Clausole e vendite online Direttiva EU 2019/2161 EN

(*5) Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC (OJ L 136, 22.5.2019, p. 28).’;"

(b)

the following point is inserted:

‘(4a)

‘ personal_data’ means personal_data as defined in point (1) of Article 4 of Regulation (EU) 2016/679 of the European Parliament and of the Council (*6);

(*6) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal_data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1).’;"

(c)

points (5) and (6) are replaced by the following:

‘(5)	‘ sales_contract’ means any contract under which the trader transfers or undertakes to transfer ownership of goods to the consumer, 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, including a digital_service, to the consumer;’;

(d)

point (11) is replaced by the following:

‘(11)

‘ digital_content’ means digital_content as defined in point (1) of Article 2 of Directive (EU) 2019/770 of the European Parliament and of the Council (*7);

(*7) Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital_content and digital_services (OJ L 136, 22.5.2019, p. 1).’;"

(e)

the following points are added:

‘(16)

‘ digital_service’ means a digital_service as defined in point (2) of Article 2 of Directive (EU) 2019/770;

(17)	‘ online_marketplace’ means a service using software, including a website, part of a website or an application, operated by or on behalf of a trader which allows consumers to conclude distance contracts with other traders or consumers;

(18)	‘provider of an online_marketplace’ means any trader which provides an online_marketplace to consumers;

(19)	‘ compatibility’ means compatibility as defined in point (10) of Article 2 of Directive (EU) 2019/770;

(20)	‘ functionality’ means functionality as defined in point (11) of Article 2 of Directive (EU) 2019/770;

(21)	‘ interoperability’ means interoperability as defined in point (12) of Article 2 of Directive (EU) 2019/770.’;

(2)

Article 3 is amended as follows:

(a)

paragraph 1 is replaced by the following:

‘ 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_where_the_consumer_pays_or_undertakes_to_pay_the_price._It_shall_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.’;

(b)

the following paragraph is inserted:

‘1a. This Directive shall also apply where the trader supplies or undertakes to supply digital_content which is not supplied on a tangible medium or a digital_service to the consumer and the consumer provides or undertakes to provide personal_data to the trader, except where the personal_data provided by the consumer are exclusively processed by the trader for the purpose of supplying the digital_content which is not supplied on a tangible medium or digital_service in accordance with this Directive or for allowing the trader to comply with legal requirements to which the trader is subject, and the trader does not process those data for any other purpose.’;

(c)

paragraph 3 is amended as follows:

(i)

point (k) is replaced by the following:

‘(k)	for passenger transport services, with the exception of Article 8(2) and Articles 19, 21 and 22;’;

(ii)

the following point is added:

‘(n)	for any goods sold by way of execution or otherwise by authority of law.’;

(3)

in Article 5, paragraph 1 is amended as follows:

(a)

point (e) is replaced by the following:

‘(e)	in addition to a reminder of the existence of the legal guarantee of conformity for goods, digital_content and digital_services, the existence and the conditions of after-sales services and commercial guarantees, where applicable;’;

(b)

points (g) and (h) are replaced by the following:

‘(g)	where applicable, the functionality, including applicable technical protection measures, of goods with digital elements, digital_content and digital_services;

(h)	where applicable, any relevant compatibility and interoperability of goods with digital elements, digital_content and digital_services that the trader is aware of or can reasonably be expected to have been aware of.’;

(4)

Article 6 is amended as follows:

(a)

paragraph 1 is amended as follows:

(i)

point (c) is replaced by the following:

‘(c)

the geographical address at which the trader is established as well as the trader’s telephone number and email address; in addition, where the trader provides other means of online communication which guarantee that the consumer can keep any written correspondence, including the date and time of such correspondence, with the trader on a durable medium, the information shall also include details of those other means; all those means of communication provided by the trader shall enable the consumer to contact the trader quickly and communicate with him efficiently; where applicable, the trader shall also provide the geographical address and identity of the trader on whose behalf he is acting.’;

(ii)

the following point is inserted:

‘(ea)

where applicable, that the price was personalised on the basis of automated decision-making;’;

(iii)

point (l) is replaced by the following:

‘(l)	a reminder of the existence of a legal guarantee of conformity for goods, digital_content and digital_services;’;

(iv)

points (r) and (s) are replaced by the following:

‘(r)	where applicable, the functionality, including applicable technical protection measures, of goods with digital elements, digital_content and digital_services;

(s)	where applicable, any relevant compatibility and interoperability of goods with digital elements, digital_content and digital_services that the trader is aware of or can reasonably be expected to have been aware of.’;

(b)

paragraph 4 is replaced by the following:

