keyboard_tab Contratti di vendita di beni conformi 2019/0771 EN

(5) Technological evolution has led to a growing market for goods that incorporate or are inter-connected with digital_content or digital services.

  Due to the increasing number of such devices and their rapidly growing uptake by consumers, action at Union level is needed in order to ensure that there is a high level of consumer protection and to increase legal certainty as regards the rules applicable to contracts for the sale of such products.

  Increasing legal certainty would help to reinforce the trust of consumers and sellers.

(13) This Directive and Directive (EU) 2019/770 of the European Parliament and of the Council (6) should complement each other.

  While Directive (EU) 2019/770 lays down rules on certain requirements concerning contracts for the supply of digital_content or digital services, this Directive lays down rules on certain requirements concerning contracts for the sale of goods.

  Accordingly, in order to meet the expectations of consumers and ensure a clear-cut and simple legal framework for traders of digital_content or digital services, Directive (EU) 2019/770 applies to the supply of digital_content or digital services, including digital_content supplied on a tangible medium, such as DVDs, CDs, USB sticks and memory cards, as well as to the tangible medium itself, provided that the tangible medium serves exclusively as a carrier of the digital_content.

  In contrast, this Directive should apply to contracts for the sale of goods, including goods with digital elements which require digital_content or a digital service in order to perform their functions.

(14) The term ‘ goods’ as provided for under this Directive should be understood to include ‘ goods with digital elements’, and therefore to also refer to any digital_content or digital service that is incorporated in or inter-connected with such goods, in such a way that the absence of that digital_content or digital service would prevent the goods from performing their functions.

  Digital content that is incorporated in or inter-connected with a good can be any data which are produced and supplied in digital form, such as operating systems, applications and any other software.

  Digital content can be pre-installed at the moment of the conclusion of the sales_contract or, where that contract so provides, can be installed subsequently.

  Digital services inter-connected with a good can include services which allow the creation, processing or storage of data in digital form, or access thereto, such as software-as-a-service offered in the cloud computing environment, the continuous supply of traffic data in a navigation system, or the continuous supply of individually adapted training plans in the case of a smart watch.

(15) This Directive should apply to contracts for the sale of goods, including goods with digital elements where the absence of the incorporated or inter-connected digital_content or digital service would prevent the goods from performing their functions and where that digital_content or service is provided with the goods under the sales_contract concerning those goods.

  Whether the supply of the incorporated or inter-connected digital_content or digital service forms part of the sales_contract with the seller should depend on the content of this contract.

  This should include incorporated or inter-connected digital_content or digital services the supply of which is explicitly required by the contract.

  It should also include sales_contracts which can be understood as covering the supply of specific digital_content or a specific digital service because they are normal for goods of the same type and the consumer could reasonably expect them given the nature of the goods and taking into account any public statement made by or on behalf of the seller or other persons in previous links of the chain of transactions, including the producer.

  If, for example, a smart TV were advertised as including a particular video application, that video application would be considered to be part of the sales_contract.

  This should apply regardless of whether the digital_content or digital service is pre-installed in the good itself or has to be downloaded subsequently on another device and is only inter-connected to the good.

  For example, a smart phone could come with a standardised pre-installed application provided under the sales_contract, such as an alarm application or a camera application.

  Another possible example is that of a smart watch.

  In such a case, the watch itself would be considered to be the good with digital elements, which can perform its functions only with an application that is provided under the sales_contract but has to be downloaded by the consumer onto a smart phone; the application would then be the inter-connected digital element.

  This should also apply if the incorporated or inter-connected digital_content or digital service is not supplied by the seller itself but is supplied, under the sales_contract, by a third party.

  In order to avoid uncertainty for both sellers and consumers, in the event of doubt as to whether the supply of the digital_content or the digital service forms part of the sales_contract, the rules of this Directive should apply.

  Furthermore, ascertaining a bilateral contractual relationship, between the seller and the consumer, of which the supply of the incorporated or inter-connected digital_content or digital service forms part should not be affected by the mere fact that the consumer has to consent to a licensing agreement with a third party in order to benefit from the digital_content or the digital service.

(16) In contrast, if the absence of the incorporated or inter-connected digital_content or digital service does not prevent the goods from performing their functions, or if the consumer concludes a contract for the supply of digital_content or a digital service which does not form part of the contract concerning the sale of goods with digital elements, that contract should be considered to be separate from the contract for the sale of the goods, even if the seller acts as an intermediary of that second contract with the third-party supplier, and could fall within the scope of Directive (EU) 2019/770 if the conditions of that Directive are met.

