Contratti digitali 2019/0770 EN

(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;

(3)	‘ goods_with_digital_elements’ means 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;

(4)	‘ integration’ means the linking and incorporation of digital_content or a digital_service with the components of the consumer's digital_environment in order for the digital_content or digital_service to be used in accordance with the requirements for conformity provided for by this Directive;

(5)

‘ trader’ means any natural or 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;

(6)	‘ 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;

(7)	‘ price’ means money or a digital representation of value that is due in exchange for the supply of digital_content or a digital_service;

(8)	‘ personal_data’ means personal_data as defined in point (1) of Article 4 of Regulation (EU) 2016/679;

(9)	‘ digital_environment’ means hardware, software and any network connection used by the consumer to access or make use of digital_content or a digital_service;

(10)	‘ compatibility’ means the ability of the digital_content or digital_service to function with hardware or software with which digital_content or digital_services of the same type are normally used, without the need to convert the digital_content or digital_service;

(11)	‘ functionality’ means the ability of the digital_content or digital_service to perform its functions having regard to its purpose;

(12)	‘ interoperability’ means the ability of the digital_content or digital_service to function with hardware or software different from those with which digital_content or digital_services of the same type are normally used;

(13)

‘ durable_medium’ means any instrument which enables the consumer or the trader 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.

Article 2

Definitions

For the purposes of this Directive, the following definitions apply:

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

(2)

‘ 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;

(3)	‘ goods_with_digital_elements’ means 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;

(4)	‘ integration’ means the linking and incorporation of digital_content or a digital_service with the components of the consumer's digital_environment in order for the digital_content or digital_service to be used in accordance with the requirements for conformity provided for by this Directive;

(5)

(6)	‘ 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;

(7)	‘ price’ means money or a digital representation of value that is due in exchange for the supply of digital_content or a digital_service;

(8)	‘ personal_data’ means personal_data as defined in point (1) of Article 4 of Regulation (EU) 2016/679;

(9)	‘ digital_environment’ means hardware, software and any network connection used by the consumer to access or make use of digital_content or a digital_service;

(10)	‘ compatibility’ means the ability of the digital_content or digital_service to function with hardware or software with which digital_content or digital_services of the same type are normally used, without the need to convert the digital_content or digital_service;

(11)	‘ functionality’ means the ability of the digital_content or digital_service to perform its functions having regard to its purpose;

(12)	‘ interoperability’ means the ability of the digital_content or digital_service to function with hardware or software different from those with which digital_content or digital_services of the same type are normally used;

(13)

Article 3

Scope

1. This Directive shall apply to any contract where the trader supplies or undertakes to supply digital_content or a digital_service to the consumer and the consumer pays or undertakes to pay a price.

This Directive shall also apply where the trader supplies or undertakes to supply digital_content 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 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.

2. This Directive shall also apply where the digital_content or digital_service is developed in accordance with the consumer's specifications.

3. With the exception of Articles 5 and 13, this Directive shall also apply to any tangible medium which serves exclusively as a carrier of digital_content.

4. This Directive shall not apply to digital_content or digital_services which are incorporated in or inter-connected with goods within the meaning of point (3) of Article 2, and which are provided with the goods under a sales contract concerning those goods, irrespective of whether such digital_content or digital_service is supplied by the seller or by a third party. In the event of doubt as to whether the supply of incorporated or inter-connected digital_content or an incorporated or inter-connected digital_service forms part of the sales contract, the digital_content or digital_service shall be presumed to be covered by the sales contract.

5. This Directive shall not apply to contracts regarding:

(a)	the provision of services other than digital_services, regardless of whether digital forms or means are used by the trader to produce the output of the service or to deliver or transmit it to the consumer;

(b)	electronic communications services as defined in point (4) of Article 2 of Directive (EU) 2018/1972, with the exception of number-independent interpersonal communications services as defined in point (7) of Article 2 of that Directive;

(c)	healthcare as defined in point (a) of Article 3 of Directive 2011/24/EU;

(d)

gambling services, namely, services that involve wagering a stake with pecuniary value in games of chance, including those with an element of skill, such as lotteries, casino games, poker games and betting transactions, by electronic means or any other technology for facilitating communication and at the individual request of a recipient of such services;

(e)	financial services as defined in point (b) of Article 2 of Directive 2002/65/EC;

(f)	software offered by the trader under a free and open-source licence, where the consumer does not pay a price and the personal_data provided by the consumer are exclusively processed by the trader for the purpose of improving the security, compatibility or interoperability of that specific software;

(g)	the supply of digital_content where the digital_content is made available to the general public other than by signal transmission as a part of a performance or event, such as digital cinematographic projections;

(h)	digital_content provided in accordance with Directive 2003/98/EC of the European Parliament and of the Council (21) by public sector bodies of the Member States.

