keyboard_tab Contratti di vendita di beni conformi 2019/0771 EN

(2) Article 26(1) and (2) of the Treaty on the Functioning of the European Union (TFEU) provide that the Union is to adopt measures with the aim of establishing or ensuring the functioning of the internal market, which is to comprise an area without internal frontiers in which the free movement of goods and services is ensured.

  Article 169(1) and point (a) of Article 169(2) TFEU provide that the Union is to contribute to the attainment of a high level of consumer protection through measures adopted pursuant to Article 114 TFEU in the context of the completion of the internal market. Τhis directive aims to strike the right balance between achieving a high level of consumer protection and promoting the competitiveness of enterprises, while ensuring respect for the principle of subsidiarity.

(6) Union rules applicable to the sales of goods are still fragmented, although rules on delivery conditions and, as regards distance or off-premises contracts, pre-contractual information requirements and the right of withdrawal have already been fully harmonised by directive 2011/83/EU of the European Parliament and of the Council (3).

  Other key contractual elements, such as the conformity criteria, the remedies for a lack of conformity with the contract and the main modalities for their exercise, are currently subject to minimum harmonisation under directive 1999/44/EC of the European Parliament and of the Council (4).

  Member States have been allowed to go beyond the Union standards and introduce or maintain rules that ensure that an even higher level of consumer protection is achieved.

  In doing so, they have acted on different elements and to different extents.

  Thus, national provisions transposing directive 1999/44/EC significantly diverge today on essential elements, such as the absence or existence of a hierarchy of remedies.

(9) While online sales of goods constitute the vast majority of cross-border sales in the Union, differences in national contract laws equally affect retailers using distance sales channels and retailers selling face-to-face and prevent them from expanding across borders.

  This directive should cover all sales channels, in order to create a level playing field for all businesses selling goods to consumers.

  By laying down uniform rules across sales channels, this directive should avoid any divergence that would create disproportionate burdens for the growing number of omni-channel retailers in the Union.

  The need for retaining consistent rules on sales and guarantees for all sales channels was confirmed in the Commission's Fitness Check on consumer and marketing law published on 29 May 2017, which also covered directive 1999/44/EC.

(10) This directive should cover rules applicable to the sales of goods, including goods with digital elements, only in relation to key contract elements needed to overcome contract-law related barriers in the internal market.

  For this purpose, rules on requirements for conformity, remedies available to consumers for a lack of conformity of the goods with the contract and on the main modalities for their exercise should be fully harmonised, and the level of consumer protection, as compared to directive 1999/44/EC, should be increased.

  Fully harmonised rules on some essential elements of consumer contract law would make it easier for businesses, especially SMEs, to offer their products in other Member States.

  Consumers would benefit from a high level of consumer protection and welfare gains by fully harmonising key rules.

(11) This directive complements directive 2011/83/EU.

  While directive 2011/83/EU mainly lays down provisions regarding pre-contractual information requirements, the right of withdrawal from distance and off-premises contracts and rules on delivery and passing of risk, this directive introduces rules on conformity of the goods, remedies in the event of a lack of conformity and modalities for their exercise.

(12) This directive should only apply to tangible movable items that constitute goods within the meaning laid down in this directive.

  Member States should therefore be free to regulate contracts for the sale of immovable property, such as residential buildings, and its main components intended to constitute a major part of such immovable property.

(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.

(17) For the purpose of legal clarity this directive should lay down a definition of a sales_contract and also clearly define its scope.

  The scope of this directive should also cover contracts for goods that are yet to be produced or manufactured, including under the consumer's specifications.

  Furthermore, an installation of the goods could fall within the scope of this directive if the installation forms part of the sales_contract and has to be carried out by the seller or under the seller's responsibility.

  Where a contract includes elements of both sales of goods and provision of services, it should be left to national law to determine whether the whole contract can be classified as a sales_contract within the meaning of this directive.

(18) This directive should not affect national law to the extent that the matters concerned are not regulated by this directive, in particular with regard to the legality of the goods, damages and general contract law aspects such as the formation, validity, nullity or effects of contracts.

  The same should apply in relation to the consequences of the termination of the contract and to certain aspects regarding repair and replacement that are not regulated in this directive.

  When regulating the rights of parties to withhold the performance of their obligations or part thereof until the other party performs its obligations, Member States should remain free to regulate the conditions and modalities regarding the withholding of payment of the price by the consumer.

  Member States should also remain free to regulate the consumer's entitlement to compensation for damage suffered as a consequence of an infringement by the seller of this directive.

