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.

(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.

(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.