keyboard_tab Contratti digitali 2019/0770 EN

(1) The growth potential of e-commerce in the Union has not yet been fully exploited.

  The Digital Single Market Strategy for Europe tackles in a holistic manner the major obstacles to the development of cross-border e-commerce in the Union in order to unleash this potential.

  Ensuring better access for consumers to digital_content and digital_services, and making it easier for businesses to supply digital_content and digital_services, can contribute to boosting the Union's digital economy and stimulating overall growth.

(5) Consumers are not always confident when buying cross border and especially when it is done online.

  One of the major factors for consumers' lack of confidence is uncertainty about their key contractual rights and the lack of a clear contractual framework for digital_content or digital_services.

  Many consumers experience problems related to the quality of, or access to, digital_content or digital_services.

  For instance, they receive wrong or faulty digital_content or digital_services, or they are not able to access the digital_content or digital_service in question.

  As a result, consumers suffer financial and non-financial detriment.

(8) Consumers should benefit from harmonised rights for the supply of digital_content and digital_services that provide a high level of protection.

  They should have clear mandatory rights when they receive or access digital_content or digital_services from anywhere in the Union.

  Having such rights should increase their confidence in acquiring digital_content or digital_services.

  It should also contribute to reducing the detriment consumers currently suffer, since there would be a set of clear rights that will enable them to address problems they face with digital_content or digital_services.

(19) The Directive should address problems across different categories of digital_content, digital_services, and their supply.

  In order to cater for fast technological developments and to maintain the future-proof nature of the notion of digital_content or digital_service, this Directive should cover, inter alia, computer programmes, applications, video files, audio files, music files, digital games, e-books or other e-publications, and also digital_services which allow the creation of, processing of, accessing or storage of data in digital form, including software-as-a-service, such as video and audio sharing and other file hosting, word processing or games offered in the cloud computing environment and social media.

  As there are numerous ways for digital_content or digital_services to be supplied, such as transmission on a tangible medium, downloading by consumers on their devices, web-streaming, allowing access to storage capabilities of digital_content or access to the use of social media, this Directive should apply independently of the medium used for the transmission of, or for giving access to, the digital_content or digital_service.

  However, this Directive should not apply to internet access services.

(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.

(30) Union law relating to financial services contains numerous rules on consumer protection.

  Financial services, as defined by the law applicable to that sector, in particular in Directive 2002/65/EC of the European Parliament and of the Council (9), also cover digital_content or digital_services relating, or giving access, to financial services and are therefore covered by the protection of Union financial services law.

  Contracts relating to digital_content or digital_services that constitute a financial service should therefore be excluded from the scope of this Directive.

(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.

(33) Digital content or digital_services are often combined with the provision of goods or other services and offered to the consumer within the same contract comprising a bundle of different elements, such as the provision of digital television and the purchase of electronic equipment.

  In such cases, the contract between the consumer and the trader includes elements of a contract for the supply of digital_content or a digital_service, but also elements of other contract types, such as sale of goods or services contracts.

  This Directive should only apply to the elements of the overall contract that consist of the supply of digital_content or digital_services.

  The other elements of the contract should be governed by the rules applicable to those contracts under national law or, as applicable, other Union law governing a specific sector or subject matter.

  Likewise, any effects that the termination of one element of the bundle contract could have on the other elements of that bundle contract should be governed by national law.

  However, in order to ensure consistency with the sector-specific provisions of Directive (EU) 2018/1972 of the European Parliament and of the Council (10) regulating bundle contracts, where a trader offers, within the meaning of that Directive, digital_content or a digital_service in combination with a number-based interpersonal communications service or an internet access service, the provisions of this Directive on the modification of digital_content should not apply to the digital_content or digital_service element of the bundle.

  The relevant provisions of Directive (EU) 2018/1972 should instead apply to all elements of the bundle, including the digital_content or digital_service.

(41) There are various ways for the trader to supply digital_content or digital_services to consumers.

  It is opportune to set simple and clear rules as to the modalities and the time for performing that obligation to supply which is the main contractual obligation of the trader, by making the digital_content or a digital_service available or accessible to the consumer.

  The digital_content or digital_service should be considered to be made available or accessible to the consumer when the digital_content or digital_service, or any means suitable for accessing or downloading it, has reached the sphere of the consumer and no further action is required by the trader in order to enable the consumer to use the digital_content or digital_service in accordance with the contract.

  Considering that the trader is not in principle responsible for acts or omissions of a third party which operates a physical or virtual facility, for instance an electronic platform or a cloud storage facility, that the consumer selects for receiving or storing the digital_content or digital_service, it should be sufficient for the trader to supply the digital_content or digital_service to that third party.