  For instance, if the consumer downloads a game application from an app store onto a smart phone, the contract for the supply of the game application is separate from the contract for the sale of the smart phone itself.

  This Directive should therefore only apply to the sales_contract concerning the smart phone, while the supply of the game application should fall under Directive (EU) 2019/770, if the conditions of that Directive are met.

  Another example would be where it is expressly agreed that the consumer buys a smart phone without a specific operating system and the consumer subsequently concludes a contract for the supply of an operating system from a third party.

  In such a case, the supply of the separately bought operating system would not form part of the sales_contract and therefore would not fall within the scope of this Directive but could fall within the scope of Directive (EU) 2019/770, if the conditions of that Directive are met.

(28) Given that the digital_content or digital services incorporated in or inter-connected with goods are constantly developing, sellers may agree with consumers to provide updates for such goods.

  Updates, as agreed in the sales_contract, can improve and enhance the digital_content or digital service element of goods, extend their functionalities, adapt them to technical developments, protect them against new security threats or serve other purposes.

  The conformity of goods with digital_content or digital services which are incorporated in or inter-connected with the goods should, therefore, also be assessed in relation to whether the digital_content or digital service element of such goods is updated in accordance with the sales_contract.

  Failure to supply updates that had been agreed in the sales_contract should be considered as a lack of conformity of the goods.

  Moreover, defective or incomplete updates should also be considered as a lack of conformity of the goods, given that that would mean that such updates are not performed in the manner stipulated in the sales_contract.

(30) In addition to contractually agreed updates, the seller should also provide updates, including security updates, in order to ensure that goods with digital elements remain in conformity.

  The seller's obligation should be limited to updates which are necessary for such goods to maintain their conformity with the objective and subjective requirements for conformity laid down in this Directive.

  Unless the parties have contractually agreed otherwise, the seller should not be obliged to provide upgraded versions of the digital_content or digital service of the goods or to improve or extend the functionalities of goods beyond the conformity requirements.

  If an update provided by the seller, or by a third party supplying the digital_content or digital service under the sales_contract, causes a lack of conformity of the good with digital elements, the seller should be liable for bringing the good into conformity again.

  The consumer should remain free to choose whether to install the updates provided.

  Where the consumer decides not to install the updates which are necessary for the goods with digital elements to maintain their conformity, the consumer should however not expect such goods to remain in conformity.

  The seller should inform the consumer that the consumer's decision not to install updates which are necessary for keeping the goods with digital elements in conformity, including security updates, will affect the seller's liability for conformity of those features of the goods with digital elements which the relevant updates are supposed to maintain in conformity.

  This Directive should not affect obligations to provide security updates laid down in other Union law or in national law.

(31) In principle, in the case of goods with digital elements whereby the digital_content or digital service incorporated in or inter-connected with the goods is supplied through a single act of supply, the seller should only be liable for a lack of conformity that exists at the time of delivery.

  However, the obligation to provide updates should reflect the fact that the digital environment of any such good constantly changes.

  Therefore, updates are a necessary tool in order to ensure that the goods are able to function in the same way that they did at the time of delivery.

  Furthermore, in contrast to traditional goods, goods with digital elements are not completely separate from the seller's sphere because the seller, or a third person supplying the digital_content or digital service under the sales_contract, is able to update the goods from a distance, usually over the internet.

  Therefore, if the digital_content or digital service is supplied by a single act of supply, the seller should be liable to provide the updates necessary to keep the goods with digital elements in conformity for a period of time that the consumer can reasonably expect, even if the goods were in conformity at the time of delivery.

  The period of time during which the consumer can reasonably expect to receive updates should be assessed based on the type and purpose of the goods and the digital elements, and taking into account the circumstances and nature of the sales_contract.

  A consumer would normally expect to receive updates for at least as long as the period during which the seller is liable for a lack of conformity, while in some cases the consumer's reasonable expectation could extend beyond that period, as might be the case particularly with regard to security updates.

  In other cases, for instance as regards goods with digital elements the purpose of which is limited in time, the seller's obligation to provide updates would normally be limited to that time.

(34) A large number of goods have to be installed before they can be used effectively by the consumer.

  In addition, in the case of goods with digital elements, the installation of the digital_content or digital service is usually necessary for the consumer to be able to use such goods in line with their intended purpose.

