AMENDMENTS EN United in diversity EN 2008/0196(COD) Draft report Andreas Schwab (PE v04-00) on consumer rights

Transcription

1 EUROPEAN PARLIAMT Committee on the Internal Market and Consumer Protection /0196(COD) AMDMTS Draft report Andreas Schwab (PE v04-00) on consumer rights (COM(2008)0614 C6-0349/ /0196(COD)) AM\ doc PE v01-00 United in diversity

2 AM_Com_LegReport PE v /222 AM\ doc

3 1135 Christel Schaldemose Article 23 f (new) Means of payment 1. Traders shall offer consumers at least one means of payment free of charge. 2. Member States shall prohibit traders to charge consumers with fees that exceed the cost born by the trader for the use of such means. The Commission s proposal does not provide for any rules related to payment although this is one of the main concerns of consumers. Consumers complain about (especially in online markets i.e. sale of tickets for concert and sport events, flight tickets, etc) not being able to pay without extra costs attached to certain means of payment Kurt Lechner Article 24 Conformity with the contract 1. The trader shall deliver the goods in conformity with the sales contract. 2. Delivered goods shall be presumed to be in conformity with the contract if they satisfy the following conditions: (a) they comply with the description given by the trader and possess the qualities of the goods which the trader has presented to the consumer as a sample or model; deleted AM\ doc 3/222 PE v01-00

4 (b) they are fit for any particular purpose for which the consumer requires them and which he made known to the trader at the time of the conclusion of the contract and which the trader has accepted; (c) they are fit for the purposes for which goods of the same type are normally used or (d) they show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the trader, the producer or his representative, particularly in advertising or on labelling. 3. There shall be no lack of conformity for the purposes of this Article if, at the time the contract was concluded, the consumer was aware, or should reasonably have been aware of, the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer. 4. The trader shall not be bound by public statements, as referred to in paragraph 2(d) if he shows that one of the following situations existed: (a) he was not, and could not reasonably have been, aware of the statement in question; (b) by the time of conclusion of the contract the statement had been corrected; (c) the decision to buy the goods could not have been influenced by the statement. 5. Any lack of conformity resulting from the incorrect installation of the goods shall be considered as a lack of conformity of the goods where the installation forms part of the sales contract and the goods were installed by the trader or under his responsibility. The same shall apply equally if the goods, intended to be installed by the consumer, are installed by the consumer and the incorrect installation is due to a shortcoming in the installation PE v /222 AM\ doc

5 instructions. Or.de 1137 Anja Weisgerber Article 24 paragraph 1 1. The trader shall deliver the goods in conformity with the sales contract. 1. The trader shall be obliged to deliver the goods to the consumer in conformity with the sales contract. Or.de Die KOM-Fassung klärt nicht deutlich das Verhältnis der einzelnen Maßstäbe für die Vertragsmäßigkeit der Ware.Der Vorschlag geht von einer klaren Rangfolge dieser Maßstäbe aus, die auf dem Vorrang der Vertragsfreiheit beruht. Danach ist in erster Linie die Beschaffenheitsvereinbarung der Parteien maßgeblich; andernfalls kommt es auf den von der Parteien vorausgesetzten (nicht ausdrücklich vereinbarten) Zweck an. Erst dann ist die gewöhnliche Gebrauchseignung in Betracht zu ziehen, und schließlich sind die üblichen oder öffentlich verlautbarten Eigenschaften einer Ware maßgeblich Cornelis de Jong Article 24 paragraph 1 1. The trader shall deliver the goods in conformity with the sales contract. 1. The trader is responsible for the good to be in conformity with the sales contract. AM\ doc 5/222 PE v01-00

6 1139 Kyriacos Triantaphyllides Article 24 paragraph 1 1. The trader shall deliver the goods in conformity with the sales contract. 1. The trader shall deliver the goods in conformity with the sales contract. The trader shall be liable to the consumer if the goods do not meet the conditions stipulated in the contract. Or.el 1140 Robert Rochefort Article 24 paragraph 2 introductory part 2. Delivered goods shall be presumed to be in conformity with the contract if they satisfy the following conditions: (a) they comply with the description given by the trader and possess the qualities of the goods which the trader has presented to the consumer as a sample or model; (b) they are fit for any particular purpose for which the consumer requires them and which he made known to the trader at the time of the conclusion of the contract and which the trader has accepted; (c) they are fit for the purposes for which goods of the same type are normally used or 2. Delivered goods shall be in conformity with the contract if they satisfy the following conditions: (-a) they possess the characteristics, in particular as regards quality and quantity, that were jointly agreed upon by the parties; (a) they comply with the description given by the trader and possess the qualities of the goods which the trader has presented to the consumer as a sample or model; (b) they are fit for the purposes for which goods of the same type would normally be used; (c) they show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public PE v /222 AM\ doc

