A4-0469/98

Decision on common position (EC) No 51/98 adopted by the Council with a view to the adoption of a European Parliament and Council Directive on certain aspects of the sale of consumer goods and associated guarantees (C4-0533/98 - 96/0161(COD))(Codecision procedure: second reading)

The European Parliament,

- having regard to common position (EC) No 51/98 of the Council, C4-0533/98 - 96/0161(COD) ((OJ C 333, 30.10.1998, p. 46.)),

- having regard to its opinion at first reading ((OJ C 104, 6.4.1998, p.30.)) on the Commission proposal to Parliament and the Council COM(95)0520 ((OJ C 307, 16.10.1996, p.8.)),

- having regard to the amended Commission proposal COM(98)0217 ((OJ C 148, 14.5.1998, p.12.)),

- having regard to Article 189b(2) of the EC Treaty,

- having regard to Rule 72 of its Rules of Procedure,

- having regard to the recommendation for second reading of the Committee on the Environment, Public Health and Consumer Protection (A4-0469/98),

1. Amends the common position as follows;

2. Calls on the Commission to support Parliament's amendments in the opinion it is required to deliver pursuant to Article 189b(2)(d) of the EC Treaty;

3. Calls on the Council to approve all Parliament's amendments, amend its common position accordingly and definitively adopt the act;

4. Instructs its President to forward this decision to the Council and the Commission.

(Amendment 1)

First citation

>Original text>

Having regard to the Treaty establishing the European Community, and in particular Article 100a thereof,

>Text following EP vote>

Having regard to the Treaty establishing the European Community, and in particularArticle

s 100a and 129a thereof,

(Amendment 3)

Recital 7

>Original text>

(7) Whereas, in order to facilitate the application of the principle of conformity with the contract, it is useful to introduce a rebuttable presumption of conformity with the contract covering the most common situations; whereas that presumption does not restrict the principle of freedom of contract; whereas, furthermore, in the absence of specific contractual terms, as well as where the minimum protection clause is applied, the elements mentioned in this presumption may be used to determine the lack of conformity of the goods with the contract; whereas the quality and performance which consumers can reasonably expect will depend on the nature of the goods, including whether they are new or second-hand; whereas the elements mentioned in the presumption are cumulative; whereas, if the circumstances of the case render any particular element manifestly inappropriate, the remaining elements of the presumption nevertheless still apply;

>Text following EP vote>

(7)

Whereas, in order to facilitate the application of the principle of conformity with the contract, it is useful to introduce a rebuttable presumption of conformity with the contract covering the most common situations; whereas that presumption does not restrict the principle of freedom of contract; whereas, furthermore, in the absence of specific contractual terms, as well as where the minimum protection clause is applied, the elements mentioned in this presumption may be used to determine the lack of conformity of the goods with the contract; whereas the quality and performance which consumers can reasonably expect will depend on whether the goods are new or second-hand; whereas the elements mentioned in the presumption are cumulative; whereas, if the circumstances of the case render any particular element manifestly inappropriate, the remaining elements of the presumption nevertheless still apply;

(Amendment 5)

Recital 11a (new)

>Original text>

>Text following EP vote>

(11a) Whereas consumers using the single market and purchasing movable goods in another Member State need to be better protected, and the manufacturer must therefore enclose with consumer goods that are sold in several Member States a list with at least one contact address in each Member State in which the product is marketed;

(Amendment 11)

Article 1(4)

>Original text>

4. Contracts for the supply of consumer goods to be manufactured or produced shall also be deemed contracts of sale for the purpose of this Directive unless the consumer has to supply a substantial part of the materials necessary for manufacture or production.

>Text following EP vote>

4.

Contracts for the supply of consumer goods to be manufactured or produced shall also be deemed contracts of sale for the purpose of this Directive.

(Amendment 12)

Article 2(2)(b)

>Original text>

(b) are fit for any particular purpose for which the consumer requires them and which he made known to the seller at the time of conclusion of the contract except where the circumstances show that the consumer did not rely on the seller's explanations;

>Text following EP vote>

(b)

are fit for any particular purpose for which the consumer requires them and which he made known to the seller at the time of conclusion of the contract;

(Amendment 15)

Article 2(5)

>Original text>

5. Any lack of conformity resulting from incorrect installation of the consumer goods shall be deemed to be equivalent to lack of conformity of the goods if installation forms part of the contract of sale of the goods and the goods were installed by the seller or under his responsibility.