6. Without prejudice to paragraph 4 of this Article, where a single contract between the same trader and the same consumer includes in a bundle elements of supply of digital_content or a digital_service and elements of the provision of other services or goods, this Directive shall only apply to the elements of the contract concerning the digital_content or digital_service.

Article 19 of this Directive shall not apply where a bundle within the meaning of Directive (EU) 2018/1972 includes elements of an internet access service as defined in point (2) of Article 2 of Regulation (EU) 2015/2120 of the European Parliament and of the Council (22) or a number-based interpersonal communications service as defined in point (6) of Article 2 of Directive (EU) 2018/1972.

Without prejudice to Article 107(2) of Directive (EU) 2018/1972, the effects that the termination of one element of a bundle contract may have on the other elements of the bundle contract shall be governed by national law.

7. If any provision of this Directive conflicts with a provision of another Union act governing a specific sector or subject matter, the provision of that other Union act shall take precedence over this Directive.

8. Union law on the protection of personal_data shall apply to any personal_data processed in connection with contracts referred to in paragraph 1.

In particular, this Directive shall be without prejudice to Regulation (EU) 2016/679 and Directive 2002/58/EC. In the event of conflict between the provisions of this Directive and Union law on the protection of personal_data, the latter prevails.

9. This Directive shall be without prejudice to Union and national law on copyright and related rights, including Directive 2001/29/EC of the European Parliament and of the Council (23).

10. This Directive shall not affect the freedom of Member States to regulate aspects of general contract law, such as rules on the formation, validity, nullity or effects of contracts, including the consequences of the termination of a contract in so far as they are not regulated in this Directive, or the right to damages.

Article 14

Remedies for lack of conformity

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

2. The consumer shall be entitled to have the digital_content or digital_service brought into conformity, unless this would be impossible or would impose costs on the trader that would be disproportionate, taking into account all the circumstances of the case including:

(a)	the value the digital_content or digital_service would have if there were no lack of conformity; and

(b)	the significance of the lack of conformity.

3. The trader shall bring the digital_content or digital_service into conformity pursuant to paragraph 2 within a reasonable time from the time the trader has been informed by the consumer about the lack of conformity, free of charge and without any significant inconvenience to the consumer, taking account of the nature of the digital_content or digital_service and the purpose for which the consumer required the digital_content or digital_service.

4. The consumer shall be entitled to either a proportionate reduction of the price in accordance with paragraph 5 where the digital_content or digital_service is supplied in exchange for a payment of a price, or the termination of the contract in accordance with paragraph 6, in any of the following cases:

(a)	the remedy to bring the digital_content or digital_service into conformity is impossible or disproportionate in accordance with paragraph 2;

(b)	the trader has not brought the digital_content or digital_service into conformity in accordance with paragraph 3;

(c)	a lack of conformity appears despite the trader's attempt to bring the digital_content or digital_service into conformity;

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

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

5. The reduction in price shall be proportionate to the decrease in the value of the digital_content or digital_service which was supplied to the consumer compared to the value that the digital_content or digital_service would have if it were in conformity.

Where the contract stipulates that the digital_content or digital_service shall be supplied over a period of time in exchange for the payment of a price, the reduction in price shall apply to the period of time during which the digital_content or digital_service was not in conformity.

6. Where the digital_content or digital_service is supplied in exchange for the payment of a price, the consumer shall be entitled to terminate the contract only if the lack of conformity is not minor. The burden of proof with regard to whether the lack of conformity is minor shall be on the trader.

Article 16

Obligations of the trader in the event of termination

1. In the event of termination of the contract, the trader shall reimburse the consumer for all sums paid under the contract.

However, in cases where the contract provides for the supply of the digital_content or digital_service in exchange for a payment of a price and over a period of time, and the digital_content or digital_service had been in conformity for a period of time prior to the termination of the contract, the trader shall reimburse the consumer only for the proportionate part of the price paid corresponding to the period of time during which the digital_content or digital_service was not in conformity, and any part of the price paid by the consumer in advance for any period of the contract that would have remained had the contract not been terminated.

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

3. 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.

4. Except in the situations referred to in point (a), (b) or (c) of paragraph 3, 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.

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.

5. 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 4.

