A4-0297/95

Decision on the common position established by the Council with a view to the adoption of a European Parliament and Council Directive on the protection of consumers in respect of distance contracts (C4-0369/95 - 00/0411(COD))

(Codecision procedure: second reading)

The European Parliament,

- having regard to the common position of the Council, C4-0369/95 - 00/0411(COD),

- having regard to its opinion at first reading ((OJ C 176, 28.6.1993, p. 95. and OJ C 342, 20.12.1993, p. 33.)) on the Commission proposal to Parliament and the Council (COM(92)0011) ((OJ C 156, 23.6.1992, p. 14.)),

- having regard to the amended Commission proposal, COM(93)0396 ((OJ C 308, 15.11.1993, p. 18.)),

- 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 (A4-0297/95),

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 Commission.

Common position of the Council Amendments by Parliament

(Amendment 1)

Recital 12

>Original text>

12. Whereas the consumer is not able actually to see the product or ascertain the nature of the service provided before concluding the contract; whereas provision should be made, where it is appropriate, for a right of withdrawal from the contract; whereas it is for the Member States to determine the other conditions and arrangements following exercise of the right of withdrawal;

>Text following EP vote>

12. Whereas the consumer is not able actually to see the product or ascertain details of the service provided before concluding the contract; whereas the consumer should be offered the possibility of cancelling the contract after receiving the product or service; whereas, if this right is to be more than formal, the costs borne by the consumer when exercising it must be limited to the charges for return; whereas this right must be without prejudice to the consumer's customary rights with particular regard to the receipt of damaged products and services or of products and services not corresponding to the description given in the offer of such products or services; whereas Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises(1) is to be amended to ensure harmonization, in particular of the method for calculating the period during which the contract may be cancelled;

(1) OJ L 372, 31.12.1985, p. 31.

(Amendment 2)

Recital 16

>Original text>

16. Whereas Commission Recommendation 92/295/EEC of 7 April 1992 on codes of practice for the protection of consumers in respect of contracts negotiated at a distance(1) stipulates that it is desirable for the minimum binding rules contained in this Directive to be supplemented by voluntary self- regulatory arrangements in the form of codes of practice;

(1) OJ L 156, 10.6.1992, p. 21.

>Text following EP vote>

16. Whereas Commission Recommendation 92/295/EEC on codes of practice for the protection of consumers in respect of contracts negotiated at a distance(1) provides for the minimum binding rules contained in this Directive to be supplemented by voluntary arrangements in the form of codes of practice to be observed by the traders concerned; whereas this is of major importance in the interests of consumer protection;

(1) OJ L 156, 10.6.1992, p. 21.

(Amendment 3)

Recital 16a (new)

>Text following EP vote>

16a. Whereas in the interests of optimum consumer protection it is important for consumers to be satisfactorily informed of the provisions of this Directive and of the existence and content of the codes of practice in this field;

(Amendment 4)

Recital 17a (new)

>Text following EP vote>

17a. Whereas it is important, with a view to consumer protection, to set up an effective scheme to deal with cross-border complaints;

(Amendment 5)

Article 2(1)

>Original text>

(1) 'distance contract' means any contract concerning goods or services concluded between a supplier and a consumer under an organized distance sales or service-provision scheme run by the supplier, who, for the purpose of the contract, makes exclusive use of one or more means of distance communication up to and including the moment at which the contract is concluded;

>Text following EP vote>

(1) 'distance contract' means any contract concerning goods or services concluded between a supplier and a consumer under an organized distance sales or service-provision scheme run by the supplier, who, for the purpose of the contract, makes exclusive use of one or more means of distance communication up to and including the moment at which the contract is concluded; where a contract has to be fulfilled by successive acts of performance or a series of separate operations over a period of time, the provisions of this Directive shall apply only to the overall contract, if it has been negotiated at a distance;

(Amendment 8)

Article 3(1), fourth indent

>Original text>

- concluded for the construction and sale of immovable property or relating to other immovable property rights, except for rental;

>Text following EP vote>

Deleted

(Amendment 9)

Article 3(2), introductory phrase

>Original text>

2. Articles 4, 5, 6 and Article 7(1) and (2) shall not apply:

>Text following EP vote>

2. Articles 5 and 6 and Article 7(1) shall not apply:

(Amendment 10)

Article 4(1)(a)

>Original text>

(a) the identity of the supplier;

>Text following EP vote>

(a) the identity and address of the supplier;

(Amendment 11)

Article 4(2)

>Original text>

2. The information referred to in paragraph 1, the commercial purpose of which must be made clear, shall be provided in a clear and comprehensible manner in any way appropriate to the means of distance communication used, with due regard, in particular, to the principles of good faith in commercial transactions and those governing the protection of minors.