7 (d) they show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the trader, the producer or his representative, particularly in advertising or on labelling. statements on the specific characteristics of the goods made about them by the trader, the producer or his representative, particularly in advertising or on labelling. (A new point (a) has been inserted before the current point (a) in the Commission proposal. There was also a need for clarification: the new points (b) and (c) are slightly amended versions of the current points (c) and (d) in the Commission proposal, concerning conditions that have to be met in all circumstances.) Or.fr 1141 Anja Weisgerber Article 24 paragraph 2 introductory part 2. Delivered goods shall be presumed to be in conformity with the contract if they satisfy the following conditions: 2. Goods shall be in conformity with the contract: Or.de Die KOM-Fassung klärt nicht deutlich das Verhältnis der einzelnen Maßstäbe für die Vertragsmäßigkeit der Ware.Der Vorschlag geht von einer klaren Rangfolge dieser Maßstäbe aus, die auf dem Vorrang der Vertragsfreiheit beruht. Danach ist in erster Linie die Beschaffenheitsvereinbarung der Parteien maßgeblich; andernfalls kommt es auf den von der Parteien vorausgesetzten (nicht ausdrücklich vereinbarten) Zweck an. Erst dann ist die gewöhnliche Gebrauchseignung in Betracht zu ziehen, und schließlich sind die üblichen oder öffentlich verlautbarten Eigenschaften einer Ware maßgeblich. AM\ doc 7/222 PE v01-00

8 1142 Robert Rochefort Article 24 paragraph 2 point a (a) they comply with the description given by the trader and possess the qualities of the goods which the trader has presented to the consumer as a sample or model; (a) comply with the description given by the trader and possess the qualities of the goods which the trader has presented to the consumer as a sample or model; Or.fr 1143 Anja Weisgerber Article 24 paragraph 2 point a (a) they comply with the description given by the trader and possess the qualities of the goods which the trader has presented to the consumer as a sample or model; (a) if their nature is in accordance with that agreed by the parties and, in particular, they possess the qualities of the goods which the trader has presented to the consumer as a sample or model; Or.de Die KOM-Fassung klärt nicht deutlich das Verhältnis der einzelnen Maßstäbe für die Vertragsmäßigkeit der Ware.Der Vorschlag geht von einer klaren Rangfolge dieser Maßstäbe aus, die auf dem Vorrang der Vertragsfreiheit beruht. Danach ist in erster Linie die Beschaffenheitsvereinbarung der Parteien maßgeblich; andernfalls kommt es auf den von der Parteien vorausgesetzten (nicht ausdrücklich vereinbarten) Zweck an. Erst dann ist die gewöhnliche Gebrauchseignung in Betracht zu ziehen, und schließlich sind die üblichen oder öffentlich verlautbarten Eigenschaften einer Ware maßgeblich Robert Rochefort Article 24 paragraph 2 point -a (new) PE v /222 AM\ doc

9 (-a) Where applicable, the goods must furthermore: (This text should be inserted before the current point (a) in the Commission proposal and refers to the current points (a) and (b).) Clarification of points (a) and (b): the text of points (a) and (b) in the Commission proposal are conditions that must be met where appropriate (description and sample or model, and particular purpose). Or.fr 1145 Robert Rochefort Article 24 paragraph 2 point b (b) they are fit for any particular purpose for which the consumer requires them and which he made known to the trader at the time of the conclusion of the contract and which the trader has accepted; (b) be fit for any particular purpose for which the consumer requires them and which was made known to the trader at the time of the conclusion of the contract and which the trader has accepted; Or.fr 1146 Anja Weisgerber Article 24 paragraph 2 point b (b) they are fit for any particular purpose for which the consumer requires them and which he made known to the trader at (b) if, in the absence of an agreement on their nature, they are fit for the purpose for which the parties to the contract AM\ doc 9/222 PE v01-00

10 the time of the conclusion of the contract and which the trader has accepted; intended them at the time of the conclusion of the contract; Or.de Die KOM-Fassung klärt nicht deutlich das Verhältnis der einzelnen Maßstäbe für die Vertragsmäßigkeit der Ware.Der Vorschlag geht von einer klaren Rangfolge dieser Maßstäbe aus, die auf dem Vorrang der Vertragsfreiheit beruht. Danach ist in erster Linie die Beschaffenheitsvereinbarung der Parteien maßgeblich; andernfalls kommt es auf den von der Parteien vorausgesetzten (nicht ausdrücklich vereinbarten) Zweck an. Erst dann ist die gewöhnliche Gebrauchseignung in Betracht zu ziehen, und schließlich sind die üblichen oder öffentlich verlautbarten Eigenschaften einer Ware maßgeblich Robert Rochefort Article 24 paragraph 2 point c (c) they are fit for the purposes for which goods of the same type are normally used; or deleted Or.fr This text has been slightly amended and inserted as a new point (b) in Article 24(2) Emilie Turunen Article 24 paragraph 2 point c (c) they are fit for the purposes for which goods of the same type are normally used or (c) they are fit for the purposes for which goods of the same type are normally used and PE v /222 AM\ doc

