AMENDMENTS EN United in diversity EN. European Parliament 2018/0090(COD) Draft report Daniel Dalton (PE625.

Transcription

1 European Parliament Committee on the Internal Market and Consumer Protection /0090(COD) AMDMTS Draft report Daniel Dalton (PE v01-00) Better enforcement and modernisation of EU consumer protection rules (COM(2018)0185 C8-0143/ /0090(COD)) AM\ docx PE v02-00 United in diversity

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3 55 Othmar Karas Recital 2 (2) Consumer protection legislation should be applied effectively throughout the Union. Yet, the comprehensive Fitness Check of consumer and marketing law directives carried out by the Commission in 2016 and 2017 in the framework of the Regulatory Fitness and Performance (REFIT) programme concluded that the effectiveness of the Union consumer legislation is compromised by lack of awareness both among traders and consumers and by insufficient enforcement and limited consumer redress possibilities. (2) Consumer protection legislation should be applied effectively throughout the Union. Yet, the comprehensive Fitness Check of consumer and marketing law directives carried out by the Commission in 2016 and 2017 in the framework of the Regulatory Fitness and Performance (REFIT) programme concluded that the effectiveness of the Union consumer legislation is compromised by lack of awareness both among traders and consumers and the fact that existing means of redress are not sufficiently used. Or. de 56 Othmar Karas Recital 3 (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, most notably the absence in national laws of truly effective and proportionate penalties to deter and sanction infringements, insufficient individual remedies for consumers harmed by breaches of national legislation transposing Directive 2005/29/EC 36 and shortcomings of the (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. AM\ docx 3/165 PE v02-00

4 injunctions procedure under Directive 2009/22/EC 37. Revision of the injunctions procedure should be addressed by a separate instrument amending and replacing Directive 2009/22/EC. 36 of the European Parliament and of the Council of 11 May 2005 concerning unfair business-toconsumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ L 149, , p. 22). 37 Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers' interests (OJ L 110, , p. 30). Or. de Justification Recital 3 in the version of the Commission proposal ignores the evidence of the impact assessments submitted for the proposal. The approximation of sanctions is not necessarily indispensable for better enforcement of consumer legislation, as the Member States examples mentioned in the impact assessment show. 57 Othmar Karas Recital 4 (4) Directives 98/6/EC 38, 2005/29/EC and 2011/83/EU 39 include requirements for Member States to provide for effective, proportionate and dissuasive penalties to address infringements of national (4) Directives 98/6/EC 38, 2005/29/EC and 2011/83/EU 39 include requirements for Member States to provide for effective, proportionate and dissuasive penalties to address infringements of national PE v /165 AM\ docx

5 provisions transposing these directives. Furthermore, Article 21 of Regulation (EU) 2017/ on consumer protection cooperation (CPC) requires Member States to take enforcement measures, including imposition of penalties, in an effective, efficient and coordinated manner to bring about the cessation or prohibition of widespread infringements or widespread infringements with a Union dimension. 38 Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers (OJ L 80, , p. 27). provisions transposing these directives. Furthermore, Article 21 of Regulation (EU) 2017/ on consumer protection cooperation (CPC) requires Member States to take enforcement measures, including imposition of penalties, in an effective, efficient and coordinated manner to bring about the cessation or prohibition of widespread infringements or widespread infringements with a Union dimension. Directives 98/6/EC, 2005/29/EC and 2011/83/EU include requirements for Member States to provide for effective, proportionate and dissuasive penalties to address infringements of national provisions transposing these directives. Furthermore, Article 21 of Regulation (EU) 2017/2394 on consumer protection cooperation (CPC) requires Member States to take enforcement measures, including imposition of penalties, in an effective, efficient and coordinated manner to bring about the cessation or prohibition of widespread infringements or widespread infringements with a Union dimension. It should be noted that Member States should continue to be free to use private law enforcement through injunctions instead of penalties, in accordance with their national laws and enforcement systems, and with due regard for the hierarchy of remedies. It should be noted that the results of the Consumer Scoreboard fail to reveal any direct link between the level of sanctions and the effectiveness of enforcement of consumer protection rules. Member States with no or light penalties perform very well in the Consumer Scoreboard's enforcement and compliance indicator. 38 Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication of the prices of products offered to consumers (OJ L 80, , p. 27). 39 Directive 2011/83/EU of the European 39 Directive 2011/83/EU of the European AM\ docx 5/165 PE v02-00