>Text following EP vote>

2. The information referred to in paragraph 1, the commercial purpose of which must be made clear, shall be provided in a clear and comprehensible manner in any way appropriate to the means of distance communication used, with due regard, in particular, to the principles of good faith in commercial transactions, and the principles governing the protection of minors and those who are unable, pursuant to the legislation of the Member States, to give their consent.

(Amendment 12)

Article 4(2a) (new)

>Text following EP vote>

2a. Contracts of an indefinite duration concerning the supply of services or products to be performed permanently or recurrently shall clearly indicate the conditions under which the contract can be annulled.

(Amendment 13)

Article 5(1), first subparagraph

>Original text>

1. In good time during the performance of the contract and at the latest at the time of delivery, where goods are concerned, the consumer shall receive written confirmation of the information referred to in Article 4(1)(a) to (f), unless it was previously supplied to him prior to conclusion of the contract in writing or on another durable medium available to him.

>Text following EP vote>

1. In good time during the performance of the contract and at the latest at the time of delivery, where goods are concerned, the consumer shall receive written confirmation of the information referred to in Article 4(1)(a) to (f), unless it was previously supplied to him prior to conclusion of the contract in writing or on another medium.

(Amendment 14)

Article 5(1), second subparagraph, second indent

>Original text>

- the geographical address of the place of business of the supplier to which the consumer may address any complaints;

>Text following EP vote>

- the geographical address of the place of business of the supplier most appropriate to the consumer to which the consumer may address any complaints;

(Amendment 15)

Article 6(1), first subparagraph

>Original text>

1. For any distance contract the consumer shall have a period of at least seven days in which to withdraw from the contract without penalty and without giving any reason.

>Text following EP vote>

1. For any distance contract the consumer shall have a period of at least seven working days in which to withdraw from the contract without penalty and without giving any reason. The only costs payable shall be the direct return charges, where appropriate.

(Amendment 16)

Article 6(1), fourth subparagraph

>Original text>

If the information referred to in Article 5 is supplied within this three-month period, the seven-day period referred to in the first paragraph shall begin as from that moment.

>Text following EP vote>

If the information referred to in Article 5 is supplied within this three-month period, the seven working day period referred to in the first subparagraph shall begin as from that moment.

(Amendment 41)

Article 6(2)

>Original text>

2. Where the right of withdrawal has been exercised by the consumer pursuant to this Article, the supplier shall be obliged to reimburse the sums paid by the consumer. Such reimbursement must be

carried out as soon as possible.

>Text following EP vote>

2. Where the right of withdrawal has been exercised by the consumer pursuant to this Article, the supplier shall be obliged to reimburse the sums paid by the consumer free of charge, except for direct return charges where appropriate. Such reimbursement must be carried out as soon as possible and in any case within 30 days.

(Amendment 37)

Article 6(3), second indent

>Original text>

- for the supply of goods or services the price of which is dependent on fluctuations in the financial market which cannot be controlled by the supplier;

>Text following EP vote>

- for the supply of goods or services the price of which is influenced by fluctuations in the financial market and/or exchange rates and/or prices derived from them which cannot be controlled by the supplier;

(Amendment 19)

Article 6(3), fourth indent

>Original text>

- for the supply of audio or video recordings, records or computer software;

>Text following EP vote>

- for the supply of unsealed audio or video recordings, records, computer software, CD-ROMs or CD-Is;

(Amendment 20)

Article 6(3), fifth indent a (new)

>Text following EP vote>

- for the supply of books taken out of their original wrapping;

(Amendment 21)

Article 6a (new)

>Text following EP vote>

Article 6a

Consumer's customary rights

Article 6 shall be without prejudice to the consumer's customary rights with particular regard to the receipt of damaged products or services or of products or services not corresponding to the description given in the offer of such.

(Amendment 42)

Article 7(2)

>Original text>

2. Where a supplier fails to perform his side of the contract on the grounds that the goods or services ordered are unavailable, the consumer must be informed of this situation and must be able to obtain a refund of any sums he has paid as soon as possible.

>Text following EP vote>

2. Where a supplier fails to perform his side of the contract on the grounds that the goods or services ordered are unavailable, the consumer must be informed of this situation and must be able to obtain a refund of any sums he has paid as soon as possible and in any case within 30 days.

(Amendment 24)

Article 7(3)

>Original text>

3. Nevertheless Member States may lay down that the supplier may provide the consumer with goods or services of equivalent quality and price provided that this possibility was provided for prior to conclusion of the contract or when the contract was concluded or when the consumer was informed of the unavailability of the goods or services ordered. The cost of returning the goods following exercise of the right of withdrawal shall, in this case, be borne by the supplier, and the consumer must be informed of this. In such cases the supply of goods or services may not be deemed to constitute inertia selling within the meaning of Article 9.