11 1149 Evelyne Gebhardt Article 24 paragraph 2 point c (c) they are fit for the purposes for which goods of the same type are normally used or (c) they are fit for the purposes for which goods of the same type are normally used and; 1150 Catherine Stihler Article 24 paragraph 2 point c (c) they are fit for the purposes for which goods of the same type are normally used or (c) they are fit for the purposes for which goods of the same type are normally used; and 1151 Anja Weisgerber Article 24 paragraph 2 point c (c) they are fit for the purposes for which goods of the same type are normally used or (c) otherwise, if they are fit for the purposes for which goods of that type are normally used; Or.de AM\ doc 11/222 PE v01-00

12 Die KOM-Fassung klärt nicht deutlich das Verhältnis der einzelnen Maßstäbe für die Vertragsmäßigkeit der Ware.Der Vorschlag geht von einer klaren Rangfolge dieser Maßstäbe aus, die auf dem Vorrang der Vertragsfreiheit beruht. Danach ist in erster Linie die Beschaffenheitsvereinbarung der Parteien maßgeblich; andernfalls kommt es auf den von der Parteien vorausgesetzten (nicht ausdrücklich vereinbarten) Zweck an. Erst dann ist die gewöhnliche Gebrauchseignung in Betracht zu ziehen, und schließlich sind die üblichen oder öffentlich verlautbarten Eigenschaften einer Ware maßgeblich Robert Rochefort Article 24 paragraph 2 point d (d) they show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the trader, the producer or his representative, particularly in advertising or on labelling. deleted Or.fr This text has been inserted as a new point (c) in Article 24(2) Emilie Turunen Article 24 paragraph 2 point d (d) they show the quality and performance which are normal in goods of the same type and which the consumer can (d) they show the quality and performance which are normal in goods of the same type including inter alia, durability, safety PE v /222 AM\ doc

13 reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the trader, the producer or his representative, particularly in advertising or on labelling. and availability of spare parts, which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the trader, the producer or his representative, particularly in advertising or on labelling. Regarding the principle of conformity with the contract, the list of criteria of nonconformity should be strengthened and improved. It should be clarified that in assessing whether goods are fit for their normal purpose account is also taken of: purpose, appearance and finish, freedom from minor defects and the durability of the product Evelyne Gebhardt Article 24 paragraph 2 point d introductory part (d) they show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the trader, the producer or his representative, particularly in advertising or on labelling. (d) they show the quality and performance which are normal in goods of the same type including the consideration of the designated use of the good, the appearance and the completion of it, the non-existence of minor defects and life expectancy of the good, the availability of after-sales service and of replacement equipment, the conformity to legal requirements regarding the safety of goods, and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the trader, the producer or his representative, particularly in advertising or on labelling. AM\ doc 13/222 PE v01-00

14 1155 Catherine Stihler Article 24 paragraph 2 point d (d) they show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the trader, the producer or his representative, particularly in advertising or on labelling. (d) they show the quality and performance which are normal in goods of the same type including the consideration of the purpose, the appearance and finish, the freedom from minor defects and the durability of the product, availability of after-sales services and of spare parts, the conformity to legal requirements regarding the safety of goods, and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the trader, the producer or his representative, particularly in advertising or on labelling. This amendment seeks to provide further guidance as to how traders and consumers should identify whether goods exhibit the expected quality and performance. As currently drafted, the Commission s proposal is too vague and risks unnecessary arguments arising as to its meaning, leading to additional cost to business and potential consumer detriment Anja Weisgerber Article 24 paragraph 2 point d (d) they show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public (d) if, in addition, they show the qualities which are normal in goods of that type and which the consumer can expect, taking into account any public statements on the specific characteristics of the goods made PE v /222 AM\ doc

15 statements on the specific characteristics of the goods made about them by the trader, the producer or his representative, particularly in advertising or on labelling. about them by the trader, the producer or his representative, particularly in advertising or on labelling, unless the trader was unaware and need not have been aware of the statements in question, the statements were justified at the time of the conclusion of the contract or they could not have influenced the decision to purchase. Or.de Die KOM-Fassung klärt nicht deutlich das Verhältnis der einzelnen Maßstäbe für die Vertragsmäßigkeit der Ware.Der Vorschlag geht von einer klaren Rangfolge dieser Maßstäbe aus, die auf dem Vorrang der Vertragsfreiheit beruht. Danach ist in erster Linie die Beschaffenheitsvereinbarung der Parteien maßgeblich; andernfalls kommt es auf den von der Parteien vorausgesetzten (nicht ausdrücklich vereinbarten) Zweck an. Erst dann ist die gewöhnliche Gebrauchseignung in Betracht zu ziehen, und schließlich sind die üblichen oder öffentlich verlautbarten Eigenschaften einer Ware maßgeblich Małgorzata Handzlik, Rafał Trzaskowski Article 24 paragraph 2 point d a (new) (da) they have been packaged in such a way as to obviate damage to the goods. Or.pl Proper packaging of goods (particularly fragile goods) minimises the likelihood of their being damaged during transport. Full level of harmonisation Adam Bielan amending act Article 24 paragraph 2 point d b (new) AM\ doc 15/222 PE v01-00