6 Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ L 304, , p. 64). 40 Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004 (OJ L 345, , p. 1). Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ L 304, , p. 64). 40 Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004 (OJ L 345, , p. 1). Or. de 58 Othmar Karas Recital 5 (5) Current national rules on penalties differ significantly across the Union. In particular not all Member States ensure that effective, proportionate and dissuasive fines can be imposed on infringing traders for widespread infringements or widespread infringements with a Union dimension. For reasons of consistency between the different Directives on consumer protection, penalties should be addressed in a horizontal manner by revising the existing rules on penalties of Directives 98/6/EC, 2005/29/EC and 2011/83/EU and by introducing new rules on penalties in Directive 93/13/EEC 41. (5) It is therefore appropriate, from the point of view of the principle of subsidiarity, to preserve diversity and not to oblige Member States to establish a parallel public law enforcement system. It should also be recognised that some national legal systems consider that the immediate penalising of commercial practices and contractual clauses, whose unfairness can only be assessed on a caseby-case basis on the basis of general clauses, is difficult to reconcile with the criminal law principle of a requirement of certainty and therefore only provide for penalties in those cases where a ban specifically imposed by a court or an authority is violated. PE v /165 AM\ docx

7 41 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, , p. 29). Or. de 59 Othmar Karas Recital 6 (6) To facilitate more consistent application of penalties, in particular in intra-union infringements, widespread infringements and widespread infringements with a Union dimension referred to in Regulation (EU) 2017/2394, common non-exhaustive criteria should be introduced for the application of fines. These criteria should include the crossborder nature of the infringement, namely whether the infringement has harmed consumers also in other Member States. Any redress provided by the trader to consumers for the harm caused should also be taken into account. Repeated infringements by the same perpetrator shows a propensity to commit such infringements and is therefore a significant indication of the gravity of the conduct and, accordingly, of the need to increase the level of the penalty to achieve effective deterrence. The criterion of financial benefits gained, or losses avoided, due to the infringement is especially relevant where the national law provides for fines as penalties and sets the maximum fine as percentage of the trader s turnover and where the infringement concerns only one or some of the markets in which the trader is operating. (6) To facilitate more consistent application of penalties, for infringements directly against the national provisions adopted pursuant to this Directive and / or against a judicial or administrative decision ordering the termination of an existing or the prohibition of an imminent infringement, in particular in intra-union infringements, widespread infringements and widespread infringements with a Union dimension referred to in Regulation (EU) 2017/2394, common non-exhaustive criteria should be introduced for the application of fines. These criteria should include the cross-border nature of the infringement; account may also be taken whether the infringement has actually harmed consumers also in other Member States. Any redress provided by the trader to consumers for the harm caused should also be taken into account. Repeated infringements by the same perpetrator shows a propensity to commit such infringements and is therefore a significant indication of the gravity of the conduct and, accordingly, of the need to increase the level of the penalty to achieve effective deterrence. Or. de AM\ docx 7/165 PE v02-00

8 60 Marco Zullo Recital 6 (6) To facilitate more consistent application of penalties, in particular in intra-union infringements, widespread infringements and widespread infringements with a Union dimension referred to in Regulation (EU) 2017/2394, common non-exhaustive criteria should be introduced for the application of fines. These criteria should include the crossborder nature of the infringement, namely whether the infringement has harmed consumers also in other Member States. Any redress provided by the trader to consumers for the harm caused should also be taken into account. Repeated infringements by the same perpetrator shows a propensity to commit such infringements and is therefore a significant indication of the gravity of the conduct and, accordingly, of the need to increase the level of the penalty to achieve effective deterrence. The criterion of financial benefits gained, or losses avoided, due to the infringement is especially relevant where the national law provides for fines as penalties and sets the maximum fine as percentage of the trader s turnover and where the infringement concerns only one or some of the markets in which the trader is operating. (6) To facilitate more consistent application of penalties, in particular in intra-union infringements, widespread infringements and widespread infringements with a Union dimension referred to in Regulation (EU) 2017/2394, common non-exhaustive criteria should be introduced for the application of fines. These criteria should include the crossborder nature of the infringement, namely whether the infringement has harmed consumers also in other Member States. Any redress provided by the trader to consumers for the harm caused should also be taken into account. Repeated infringements by the same perpetrator shows a propensity to commit such infringements and is therefore a significant indication of the gravity of the conduct and, accordingly, of the need to increase the level of the penalty to achieve effective deterrence. The criterion of financial benefits gained, or losses avoided, due to the infringement is especially relevant where the national law provides for fines as penalties and sets the maximum fine as percentage of the trader s turnover and where the infringement concerns only one or some of the markets in which the trader is operating. These criteria should also be taken into consideration where the infringement has taken place prior to the entry into force of the legislation, but its effects on consumers are continuing to produce clear and demonstrable damage or negative effects. Or. it PE v /165 AM\ docx