Article 18

Time limits and means of reimbursement by the trader

1. Any reimbursement that is owed to the consumer by the trader, pursuant to Article 14(4) and (5) or 16(1), due to a price reduction or termination of the contract shall be carried out without undue delay and, in any event, within 14 days of the date on which the trader is informed of the consumer's decision to invoke the consumer's right for a price reduction or to terminate the contract.

2. The trader shall carry out the reimbursement using the same means of payment as the consumer used to pay for the digital_content or digital_service, unless the consumer expressly agrees otherwise, and provided that the consumer does not incur any fees as a result of such reimbursement.

3. The trader shall not impose any fee on the consumer in respect of the reimbursement.

whereas

(15) Member States should also remain free, for example, to regulate the rights of parties to withhold the performance of their obligations or part thereof until the other party performs its obligations.
For example, Member States should be free to regulate whether a consumer, in cases of a lack of conformity, is to be entitled to withhold payment of the price or part thereof until the trader has brought the digital_content or digital_service into conformity, or whether the trader is to be entitled to retain any reimbursement due to the consumer upon termination of the contract until the consumer complies with the obligation provided for in this Directive to return the tangible medium to the trader.

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(24) Digital content or digital_services are often supplied also where the consumer does not pay a price but provides personal_data to the trader.
Such business models are used in different forms in a considerable part of the market.
While fully recognising that the protection of personal_data is a fundamental right and that therefore personal_data cannot be considered as a commodity, this Directive should ensure that consumers are, in the context of such business models, entitled to contractual remedies.
This Directive should, therefore, apply to contracts where the trader supplies, or undertakes to supply, digital_content or a digital_service to the consumer, and the consumer provides, or undertakes to provide, personal_data.
The personal_data could be provided to the trader either at the time when the contract is concluded or at a later time, such as when the consumer gives consent for the trader to use any personal_data that the consumer might upload or create with the use of the digital_content or digital_service.
Union law on the protection of personal_data provides for an exhaustive list of legal grounds for the lawful processing of personal_data.
This Directive should apply to any contract where the consumer provides or undertakes to provide personal_data to the trader.
For example, this Directive should apply where the consumer opens a social media account and provides a name and email address that are used for purposes other than solely supplying the digital_content or digital_service, or other than complying with legal requirements.
It should equally apply where the consumer gives consent for any material that constitutes personal_data, such as photographs or posts that the consumer uploads, to be processed by the trader for marketing purposes.
Member States should however remain free to determine whether the requirements for the formation, existence and validity of a contract under national law are fulfilled.

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(25) Where digital_content and digital_services are not supplied in exchange for a price, this Directive should not apply to situations where the trader collects personal_data exclusively to supply digital_content or a digital_service, or for the sole purpose of meeting legal requirements.
Such situations can include, for instance, cases where the registration of the consumer is required by applicable laws for security and identification purposes.
This Directive should also not apply to situations where the trader only collects metadata, such as information concerning the consumer's device or browsing history, except where this situation is considered to be a contract under national law.
It should also not apply to situations where the consumer, without having concluded a contract with the trader, is exposed to advertisements exclusively in order to gain access to digital_content or a digital_service.
However, Member States should remain free to extend the application of this Directive to such situations, or to otherwise regulate such situations, which are excluded from the scope of this Directive.

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(32) Free and open source software, where the source code is openly shared and users can freely access, use, modify and redistribute the software or modified versions thereof, can contribute to research and innovation in the market for digital_content and digital_services.
In order to avoid imposing obstacles to such market developments, this Directive should also not apply to free and open source software, provided that it is not supplied in exchange for a price and that the consumer's personal_data are exclusively used for improving the security, compatibility or interoperability of the software.

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(62) In the case of lack of conformity, consumers should be entitled to have the digital_content or digital_service brought into conformity, to have a proportionate reduction in the price, or to terminate the contract.

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(65) Where bringing digital_content or a digital_service into conformity is legally or factually impossible or where the trader refuses to bring the digital_content or digital_service into conformity because to do so would impose disproportionate costs on the trader, or where the trader has failed to bring the digital_content or digital_service into conformity within a reasonable time, free of charge and without causing significant inconvenience to the consumer, the consumer should be entitled to the remedies of price reduction or termination of the contract.
In certain situations, it is justified that the consumer should be entitled to have the price reduced or the contract terminated immediately, for instance where the trader previously failed to successfully bring the digital_content or digital_service into conformity or where the consumer cannot be expected to maintain confidence in the ability of the trader to bring the digital_content or digital_service into conformity due to the serious nature of the lack of conformity.
For example, the consumer should be entitled to directly request a price reduction or the termination of the contract where the consumer is supplied with anti-virus software which is itself infected with viruses and would constitute an instance of lack of conformity of such a serious nature.
The same should apply where it is clear that the trader will not bring the digital_content or digital_service into conformity within a reasonable time or without significant inconvenience for the consumer.