16 (db) they have been properly packaged, so as to obviate the possibility of their being damaged. Proper packaging, which is especially important during the goods' transport, should be included among the factors on the basis of which conformity with the contract is presumed. Or.pl 1159 Anja Weisgerber Article 24 paragraph 3 3. There shall be no lack of conformity for the purposes of this Article if, at the time the contract was concluded, the consumer was aware, or should reasonably have been aware of, the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer. deleted Or.de For purposes of systematisation, this paragraph has been moved from Article 24(3) to an article of its own Kerstin Westphal Article 24 paragraph 3 PE v /222 AM\ doc

17 3. There shall be no lack of conformity for the purposes of this Article if, at the time the contract was concluded, the consumer was aware, or should reasonably have been aware of, the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer. 3. There shall be no lack of conformity for the purposes of this Article if, at the time the contract was concluded, the consumer was aware of, or should not reasonably have been so grossly negligent as to be unaware of, the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer. Or.de 1161 Emilie Turunen Article 24 paragraph 3 3. There shall be no lack of conformity for the purposes of this Article if, at the time the contract was concluded, the consumer was aware, or should reasonably have been aware of, the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer. 3. There shall be no lack of conformity for the purposes of this Article if, at the time the contract was concluded, the consumer was aware, or could not reasonably have been unaware of, the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer Evelyne Gebhardt Article 24 paragraph 3 3. There shall be no lack of conformity for the purposes of this Article if, at the time the contract was concluded, the consumer was aware, or should reasonably have been aware of, the lack of conformity, or if the lack of conformity has its origin in 3. There shall be no lack of conformity for the purposes of this Article if, at the time the contract was concluded, the consumer was aware, or could not reasonably have been unaware of, the lack of conformity, or if the lack of conformity has its origin in AM\ doc 17/222 PE v01-00

18 materials supplied by the consumer. materials supplied by the consumer Konstantinos Poupakis, Sylvana Rapti Article 24 paragraph 3 3. There shall be no lack of conformity for the purposes of this Article if, at the time the contract was concluded, the consumer was aware, or should reasonably have been aware of, the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer. 3. There shall be no lack of conformity for the purposes of this Article if, at the time the contract was concluded, the consumer was aware of the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer. Or.el 1164 Kyriacos Triantaphyllides Article 24 paragraph 3 3. There shall be no lack of conformity for the purposes of this Article if, at the time the contract was concluded, the consumer was aware, or should reasonably have been aware of, the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer. 3. There shall be no lack of conformity for the purposes of this Article if, at the time the contract was concluded, the consumer was aware of the lack of conformity. Or.el 1165 Anja Weisgerber Article 24 paragraph 4 introductory part PE v /222 AM\ doc

19 4. The trader shall not be bound by public statements, as referred to in paragraph 2(d) if he shows that one of the following situations existed: (a) he was not, and could not reasonably have been, aware of the statement in question; (b) by the time of conclusion of the contract the statement had been corrected; (c) the decision to buy the goods could not have been influenced by the statement. deleted Or.de Die KOM-Fassung klärt nicht deutlich das Verhältnis der einzelnen Maßstäbe für die Vertragsmäßigkeit der Ware. Der Vorschlag geht von einer klaren Rangfolge dieser Maßstäbe aus, die auf dem Vorrang der Vertragsfreiheit beruht. Danach ist in erster Linie die Beschaffenheitsvereinbarung der Parteien maßgeblich; andernfalls kommt es auf den von der Parteien vorausgesetzten (nicht ausdrücklich vereinbarten) Zweck an. Erst dann ist die gewöhnliche Gebrauchseignung in Betracht zu ziehen, und schließlich sind die üblichen oder öffentlich verlautbarten Eigenschaften einer Ware maßgeblich Emilie Turunen Article 24 paragraph 4 point b (b) by the time of conclusion of the contract the statement had been corrected; (b) by the time of conclusion of the contract the statement had been corrected by the same means and in due time before; AM\ doc 19/222 PE v01-00

20 The proposal s exception of the trader s liability in case of public statements is too wide, e.g. in the case that the original statement of the producer s television advertisement has been corrected one day before in a small newspaper announcement Evelyne Gebhardt Article 24 paragraph 4 point b (b) by the time of conclusion of the contract the statement had been corrected; (b) by the time of conclusion of the contract the statement had been corrected in due time by the same means of communication; 1168 Andreas Schwab, Róża Gräfin von Thun und Hohenstein, Rafał Trzaskowski, Małgorzata Handzlik, Sandra Kalniete, Pablo Arias Echeverría Article 24 paragraph 4 point b (b) by the time of conclusion of the contract the statement had been corrected; (b) by the time of conclusion of the contract the statement had been corrected in a manner equivalent to that in which it was made or at least prominently in the contract document; Or.de 1169 Emilie Turunen Article 24 paragraph 4 point c PE v /222 AM\ doc