‘ 4. The_information_referred_to_in_points_(h),_(i)_and_(j)_of_paragraph_1_of_this_Article_may_be_provided_by_means_of_the_model_instructions_on_withdrawal_set_out_in_Annex_I(A)._The_trader_shall_have_fulfilled_the_information_requirements_laid_down_in_points_(h),_(i)_and_(j)_of_paragraph_1_of_this_Article_if_the_trader_has_supplied_these_instructions_to_the_consumer,_correctly_filled_in._The_references_to_the_withdrawal_period_of_14_days_in_the_model_instructions_on_withdrawal_set_out_in_Annex_I(A)_shall_be_replaced_by_references_to_a_withdrawal_period_of_30_days_in_cases_where_Member_States_have_adopted_rules_in_accordance_with_Article_9(1a).’;

(5)

the following article is inserted:

‘Article 6a

Additional specific information requirements for contracts concluded on online_marketplaces

1. Before a consumer is bound by a distance contract, or any corresponding offer, on an online_marketplace, the provider of the online_marketplace shall, without prejudice to Directive 2005/29/EC, provide the consumer with the following information in a clear and comprehensible manner and in a way appropriate to the means of distance communication:

(a)

general information, made available in a specific section of the online interface that is directly and easily accessible from the page where the offers are presented, on the main parameters determining ranking, as defined in point (m) of Article 2(1) of Directive 2005/29/EC, of offers presented to the consumer as a result of the search query and the relative importance of those parameters as opposed to other parameters;

(b)	whether the third party offering the goods, services or digital_content is a trader or not, on the basis of the declaration of that third party to the provider of the online_marketplace;

(c)	where the third party offering the goods, services or digital_content is not a trader, that the consumer rights stemming from Union consumer protection law do not apply to the contract;

(d)

where applicable, how the obligations related to the contract are shared between the third party offering the goods, services or digital_content and the provider of the online_marketplace, such information being without prejudice to any responsibility that the provider of the online_marketplace or the third-party trader has in relation to the contract under other Union or national law.

2. Without prejudice to Directive 2000/31/EC, this Article does not prevent Member States from imposing additional information requirements for providers of online_marketplaces. Such provisions shall be proportionate, non-discriminatory and justified on grounds of consumer protection.’;

(6)

in Article 7, paragraph 3 is replaced by the following:

‘ 3. Where_a_consumer_wants_the_performance_of_services,_or_the_supply_of_water,_gas_or_electricity,_where_they_are_not_put_up_for_sale_in_a_limited_volume_or_set_quantity,_or_of_district_heating_to_begin_during_the_withdrawal_period_provided_for_in_Article_9(2),_and_the_contract_places_the_consumer_under_an_obligation_to_pay,_the_trader_shall_require_that_the_consumer_make_such_an_express_request_on_a_durable_medium_and_request_the_consumer_to_acknowledge_that,_once_the_contract_has_been_fully_performed_by_the_trader,_the_consumer_will_no_longer_have_the_right_of_withdrawal.’;

(7)

Article 8 is amended as follows:

(a)

paragraph 4 is replaced by the following:

‘4. If the contract is concluded through a means of distance communication which allows limited space or time to display the information, the trader shall provide, on or through that particular means prior to the conclusion of such a contract, at least the pre-contractual information regarding the main characteristics of the goods or services, the identity of the trader, the total price, the right of withdrawal, the duration of the contract and, if the contract is of indeterminate duration, the conditions for terminating the contract, as referred to, respectively, in points (a), (b), (e), (h) and (o) of Article 6(1) except the model withdrawal form set out in Annex I(B) referred to in point (h). The other information referred to in Article 6(1), including the model withdrawal form, shall be provided by the trader to the consumer in an appropriate way in accordance with paragraph 1 of this Article.’;

(b)

paragraph 8 is replaced by the following:

‘ 8. Where_a_consumer_wants_the_performance_of_services,_or_the_supply_of_water,_gas_or_electricity,_where_they_are_not_put_up_for_sale_in_a_limited_volume_or_set_quantity,_or_of_district_heating,_to_begin_during_the_withdrawal_period_provided_for_in_Article_9(2),_and_the_contract_places_the_consumer_under_an_obligation_to_pay,_the_trader_shall_require_that_the_consumer_make_an_express_request_and_request_the_consumer_to_acknowledge_that,_once_the_contract_has_been_fully_performed_by_the_trader,_the_consumer_will_no_longer_have_the_right_of_withdrawal.’;

(8)

Article 9 is amended as follows

(a)

the following paragraph is inserted:

‘ 1a. Member_States_may_adopt_rules_in_accordance_with_which_the_withdrawal_period_of_14_days_referred_to_in_paragraph_1_is_extended_to_30_days_for_contracts_concluded_in_the_context_of_unsolicited_visits_by_a_trader_to_a_consumer’s home or excursions organised by a trader with the aim or effect of promoting or selling products to consumers for the purpose of protecting legitimate interests of consumers with regard to aggressive or misleading marketing or selling practices. Such rules shall be proportionate, non-discriminatory and justified on grounds of consumer protection.’;