9 Justification This amendment is not intended to make the Commission s proposal retroactive, but to protect consumers from the consequences still being produced now and in the future by infringements by the trader. 61 Jasenko Selimovic Recital 6 (6) To facilitate more consistent application of penalties, in particular in intra-union infringements, widespread infringements and widespread infringements with a Union dimension referred to in Regulation (EU) 2017/2394, common non-exhaustive criteria should be introduced for the application of fines. These criteria should include the crossborder nature of the infringement, namely whether the infringement has harmed consumers also in other Member States. Any redress provided by the trader to consumers for the harm caused should also be taken into account. Repeated infringements by the same perpetrator shows a propensity to commit such infringements and is therefore a significant indication of the gravity of the conduct and, accordingly, of the need to increase the level of the penalty to achieve effective deterrence. The criterion of financial benefits gained, or losses avoided, due to the infringement is especially relevant where the national law provides for fines as penalties and sets the maximum fine as percentage of the trader s turnover and where the infringement concerns only one or some of the markets in which the trader is operating. (6) To facilitate more consistent application of penalties, in particular in intra-union infringements, widespread infringements and widespread infringements with a Union dimension referred to in Regulation (EU) 2017/2394, common non-exhaustive criteria should be introduced for the application of fines. These criteria should include the crossborder nature of the infringement, namely whether the infringement has harmed consumers also in other Member States. Any redress provided by the trader to consumers for the harm caused, as well as the degree to which the trader has cooperated with Member States authorities in order to remedy the consequences of the infringement in question and to mitigate the potential adverse effects thereof, should also be taken into account. Repeated infringements by the same perpetrator shows a propensity to commit such infringements and is therefore a significant indication of the gravity of the conduct and, accordingly, of the need to increase the level of the penalty to achieve effective deterrence. The criterion of financial benefits gained, or losses avoided, due to the infringement is especially relevant where the national law provides for fines as penalties and sets the maximum fine as percentage of the trader s turnover and where the infringement AM\ docx 9/165 PE v02-00

10 concerns only one or some of the markets in which the trader is operating. 62 Othmar Karas Recital 7 (7) Furthermore, any fines imposed as penalties should take into account the annual turnover and profits of the infringing trader and any fines that have been imposed on the trader in other Member States for the same infringement in, particular, in the context of the widespread infringements of consumer law and widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394. (7) Traders have to respect not only consumer protection requirements, but numerous other legal provisions - which also often change rapidly - from a wide variety of areas in the exercise of their entrepreneurial activity. Violations are frequently not committed deliberately. It should therefore be possible for Member States - or they should be encouraged - to act on the principle of advise rather than punish. Fines should only be imposed as penalties as a last resort and should take into account any fines that have been imposed on the trader in other Member States for the same infringement in, particular, in the context of the widespread infringements of consumer law and widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394. Or. de 63 Maria Grapini Recital 7 PE v /165 AM\ docx

