Clausole e vendite online Direttiva EU 2011/0083 EN

(1)	‘ consumer’ means any natural person who, in contracts covered by this Directive, is acting for purposes which are outside his trade, business, craft or profession;

(2)

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

(3)	‘ goods’ means any tangible movable items, with the exception of items sold by way of execution or otherwise by authority of law; water, gas and electricity shall 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;

(4)	‘ goods made to the consumer’s specifications’ means non-prefabricated goods made on the basis of an individual choice of or decision by the consumer;

(5)	‘ sales_contract’ means any contract under which the trader transfers or undertakes to transfer the ownership of goods to the consumer and the consumer pays or undertakes to pay the price thereof, including any contract having as its object both goods and services;

(6)	‘ service_contract’ means any contract other than a sales_contract under which the trader supplies or undertakes to supply a service to the consumer and the consumer pays or undertakes to pay the price thereof;

(7)

‘ distance_contract’ means any contract concluded between the trader and the consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

(8)

‘ off-premises_contract’ means any contract between the trader and the consumer:

(a)	concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business_premises of the trader;

(b)	for which an offer was made by the consumer in the same circumstances as referred to in point (a);

(c)

concluded on the business_premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business_premises of the trader in the simultaneous physical presence of the trader and the consumer; or

(d)	concluded during an excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer;

(9)

‘ business_premises’ means:

(a)	any immovable retail premises where the trader carries out his activity on a permanent basis; or

(b)	any movable retail premises where the trader carries out his activity on a usual basis;

(10)

‘ durable_medium’ means any instrument which enables the consumer or the trader to store information addressed personally to him in a way 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;

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

(12)	‘ financial_service’ means any service of a banking, credit, insurance, personal pension, investment or payment nature;

(13)

‘ public_auction’ means a method of sale where goods or services are offered by the trader 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;

(14)

‘ commercial_guarantee’ means any undertaking by the trader or a producer (the guarantor) to the consumer, in addition to his 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;

(15)

‘ ancillary_contract’ means a contract by which the consumer acquires goods or services related to a distance_contract or an off-premises_contract and where those goods are supplied or those services are provided by the trader or by a third party on the basis of an arrangement between that third party and the trader.

Article 3

Scope

1. This Directive shall apply, under the conditions and to the extent set out in its provisions, to any contract concluded between a trader and a consumer. It shall also apply to contracts for the supply of water, gas, electricity or district heating, including by public providers, to the extent that these commodities are provided on a contractual basis.

2. If any provision of this Directive conflicts with a provision of another Union act governing specific sectors, the provision of that other Union act shall prevail and shall apply to those specific sectors.

3. This Directive shall not apply to contracts:

(a)	for social services, including social housing, childcare and support of families and persons permanently or temporarily in need, including long-term care;

(b)	for healthcare as defined in point (a) of Article 3 of Directive 2011/24/EU, whether or not they are provided via healthcare facilities;

(c)	for gambling, which involves wagering a stake with pecuniary value in games of chance, including lotteries, casino games and betting transactions;

(d)	for financial_services;

(e)	for the creation, acquisition or transfer of immovable property or of rights in immovable property;

(f)	for the construction of new buildings, the substantial conversion of existing buildings and for rental of accommodation for residential purposes;

(g)	which fall within the scope of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (18);

(h)	which fall within the scope of Directive 2008/122/EC of the European Parliament and of the Council of 14 January 2009 on the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts (19);

(i)

which, in accordance with the laws of Member States, are established by a public office-holder who has a statutory obligation to be independent and impartial and who must ensure, by providing comprehensive legal information, that the consumer only concludes the contract on the basis of careful legal consideration and with knowledge of its legal scope;

(j)	for the supply of foodstuffs, beverages or other goods intended for current consumption in the household, and which are physically supplied by a trader on frequent and regular rounds to the consumer’s home, residence or workplace;

(k)	for passenger transport services, with the exception of Article 8(2) and Articles 19 and 22;

(l)	concluded by means of automatic vending machines or automated commercial premises;

(m)	concluded with telecommunications operators through public payphones for their use or concluded for the use of one single connection by telephone, Internet or fax established by a consumer.

4. Member States may decide not to apply this Directive or not to maintain or introduce corresponding national provisions to off-premises_contracts for which the payment to be made by the consumer does not exceed EUR 50. Member States may define a lower value in their national legislation.

5. This Directive shall not affect national general contract law such as the rules on the validity, formation or effect of a contract, in so far as general contract law aspects are not regulated in this Directive.