21 (c) the decision to buy the goods could not have been influenced by the statement. deleted 1170 Anja Weisgerber Article 24 paragraph 5 5. Any lack of conformity resulting from the incorrect installation of the goods shall be considered as a lack of conformity of the goods where the installation forms part of the sales contract and the goods were installed by the trader or under his responsibility. The same shall apply equally if the goods, intended to be installed by the consumer, are installed by the consumer and the incorrect installation is due to a shortcoming in the installation instructions. deleted Or.de For purposes of systematisation, this paragraph is to be moved to an article of its own (Article 24a new) by the same author Robert Rochefort Article 24 paragraph 5 5. Any lack of conformity resulting from 5. The trader shall be liable for lack of AM\ doc 21/222 PE v01-00

22 the incorrect installation of the goods shall be considered as a lack of conformity of the goods where the installation forms part of the sales contract and the goods were installed by the trader or under his responsibility. The same shall apply equally if the goods, intended to be installed by the consumer, are installed by the consumer and the incorrect installation is due to a shortcoming in the installation instructions. conformity arising as a result of the packaging, the installation instructions and of the installation, when the trader is responsible for this under the terms of the contract. Or.fr 1172 Andreas Schwab, Frank Engel Article 24 paragraph 5 a (new) 5a. Member States may not maintain or introduce provisions of national law which depart from the provisions of this Article. Or.de 1173 Robert Rochefort Article 24 paragraph 5 b (new) 5b. Member States may not maintain or introduce in their national law provisions diverging from those laid down in paragraphs 1 and 2, including more or less stringent provisions in order to ensure a different level of consumer protection. Or.fr PE v /222 AM\ doc

23 1174 Kyriacos Triantaphyllides Article 24 paragraph 5 c (new) 5c. Member States may, where necessary in order to ensure a higher level of consumer protection, maintain or introduce, in their national law, provisions diverging from those laid down in this Article. Or.el 1175 Anja Weisgerber Article 24 a (new) Lack of conformity Goods delivered shall be deemed not to be in conformity with the contract inter alia if (a) the installation formed part of the sales contract and the goods were installed incorrectly by the trader or under his responsibility; (b) the goods, intended to be installed by the consumer, are installed by the consumer and the incorrect installation is due to a shortcoming in the installation instructions; (c) the goods delivered were not those due to be delivered or they were delivered in insufficient quantity. Or.de AM\ doc 23/222 PE v01-00

24 Die KOM-Fassung klärt nicht deutlich das Verhältnis der einzelnen Maßstäbe für die Vertragsmäßigkeit der Ware. Der Vorschlag geht von einer klaren Rangfolge dieser Maßstäbe aus, die auf dem Vorrang der Vertragsfreiheit beruht. Danach ist in erster Linie die Beschaffenheitsvereinbarung der Parteien maßgeblich; andernfalls kommt es auf den von der Parteien vorausgesetzten (nicht ausdrücklich vereinbarten) Zweck an. Erst dann ist die gewöhnliche Gebrauchseignung in Betracht zu ziehen, und schließlich sind die üblichen oder öffentlich verlautbarten Eigenschaften einer Ware maßgeblich Kurt Lechner Article 25 Legal rights Liability for lack of conformity The trader shall be liable to the consumer for any lack of conformity which exists at the time the risk passes to the consumer. deleted Or.de 1177 Anja Weisgerber Article 25 title Legal rights Liability for lack of conformity Absence of legal rights where the consumer is aware of lack of conformity Or.de The consumer s awareness of a lack of conformity with the contract is immaterial to the existence of that lack of conformity. For that reason, the provision has been moved from Article 24(3) to an article of its own (Article 25). PE v /222 AM\ doc

25 1178 Jürgen Creutzmann Article 25 paragraph 1 The trader shall be liable to the consumer for any lack of conformity which exists at the time the risk passes to the consumer. deleted Or.de This wording should be included in Article 26 in order to make clear that it relates only to the specific remedies set out in that article and that it does not imply full liability Anja Weisgerber Article 25 paragraph 1 The trader shall be liable to the consumer for any lack of conformity which exists at the time the risk passes to the consumer. The consumer may not rely on a claim for lack of conformity with the contract if at the time of its conclusion he was aware of the lack of conformity or if he remained unaware of it as a result of gross negligence and the trader did not fraudulently conceal it, or if the lack of conformity has its origin in materials supplied by the consumer. Or.de The consumer s awareness of a lack of conformity with the contract is immaterial to the existence of that lack of conformity. For that reason, the provision has been moved from Article 24(3) to an article of its own (Article 25). AM\ doc 25/222 PE v01-00

26 1180 Cornelis de Jong Article 25 paragraph 1 The trader shall be liable to the consumer for any lack of conformity which exists at the time the risk passes to the consumer. The trader and the producer shall be equally liable to the consumer for any lack of conformity which exists at the time the risk passes to the consumer Matteo Salvini Article 25 a (new) Article 25a Right of recourse 1. Where it is established that 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 have right of recourse against the persons liable in their contractual relations. 2. The person or persons liable against whom the final seller may pursue remedies, together with the relevant actions and procedure, shall be determined by national law, in such a way as to ensure the effectiveness of that right. 3. A person established as being liable within the meaning of the previous paragraph shall have the burden of PE v /222 AM\ doc

