keyboard_tab Contratti di vendita di beni conformi 2019/0771 EN

index function:

• 1 Article 1 Subject matter and purpose
• 6 Article 2 Definitions
• 1 Article 6 Subjective requirements for conformity
• 1 Article 7 Objective requirements for conformity
• 1 Article 25 Review

cloud tag:

• goods 32
• consumer 22
• seller 15
• means 13
• which 12
• conformity 12
• person 11
• sales_contract 9
• directive 8
• shall 8
• including 7
• digital 7
• time 7
• contract 6
• article 6
• type 6
• statement 5
• purpose 5
• into 5
• digital_content 5
• applicable 5
• particular 5
• conclusion 5
• public 5
• same 5
• requirements 5
• purposes 5
• ability 4
• instructions 4
• paragraph 4
• installation 4
• made 4
• updates 4
• producer 4
• been 4
• service 4
• given 4
• from 4
• reasonably 4
• digital_service 4
• supplied 4
• such 4
• lack 4
• report 3
• informed 3
• through 3
• update 3
• union 3
• period 3
• information 3

and the number of total unique words without stopwords is: 373

Article 2

Definitions

For the purposes of this Directive, the following definitions apply:

(1)	‘ sales_contract’ means any contract under which the seller transfers or undertakes to transfer ownership of goods to a consumer, and the consumer pays or undertakes to pay the price thereof;

(2)	‘ consumer’ means any natural person who, in relation to contracts covered by this Directive, is acting for purposes which are outside that person's trade, business, craft or profession;

(3)

‘ seller’ means any natural person or any legal person, irrespective of whether privately or publicly owned, that is acting, including through any other person acting in that natural or legal person's name or on that person's behalf, for purposes relating to that person's trade, business, craft or profession, in relation to contracts covered by this Directive;

(4)	‘ producer’ means a manufacturer of goods, an importer of goods into the Union or any person purporting to be a producer by placing its name, trade mark or other distinctive sign on the goods;

(5)

‘ goods’ means: (a) any tangible movable items; water, gas and electricity are to be considered as goods within the meaning of this Directive where they are put up for sale in a limited volume or a set quantity; (b) any tangible movable items that incorporate or are inter-connected with digital_content or a digital_service in such a way that the absence of that digital_content or digital_service would prevent the goods from performing their functions (‘ goods with digital elements’);

(6)	‘ digital_content’ means data which are produced and supplied in digital form;

(7)	‘ digital_service’ means: (a) a service that allows the consumer to create, process, store or access data in digital form; or (b) a service that allows the sharing of or any other interaction with data in digital form uploaded or created by the consumer or other users of that service;

(8)	‘ compatibility’ means the ability of the goods to function with hardware or software with which goods of the same type are normally used, without the need to convert the goods, hardware or software;

(9)	‘ functionality’ means the ability of the goods to perform their functions having regard to their purpose;

(10)	‘ interoperability’ means the ability of the goods to function with hardware or software different from those with which goods of the same type are normally used;

(11)

‘ durable_medium’ means any instrument which enables the consumer or the seller to store information addressed personally to that person in a way that is accessible for future reference, for a period of time adequate for the purposes of the information, and which allows the unchanged reproduction of the information stored;

(12)

‘ commercial_guarantee’ means any undertaking by the seller or a producer (the guarantor) to the consumer, in addition to the seller's legal obligation relating to the guarantee of conformity, to reimburse the price paid or to replace, repair or service goods in any way if they do not meet the specifications or any other requirements not related to conformity set out in the guarantee statement or in the relevant advertising available at the time of, or before the conclusion of the contract;

(13)	‘ durability’ means the ability of the goods to maintain their required functions and performance through normal use;

(14)	‘ free_of_charge’ means free of the necessary costs incurred in order to bring the goods into conformity, particularly the cost of postage, carriage, labour or materials;

(15)

‘ public_auction’ means a method of sale where goods or services are offered by the seller to consumers, who attend or are given the possibility to attend the auction in person, through a transparent, competitive bidding procedure run by an auctioneer and where the successful bidder is bound to purchase the goods or services.

Article 6

Subjective requirements for conformity

In order to conform with the sales_contract, the goods shall, in particular, where applicable:

(a)	be of the description, type, quantity and quality, and possess the functionality, compatibility, interoperability and other features, as required by the sales_contract;

(b)	be fit for any particular purpose for which the consumer requires them and which the consumer made known to the seller at the latest at the time of the conclusion of the sales_contract, and in respect of which the seller has given acceptance;

(c)	be delivered with all accessories and instructions, including on installation, as stipulated by the sales_contract; and

(d)	be supplied with updates as stipulated by the sales_contract.

Article 7

Objective requirements for conformity

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

• (1) In order to remain competitive on global markets, the Union needs to improve the functioning of the internal market and successfully meet the multiple challenges posed today by an increasingly technology-driven economy.

    The Digital Single Market Strategy lays down a comprehensive framework facilitating the integration of the digital dimension into the internal market.

    The first pillar of the Digital Single Market Strategy tackles fragmentation in intra-EU trade by looking at all major obstacles to the development of cross-border e-commerce, which constitutes the most significant part of cross-border business-to- consumer sales of goods.


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• (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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• (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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• (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.


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• (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.


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• (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.


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• (27) The notion of functionality should be understood to refer to the ways in which the goods can perform their functions having regard to their purpose.

    The notion of interoperability relates to whether and to what extent the goods are able to function with hardware or software that is different from those with which goods of the same type are normally used.

    Successful functioning could include, for instance, the ability of the goods to exchange information with such other software or hardware and to use the information exchanged.


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• (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.


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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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• (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.


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• (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.


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