(b)

in paragraph 2, the introductory part is replaced by the following:

‘ 2. Without_prejudice_to_Article_10,_the_withdrawal_period_referred_to_in_paragraph_1_of_this_Article_shall_expire_after_14_days_or,_in_cases_where_Member_States_have_adopted_rules_in_accordance_with_paragraph_1a_of_this_Article,_30_days_from:’;

(9)

in Article 10, paragraph 2 is replaced by the following:

‘ 2. If_the_trader_has_provided_the_consumer_with_the_information_provided_for_in_paragraph_1_of_this_Article_within_12_months_from_the_day_referred_to_in_Article_9(2),_the_withdrawal_period_shall_expire_14_days_or,_in_cases_where_Member_States_have_adopted_rules_in_accordance_with_Article_9(1a),_30_days_after_the_day_upon_which_the_consumer_receives_that_information.’;

(10)

in Article 13, the following paragraphs are added:

‘4. In respect of personal_data of the consumer, the trader shall comply with the obligations applicable under Regulation (EU) 2016/679.

5. The trader shall refrain from using any content, other than personal_data, which was provided or created by the consumer when using the digital_content or digital_service supplied by the trader, except where such content:

(a)	has no utility outside the context of the digital_content or digital_service supplied by the trader;

(b)	only relates to the consumer’s activity when using the digital_content or digital_service supplied by the trader;

(c)	has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts; or

(d)	has been generated jointly by the consumer and others, and other consumers are able to continue to make use of the content.

6. Except in the situations referred to in point (a), (b) or (c) of paragraph 5, the trader shall, at the request of the consumer, make available to the consumer any content, other than personal_data, which was provided or created by the consumer when using the digital_content or digital_service supplied by the trader.

7. The consumer shall be entitled to retrieve that digital_content free of charge, without hindrance from the trader, within a reasonable time and in a commonly used and machine-readable format.

8. In the event of withdrawal from the contract, the trader may prevent any further use of the digital_content or digital_service by the consumer, in particular by making the digital_content or digital_service inaccessible to the consumer or disabling the user account of the consumer, without prejudice to paragraph 6.’;

(11)

Article 14 is amended as follows:

(a)	the following paragraph is inserted: ‘2a. In the event of withdrawal from the contract, the consumer shall refrain from using the digital_content or digital_service and from making it available to third parties.’;

(b)

in paragraph 4, point (b)(i) is replaced by the following:

‘(i)	the consumer has not given prior express consent to the beginning of the performance before the end of the 14-day or 30-day period referred to in Article 9;’;

(12)

Article 16 is amended as follows:

(a)

the first paragraph is amended as follows:

(i)

point (a) is replaced by the following:

‘(a)

service contracts after the service has been fully performed but, if the contract places the consumer under an obligation to pay, only if the performance has begun with the consumer’s prior express consent and acknowledgement that he will lose his right of withdrawal once the contract has been fully performed by the trader;’;

(ii)

point (m) is replaced by the following:

‘(m)

contracts for the supply of digital_content which is not supplied on a tangible medium if the performance has begun and, if the contract places the consumer under an obligation to pay, where:

(i)	the consumer has provided prior express consent to begin the performance during the right of withdrawal period;

(ii)	the consumer has provided acknowledgement that he thereby loses his right of withdrawal; and

(iii)

the trader has provided confirmation in accordance with Article 7(2) or Article 8(7).’;

(b)

the following paragraphs are added:

‘ Member_States_may_derogate_from_the_exceptions_from_the_right_of_withdrawal_set_out_in_points_(a),_(b),_(c)_and_(e)_of_the_first_paragraph_for_contracts_concluded_in_the_context_of_unsolicited_visits_by_a_trader_to_a_consumer’s home or excursions organised by a trader with the aim or effect of promoting or selling products to consumers for the purpose of protecting the legitimate interests of consumers with regard to aggressive or misleading marketing or selling practices. Such provisions shall be proportionate, non-discriminatory and justified on grounds of consumer protection.

