keyboard_tab Contratti di vendita di beni conformi 2019/0771 EN

(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.

(7) Existing disparities can adversely affect businesses and consumers.

  Pursuant to Regulation (EC) No 593/2008 of the European Parliament and of the Council (5), businesses directing their activities to consumers in other member States are required to take account of the mandatory consumer contract law rules of the consumer's country of habitual residence.

  As those rules differ among member States, businesses can be faced with additional costs.

  Consequently, many businesses might prefer to continue trading domestically or only export to one or two member States.

  That choice of minimising exposure to costs and risks associated with cross-border trade results in lost opportunities for commercial expansion and economies of scale.

  SMEs in particular, are affected.

(8) While consumers enjoy a high level of protection when they purchase from abroad as a result of the application of Regulation (EC) No 593/2008, legal fragmentation also negatively affects consumers' levels of confidence in cross-border transactions.

  While several factors contribute to this mistrust, uncertainty about key contractual rights ranks prominently among consumers' concerns.

  This uncertainty exists independently of whether or not consumers are protected by the mandatory consumer contract law rules of their own member State in the event that sellers direct their cross-border activities to them, or of whether or not consumers conclude cross-border contracts with sellers without the respective seller pursuing commercial activities in the consumer's member State.

(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.

(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.

(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.

(20) member States should remain free to regulate information obligations of the seller in connection with the conclusion of the contract or the duty of the seller to warn the consumer about, for instance, certain characteristics of the good, the suitability of materials provided by the consumer or possible disadvantages resulting from specific requests of the consumer, for example a request by the consumer to use a specific fabric for the tailoring of a ball gown.

(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.

(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.

(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.

(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.

(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.

(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.

(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.

(45) For a period of one year, or for a period of two years if member States choose to apply a two-year period, the consumer should only need to prove that the good is not in conformity, without also needing to prove that the lack of conformity actually existed at the relevant time for establishing conformity.

  In order to rebut the consumer's claim, the seller would need to prove that the lack of conformity did not exist at that time.

  In addition, in some cases the presumption that the lack of conformity existed at the relevant time for establishing conformity could be incompatible with the nature of the goods or the nature of the lack of conformity.

  The former could be the case with goods that by nature deteriorate, such as perishable products, for example flowers, or goods which are only intended for a single use.

  An example of the latter would be a lack of conformity, which can only be a result of an action by the consumer or of an evident external cause which occurred after the goods were delivered to the consumer.

  In the case of goods with digital elements where the contract provides for continuous supply of the digital_content or digital_service, the consumer should not have to prove that the digital_content or digital_service was not in conformity during the respective period of time for establishing conformity.

  In order to rebut the consumer's claim, the seller would need to prove that the digital_content or digital_service was in conformity during that period.

(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.

(54) member States should be able to regulate the conditions under which the performance of the debtor can be fulfilled by another person, for example the conditions under which the seller's obligation to repair a good can be performed by the consumer or a third party at the seller's expense.

(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.

(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.

(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.

(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.