  This directive should also not affect national rules that do not specifically concern consumer contracts and provide for specific remedies for certain types of defects that were not apparent at the time of conclusion of the sales_contract, namely national provisions which may lay down specific rules for the seller's liability for hidden defects.

  This directive should also not affect national laws providing for non-contractual remedies for the consumer, in the event of lack of conformity of goods, against persons in previous links of the chain of transactions, for example manufacturers, or other persons that fulfil the obligations of such persons.

(19) This directive should not affect the freedom of Member States to allow consumers to choose a specific remedy if the lack of conformity of the goods becomes apparent shortly after delivery, namely national provisions which provide for a right for the consumer to reject goods with a defect and to treat the contract as repudiated or ask for immediate replacement, within a specific short period of time after the delivery of the goods, which should not exceed 30 days.

(21) Member States should also remain free to extend the application of the rules of this directive to contracts that are excluded from the scope of this directive, or to otherwise regulate such contracts.

  For instance, Member States should remain free to extend the protection afforded to consumers by this directive also to natural or legal persons that are not consumers within the meaning of this directive, such as non-governmental organisations, start-ups or SMEs.

(23) This directive should apply to any contract whereby the seller transfers or undertakes to transfer the ownership of goods to the consumer.

  Platform providers could be considered to be sellers under this directive if they act for purposes relating to their own business and as the direct contractual partner of the consumer for the sale of goods.

  Member States should remain free to extend the application of this directive to platform providers that do not fulfil the requirements for being considered a seller under this directive.

(24) In order to balance the need for legal certainty with an appropriate flexibility of the legal rules, any reference in this directive to what can be expected from or by a person should be understood as a reference to what can reasonably be expected.

  The standard of reasonableness should be objectively ascertained, having regard to the nature and purpose of the contract, the circumstances of the case and to the usages and practices of the parties involved.

(25) In order to provide clarity as to what a consumer can expect from the goods and what the seller would be liable for in the event of failure to deliver what is expected, it is essential to fully harmonise rules for determining whether goods are in conformity.

  Any reference to conformity in this directive should refer to conformity of the goods with the sales_contract.

  In order to safeguard the legitimate interests of both parties to a sales_contract, conformity should be assessed based on both subjective and objective requirements for conformity.

(26) Therefore, the goods should comply with the requirements agreed between the seller and the consumer in the sales_contract.

  Such requirements could cover, inter alia, the quantity, quality, type and description of the goods, their fitness for a specific purpose, as well as the delivery of the goods with the agreed accessories and any instructions.

  The requirements in the sales_contract should include those resulting from pre-contractual information which, in accordance with directive 2011/83/EU, forms an integral part of the sales_contract.

(29) In order to be in conformity, the goods should not only comply with the subjective requirements for conformity but should in addition comply with the objective requirements for conformity set out in this directive.

  Conformity should be assessed, inter alia, by considering the purpose for which goods of the same type would normally be used, whether they are supplied with the accessories and instructions that the consumer can reasonably expect to receive or whether they correspond to the sample or model that the seller made available to the consumer.

  The goods should also possess the qualities and features which are normal for goods of the same type and which the consumer can reasonably expect, 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.

(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.

(32) Ensuring longer durability of goods is important for achieving more sustainable consumption patterns and a circular economy.

  Similarly, keeping non-compliant products out of the Union market by strengthening market surveillance and providing the right incentives to economic operators is essential in order to increase trust in the functioning of the internal market.

  For those purposes, product-specific Union legislation is the most appropriate means of introducing durability and other product-related requirements in relation to specific types or groups of products, using for this purpose adapted criteria.

  This directive should therefore be complementary to the objectives pursued in such Union product-specific legislation, and should include durability as an objective criterion for the assessment of conformity of goods.

  Durability in this directive should refer to the ability of the goods to maintain their required functions and performance through normal use.

  In order for goods to be in conformity, they should possess the durability which is normal for goods of the same type and which the consumer can reasonably expect given the nature of the specific goods, including the possible need for reasonable maintenance of the goods, such as the regular inspection or changing of filters in a car, and any public statement made by or on behalf of any person constituting a link in the chain of transactions.

  The assessment should also take into account all other relevant circumstances, such as the price of the goods and the intensity or frequency of the use that the consumer makes of the goods.

  In addition, insofar as specific durability information is indicated in any pre-contractual statement which forms part of the sales_contract, the consumer should be able to rely on them as a part of the subjective requirements for conformity.

(33) Under this directive, the seller should be obliged to deliver to the consumer goods which are in conformity at the time of delivery.