In the case of service contracts which place the consumer under an obligation to pay where the consumer has specifically requested a visit from the trader for the purpose of carrying out repairs, Member States may provide that the consumer loses the right of withdrawal after the service has been fully performed provided that the performance has begun with the consumer’s prior express consent.’;

(13)

Article 24 is replaced by the following:

whereas

(30) The definitions of digital_content and digital_services in Directive 2011/83/EU should be aligned to those in Directive (EU) 2019/770 of the European Parliament and of the Council (15).
Digital content covered by Directive (EU) 2019/770 covers a single act of supply, a series of individual acts of supply, or continuous supply over a period of time.
The element of continuous supply should not necessarily require a long-term supply.
Cases such as web-streaming of video clips should be considered continuous supply over a period of time, regardless of the actual duration of the audiovisual file.
It may therefore be difficult to distinguish between certain types of digital_content and digital_services, since both can involve continuous supply by the trader over the duration of the contract.
Examples of digital_services are video and audio sharing services and other file hosting, word processing or games offered in the cloud, cloud storage, webmail, social media and cloud applications.
The continuous involvement of the service provider justifies the application of the rules on the right of withdrawal provided for in Directive 2011/83/EU that effectively allow the consumer to test the service and decide, during the 14-day period from the conclusion of the contract, whether to keep it or not.
Many contracts for the supply of digital_content which is not supplied on a tangible medium are characterised by a single act of supply to the consumer of a specific piece or pieces of digital_content, such as specific music or video files.
Contracts for the supply of digital_content which is not supplied on a tangible medium remain subject to the exception from the right of withdrawal set out in point (m) of the first paragraph of Article 16 of Directive 2011/83/EU, which provides that the consumer loses the right of withdrawal when the performance of the contract is started, such as download or streaming of the content, subject to the consumer’s prior express consent to begin the performance during the right of withdrawal period and acknowledgement that he has thereby lost his right of withdrawal.
Where there is doubt as to whether the contract is a service contract or a contract for the supply of digital_content which is not supplied on a tangible medium, the rules on right of withdrawal for services should apply.

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(31) Digital content and digital_services are often supplied online under contracts under which the consumer does not pay a price but provides personal_data to the trader.
Directive 2011/83/EU already applies to contracts for the supply of digital_content which is not supplied on a tangible medium (i.e.
supply of online digital_content) regardless of whether the consumer pays a price in money or provides personal_data.
However, that Directive only applies to service contracts, including contracts for digital_services, under which the consumer pays or undertakes to pay a price.
Consequently, that Directive does not apply to contracts for digital_services under which the consumer provides personal_data to the trader without paying a price.
Given their similarities and the interchangeability of paid digital_services and digital_services provided in exchange for personal_data, they should be subject to the same rules under that Directive.

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(37) Article 7(3) and Article 8(8) of Directive 2011/83/EU require traders, for off-premises and distance contracts respectively, to obtain the consumer’s prior express consent to begin performance before the expiry of the right of withdrawal period.
Point (a) of Article 14(4) of that Directive provides for a contractual sanction when this requirement is not fulfilled by the trader, namely that the consumer does not have to pay for the services provided.
The requirement to obtain the consumer’s prior express consent is accordingly only relevant for services, including digital_services, which are provided against the payment of the price.
It is therefore necessary to amend Article 7(3) and Article 8(8) to the effect that the requirement for traders to obtain the consumer’s prior express consent only applies to service contracts that place the consumer under an obligation to pay.

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(42) Point (a) of the first paragraph of Article 16 of Directive 2011/83/EU provides for an exception from the right of withdrawal regarding service contracts that have been fully performed if the performance has begun with the consumer’s prior express consent and acknowledgement that he will lose his right of withdrawal once the contract has been fully performed by the trader.
In contrast, Article 7(3) and Article 8(8) of that Directive, which deal with the trader’s obligations in situations where the performance of the contract has begun before the expiry of the right of withdrawal period, only require traders to obtain the consumer’s prior express consent but not acknowledgment that the right of withdrawal will be lost when the performance is completed.
To ensure consistency between those provisions, it is necessary to add an obligation in Article 7(3) and Article 8(8) for the trader also to obtain the acknowledgement from the consumer that the right of withdrawal will be lost when the performance is completed, if the contract places the consumer under an obligation to pay.
In addition, the wording of point (a) of the first paragraph of Article 16 should be amended to take into account the changes to Article 7(3) and Article 8(8) whereby the requirement for traders to obtain the consumer’s prior express consent and acknowledgment only applies to service contracts that place the consumer under an obligation to pay.
However, Member States should be given the option not to apply the requirement to obtain the consumer’s acknowledgment that the right of withdrawal will be lost when the performance is completed to service contracts where the consumer has specifically requested a visit from the trader for the purpose of carrying out repairs.
Point (c) of the first paragraph of Article 16 of that Directive provides for an exception to the right of withdrawal in respect of contracts regarding the supply of goods made to the consumer’s specifications or clearly personalised.
That exception covers, for example, the manufacturing and installation of customised furniture at the consumer’s home when provided under a single sales_contract.

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keyboard_tab Clausole e vendite online Direttiva EU 2019/2161 EN

Clausole e vendite online Direttiva EU 2019/2161 EN