(4) E-commerce is a key driver for growth within the internal market.
however, its growth potential is far from being fully exploited.
In order to strengthen Union competitiveness and to boost growth, the Union needs to act swiftly and encourage economic actors to unleash the full potential offered by the internal market.
The full potential of the internal market can only be unleashed if all market participants enjoy smooth access to cross-border sales of goods including in e-commerce transactions.
The contract law rules on the basis of which market participants conclude transactions are among the key factors shaping business decisions as to whether to offer goods cross-border.
Those rules also influence consumers' willingness to embrace and trust this type of purchase.
- = -
(22) The definition of a consumer should cover natural persons who are acting outside their trade, business, craft or profession.
however, Member States should also remain free to determine in the case of dual purpose contracts, where the contract is concluded for purposes that are partly within and partly outside the person's trade, and where the trade purpose is so limited as not to be predominant in the overall context of the contract, whether, and under which conditions, that person should also be considered a consumer.
- = -
(30) In addition to contractually agreed updates, the seller should also provide updates, including security updates, in order to ensure that goods with digital elements remain in conformity.
The seller's obligation should be limited to updates which are necessary for such goods to maintain their conformity with the objective and subjective requirements for conformity laid down in this Directive.
Unless the parties have contractually agreed otherwise, the seller should not be obliged to provide upgraded versions of the digital_content or digital_service of the goods or to improve or extend the functionalities of goods beyond the conformity requirements.
If an update provided by the seller, or by a third party supplying the digital_content or digital_service under the sales_contract, causes a lack of conformity of the good with digital elements, the seller should be liable for bringing the good into conformity again.
The consumer should remain free to choose whether to install the updates provided.
Where the consumer decides not to install the updates which are necessary for the goods with digital elements to maintain their conformity, the consumer should however not expect such goods to remain in conformity.
The seller should inform the consumer that the consumer's decision not to install updates which are necessary for keeping the goods with digital elements in conformity, including security updates, will affect the seller's liability for conformity of those features of the goods with digital elements which the relevant updates are supposed to maintain in conformity.
This Directive should not affect obligations to provide security updates laid down in other Union law or in national law.
- = -
(31) In principle, in the case of goods with digital elements whereby the digital_content or digital_service incorporated in or inter-connected with the goods is supplied through a single act of supply, the seller should only be liable for a lack of conformity that exists at the time of delivery.
however, the obligation to provide updates should reflect the fact that the digital environment of any such good constantly changes.
Therefore, updates are a necessary tool in order to ensure that the goods are able to function in the same way that they did at the time of delivery.
Furthermore, in contrast to traditional goods, goods with digital elements are not completely separate from the seller's sphere because the seller, or a third person supplying the digital_content or digital_service under the sales_contract, is able to update the goods from a distance, usually over the internet.
Therefore, if the digital_content or digital_service is supplied by a single act of supply, the seller should be liable to provide the updates necessary to keep the goods with digital elements in conformity for a period of time that the consumer can reasonably expect, even if the goods were in conformity at the time of delivery.
The period of time during which the consumer can reasonably expect to receive updates should be assessed based on the type and purpose of the goods and the digital elements, and taking into account the circumstances and nature of the sales_contract.
A consumer would normally expect to receive updates for at least as long as the period during which the seller is liable for a lack of conformity, while in some cases the consumer's reasonable expectation could extend beyond that period, as might be the case particularly with regard to security updates.
In other cases, for instance as regards goods with digital elements the purpose of which is limited in time, the seller's obligation to provide updates would normally be limited to that time.
- = -
(37) Enhancing legal certainty for both consumers and sellers requires a clear indication of the time when the conformity of the goods should be assessed.
The relevant time for assessing the conformity of the goods should be the time when the goods are delivered.
This should also apply to goods which incorporate or are inter-connected with digital_content or a digital_service supplied through a single act of supply.
however, where the digital_content or digital_service incorporated in or inter-connected with the goods is to be supplied continuously over a period of time, the relevant time for the purpose of establishing conformity of that digital_content or digital_service element should not be one specific moment in time but rather a period of time, starting from the time of delivery.
For reasons of legal certainty, that period of time should be equal to the period during which the seller is liable for a lack of conformity.
- = -
(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.
- = -
(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.
- = -
(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.
- = -