6. This Directive shall not prevent traders from offering consumers contractual arrangements which go beyond the protection provided for in this Directive.

Article 16

Exceptions from the right of withdrawal

Member States shall not provide for the right of withdrawal set out in Articles 9 to 15 in respect of distance and off-premises_contracts as regards the following:

(a)	service_contracts after the service has been fully performed if the performance has begun with the consumer’s prior express consent, and with the acknowledgement that he will lose his right of withdrawal once the contract has been fully performed by the trader;

(b)	the supply of goods or services for which the price is dependent on fluctuations in the financial market which cannot be controlled by the trader and which may occur within the withdrawal period;

(c)	the supply of goods made to the consumer’s specifications or clearly personalised;

(d)	the supply of goods which are liable to deteriorate or expire rapidly;

(e)	the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;

(f)	the supply of goods which are, after delivery, according to their nature, inseparably mixed with other items;

(g)	the supply of alcoholic beverages, the price of which has been agreed upon at the time of the conclusion of the sales_contract, the delivery of which can only take place after 30 days and the actual value of which is dependent on fluctuations in the market which cannot be controlled by the trader;

(h)

contracts where the consumer has specifically requested a visit from the trader for the purpose of carrying out urgent repairs or maintenance. If, on the occasion of such visit, the trader provides services in addition to those specifically requested by the consumer or goods other than replacement parts necessarily used in carrying out the maintenance or in making the repairs, the right of withdrawal shall apply to those additional services or goods;

(i)	the supply of sealed audio or sealed video recordings or sealed computer software which were unsealed after delivery;

(j)	the supply of a newspaper, periodical or magazine with the exception of subscription contracts for the supply of such publications;

(k)	contracts concluded at a public_auction;

(l)	the provision of accommodation other than for residential purpose, transport of goods, car rental services, catering or services related to leisure activities if the contract provides for a specific date or period of performance;

(m)	the supply of digital_content which is not supplied on a tangible medium if the performance has begun with the consumer’s prior express consent and his acknowledgment that he thereby loses his right of withdrawal.

CHAPTER IV

OTHER CONSUMER RIGHTS

whereas

(11) This Directive should be without prejudice to Union provisions relating to specific sectors, such as medicinal products for human use, medical devices, privacy and electronic communications, patients’ rights in cross-border healthcare, food labelling and the internal market for electricity and natural gas.

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(13) Member States should remain competent, in accordance with Union law, to apply the provisions of this Directive to areas not falling within its scope.
Member States may therefore maintain or introduce national legislation corresponding to the provisions of this Directive, or certain of its provisions, in relation to contracts that fall outside the scope of this Directive.
For instance, Member States may decide to extend the application of the rules of this Directive to legal persons or to natural persons who are not consumers within the meaning of this Directive, such as non-governmental organisations, start-ups or small and medium-sized enterprises.
Similarly, Member States may apply the provisions of this Directive to contracts that are not distance_contracts within the meaning of this Directive, for example because they are not concluded under an organised distance sales or service-provision scheme.
Moreover, Member States may also maintain or introduce national provisions on issues not specifically addressed in this Directive, such as additional rules concerning sales_contracts, including in relation to the delivery of goods, or requirements for the provision of information during the existence of a contract.

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(18) This Directive does not affect the freedom of Member States to define, in conformity with Union law, what they consider to be services of general economic interest, how those services should be organised and financed, in compliance with State aid rules, and which specific obligations they should be subject to.

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(26) Contracts related to the transfer of immovable property or of rights in immovable property or to the creation or acquisition of such immovable property or rights, contracts for the construction of new buildings or the substantial conversion of existing buildings as well as contracts for the rental of accommodation for residential purposes are already subject to a number of specific requirements in national legislation.
Those contracts include for instance sales of immovable property still to be developed and hire-purchase.
The provisions of this Directive are not appropriate to those contracts, which should be therefore excluded from its scope.
A substantial conversion is a conversion comparable to the construction of a new building, for example where only the façade of an old building is retained.
Service contracts in particular those related to the construction of annexes to buildings (for example a garage or a veranda) and those related to repair and renovation of buildings other than substantial conversion, should be included in the scope of this Directive, as well as contracts related to the services of a real estate agent and those related to the rental of accommodation for non-residential purposes.