27 proving an absence of responsibility for the lack of conformity, or that the remedy made by the final seller for the consumer was not in fact required. Or.it 1182 Matteo Salvini Article 25 b (new) Article 25b Direct producer s liability The Member States shall, while respecting the principle of freedom of contract and the other provisions of national law governing relations between the seller, or any other intermediary, and the consumer, establish types of direct head-of-supply-chain liability for any lack of conformity for which the latter are responsible. Or.it 1183 Kurt Lechner Article 26 Remedies for lack of conformity 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to: (a) have the lack of conformity remedied by repair or replacement, deleted AM\ doc 27/222 PE v01-00

28 (b) have the price reduced, (c) have the contract rescinded. 2. The trader shall remedy the lack of conformity by either repair or replacement according to his choice. 3. Where the trader has proved that remedying the lack of conformity by repair or replacement is unlawful, impossible or would cause the trader a disproportionate effort, the consumer may choose to have the price reduced or the contract rescinded. A trader's effort is disproportionate if it imposes costs on him which, in comparison with the price reduction or the rescission of the contract, are excessive, taking into account the value of the goods if there was no lack of conformity and the significance of the lack of conformity. The consumer may only rescind the contract if the lack of conformity is not minor. 4. The consumer may resort to any remedy available under paragraph 1, where one of the following situations exists: (a) the trader has implicitly or explicitly refused to remedy the lack of conformity; (b) the trader has failed to remedy the lack of conformity within a reasonable time; (c) the trader has tried to remedy the lack of conformity, causing significant inconvenience to the consumer; (d) the same defect has reappeared more than once within a short period of time. 5. The significant inconvenience for the consumer and the reasonable time needed for the trader to remedy the lack of conformity shall be assessed taking into account the nature of the goods or the purpose for which the consumer acquired the goods as provided for by Article 24(2)(b). Or.de PE v /222 AM\ doc

29 1184 Anja Weisgerber Article 26 Remedies for lack of conformity Legal rights in the event of lack of conformity Or.de The key provision in this chapter lays down a hierarchy of warranty rights. First of all, the consumer may demand that the lack of conformity be remedied (repair or replacement), subject to the criterion of proportionality (paragraph 3) Damien Abad, Philippe Juvin Article 26 paragraph 1 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to: (a) have the lack of conformity remedied by repair or replacement, (b) have the price reduced, (c) have the contract rescinded. deleted Or.fr 1186 Emilie Turunen Article 26 paragraph 1 introductory part AM\ doc 29/222 PE v01-00

30 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to: 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumers are entitled to choose between the following remedies: 1187 Evelyne Gebhardt Article 26 paragraph 1 introductory part 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to: 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to choose among the following remedies: 1188 Robert Rochefort Article 26 paragraph 1 introductory part 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to: 1. When the goods present a lack of conformity, the consumer may, under the terms of paragraphs 2 to 5, choose between the following remedies: Or.fr Removal of the notion of a hierarchy of remedies. PE v /222 AM\ doc

31 1189 Damien Abad, Philippe Juvin Article 26 paragraph 1 introductory part 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to: 1. When the goods present a lack of conformity, the consumer is entitled, under the terms of paragraphs 2 to 5, to: (a) have the goods repaired, (b) have the goods replaced, (c) have the price reduced, (d) have the contract rescinded. The consumer may only rescind the contract if the lack of conformity is not minor. Or.fr The notion of a hierarchy of remedies has been removed to ensure that consumers can make the most appropriate choice under the circumstances. Stipulating that a contract cannot be rescinded when there is only a minor lack of conformity nevertheless ensures that this provision remains balanced Konstantinos Poupakis, Sylvana Rapti Article 26 paragraph 1 introductory part 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to: 1. In accordance with the conditions laid down in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to: Member States may, where necessary in order to ensure a higher level of consumer protection, maintain or introduce, in their national law, AM\ doc 31/222 PE v01-00

32 provisions diverging from those laid down in this Article. Or.el 1191 Liem Hoang Ngoc Article 26 paragraph 1 introductory part 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to: 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to choose one of the following remedies: Or.fr The choice of a remedy should lie with the consumer Anja Weisgerber Article 26 paragraph 1 introductory part 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to: 1. If the goods delivered do not conform to the contract at the time the risk passes to the consumer, the consumer shall have the following legal entitlements: Or.de The key provision in this chapter lays down a hierarchy of warranty rights. First of all, the consumer may demand that the lack of conformity be remedied (repair or replacement), subject to the criterion of proportionality (paragraph 3). PE v /222 AM\ doc

33 1193 Jürgen Creutzmann Article 26 paragraph 1 introductory part 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to: 1. The trader shall be liable to the consumer for any lack of conformity which exists at the time the risk passes to the consumer. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to: Or.de 1194 Catherine Stihler Article 26 paragraph 1 introductory part 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to: As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumers are entitled to choose between the following remedies: 1195 Ashley Fox Article 26 paragraph 1 introductory part 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to: 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to, AM\ doc 33/222 PE v01-00