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(66) In a situation where the consumer is entitled to a reduction of the price paid for the digital_content or digital_service which is supplied over a period of time, the calculation of the price reduction should take into consideration the decrease of value of the digital_content or digital_service due both to the lack of conformity and to the time during which the consumer was unable to enjoy the digital_content or digital_service in conformity.

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(67) Where the digital_content or digital_service is supplied in exchange for a price, the consumer should be able to terminate the contract only if the lack of conformity is not minor.
However, where the digital_content or digital_service is not supplied in exchange for a price but personal_data are provided by the consumer, the consumer should be entitled to terminate the contract also in cases where the lack of conformity is minor, since the remedy of price reduction is not available to the consumer.
In cases where the consumer pays a price and provides personal_data, the consumer should be entitled to all available remedies in the event of a lack of conformity.
In particular, provided all other conditions are met, the consumer should be entitled to have the digital_content or digital_service brought into conformity, to have the price reduced in relation to the money paid for the digital_content or digital_service or to have the contract terminated.

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(68) Where the consumer terminates the contract, the trader should reimburse the price paid by the consumer.
However, there is a need to balance the legitimate interests of consumers and traders where the digital_content or digital_service is supplied over a period of time and the digital_content or digital_service was in conformity only for part of that period.
Therefore, upon termination, the consumer should only be entitled to the part of the price paid that corresponds and is in proportion to the length of time during which the digital_content or digital_service was not in conformity.
The consumer should also be entitled to any part of the price paid in advance for any period that would have remained after the contract was terminated.

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(69) Where personal_data are provided by the consumer to the trader, the trader should comply with the obligations under Regulation (EU) 2016/679.
Such obligations should also be complied with in cases where the consumer pays a price and provides personal_data.
Upon termination of the contract, the trader should also 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.
Such content could include digital images, video and audio files and content created on mobile devices.
However, the trader should be entitled to continue to use the content provided or created by the consumer in cases where such content either has no utility outside the context of the digital_content or digital_service supplied by the trader, only relates to the consumer's activity, has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts, or has been generated jointly by the consumer and others, and other consumers can continue to make use of it.

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(77) Where a modification negatively impacts, in more than a minor manner, the access or use of the digital_content or digital_service by the consumer, the consumer should enjoy as a result of such a modification the right to terminate the contract free of any charge.
Alternatively, the trader can decide to enable the consumer to maintain access to the digital_content or digital_service at no additional cost, without the modification and in conformity, in which case the consumer should not be entitled to terminate the contract.
However, if the digital_content or digital_service that the trader enabled the consumer to maintain is no longer in conformity with the subjective and the objective requirements for conformity, the consumer should be able to rely on the remedies for a lack of conformity as provided for under this Directive.
Where the requirements for such a modification as laid down in this Directive are not satisfied and the modification results in a lack of conformity, the consumer's right to bring the digital_content or digital_service into conformity, have the price reduced or the contract terminated, as provided for under this Directive, should remain unaffected.
Similarly, where, subsequent to a modification, a lack of conformity of the digital_content or digital_service that has not been caused by the modification arises, the consumer should continue to be entitled to rely on remedies as provided for under this Directive for the lack of conformity in relation to this digital_content or digital_service.

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(78) The lack of conformity of the digital_content or digital_service as supplied to the consumer is often due to one of the transactions in a chain that links the original designer to the final trader.
While the final trader should be liable towards the consumer in the event of a lack of conformity, it is important to ensure that the trader has appropriate rights vis-à-vis different persons in the chain of transactions in order to be able to cover the liability towards the consumer.
Such rights should be limited to commercial transactions and they should therefore not cover situations where the trader is liable towards the consumer for the lack of conformity of digital_content or a digital_service that is composed of or built upon software which was supplied without the payment of a price under a free and open-source licence by a person in previous links of the chain of transactions.
However, it should be for the Member States under their applicable national law to identify the persons in the chain of transactions against which the final trader can turn and the modalities and conditions of such actions.

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keyboard_tab Contratti digitali 2019/0770 EN

Contratti digitali 2019/0770 EN