11 (7) Furthermore, any fines imposed as penalties should take into account the annual turnover and profits of the infringing trader and any fines that have been imposed on the trader in other Member States for the same infringement in, particular, in the context of the widespread infringements of consumer law and widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394. (7) Furthermore, any fines imposed as penalties should take into account the annual turnover and any fines that have been imposed on the trader in other Member States for the same infringement in, particular, in the context of the widespread infringements of consumer law and widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394. Or. ro 64 Evelyne Gebhardt, Olga Sehnalová, Virginie Rozière, Nicola Danti, Lucy Anderson Recital 7 (7) Furthermore, any fines imposed as penalties should take into account the annual turnover and profits of the infringing trader and any fines that have been imposed on the trader in other Member States for the same infringement in, particular, in the context of the widespread infringements of consumer law and widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394. (7) Furthermore, any fines imposed as penalties should take into account the total worldwide annual turnover and profits of the infringing trader and any fines that have been imposed on the trader in other Member States for the same infringement in, particular, in the context of the widespread infringements of consumer law and widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/ Marco Zullo AM\ docx 11/165 PE v02-00

12 Recital 8 (8) These common non-exhaustive criteria for the application of penalties may not be relevant in deciding on penalties regarding every infringement, in particular regarding non-serious infringements. Member States should also take account of other general principles of law applicable to the imposition of penalties, such as the principle of non bis in idem. (8) These common non-exhaustive criteria for the application of penalties may not be relevant in deciding on penalties regarding every infringement, in particular regarding non-serious infringements. Member States should also take account of other general principles of law applicable to the imposition of penalties, such as the principle of ne bis in idem. This means that a trader sanctioned for infringing Regulation (EU) 2016/679 should not be sanctioned again under this Directive. Or. it Justification It is important to clarify that the principle of ne bis in idem is intended to avoid cumulative sanctions imposed under separate sets of rules. 66 Pascal Arimont Recital 8 (8) These common non-exhaustive criteria for the application of penalties may not be relevant in deciding on penalties regarding every infringement, in particular regarding non-serious infringements. Member States should also take account of other general principles of law applicable to the imposition of penalties, such as the principle of non bis in idem. (8) These common non-exhaustive criteria for the application of penalties may not be relevant in deciding on penalties regarding every infringement, in particular regarding non-serious infringements. In such a case of a non-serious infringement or if the penalties likely to be imposed would constitute a disproportionate burden to the trader, a reprimand may be issued instead of a fine. The imposition of penalties should be subject to appropriate procedural safeguards in accordance with PE v /165 AM\ docx

13 the general principles of Union law - such as the principle of non bis in idem - and the Charter, including effective judicial protection and due process. 67 Evelyne Gebhardt, Lucy Anderson Recital 8 (8) These common non-exhaustive criteria for the application of penalties may not be relevant in deciding on penalties regarding every infringement, in particular regarding non-serious infringements. Member States should also take account of other general principles of law applicable to the imposition of penalties, such as the principle of non bis in idem. (8) These common non-exhaustive criteria for the application of penalties may not be relevant in deciding on penalties regarding every infringement, in particular regarding non-serious infringements. Member States should also take account of other general principles of law applicable to the imposition of penalties, such as the principle of non bis in idem. The enforcement of penalties should not require Member States to establish a comprehensive system of public enforcement. It should be left to Member States to determine the modalities of imposing and enforcing penalties. Justification The Directive should respect national systems of consumer law enforcement. It should not require Member States to establish public enforcement bodies where private enforcement has proven to efficiently protect consumer law. 68 Carlos Coelho Recital 8 AM\ docx 13/165 PE v02-00

14 (8) These common non-exhaustive criteria for the application of penalties may not be relevant in deciding on penalties regarding every infringement, in particular regarding non-serious infringements. Member States should also take account of other general principles of law applicable to the imposition of penalties, such as the principle of non bis in idem. (8) Penalties should be proportionate and appropriate to the nature of the breach of Union consumer protection legislation and the actual or potential overall harm. These common criteria may not be relevant in the case of less serious infringements. The competent authorities should take account of all facts and circumstances of the case and choose the most appropriate penalties essential to address the infringement. Those measures should be proportionate, effective and dissuasive. Or. pt 69 Jasenko Selimovic Recital 8 a (new) (8a) Member States authorities should exercise their powers regarding penalties proportionately, efficiently and effectively, in accordance with Union law, including the principles of the Charter of Fundamental Rights of the European Union, applicable procedural safeguards and the Union rules on data protection, in particular Regulation (EU) 2016/679 of the European Parliament and of the Council 1a, and national law. 1a Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General PE v /165 AM\ docx

