Contratti digitali 2019/0770 EN

(4) Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council (OJ L 304, 22.11.2011, p. 64).

(5) Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients' rights in cross-border healthcare (OJ L 88, 4.4.2011, p. 45).

(6) Council Directive 93/42/EEC of 14 June 1993 concerning medical devices (OJ L 169, 12.7.1993, p. 1).

(7) Council Directive 90/385/EEC of 20 June 1990 on the approximation of the laws of the Member States relating to active implantable medical devices (OJ L 189, 20.7.1990, p. 17).

(8) Directive 98/79/EC of the European Parliament and of the Council of 27 October 1998 on in vitro diagnostic medical devices (OJ L 331, 7.12.1998, p. 1).

(9) Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC (OJ L 271, 9.10.2002, p. 16).

(10) Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ L 321, 17.12.2018, p. 36).

(11) Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to- consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ L 149, 11.6.2005, p. 22).

(12) 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).

(13) Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal_data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37).

(14) Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6).

(15) Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ L 351, 20.12.2012, p. 1).

(16) Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004 (OJ L 345, 27.12.2017, p. 1).

(17) Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers' interests (OJ L 110, 1.5.2009, p. 30).

(18) OJ C 369, 17.12.2011, p. 14.

(19) Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal_data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1).

(20) OJ C 200, 23.6.2017, p. 10.

(21) Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information (OJ L 345, 31.12.2003, p. 90).

(22) Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying down measures concerning open internet access and retail charges for regulated intra-EU communications and amending Directive 2002/22/EC and Regulation (EU) No 531/2012 (OJ L 310, 26.11.2015, p. 1).

(23) Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167, 22.6.2001, p. 10).

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)

‘ 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 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 19

Modification of the digital_content or digital_service

1. Where the contract provides that the digital_content or digital_service is to be supplied or made accessible to the consumer over a period of time, the trader may modify the digital_content or digital_service beyond what is necessary to maintain the digital_content or digital_service in conformity in accordance with Articles 7 and 8, if the following conditions are met:

(a)	the contract allows, and provides a valid reason for, such a modification;

(b)	such a modification is made without additional cost to the consumer;

(c)	the consumer is informed in a clear and comprehensible manner of the modification; and

(d)

in the cases referred to in paragraph 2, the consumer is informed reasonably in advance on a durable_medium of the features and time of the modification and of the right to terminate the contract in accordance with paragraph 2, or of the possibility to maintain the digital_content or digital_service without such a modification in accordance with paragraph 4.

2. The consumer shall be entitled to terminate the contract if the modification negatively impacts the consumer's access to or use of the digital_content or digital_service, unless such negative impact is only minor. In that case, the consumer shall be entitled to terminate the contract free of charge within 30 days of the receipt of the information or of the time when the digital_content or digital_service has been modified by the trader, whichever is later.

3. Where the consumer terminates the contract in accordance with paragraph 2 of this Article, Articles 15 to 18 shall apply accordingly.

4. Paragraphs 2 and 3 of this Article shall not apply if the trader has enabled the consumer to maintain without additional cost the digital_content or digital_service without the modification, and the digital_content or digital_service remains in conformity.

Article 21

Enforcement

1. Member States shall ensure that adequate and effective means exist to ensure compliance with this Directive.

2. The means referred to in paragraph 1 shall include provisions whereby one or more of the following bodies, as determined by national law, may take action under national law before the courts or before the competent administrative bodies to ensure that the national provisions transposing this Directive are applied:

(a)	public bodies or their representatives;

(b)	consumer organisations having a legitimate interest in protecting consumers;

(c)	professional organisations having a legitimate interest in acting;

(d)	not-for-profit bodies, organisations or associations, active in the field of the protection of data subjects' rights and freedoms as defined in Article 80 of Regulation (EU) 2016/679.

Article 23

Amendments to Regulation (EU) 2017/2394 and Directive 2009/22/EC

(1) In the Annex to Regulation (EU) 2017/2394, the following point is added:

‘28.	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)’.

(2) In Annex I to Directive 2009/22/EC, the following point is added:

‘17.	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)’.

Article 26

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

whereas

(35) The commercial practice of bundling offers of digital_content or digital_services with the provision of goods or other services is subject to Directive 2005/29/EC of the European Parliament and of the Council (11) concerning unfair business-to- consumer commercial practices in the internal market.
Such bundling is not in itself prohibited under Directive 2005/29/EC.
However, it is prohibited where it is deemed unfair, following a case-by-case assessment pursuant to the criteria laid down in that Directive.
Union law on competition also allows addressing tying and bundling practices, when they affect the competitive process and harm consumers.

- = -

(52) In order to work properly, the digital_content or digital_service needs to be correctly integrated into the consumer's hardware and software environment.
A lack of conformity of the digital_content or digital_service that results from an incorrect integration should be regarded as a lack of conformity of the digital_content or digital_service itself, where it was integrated by the trader or under its control, or by the consumer following the trader's instructions for integration, and the incorrect integration was due to shortcomings in the required integration instructions, such as incompleteness or a lack of clarity making the integration instructions difficult to use for the average consumer.

- = -

(70) The consumer could be discouraged from exercising remedies for a lack of conformity of digital_content or a digital_service if the consumer is deprived of access to content other than personal_data, which the consumer provided or created through the use of the digital_content or digital_service.
In order to ensure that the consumer benefits from effective protection in relation to the right to terminate the contract, the trader should therefore, at the request of the consumer, make such content available to the consumer following the termination of the contract.

- = -

keyboard_tab Contratti digitali 2019/0770 EN

Contratti digitali 2019/0770 EN