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 8

Incorrect installation of the goods

Any lack of conformity resulting from the incorrect installation of the goods shall be regarded as lack of conformity of the goods, if:

(a)	the installation forms part of the sales_contract and was carried out by the seller or under the seller's responsibility; or

(b)

the installation, intended to be carried out by the consumer, was done by the consumer and the incorrect installation was due to shortcomings in the installation instructions provided by the seller or, in the case of goods with digital elements, provided by the seller or by the supplier of the digital_content or digital_service.

Article 11

Burden of proof

1. Any lack of conformity which becomes apparent within one year of the time when the goods were delivered shall be presumed to have existed at the time when the goods were delivered, unless proved otherwise or unless this presumption is incompatible with the nature of the goods or with the nature of the lack of conformity. This paragraph shall also apply to goods with digital elements.

2. Instead of the one-year period laid down in paragraph 1, Member States may maintain or introduce a period of two years from the time when the goods were delivered.

3. In the case of goods with digital elements where the sales_contract provides for the continuous supply of the digital_content or digital_service over a period of time, the burden of proof with regard to whether the digital_content or digital_service was in conformity within the period of time referred to in Article 10(2) shall be on the seller for a lack of conformity which becomes apparent within the period of time referred to in that Article.

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 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

(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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(11) This Directive complements Directive 2011/83/EU.
While Directive 2011/83/EU mainly lays down provisions regarding pre-contractual information requirements, the right of withdrawal from distance and off-premises contracts and rules on delivery and passing of risk, this Directive introduces rules on conformity of the goods, remedies in the event of a lack of conformity and modalities for their exercise.

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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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(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.

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(24) In order to balance the need for legal certainty with an appropriate flexibility of the legal rules, any reference in this Directive to what can be expected from or by a person should be understood as a reference to what can reasonably be expected.
The standard of reasonableness should be objectively ascertained, having regard to the nature and purpose of the contract, the circumstances of the case and to the usages and practices of the parties involved.

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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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(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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(34) A large number of goods have to be installed before they can be used effectively by the consumer.
In addition, in the case of goods with digital elements, the installation of the digital_content or digital_service is usually necessary for the consumer to be able to use such goods in line with their intended purpose.
Therefore, any lack of conformity resulting from an incorrect installation of the goods, including from the incorrect installation of the digital_content or digital_service incorporated in or inter-connected with the goods, should be regarded as a lack of conformity, where the installation was performed by the seller or under the seller's control.
Where the goods were intended to be installed by the consumer, a lack of conformity resulting from incorrect installation should be regarded as a lack of conformity of the goods, irrespective of whether the installation was performed by the consumer or by a third party under the consumer's responsibility, if the incorrect installation was due to shortcomings in the installation instructions, such as incompleteness or a lack of clarity making the installation instructions difficult to use for the average consumer.

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(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.

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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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(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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(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.

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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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(64) Persons or organisations regarded under national law as having a legitimate interest in protecting consumer contractual rights should be afforded the right to initiate proceedings, either before a court or before an administrative authority which is competent to decide upon complaints or to initiate appropriate legal proceedings.

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(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.

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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