15 Data Protection Regulation) (OJ L 119, , p. 1). 70 Marco Zullo Recital 9 (9) To ensure that Member State authorities can impose effective, proportionate and dissuasive penalties in relation to widespread infringements of consumer law and to widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394, fines should be introduced as a mandatory element of penalties for such infringements. In order to ensure deterrence of the fines, Member States should set in their national law the maximum fine for such infringements at a level that is at least 4 % of the trader's annual turnover in the Member State concerned. (9) To ensure that Member State authorities can impose effective, proportionate and dissuasive penalties in relation to widespread infringements of consumer law and to widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394, fines should be introduced as a mandatory element of penalties for such infringements. In order to ensure deterrence of the fines, Member States should set in their national law the maximum fine for such infringements at a level that is at least 4 % of the trader's global turnover calculated on the basis of the total turnover in the previous financial year in the Member State or Member States concerned. Or. it Justification The consumer protection rules need to be aligned with the GDPR so as to create a cohesive legislative framework. 71 Pascal Arimont, Carlos Coelho AM\ docx 15/165 PE v02-00

16 Recital 9 (9) To ensure that Member State authorities can impose effective, proportionate and dissuasive penalties in relation to widespread infringements of consumer law and to widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394, fines should be introduced as a mandatory element of penalties for such infringements. In order to ensure deterrence of the fines, Member States should set in their national law the maximum fine for such infringements at a level that is at least 4% of the trader's annual turnover in the Member State concerned. (9) To ensure that Member State authorities can impose effective, proportionate and dissuasive penalties in relation to widespread infringements of consumer law and to widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394, fines should be introduced as a mandatory element of penalties for such infringements. In order to ensure deterrence of the fines, Member States should set in their national law the maximum fine for such infringements at a level that is up to EUR or 4% of the trader's total worldwide annual turnover of the preceding financial year, whichever is higher. 72 Julia Reda Recital 9 (9) To ensure that Member State authorities can impose effective, proportionate and dissuasive penalties in relation to widespread infringements of consumer law and to widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394, fines should be introduced as a mandatory element of penalties for such infringements. In order to ensure deterrence of the fines, Member States should set in their national law the (9) To ensure that Member State authorities can impose effective, proportionate and dissuasive penalties in relation to widespread infringements of consumer law and to widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394, fines should be introduced as a mandatory element of penalties for such infringements. In order to ensure deterrence of the fines, Member States should set in their national law the PE v /165 AM\ docx

17 maximum fine for such infringements at a level that is at least 4% of the trader's annual turnover in the Member State concerned. maximum fine for such infringements at a level that is at least EUR or 4% of the trader's total worldwide annual turnover whichever is higher 73 Evelyne Gebhardt, Nicola Danti, Olga Sehnalová, Lucy Anderson, Virginie Rozière Recital 9 (9) To ensure that Member State authorities can impose effective, proportionate and dissuasive penalties in relation to widespread infringements of consumer law and to widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394, fines should be introduced as a mandatory element of penalties for such infringements. In order to ensure deterrence of the fines, Member States should set in their national law the maximum fine for such infringements at a level that is at least 4% of the trader's annual turnover in the Member State concerned. (9) To ensure that Member State authorities can impose effective, proportionate and dissuasive penalties in relation to widespread infringements of consumer law and to widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394, fines should be introduced as a mandatory element of penalties for such infringements. In order to ensure deterrence of the fines, Member States should set in their national law the maximum fine for such infringements at a level that is at least 4% of the trader's total worldwide annual turnover. Justification Alignment of the relevant consumer law directives with the General Data Protection Regulation (GDPR). The GDPR refers to a penalty of 4% of the trader's worldwide turnover 74 Maria Grapini AM\ docx 17/165 PE v02-00