34 according to the consumer's choice: This amendment seeks to introduce a right to reject, enabling consumers to obtain a refund where they have purchased a faulty good Adam Bielan amending act Article 26 paragraph 1 introductory part 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to: 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled, according to his choice, to: Or.pl The consumer should be entitled to choose the form of remedial action to be taken Malcolm Harbour Article 26 paragraph 1 introductory part 1. As provided for in paragraphs 2 to 5, where the goods do not conform to the contract, the consumer is entitled to: 1. Where the goods do not conform to the contract, the consumer is entitled to have the lack of conformity remedied by: PE v /222 AM\ doc

35 1198 Damien Abad Article 26 paragraph 1 point a (a) have the lack of conformity remedied by repair or replacement, deleted Or.fr See amendment seeking to remove the hierarchy of remedies in Article 26(1) Anja Weisgerber Article 26 paragraph 1 point a (a) have the lack of conformity remedied by repair or replacement, deleted Or.de The key provision in this chapter lays down a hierarchy of warranty rights. First of all, the consumer may demand that the lack of conformity be remedied (repair or replacement), subject to the criterion of proportionality (paragraph 3) Emilie Turunen Article 26 paragraph 1 point a (a) have the lack of conformity remedied (a) repair AM\ doc 35/222 PE v01-00

36 by repair or replacement, 1201 Evelyne Gebhardt Article 26 paragraph 1 point a (a) have the lack of conformity remedied by repair or replacement, (a) repair, 1202 Robert Rochefort Article 26 paragraph 1 point a (a) have the lack of conformity remedied by repair or replacement, (a) having the goods repaired, Or.fr 1203 Konstantinos Poupakis, Sylvana Rapti Article 26 paragraph 1 point a a) have the lack of conformity remedied by repair or replacement, a have the lack of conformity remedied by repair, Member States may, where necessary in order to ensure a higher level of consumer protection, maintain or introduce, in their national law, provisions diverging from those laid down PE v /222 AM\ doc

37 in this Article. Or.el 1204 Catherine Stihler Article 26 paragraph 1 point a (a) have the lack of conformity remedied by repair or replacement, (a) repair, 1205 Malcolm Harbour Article 26 paragraph 1 point a (a) have the lack of conformity remedied by repair or replacement, (a) repair or replacement; 1206 Emilie Turunen Article 26 paragraph 1 point a a (new) (aa) replacement AM\ doc 37/222 PE v01-00

38 1207 Evelyne Gebhardt Article 26 paragraph 1 point a b (new) (ab) replacement, 1208 Robert Rochefort Article 26 paragraph 1 point a c (new) (ac) having the goods replaced, Or.fr 1209 Konstantinos Poupakis, Sylvana Rapti Article 26 paragraph 1 point aa (new) αα) have the lack of conformity remedied by replacement, Member States may, where necessary in order to ensure a higher level of consumer protection, maintain or introduce, in their national law, provisions diverging from those laid down in this Article. Or.el PE v /222 AM\ doc

39 1210 Damien Abad Article 26 paragraph 1 point b (b) have the price reduced, deleted Or.fr See amendment seeking to remove the hierarchy of remedies in Article 26(1) Anja Weisgerber Article 26 paragraph 1 point b (b) have the price reduced, deleted Or.de The key provision in this chapter lays down a hierarchy of warranty rights. First of all, the consumer may demand that the lack of conformity be remedied (repair or replacement), subject to the criterion of proportionality (paragraph 3) Emilie Turunen Article 26 paragraph 1 point b (b) have the price reduced, (b) Price reduction, AM\ doc 39/222 PE v01-00

40 1213 Evelyne Gebhardt Article 26 paragraph 1 point b (b) have the price reduced, (b) price reduction, 1214 Robert Rochefort Article 26 paragraph 1 point b (b) have the price reduced, (b) having the price reduced, Or.fr 1215 Catherine Stihler Article 26 paragraph 1 point b (b) have the price reduced, (b) price reduction, 1216 Malcolm Harbour Article 26 paragraph 1 point b PE v /222 AM\ doc

41 (b) have the price reduced, (b) having the price reduced; 1217 Catherine Stihler Article 26 paragraph 1 point b a (new) (ba) replacement, 1218 Damien Abad Article 26 paragraph 1 point c (c) have the contract rescinded. deleted Or.fr See amendment seeking to remove the hierarchy of remedies in Article 26(1) Anja Weisgerber Article 26 paragraph 1 point c (c) have the contract rescinded. deleted AM\ doc 41/222 PE v01-00

42 Or.de The key provision in this chapter lays down a hierarchy of warranty rights. First of all, the consumer may demand that the lack of conformity be remedied (repair or replacement), subject to the criterion of proportionality (paragraph 3) Emilie Turunen Article 26 paragraph 1 point c (c) have the contract rescinded. (c) to rescind the contract. The contract shall be rescinded with undue delay and within a maximum period of 30 days following the consumer's request to rescind the contract Evelyne Gebhardt Article 26 paragraph 1 point c (c) have the contract rescinded. (c) Withdrawal from the contract within thirty days from the date of receipt of the goods. The consumer is legally entitled to withdraw from the contract in cases of mixed contract, unless the provision of the services constitutes the main part of the contract. PE v /222 AM\ doc