  Therefore, any lack of conformity resulting from an incorrect installation of the goods, including from the incorrect installation of the digital_content or digital service incorporated in or inter-connected with the goods, should be regarded as a lack of conformity, where the installation was performed by the seller or under the seller's control.

  Where the goods were intended to be installed by the consumer, a lack of conformity resulting from incorrect installation should be regarded as a lack of conformity of the goods, irrespective of whether the installation was performed by the consumer or by a third party under the consumer's responsibility, if the incorrect installation was due to shortcomings in the installation instructions, such as incompleteness or a lack of clarity making the installation instructions difficult to use for the average consumer.

(37) Enhancing legal certainty for both consumers and sellers requires a clear indication of the time when the conformity of the goods should be assessed.

  The relevant time for assessing the conformity of the goods should be the time when the goods are delivered.

  This should also apply to goods which incorporate or are inter-connected with digital_content or a digital service supplied through a single act of supply.

  However, where the digital_content or digital service incorporated in or inter-connected with the goods is to be supplied continuously over a period of time, the relevant time for the purpose of establishing conformity of that digital_content or digital service element should not be one specific moment in time but rather a period of time, starting from the time of delivery.

  For reasons of legal certainty, that period of time should be equal to the period during which the seller is liable for a lack of conformity.

(39) Goods with digital elements should be deemed to have been delivered to the consumer when both the physical component of the goods has been delivered and the single act of supply of the digital_content or digital service has been performed or the continuous supply of the digital_content or digital service over a period of time has begun.

  This means that the seller should also make the digital_content or digital service available or accessible to the consumer in such a way that the digital_content or digital service, or any means suitable for downloading or accessing it, has reached the sphere of the consumer and no further action is required by the seller in order to enable the consumer to use the digital_content or digital service in accordance with the contract, for example by providing a link or a download option.

  Therefore, the relevant moment for establishing conformity should be the time when the digital_content or digital service is supplied, if the physical component was delivered earlier.

  As a result, it can be ensured that there is a uniform starting point for the liability period for the physical component, on the one hand, and for the digital element on the other hand.

  Moreover, in many cases the consumer is unable to notice a defect in the physical component before the digital_content or digital service is supplied.

(41) In order to ensure that there is legal certainty for sellers and overall consumer confidence in cross-border purchases, it is necessary to provide for a period during which the consumer is entitled to remedies for any lack of conformity that exists at the relevant time for establishing conformity.

  Given that when implementing Directive 1999/44/EC, a large majority of Member States have provided for a period of two years, and in practice that period is considered reasonable by market participants, that period should be maintained.

  The same period should apply in the case of goods with digital elements.

  However, where the contract provides for continuous supply for more than two years, the consumer should be entitled to remedies for any lack of conformity of the digital_content or the digital service that occurs or becomes apparent within the period during which the digital_content or digital service is to be supplied under the contract.

  In order to ensure that there is flexibility for Member States to increase the level of consumer protection in their national law, Member States should be free to provide for longer time limits for the liability of the seller than those laid down in this Directive.

(45) For a period of one year, or for a period of two years if Member States choose to apply a two-year period, the consumer should only need to prove that the good is not in conformity, without also needing to prove that the lack of conformity actually existed at the relevant time for establishing conformity.

  In order to rebut the consumer's claim, the seller would need to prove that the lack of conformity did not exist at that time.

  In addition, in some cases the presumption that the lack of conformity existed at the relevant time for establishing conformity could be incompatible with the nature of the goods or the nature of the lack of conformity.

  The former could be the case with goods that by nature deteriorate, such as perishable products, for example flowers, or goods which are only intended for a single use.

  An example of the latter would be a lack of conformity, which can only be a result of an action by the consumer or of an evident external cause which occurred after the goods were delivered to the consumer.

  In the case of goods with digital elements where the contract provides for continuous supply of the digital_content or digital service, the consumer should not have to prove that the digital_content or digital service was not in conformity during the respective period of time for establishing conformity.

  In order to rebut the consumer's claim, the seller would need to prove that the digital_content or digital service was in conformity during that period.

(71) It is appropriate for the Commission to review the application of this Directive five years after its entry into force, including in particular the provisions regarding remedies, the burden of proof – also with respect to second-hand goods as well as goods sold at public_auctions – and the producer's commercial_guarantee of durability.

  The Commission should also assess whether the application of this Directive and of Directive (EU) 2019/770 ensures a consistent and coherent legal framework with regard to the supply of digital_content or digital services and goods with digital elements.