18 Recital 9 (9) To ensure that Member State authorities can impose effective, proportionate and dissuasive penalties in relation to widespread infringements of consumer law and to widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394, fines should be introduced as a mandatory element of penalties for such infringements. In order to ensure deterrence of the fines, Member States should set in their national law the maximum fine for such infringements at a level that is at least 4 % of the trader's annual turnover in the Member State concerned. (9) To ensure that Member State authorities can impose effective, proportionate and dissuasive penalties in relation to widespread infringements of consumer law and to widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394, fines should be introduced as a mandatory element of penalties for such infringements. In order to ensure deterrence of the fines, Member States should set in their national law the maximum fine for such infringements at 4% and the minimum at no less than 2% of the trader's annual turnover in the Member State concerned. Or. ro 75 Martin Schirdewan Recital 9 (9) To ensure that Member State authorities can impose effective, proportionate and dissuasive penalties in relation to widespread infringements of consumer law and to widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394, fines should be introduced as a mandatory element of penalties for such infringements. In order to ensure deterrence of the fines, Member States should set in their national law the maximum fine for such infringements at a (9) To ensure that Member State authorities can impose effective, proportionate and dissuasive penalties in relation to widespread infringements of consumer law and to widespread infringements with a Union dimension that are subject to coordinated investigation and enforcement in accordance with Regulation (EU) 2017/2394, fines should be introduced as a mandatory element of penalties for such infringements. In order to ensure deterrence of the fines, Member States should set in their national law the fines for such infringements at a level that PE v /165 AM\ docx

19 level that is at least 4 % of the trader's annual turnover in the Member State concerned. is at least 4 % of the trader's overall total annual turnover in the Member State concerned. Or. de 76 Marco Zullo Recital 10 (10) Where, as a result of the coordination mechanism under Regulation (EU) 2017/2394, a single national 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. (10) Where, as a result of the coordination mechanism under Regulation (EU) 2017/2394, a single national 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 global turnover calculated on the basis of the total turnover in the previous financial year, in all Member States concerned by the coordinated enforcement action. Or. it Justification The consumer protection rules need to be aligned with the GDPR so as to create a cohesive legislative framework. 77 Maria Grapini Recital 10 AM\ docx 19/165 PE v02-00

20 (10) Where, as a result of the coordination mechanism under Regulation (EU) 2017/2394, a single national 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. (10) Where, as a result of the coordination mechanism under Regulation (EU) 2017/2394, a single national 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 maximum fine of at least 4 % and a minimum of no less than 2% of the trader s annual turnover in all Member States concerned by the coordinated enforcement action. Or. ro 78 Julia Reda Recital 10 (10) Where, as a result of the coordination mechanism under Regulation (EU) 2017/2394, a single national 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. (10) Where, as a result of the coordination mechanism under Regulation (EU) 2017/2394, a single national 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 EUR or 4 % of the trader s total worldwide annual turnover, whichever is higher. 79 Pascal Arimont, Carlos Coelho PE v /165 AM\ docx

21 Recital 10 (10) Where, as a result of the coordination mechanism under Regulation (EU) 2017/2394, a single national 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. (10) Where, as a result of the coordination mechanism under Regulation (EU) 2017/2394, a single national 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 up to EUR or 4 % of the trader s total worldwide annual turnover, whichever is higher. 80 Evelyne Gebhardt, Nicola Danti, Olga Sehnalová, Biljana Borzan, Lucy Anderson, Virginie Rozière Recital 10 (10) Where, as a result of the coordination mechanism under Regulation (EU) 2017/2394, a single national 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. (10) Where, as a result of the coordination mechanism under Regulation (EU) 2017/2394, a single national 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 total worldwide annual turnover. AM\ docx 21/165 PE v02-00

22 81 Maria Grapini Recital 11 (11) Member States should not be prevented from maintaining or introducing in their national law higher maximum turnover-based fines for widespread infringements and widespread infringements with a Union dimension of consumer law, as defined in Regulation EU 2017/2394. The requirement to set the fine at a level of not less than 4 % of the trader's turnover should not apply to any additional rules of the Member States on periodic penalty payments, such as daily fines, for non-compliance with any decision, order, interim measure, trader's commitment or other measure with the aim of stopping the infringement. deleted Or. ro 82 Evelyne Gebhardt, Olga Sehnalová, Virginie Rozière, Lucy Anderson Recital 11 (11) Member States should not be prevented from maintaining or introducing in their national law higher maximum turnover-based fines for widespread infringements and widespread infringements with a Union dimension of consumer law, as defined in Regulation EU 2017/2394. The requirement to set the fine at a level of not less than 4 % of the trader's turnover should not apply to any additional rules of the Member States on periodic penalty payments, such as daily fines, for (11) Member States should not be prevented from maintaining or introducing in their national law higher maximum turnover-based fines or fixed maximum fines for widespread infringements and widespread infringements with a Union dimension of consumer law, as defined in Regulation EU 2017/2394. The requirement to set the fine at a level of not less than 4 % of the trader's turnover should not apply to any additional rules of the Member States on periodic penalty PE v /165 AM\ docx