43 1222 Robert Rochefort Article 26 paragraph 1 point c (c) have the contract rescinded. (c) having the contract rescinded. Or.fr 1223 Catherine Stihler Article 26 paragraph 1 point c (c) have the contract rescinded. (c) rescission of the contract within a period of 30 days from the date of receipt of the goods Malcolm Harbour Article 26 paragraph 1 point c (c) have the contract rescinded. (c) having the contract terminated and receiving a full refund of the price Emilie Turunen Article 26 paragraph 1 point c a (new) AM\ doc 43/222 PE v01-00

44 (ca) Where the contract is a mixedpurpose contract the consumer is entitled to have the entire contract rescinded unless the provision of the service constitutes the predominant part of the contract Kurt Lechner Article 26 paragraph 1 point c b (new) (cb) With regard to digital services, when technical problems may cause the download to be delayed or not to be delivered within a reasonable period or when downloading is prevented, the consumer is entitled to a replacement or refund of the digital content; Or.de 1227 Kerstin Westphal Article 26 paragraph 1 a (new) 1a. Damages Or.de If a remedy has not worked, has been refused or is irrelevant, the consumer is entitled, at the second level of the hierarchy of rights, to have the trader reduce the price, rescind the PE v /222 AM\ doc

45 contract or pay damages Robert Rochefort Article 26 paragraph 1 b (new) 1b. The consumer may only rescind the contract if the lack of conformity is not minor. Or.fr 1229 Zuzana Roithová Article 26 paragraph 1 c (new) 1c. With regard to digital goods, when technical problems may cause the download to be delayed or not delivered within a reasonable period or prevented from downloading, the consumer is entitled to a replacement or refund of the digital content Małgorzata Handzlik, Rafał Trzaskowski Article 26 paragraph 1 d (new) 1d. With regard to digital services, when technical problems may cause the download to be delayed or not delivered AM\ doc 45/222 PE v01-00

46 within a reasonable period or prevented from downloading, the consumer is entitled to a replacement or refund of the digital content. Full level of harmonization Pablo Arias Echeverría Article 26 paragraph 1 e (new) 1e. With regard to digital services, when technical problems may cause the download to be delayed or not delivered within a reasonable period of time, or prevented from downloading, the consumer is entitled to a replacement or a refund of the price paid for the digital content Kerstin Westphal Article 26 paragraph 2 2. The trader shall remedy the lack of conformity by either repair or replacement according to his choice. deleted Or.de PE v /222 AM\ doc

47 1233 Robert Rochefort Article 26 paragraph 2 2. The trader shall remedy the lack of conformity by either repair or replacement according to his choice. deleted Or.fr 1234 Emilie Turunen Article 26 paragraph 2 2. The trader shall remedy the lack of conformity by either repair or replacement according to his choice. deleted 1235 Liem Hoang Ngoc Article 26 paragraph 2 2. The trader shall remedy the lack of conformity by either repair or replacement according to his choice. deleted Or.fr The choice of remedy should lie with the consumer, not the trader. AM\ doc 47/222 PE v01-00

48 1236 Evelyne Gebhardt Article 26 paragraph 2 2. The trader shall remedy the lack of conformity by either repair or replacement according to his choice. deleted 1237 Damien Abad, Philippe Juvin Article 26 paragraph 2 2. The trader shall remedy the lack of conformity by either repair or replacement according to his choice. deleted Or.fr See amendment seeking to remove the hierarchy of remedies in Article 26(1) Konstantinos Poupakis, Sylvana Rapti Article 26 paragraph 2 2. The trader shall remedy the lack of conformity by either repair or replacement according to his choice. 2. The trader shall remedy the lack of conformity by either repair or replacement according to the consumer's choice. PE v /222 AM\ doc

49 Member States may, where necessary in order to ensure a higher level of consumer protection, maintain or introduce, in their national law, provisions diverging from those laid down in this Article. Or.el 1239 Kyriacos Triantaphyllides Article 26 paragraph 2 2. The trader shall remedy the lack of conformity by either repair or replacement according to his choice. 2. The trader shall fulfil his obligations in respect of the lack of conformity according to the consumer's choice, provided it is feasible and does not entail disproportionate costs for the trader. Or.el 1240 Malcolm Harbour Article 26 paragraph 2 2. The trader shall remedy the lack of conformity by either repair or replacement according to his choice. 2. The trader shall remedy the lack of conformity by either repair or replacement according to the choice of the consumer. During a period of thirty days from the day risk passes to the consumer, he may instead terminate the contract and receive a full refund, except where the lack of conformity is trivial. The period of thirty days shall be reduced where: (a) the goods are perishable; or (b) the consumer should have discovered the lack of conformity before carrying out AM\ doc 49/222 PE v01-00