Contratti di vendita di beni conformi 2019/0771 EN

(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 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 13

Remedies for lack of conformity

1. In the event of a lack of conformity, the consumer shall be entitled to have the goods brought into conformity or to receive a proportionate reduction in the price, or to terminate the contract, under the conditions set out in this Article.

2. In order to have the goods brought into conformity, the consumer may choose between repair and replacement, unless the remedy chosen would be impossible or, compared to the other remedy, would impose costs on the seller that would be disproportionate, taking into account all circumstances, including:

(a)	the value the goods would have if there were no lack of conformity;

(b)	the significance of the lack of conformity; and

(c)	whether the alternative remedy could be provided without significant inconvenience to the consumer.

3. The seller may refuse to bring the goods into conformity if repair and replacement are impossible or would impose costs on the seller that would be disproportionate, taking into account all circumstances including those mentioned in points (a) and (b) of paragraph 2.

4. The consumer shall be entitled to either a proportionate reduction of the price in accordance with Article 15 or the termination of the sales_contract in accordance with Article 16 in any of the following cases:

(a)	the seller has not completed repair or replacement or, where applicable, has not completed repair or replacement in accordance with Article 14(2) and (3), or the seller has refused to bring the goods into conformity in accordance with paragraph 3 of this Article;

(b)	a lack of conformity appears despite the seller having attempted to bring the goods into conformity;

(c)	the lack of conformity is of such a serious nature as to justify an immediate price reduction or termination of the sales_contract; or

(d)	the seller has declared, or it is clear from the circumstances, that the seller will not bring the goods into conformity within a reasonable time, or without significant inconvenience for the consumer.

5. The consumer shall not be entitled to terminate the contract if the lack of conformity is only minor. The burden of proof with regard to whether the lack of conformity is minor shall be on the seller.

6. The consumer shall have the right to withhold payment of any outstanding part of the price or a part thereof until the seller has fulfilled the seller's obligations under this Directive. Member States may determine the conditions and modalities for the consumer to exercise the right to withhold the payment.

7. Member States may regulate whether and to what extent a contribution of the consumer to the lack of conformity affects the consumer's right to remedies.

Article 14

Repair or replacement of the goods

1. Repairs or replacements shall be carried out:

(a)	free_of_charge;

(b)	within a reasonable period of time from the moment the seller has been informed by the consumer about the lack of conformity; and

(c)	without any significant inconvenience to the consumer, taking into account the nature of the goods and the purpose for which the consumer required the goods.

2. Where the lack of conformity is to be remedied by repair or replacement of the goods, the consumer shall make the goods available to the seller. The seller shall take back the replaced goods at the seller's expense.

3. Where a repair requires the removal of goods that had been installed in a manner consistent with their nature and purpose before the lack of conformity became apparent, or where such goods are to be replaced, the obligation to repair or replace the goods shall include the removal of the non-conforming goods, and the installation of replacement goods or repaired goods, or bearing the costs of that removal and installation.

4. The consumer shall not be liable to pay for normal use made of the replaced goods during the period prior to their replacement.

Article 26

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

However, Article 22 shall apply from 1 January 2022.

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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(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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(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.

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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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(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.

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(48) As regards bringing goods into conformity, consumers should enjoy a choice between repair or replacement.
Enabling consumers to require repair should encourage sustainable consumption and could contribute to greater durability of products.
The consumer's choice between repair and replacement should only be limited where the option chosen would be legally or factually impossible or would impose costs on the seller that would be disproportionate, compared to the other option available.
For instance, it might be disproportionate to request the replacement of goods because of a minor scratch, where such replacement would create significant costs and the scratch could easily be repaired.

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(49) The seller should be allowed to refuse to bring the goods into conformity if both repair and replacement are impossible, or they would impose disproportionate costs on the seller.
The same should apply if either repair or replacement is impossible and the alternative remedy would impose disproportionate costs on the seller.
For instance, if goods are located in a place that is different from where they were originally delivered, the costs of postage and carriage could become disproportionate for the seller.

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(50) When a lack of conformity becomes apparent, the consumer should inform the seller about it in order to give the seller the opportunity to bring the good into conformity.
The seller should do that within a reasonable period of time.
Accordingly, the consumer should not, in principle, be immediately entitled to a price reduction or termination of the contract but should give the seller reasonable time to repair or replace the non-conforming good.
If the seller has not repaired or replaced the good within that time, the consumer should be entitled to claim and obtain a price reduction or termination of the contract without waiting any longer.

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(51) If repair or replacement have not provided the consumer with a proper remedy for the lack of conformity, the consumer should be entitled to a price reduction or to terminate the contract.
That should be the case, in particular, where the seller has not completed repair or replacement, or where it is clear from the circumstances that the seller will not complete repair or replacement, or the seller has refused to bring the goods into conformity because repair and replacement are impossible or would impose disproportionate costs on the seller.

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(52) In certain situations, it could be justified that the consumer should be entitled to have the price reduced or the contract terminated immediately.
Where the seller has taken action to bring the goods into conformity but a lack of conformity becomes apparent subsequently, it should be objectively determined whether the consumer should accept further attempts by the seller to bring the goods into conformity, taking into account all the circumstances of the case, such as the type and the value of the goods, and the nature and the significance of the lack of conformity.
In particular, for expensive or complex goods it could be justified to allow the seller another attempt to remedy the lack of conformity.
It should also be taken into account whether the consumer can be expected to maintain confidence in the ability of the seller to bring the goods into conformity or not, for instance, due to the same problem appearing twice.
Similarly, in certain situations, the lack of conformity could be of such a serious nature that the consumer cannot maintain confidence in the ability of the seller to bring the goods into conformity, such as where the lack of conformity severely affects the ability of the consumer to make normal use of the goods and the consumer cannot be expected to trust that repair or replacement by the seller would remedy the problem.

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(57) Where the seller brings the good into conformity by replacement, the consumer should not be obliged to pay for the normal use of the goods before they were replaced.
The use of the goods should be considered normal if it is in accordance with the nature and purpose of the goods.

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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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(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