  It is possible that sellers would make use of spare parts in order to fulfil their obligation to repair goods in the event of a lack of conformity that existed at the time of delivery.

  While this directive should not impose an obligation on sellers to ensure the availability of spare parts throughout a period of time as an objective requirement for conformity, it should not affect other provisions of national law obliging the seller, the producer or other person constituting a link in the chain of transactions, to ensure that spare parts are available or to inform consumers about such availability.

(35) Conformity should cover material defects as well as legal defects.

  Restrictions resulting from a violation of third-party rights, in particular intellectual property rights, could prevent or limit the use of the goods in accordance with the contract.

  Member States should ensure that in such cases the consumer is entitled to remedies for the lack of conformity as set out in this directive, unless national law provides for the nullity of the contract or for its rescission in such cases.

(36) In order to ensure that there is sufficient flexibility in the rules, for instance in relation to the sale of second-hand goods, it should be possible for the parties to deviate from the objective requirements for conformity provided for in this directive.

  Such a deviation should only be possible if the consumer was specifically informed about it and if the consumer accepts it separately from other statements or agreements, and by way of active and unequivocal conduct.

(38) This directive should not regulate the meaning of ‘delivery’, which should be left to national law, in particular, as regards the question of what the seller has to do in order to fulfil the seller's obligation to deliver the goods.

  Furthermore, references to the time of delivery in this directive should be without prejudice to the rules on the passing of risk provided for in directive 2011/83/EU and accordingly implemented in the law of the Member States.

(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.

(42) For reasons of coherence with the existing national legal systems, Member States should be free to provide either that sellers are liable for a lack of conformity that becomes apparent within a specific period of time, possibly coupled with a limitation period, or that consumers' remedies are only subject to a limitation period.

  In the former case, Member States should ensure that the period for the seller's liability is not circumvented by the limitation period for the consumer's remedies.

  While this directive should, therefore, not harmonise the starting point of national limitation periods, it should ensure that such limitation periods do not curtail the consumers' right to exercise their remedies for any lack of conformity which becomes apparent in the period during which the seller is liable for a lack of conformity.

  In the latter case, Member States should be able to maintain or introduce only a limitation period for the consumer's remedies, without introducing a specific period within which the lack of conformity has to become apparent in order for the seller to be liable.

  In order to ensure that consumers are equally protected also in such cases, Member States should ensure that where only a limitation period applies, it should still allow consumers to exercise the remedies for any lack of conformity that becomes apparent at least during the period of time provided for in this directive as a liability period.

(44) This directive should not regulate the conditions under which the liability period, as provided for in this directive, or a limitation period can be suspended or interrupted.

  Member States should, therefore, be able to provide for the suspension or interruption of the liability period or limitation period, for example in the event of repair, replacement or negotiations between the seller and the consumer with a view to an amicable settlement.

(47) In order to increase legal certainty and to eliminate one of the major obstacles inhibiting the internal market, this directive should fully harmonise the remedies available to consumers for lack of conformity of goods, and the conditions under which such remedies can be exercised.

  In particular, in the event of lack of conformity, consumers should be entitled to have the goods brought into conformity or to receive a proportionate reduction in the price or to terminate the contract.

(55) In order to protect consumers against the risk of extended delays, any repair or replacement should be successfully completed within a reasonable period of time.

  What is considered to be a reasonable time for completing a repair or replacement should correspond to the shortest possible time necessary for completing the repair or replacement.

  That time should be objectively determined by considering the nature and complexity of the goods, the nature and severity of the lack of conformity, and the effort needed to complete repair or replacement.

  When implementing this directive, Member States should be able to interpret the notion of reasonable time for completing repair or replacement, by providing for fixed periods that could generally be considered reasonable for repair or replacement, in particular with regard to specific categories of products.

(56) This directive should not lay down provisions on where the obligations of a debtor have to be performed.

  This directive should, therefore, neither specify the place of delivery, nor prescribe where the repair or replacement should take place; such questions should be left to national law.

(59) Where the consumer terminates the contract due to the lack of conformity, this directive should prescribe rules only on the main effects of and modalities for the right of termination, in particular the obligation for the parties to return what they have received.

  Thus, the seller should be obliged to refund the price received from the consumer and the consumer should return the goods.

(60) This directive should not affect the freedom of Member States to regulate the consequences of termination other than those provided for in this directive, such as the consequences of the decrease of the value of the goods or of their destruction or loss.

  Member States should also be allowed to regulate the modalities for reimbursement of the price to the consumer, for example the modalities concerning the means to be used for such reimbursement or concerning possible costs and fees incurred as a result of the reimbursement.

