Contratti di vendita di beni conformi 2019/0771 EN

Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more, or less, stringent provisions to ensure a different level of consumer protection, unless otherwise provided for in this Directive.

Article 7

Objective requirements for conformity

1. In addition to complying with any subjective requirement for conformity, the goods shall:

(a)	be fit for the purposes for which goods of the same type would normally be used, taking into account, where applicable, any existing Union and national law, technical standards or, in the absence of such technical standards, applicable sector-specific industry codes of conduct;

(b)	where applicable, be of the quality and correspond to the description of a sample or model that the seller made available to the consumer before the conclusion of the contract;

(c)	where applicable, be delivered along with such accessories, including packaging, installation instructions or other instructions, as the consumer may reasonably expect to receive; and

(d)

be of the quantity and possess the qualities and other features, including in relation to durability, functionality, compatibility and security normal for goods of the same type and which the consumer may 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, including the producer, particularly in advertising or on labelling.

2. The seller shall not be bound by public statements, as referred to in point (d) of paragraph 1 if the seller shows that:

(a)	the seller was not, and could not reasonably have been, aware of the public statement in question;

(b)	by the time of conclusion of the contract, the public statement had been corrected in the same way as, or in a way comparable to how, it had been made; or

(c)	the decision to buy the goods could not have been influenced by the public statement.

3. In the case of goods with digital elements, the seller shall ensure that the consumer is informed of and supplied with updates, including security updates, that are necessary to keep those goods in conformity, for the period of time:

(a)	that the consumer may reasonably expect given the type and purpose of the goods and the digital elements, and taking into account the circumstances and nature of the contract, where the sales_contract provides for a single act of supply of the digital_content or digital_service; or

(b)	indicated in Article 10(2) or (5), as applicable, where the sales_contract provides for a continuous supply of the digital_content or digital_service over a period of time.

4. Where the consumer fails to install within a reasonable time updates supplied in accordance with paragraph 3, the seller shall not be liable for any lack of conformity resulting solely from the lack of the relevant update, provided that:

(a)	the seller informed the consumer about the availability of the update and the consequences of the failure of the consumer to install it; and

(b)	the failure of the consumer to install or the incorrect installation by the consumer of the update was not due to shortcomings in the installation instructions provided to the consumer.

5. There shall be no lack of conformity within the meaning of paragraph 1 or 3 if, at the time of the conclusion of the sales_contract, the consumer was specifically informed that a particular characteristic of the goods was deviating from the objective requirements for conformity laid down in paragraph 1 or 3 and the consumer expressly and separately accepted that deviation when concluding the sales_contract.

Article 9

Third-party rights

Where a restriction resulting from a violation of any right of a third party, in particular intellectual property rights, prevents or limits the use of the goods in accordance with Articles 6 and 7, Member States shall ensure that the consumer is entitled to the remedies for lack of conformity provided for in Article 13, unless national law provides for the nullity or rescission of the sales_contract in such cases.

Article 10

Liability of the seller

1. The seller shall be liable to the consumer for any lack of conformity which exists at the time when the goods were delivered and which becomes apparent within two years of that time. Without prejudice to Article 7(3), this paragraph shall also apply to goods with digital elements.

2. In the case of goods with digital elements, where the sales_contract provides for a continuous supply of the digital_content or digital_service over a period of time, the seller shall also be liable for any lack of conformity of the digital_content or digital_service that occurs or becomes apparent within two years of the time when the goods with digital elements were delivered. Where the contract provides for a continuous supply for more than two years, the seller shall be liable for any lack of conformity of the digital_content or digital_service that occurs or becomes apparent within the period of time during which the digital_content or digital_service is to be supplied under the sales_contract.

3. Member States may maintain or introduce longer time limits than those referred to in paragraphs 1 and 2.

4. If, under national law, the remedies provided for in Article 13 are also subject to a limitation period, Member States shall ensure that such limitation period allows the consumer to exercise the remedies laid down in Article 13 for any lack of conformity for which the seller is liable pursuant to paragraphs 1 and 2 of this Article, and which becomes apparent within the period of time referred to in those paragraphs.

5. Notwithstanding paragraphs 1 and 2 of this Article, Member States may maintain or introduce only a limitation period for the remedies provided for in Article 13. Member States shall ensure that such limitation period allows the consumer to exercise the remedies laid down in Article 13 for any lack of conformity for which the seller is liable pursuant to paragraphs 1 and 2 of this Article, and which becomes apparent during the period of time referred to in those paragraphs.

6. Member States may provide that, in the case of second-hand goods, the seller and the consumer can agree to contractual terms or agreements with a shorter liability or limitation period than those referred to in paragraphs 1, 2 and 5, provided that such shorter periods shall not be less than one year.

Article 19

Enforcement

1. Member States shall ensure that adequate and effective means exist to ensure compliance with this Directive.

2. The means referred to in paragraph 1 shall include provisions whereby one or more of the following bodies, as determined by national law, may take action under national law before the courts or before the competent administrative bodies to ensure that the national provisions transposing this Directive are applied:

(a)	public bodies or their representatives;

(b)	consumer organisations having a legitimate interest in protecting consumers;

(c)	professional organisations having a legitimate interest in acting.

Article 20

Consumer information

Member States shall take appropriate measures to ensure that information on the rights of consumers under this Directive, and on the means to enforce those rights, are available to consumers.

Article 25

Review

The Commission shall, not later than 12 June 2024, review the application of this Directive, including its provisions on remedies and 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, and submit a report to the European Parliament, to the Council and to the European Economic and Social Committee. The report shall assess in particular whether the application of this Directive and Directive (EU) 2019/770 ensures a consistent and coherent framework for the proper functioning of the internal market with regard to the supply of digital_content, digital_services and goods with digital elements in line with principles governing Union policies. The report shall be accompanied, where appropriate, by legislative proposals.

whereas

(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.

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(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.

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(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.

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(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.

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(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.

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(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.

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(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.

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(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.

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(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.

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(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.

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(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.

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(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.

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(43) As regards certain aspects, different treatment of second-hand goods could be justifiable.
Although a liability or limitation period of two years or more usually reconciles the interests of both the seller and the consumer, this might not be the case with regard to second-hand goods.
Member States should, therefore, be allowed to enable the parties to agree on a shortened liability or limitation period for such goods.
Leaving this question to a contractual agreement between the parties increases contractual freedom and ensures that the consumer has to be informed both about the nature of the good as a second-hand good, and the shortened liability or limitation period.
However, such a contractually agreed period should not be shorter than one year.

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(46) Member States should be allowed to maintain or introduce provisions stipulating that, in order to benefit from the consumer's rights, the consumer has to inform the seller of a lack of conformity within a period not shorter than two months from the date on which the consumer detected such lack of conformity.
Member States should be allowed to ensure that consumers have a higher level of protection, by not introducing such an obligation.

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(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.

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(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.

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(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.

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(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.

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(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.

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keyboard_tab Contratti di vendita di beni conformi 2019/0771 EN

Contratti di vendita di beni conformi 2019/0771 EN