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(29) Social services have fundamentally distinct features that are reflected in sector-specific legislation, partially at Union level and partially at national level.
Social services include, on the one hand, services for particularly disadvantaged or low income persons as well as services for persons and families in need of assistance in carrying out routine, everyday tasks and, on the other hand, services for all people who have a special need for assistance, support, protection or encouragement in a specific life phase.
Social services cover, inter alia, services for children and youth, assistance services for families, single parents and older persons, and services for migrants.
Social services cover both short-term and long-term care services, for instance services provided by home care services or provided in assisted living facilities and residential homes or housing (‘nursing homes’).
Social services include not only those provided by the State at a national, regional or local level by providers mandated by the State or by charities recognised by the State but also those provided by private operators.
The provisions of this Directive are not appropriate to social services which should be therefore excluded from its scope.

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(34) The trader should give the consumer clear and comprehensible information before the consumer is bound by a distance or off-premises_contract, a contract other than a distance or an off-premises_contract, or any corresponding offer.
In providing that information, the trader should take into account the specific needs of consumers who are particularly vulnerable because of their mental, physical or psychological infirmity, age or credulity in a way which the trader could reasonably be expected to foresee.
However, taking into account such specific needs should not lead to different levels of consumer protection.

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(39) It is important to ensure for distance_contracts concluded through websites that the consumer is able to fully read and understand the main elements of the contract before placing his order.
To that end, provision should be made in this Directive for those elements to be displayed in the close vicinity of the confirmation requested for placing the order.
It is also important to ensure that, in such situations, the consumer is able to determine the moment at which he assumes the obligation to pay the trader.
Therefore, the consumer’s attention should specifically be drawn, through an unambiguous formulation, to the fact that placing the order entails the obligation to pay the trader.

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(49) Certain exceptions from the right of withdrawal should exist, both for distance and off-premises_contracts.
A right of withdrawal could be inappropriate for example given the nature of particular goods or services.
That is the case for example with wine supplied a long time after the conclusion of a contract of a speculative nature where the value is dependent on fluctuations in the market (‘vin en primeur’).
The right of withdrawal should neither apply to goods made to the consumer’s specifications or which are clearly personalised such as tailor-made curtains, nor to the supply of fuel, for example, which is a good, by nature inseparably mixed with other items after delivery.
The granting of a right of withdrawal to the consumer could also be inappropriate in the case of certain services where the conclusion of the contract implies the setting aside of capacity which, if a right of withdrawal were exercised, the trader may find difficult to fill.
This would for example be the case where reservations are made at hotels or concerning holiday cottages or cultural or sporting events.

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(52) In the context of sales_contracts, the delivery of goods can take place in various ways, either immediately or at a later date.
If the parties have not agreed on a specific delivery date, the trader should deliver the goods as soon as possible, but in any event not later than 30 days from the day of the conclusion of the contract.
The rules regarding late delivery should also take into account goods to be manufactured or acquired specially for the consumer which cannot be reused by the trader without considerable loss.
Therefore, a rule which grants an additional reasonable period of time to the trader in certain circumstances should be provided for in this Directive.
When the trader has failed to deliver the goods within the period of time agreed with the consumer, before the consumer can terminate the contract, the consumer should call upon the trader to make the delivery within a reasonable additional period of time and be entitled to terminate the contract if the trader fails to deliver the goods even within that additional period of time.
However, this rule should not apply when the trader has refused to deliver the goods in an unequivocal statement.
Neither should it apply in certain circumstances where the delivery period is essential such as, for example, in the case of a wedding dress which should be delivered before the wedding.
Nor should it apply in circumstances where the consumer informs the trader that delivery on a specified date is essential.
For this purpose, the consumer may use the trader’s contact details given in accordance with this Directive.
In these specific cases, if the trader fails to deliver the goods on time, the consumer should be entitled to terminate the contract immediately after the expiry of the delivery period initially agreed.
This Directive should be without prejudice to national provisions on the way the consumer should notify the trader of his will to terminate the contract.

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(62) It is appropriate for the Commission to review this Directive if some barriers to the internal market are identified.
In its review, the Commission should pay particular attention to the possibilities granted to Member States to maintain or introduce specific national provisions including in certain areas of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (15) and Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (16).
That review could lead to a Commission proposal to amend this Directive; that proposal may include amendments to other consumer protection legislation reflecting the Commission’s Consumer Policy Strategy commitment to review the Union acquis in order to achieve a high, common level of consumer protection.

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(63) Directives 93/13/EEC and 1999/44/EC should be amended to require Member States to inform the Commission about the adoption of specific national provisions in certain areas.

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keyboard_tab Clausole e vendite online Direttiva EU 2011/0083 EN

Clausole e vendite online Direttiva EU 2011/0083 EN