  Member States should, for instance, also have the freedom to provide for certain time limits for the reimbursement of the price or for the return of the goods.

(61) The principle of the seller's liability for damages is an essential element of sales_contracts.

  Consumers should, therefore, be entitled to claim compensation for any detriment caused by an infringement by the seller of this directive, including for damage suffered as a consequence of a lack of conformity.

  Such compensation should put the consumer as much as possible into the position in which the consumer would have been had the goods been in conformity.

  As the existence of such a right to damages is already ensured in all Member States, this directive should be without prejudice to national rules on the compensation of consumers for harm resulting from infringement of those rules.

  Member States should also remain free to regulate consumers' entitlement to compensation for situations in which the repair or replacement caused significant inconvenience or was delayed.

(62) In order to ensure that there is transparency, certain requirements as regards commercial_guarantees should be provided, alongside the pre-contractual information requirements on the existence and conditions of commercial_guarantees set out in directive 2011/83/EU.

  Moreover, in order to improve legal certainty and to avoid consumers being misled, this directive should provide that, where commercial_guarantee conditions contained in associated advertisements are more favourable to the consumer than those included in the guarantee statement, the more advantageous conditions should prevail.

  Finally, this directive should provide rules on the content of the guarantee statement and on the way it should be made available to consumers.

  For instance, the guarantee statement should include the terms of the commercial_guarantee and state that the legal guarantee of conformity is unaffected by the commercial_guarantee, making it clear that the commercial_guarantee terms constitute an undertaking that is additional to the legal guarantee of conformity.

  Member States should be free to lay down rules on other aspects of commercial_guarantees not covered by this directive, for example on associating debtors other than the guarantor with the commercial_guarantee, provided that those rules do not deprive consumers of the protection afforded to them by the fully harmonised provisions of this directive on commercial_guarantees.

  While Member States should remain free to require that commercial_guarantees be provided free_of_charge, they should ensure that any undertaking by the seller or the producer which falls under the definition of commercial_guarantees as set out in this directive complies with the harmonised rules of this directive.

(63) Considering that the seller is liable towards the consumer for any lack of conformity of the goods resulting from an act or omission of the seller or a third party, the seller should be able to pursue remedies against the person responsible in previous links of the chain of transactions.

  Such remedies should include those for a lack of conformity which results from the omission of an update, including a security update, which would have been necessary to keep the good with digital elements in conformity.

  However, this directive should not affect the principle of freedom of contract between the seller and other parties in the chain of transactions.

  The details for exercising that right, in particular against whom and how such remedies are to be pursued and whether the remedies are of a mandatory nature, should be provided by the Member States.

  The question as to whether the consumer can also raise a claim directly against a person in previous links of the chain of transactions should not be regulated by this directive, except in cases where a producer offers the consumer a commercial_guarantee for the goods.

(65) Nothing in this directive should prejudice the application of rules of private international law, in particular Regulation (EC) No 593/2008 and Regulation (EU) No 1215/2012 of the European Parliament and of the Council (7).

(66) directive 1999/44/EC should be repealed.

  The date of repeal should be aligned with the transposition date of this directive.

  In order to ensure that the laws, regulations and administrative provisions necessary for Member States to comply with this directive are applied in a uniform manner to contracts concluded from the transposition date onwards, this directive should not apply to contracts concluded before its transposition date.

(67) The Annex to Regulation (EU) 2017/2394 of the European Parliament and of the Council (8) should be amended to include a reference to this directive so as to facilitate cross-border cooperation on enforcement of this directive.

(68) Annex I to directive 2009/22/EC of the European Parliament and of the Council (9) should be amended to include a reference to this directive so as to ensure that the collective interests of consumers laid down in this directive are protected.

(69) In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (10), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments.

  With regard to this directive, the legislator considers the transmission of such documents to be justified.

(70) Since the objective of this directive, namely to contribute to the functioning of the internal market by tackling in a consistent manner contract law-related obstacles for the cross-border sales of goods in the Union, cannot be sufficiently achieved by the Member States, due to the fact that each Member State individually is not in a position to tackle the existing fragmented legal framework by ensuring the coherence of its law with the laws of other Member States, but can rather, by removing the principal contract law-related obstacles through full harmonisation, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union.

  In accordance with the principle of proportionality, as set out in that Article, this directive does not go beyond what is necessary in order to achieve this objective.

(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.

(72) This directive respects the fundamental rights and freedoms and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, including those enshrined in Articles 16, 38 and 47 thereof,