23 non-compliance with any decision, order, interim measure, trader's commitment or other measure with the aim of stopping the infringement. payments, such as daily fines, for noncompliance with any decision, order, interim measure, trader's commitment or other measure with the aim of stopping the infringement. 83 Julia Reda Recital 11 (11) Member States should not be prevented from maintaining or introducing in their national law higher maximum turnover-based fines for widespread infringements and widespread infringements with a Union dimension of consumer law, as defined in Regulation EU 2017/2394. The requirement to set the fine at a level of not less than 4 % of the trader's turnover should not apply to any additional rules of the Member States on periodic penalty payments, such as daily fines, for non-compliance with any decision, order, interim measure, trader's commitment or other measure with the aim of stopping the infringement. (11) Member States should not be prevented from maintaining or introducing in their national law higher maximum turnover-based fines for widespread infringements and widespread infringements with a Union dimension of consumer law, as defined in Regulation EU 2017/2394. The requirement to set the maximum fine at a level of not less than 4 % of the trader's turnover should not apply to any additional rules of the Member States on periodic penalty payments, such as daily fines, for non-compliance with any decision, order, interim measure, trader's commitment or other measure with the aim of stopping the infringement. 84 Othmar Karas Recital 12 (12) When deciding for which purpose the revenues from fines are used, Member (12) When deciding for which purpose the revenues from fines are used, Member AM\ docx 23/165 PE v02-00

24 States should take into account the ultimate objective of consumer legislation and its enforcement which is the protection of the general interest of consumers. Member States should therefore consider allocating at least part of the revenues from fines to enhance consumer protection within their jurisdictions, such as supporting consumer movement or activities aimed at empowering consumers. States should take into account the ultimate objective of consumer legislation and its enforcement which is the protection of the general interest of consumers. Or. de Justification When allocating any revenue from fines, a conflict of interest must be avoided in all circumstances. Especially with regard to the current Commission proposal COM (2018) 184 final. 85 Marco Zullo Recital 12 (12) When deciding for which purpose the revenues from fines are used, Member States should take into account the ultimate objective of consumer legislation and its enforcement which is the protection of the general interest of consumers. Member States should therefore consider allocating at least part of the revenues from fines to enhance consumer protection within their jurisdictions, such as supporting consumer movement or activities aimed at empowering consumers. (12) When deciding for which purpose the revenues from fines are used, Member States should take into account the ultimate objective of consumer legislation and its enforcement which is the protection of the general interest of consumers. Member States should therefore allocate the majority of the revenues to a fund for directly compensating consumers for all the damage they have suffered using the method least onerous to the public authorities, and the remainder to enhance consumer protection within their jurisdictions, such as supporting consumer movement or activities aimed at empowering consumers. Or. it PE v /165 AM\ docx

25 Justification If the public authorities are to fulfil their civic role and fully protect citizens, they must directly compensate consumers who have suffered as the result of an infringement. 86 Carlos Coelho Recital 12 (12) When deciding for which purpose the revenues from fines are used, Member States should take into account the ultimate objective of consumer legislation and its enforcement which is the protection of the general interest of consumers. Member States should therefore consider allocating at least part of the revenues from fines to enhance consumer protection within their jurisdictions, such as supporting consumer movement or activities aimed at empowering consumers. (12) When deciding for which purpose the revenues from fines are used, Member States should take into account the ultimate objective of consumer legislation and its enforcement which is the protection of the general interest of consumers. Member States should therefore consider allocating at least part of the revenues from fines to enhance consumer protection within their jurisdictions. Or. pt 87 Julia Reda Recital 12 (12) When deciding for which purpose the revenues from fines are used, Member States should take into account the ultimate objective of consumer legislation and its enforcement which is the protection of the general interest of consumers. Member States should therefore consider allocating at least part of the revenues from fines to enhance consumer protection within their jurisdictions, such as supporting consumer (12) When deciding for which purpose the revenues from fines are used, Member States should take into account the ultimate objective of consumer legislation and its enforcement which is the protection of the general interest of consumers. Member States should therefore allocate the revenues from fines to enhance consumer protection within their jurisdictions, such as supporting consumer movement or AM\ docx 25/165 PE v02-00

