of Directive 2011/83/EU requires traders to provide consumers with pre-contractual information about the right of withdrawal, including the model withdrawal form set out in Annex I(B) to that Directive.
Article 8(4) of that Directive provides for simpler pre-contractual information requirements if the contract is concluded through a means of distance communication which allows limited space or time to display the information, such as over the telephone, via voice operated shopping assistants or by SMS.
The mandatory pre-contractual information to be provided on or through that particular means of distance communication includes information regarding the right of withdrawal as referred to in point (h) of Article 6(1).
Accordingly, it also includes the provision of the model withdrawal form set out in Annex I(B).
However, the provision of the withdrawal form is impossible when the contract is concluded by means such as telephone or voice operated shopping assistant and it may not be technically feasible in a user-friendly way on other means of distance communication covered by Article 8(4).
It is therefore appropriate to exclude the provision of the model withdrawal form from the information that traders have to provide in any case on or through the particular means of distance communication used for the conclusion of the contract under Article 8(4).
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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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(53) However, in the absence of an explicit provision, the enforcement experience has shown that it might be unclear to consumers, traders and national competent authorities which commercial practices could be contrary to Directive 2005/29/EC.
Therefore, that Directive should be amended to ensure legal certainty for both traders and enforcement authorities by addressing explicitly the marketing of a good as being identical to a good marketed in other Member States, where that good has significantly different composition or characteristics.
Competent authorities should assess and address on a case- by-case basis such practices in accordance with Directive 2005/29/EC, as amended by this Directive.
In undertaking its assessment the competent authority should take into account whether such differentiation is easily identifiable by consumers, a trader’s right to adapt goods of the same brand for different geographical markets due to legitimate and objective factors, such as national law, availability or seasonality of raw materials or voluntary strategies to improve access to healthy and nutritious food as well as the traders’ right to offer goods of the same brand in packages of different weight or volume in different geographical markets.
The competent authorities should assess whether such differentiation is easily identifiable by consumers by looking at the availability and adequacy of information.
It is important that consumers are informed about the differentiation of goods due to legitimate and objective factors.
Traders should be free to provide such information in different ways that allow consumers to access the necessary information.
Alternatives to providing information on the label of goods should generally be preferred by traders.
The relevant Union sectorial rules and rules on free movement of goods should be respected.
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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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(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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(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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