>Text following EP vote>

3. It may be stipulated, however, that the supplier shall, subject to the prior consent of the consumer, provide the consumer with goods or services of equivalent quality and price provided that this possibility was provided for prior to conclusion of the contract or when the contract was concluded or when the consumer was informed of the unavailability of the goods or services ordered. The cost of returning the goods following exercise of the right of withdrawal shall, in this case, be borne by the supplier, and the consumer must be informed of this. In such cases the supply of goods or services may not be deemed to constitute inertia selling within the meaning of Article 9.

(Amendment 25)

Article 7a (new)

>Text following EP vote>

Article 7a

Television broadcasting activities

Member States must observe the provisions of Council Directive 89/552/EEC, as amended, on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities(1).

(1) OJ L 298, 17.10.1989, p. 23.

(Amendment 40)

Article 10(1), second indent a (new)

>Text following EP vote>

- telephone; in this case, 'prior consent¨ means the statement of identity and objective by the vendor at the beginning of any telephone conversation with the consumer;

(Amendment 29)

Article 10(2)

>Original text>

2. Member States shall ensure that means of distance communication, other than those referred to in paragraph 1, which allow individual communications may be used only where there is no clear objection from the consumer.

>Text following EP vote>

2. Member States shall ensure that means of distance communication, other than those referred to in paragraph 1, may be used only where there is no clear objection from the consumer.

>Text following EP vote>

Member States shall take the necessary measures effectively to protect those consumers who have indicated that they do not wish to be solicited against such soliciting, without prejudice to the particular safeguards available to the consumer under Community legislation concerning the protection of personal data and privacy.

(Amendment 30)

Article 11(2)

>Original text>

2. The means referred to in paragraph 1 may include provisions whereby public bodies or their representatives or consumer organizations having a legitimate interest under national law in protecting consumers or professional organizations having a legitimate interest in acting may take action under national law before the courts or before the competent administrative bodies to ensure that the provisions of this Directive are applied.

>Text following EP vote>

2. The means referred to in paragraph 1 shall include provisions whereby public bodies or their representatives or consumer organizations having a legitimate interest under national law in protecting consumers or professional organizations having a legitimate interest in acting may take action under national law before the courts or before the competent administrative bodies to ensure that the provisions of this Directive are applied.

(Amendment 31)

Article 11(3)(a)

>Original text>

3. (a) Member States may stipulate that the burden of proof concerning the existence of prior information, written confirmation, compliance with time- limits or consumer consent can be placed on the supplier.

>Text following EP vote>

3. (a) Member States shall stipulate that the burden of proof concerning the existence of prior information, written confirmation, compliance with time- limits or consumer consent can be placed on the supplier.

(Amendment 32)

Article 13

>Original text>

1. The provisions of this Directive shall apply insofar as there are no particular provisions in rules of Community law governing certain type of distance contracts in their entirety.

>Text following EP vote>

The provisions of this Directive shall in no way prevent the application of provisions specific to certain techniques or specific products or services covered by other Community provisions.

>Original text>

2. Where specific Community rules on goods or services contain provisions governing aspects concerned with:

- information prior to conclusion of the contract;

- written confirmation of the prior information;

- right of withdrawal;

- inertia selling;

- judicial or administrative redress;

- restrictions on the use of means of communication at a distance;

- payment by card;

- performance of the contract,

such provisions shall apply solely to distance contracts in respect of the aspects covered.

>Text following EP vote>

Where specific Community rules contain provisions governing only certain aspects of the marketing of products and services, such provisions shall apply to those specific aspects of marketing.

(Amendment 33)

Article 15(1)

>Original text>

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive no later than three years after it enters into force. They shall forthwith inform the Commission thereof.

>Text following EP vote>

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive no later than two years after it enters into force. They shall forthwith inform the Commission thereof.

(Amendment 34)

Article 15(4)

>Original text>

4. No later than six years after the entry into force of this Directive the Commission shall submit a report to the European Parliament and the Council on the implementation of this Directive, accompanied if appropriate by a proposal for the revision thereof.

>Text following EP vote>

4. No later than four years after the entry into force of this Directive the Commission shall submit a report to the European Parliament and the Council on the implementation of this Directive, accompanied if appropriate by a proposal for the revision thereof.

(Amendment 35)

Article 15a (new)

>Text following EP vote>

Article 15a

Consumer information

The Member States and the organizations concerned shall ensure that the consumer is informed of the provisions of this Directive and of the existence and content of the codes of practice in this field.

(Amendment 36)

Article 15b (new)

>Text following EP vote>

Article 15b

Complaints system

Together with the trade and professional organizations the Member States shall draw up a complaints system on a self-regulatory basis.