>Text following EP vote>

5.

Any lack of conformity resulting from incorrect installation of the consumer goods shall be deemed to be equivalent to lack of conformity of the goods if installation forms part of the contract of sale of the goods and the goods were installed by the seller or under his responsibility. This shall apply equally if the product is installed by the consumer and the incorrect installation is due to a shortcoming in the written installation instructions.

(Amendment 33)

Article 3(3), first subparagraph

>Original text>

3. In the first place, the consumer may require the seller to repair the goods or he may require the seller to replace them, in either case free of charge, unless this is impossible or disproportionate.

>Text following EP vote>

3. In the first place, the consumer may require the seller to repair the goods or he may require the seller to replace them,

without prejudice to the specific nature of second-hand goods, which makes it generally impossible to replace them, in either case free of charge, unless this is impossible or disproportionate.

(Amendment 18)

Article 3(3a) (new)

>Original text>

>Text following EP vote>

3a. Costs incurred in order to remedy the lack of conformity of the goods, particularly the costs of postage, labour and materials, shall be borne by the seller.

(Amendment 19)

Article 4

>Original text>

Where the final seller is liable to the consumer because of a lack of conformity resulting from an act or omission by the producer, a previous seller in the same chain of contracts or any other intermediary, the final seller shall be entitled to pursue remedies against the person or persons liable in the contractual chain unless he has renounced that entitlement. The person or persons liable against whom the final seller may pursue remedies, together with the relevant actions and conditions of exercise, shall be determined by national law.

>Text following EP vote>

Where the final seller is liable to the consumer because of a lack of conformity resulting from an act or omission by the producer, a previous seller in the same chain of contracts or any other intermediary, the final seller shall be entitled to pursue remedies against the person or persons liable in the contractual chain. The person or persons liable against whom the final seller may pursue remedies, together with the relevant actions and conditions of exercise, shall be determined by national law.

(Amendment 34)

Article 7(1), 2nd subparagraph

>Original text>

Member States may provide that, in the case of second-hand goods, the seller and consumer may agree contractual terms or agreements which have a shorter time period for the liability of the seller than that set down in Article 5(1). Such period may not be less than one year.

>Text following EP vote>

Member States may provide that, in the case of second-hand goods, the seller and consumer may agree contractual terms or agreements which have a shorter time period for the liability of the seller than that set down in Article 5(1). Such period may not be less than one year.

In the case of works of art, collectors' items and antiques as defined in Annex 1 of Council Directive 94/5/EC of 14 December 1994(1) supplementing the common system of value added tax and amending Directive 77/388/EEC, but excluding the works of living artists, Member States may provide that the seller and consumer may agree to exclude the liability of the seller for any lack of conformity.

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(1) OJ L 60, 3.3.1994, p. 16.

(Amendment 25)

Article 8a (new)

>Original text>

>Text following EP vote>

Article 8a

Consumer information

>Original text>

>Text following EP vote>

Member States shall provide for measures to inform consumers of the national law adopted to implement this Directive and shall where appropriate ask professional organisations to inform consumers of their rights.

(Amendment 26)

Article 8b (new)

>Original text>

>Text following EP vote>

Article 8b

Legislation

After expiry of the period provided for in Article 9(1), the following point shall be added to the annex to Directive 98/27/EC(1) on actions for restraint to protect the interests of consumers:

"9a. European Parliament and Council Directive 98/.../EC on certain aspects of the sale of consumer goods and associated guarantees (OJ L ......)".

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(1) OJ L 166, 11.6.1998, p. 51

(Amendment 27)

Article 8c (new)

>Original text>

>Text following EP vote>

Article 8c

Legal remedies and complaints

1. The Member States shall, in cooperation with consumer associations and industrial and professional organisations, devise complaints systems which guarantee the independent, impartial and effective processing of complaints.

>Original text>

>Text following EP vote>

2. In the case of cross-border contracts within the European Union, the Member States shall ensure that appropriate and effective complaints procedures and remedies are in place to settle any disputes between consumers and sellers. In the case of defective goods consumers shall be entitled to use the complaints agency as mediator or to assign their claims arising from the contract of sale to the complaints agency.

(Amendment 28)

Article 9(1), footnote

>Original text>

(1) Thirty-six months after entry into force of this Directive.

>Text following EP vote>

(

1) Twenty-four months after entry into force of this Directive.