26 movement or activities aimed at empowering consumers. activities aimed at empowering consumers. 88 Othmar Karas Recital 13 (13) Access to individual remedies for consumers harmed by unfair commercial practices should be enhanced in the context of to put the consumer into the condition he would have been without the unfair commercial practice. While that Directive was originally designed mainly to regulate the market conduct of traders based on public enforcement, experience from more than ten years of application demonstrate the shortcomings of the lack of a clear framework setting out rights to individual remedies. deleted Or. de 89 Othmar Karas Recital 14 (14) National rules on individual remedies for consumers harmed by unfair commercial practices are diverging. The current situation, where to a large extent it is left to the Member States to determine if and how remedies should be available, keeps from being (14) National rules on individual remedies for consumers harmed by unfair commercial practices are admittedly diverging. The REFIT Review has shown that, in principle, it is possible in all Member States to resort to remedies under national civil law in the event of unfair PE v /165 AM\ docx

27 fully effective. Therefore, that Directive still has potential to fully reach its dual purpose, which is to contribute to the proper functioning of the Internal Market and achieve a high level of consumer protection. Despite the existing possibilities for remedies under national law, the Fitness Check did not identify significant examples of case law where victims of unfair commercial practices had claimed remedies. This contrasts with the fact that unfair commercial practices are the most frequent consumer rightsrelated problem across Europe. It indicates that the existing possibilities for remedies do not ensure that consumers can solve problems when their rights under that Directive have been breached. Accordingly, introducing a clear framework for individual remedies would facilitate private enforcement and be complementary to the existing requirement for Member States to ensure that adequate and effective means exist to enforce compliance with that Directive. It would also be in line with the approach to individual remedies in other consumer protection Directives, such as Directive 93/13/EEC and Directive 1999/44/EC ensuring a more coherent and consistent application of the consumer acquis. commercial practices. In order to improve access to individual remedies for consumers harmed by unfair commercial practices, Member States should designate specific authorities which provide consumers with information. Or. de 90 Othmar Karas Recital 15 (15) Member States should ensure that remedies are available for consumers harmed by unfair commercial practices in order to eliminate all the effects of those unfair practices. In order to meet that (15) Member States should ensure that remedies are available for consumers harmed as regards their property or physical integrity by unfair commercial practices in order to eliminate all the AM\ docx 27/165 PE v02-00

28 objective, Member States should make both contractual and non-contractual remedies available. As a minimum, the contractual remedies provided by the Member States should include the right to contract termination. Non-contractual remedies provided under national law should, as a minimum, include the right to compensation for damages. Member States would not be prevented from maintaining or introducing rights to additional remedies for consumers harmed by unfair commercial practices in order to ensure full removal of the effects of such practices. effects of those unfair practices. In order to meet that objective, Member States should make both contractual and non-contractual remedies available, taking into account the hierarchy of remedies and with due respect for their civil law and, in particular, also their liability systems, and the conditions laid down therein. As a minimum, the contractual remedies provided by the Member States should include the right to contract termination. Non-contractual remedies provided under national law should, as a minimum, include the right to compensation for damages. Member States would not be prevented from maintaining or introducing rights to additional remedies for consumers harmed by unfair commercial practices in order to ensure full removal of the effects of such practices. Or. de Justification The term harmed needs a clearer definition - possibly not as restricted as this proposal. But a discussion to clarify what is meant by harm is essential. 91 Evelyne Gebhardt, Lucy Anderson, Virginie Rozière Recital 15 (15) Member States should ensure that remedies are available for consumers harmed by unfair commercial practices in order to eliminate all the effects of those unfair practices. In order to meet that objective, Member States should make both contractual and non-contractual remedies available. As a minimum, the contractual remedies provided by the Member States should include the right to (15) Member States should ensure that remedies are available for consumers harmed by unfair commercial practices in order to eliminate all the effects of those unfair practices. In order to meet that objective, Member States should make both contractual and non-contractual remedies available in their national law. As a minimum, the contractual remedies provided by the Member States should PE v /165 AM\ docx