  However, the physical or virtual facility cannot be considered to be chosen by the consumer if it is under the trader's control or is contractually linked to the trader, or where the consumer selected that physical or virtual facility for receipt of the digital_content or digital_service but that choice was the only one offered by the trader to receive or access the digital_content or digital_service.

(42) The digital_content or digital_service should comply with the requirements agreed between the trader and the consumer in the contract.

  In particular, it should comply with the description, quantity, for example the number of music files that can be accessed, quality, for example the picture resolution, language and version agreed in the contract.

  It should also possess the security, functionality, compatibility, interoperability and other features, as required by the contract.

  The requirements of the contract should include those resulting from the pre-contractual information which, in accordance with Directive 2011/83/EU, forms an integral part of the contract.

  Those requirements could also be set out in a service level agreement, where, under the applicable national law, such type of agreement forms part of the contractual relationship between the consumer and the trader.

(51) Many types of digital_content or digital_services are supplied continuously over a period of time, such as access to cloud services.

  It is therefore necessary to ensure that the digital_content or digital_service is in conformity throughout the duration of the contract.

  Short-term interruptions of the supply of digital_content or a digital_service should be treated as instances of lack of conformity where those interruptions are more than negligible or recur.

  Moreover, given the frequent improvement of digital_content and digital_services, in particular by updates, the version of digital_content or of a digital_service supplied to the consumer should be the most recent one available at the time of the conclusion of the contract, unless the parties have agreed otherwise.

(54) Legal defects are a particularly important issue in relation to digital_content or digital_services, which are subject to intellectual property rights.

  Restrictions on the consumer's use of digital_content or a digital_service in accordance with this Directive could be a result of a violation of third-party rights.

  Such violation might effectively bar the consumer from enjoying the digital_content or digital_service or some of its features, for instance when the consumer cannot access the digital_content or digital_service at all or cannot do so lawfully.

  That might be due to the fact that the third party rightfully compels the trader to stop infringing those rights and to discontinue offering the digital_content or digital_service in question or that the consumer cannot use the digital_content or digital_service without infringing the law.

  In the event of a violation of third-party rights that results in a restriction that prevents or limits the use of the digital_content or digital_service in accordance with the subjective and objective requirements for conformity, the consumer should be entitled to the remedies for the lack of conformity, unless national law provides for the nullity of the contract, or for its rescission, for example for breach of legal warranty against eviction.

(56) Digital content or digital_services can be supplied to consumers through a single act of supply, for instance when consumers download an e-book and store it on their personal device.

  Similarly, the supply can consist of a series of such individual acts, for instance where consumers receive a link to download a new e-book every week.

  The distinctive element of this category of digital_content or digital_service is the fact that consumers thereafter have the possibility to access and use the digital_content or digital_service indefinitely.

  In such cases, the conformity of the digital_content or digital_service should be assessed at the time of supply, and therefore the trader should only be liable for any lack of conformity which exists at the time when the single act of supply or each individual act of supply takes place.

  In order to ensure legal certainty, traders and consumers should be able to rely on a harmonised minimum period during which the trader should be held liable for a lack of conformity.

  In relation to contracts which provide for a single act of supply or a series of individual acts of supply of the digital_content or digital_service, Member States should ensure that traders are liable for not less than two years from the time of supply, if under their respective national law the trader is only liable for any lack of conformity that becomes apparent within a period of time after supply.

(57) Digital content or digital_services could also be supplied to consumers in a continuous manner over a period of time.

  Continuous supply can include cases whereby the trader makes a digital_service available to consumers for a fixed or an indefinite period of time, such as a two-year cloud storage contract or an indefinite social media platform membership.

  The distinctive element of this category is the fact that the digital_content or digital_service is available or accessible to consumers only for the fixed duration of the contract or for as long as the indefinite contract is in force.

  Therefore, it is justified that the trader, in such cases, should only be liable for a lack of conformity which appears during that period of time.

  The element of continuous supply should not necessarily require a long-term supply.

  Cases such as web-streaming of a video clip should be considered continuous supply over a period of time, regardless of the actual duration of the audio-visual file.

  Cases where specific elements of the digital_content or digital_service are made available periodically or on several instances during the fixed duration of the contract, or for as long as the indefinite contract is in force, should also be considered a continuous supply over a period of time, for instance where the contract stipulates that a copy of anti-virus software can be used for a year and will be automatically updated on the first day of each month of this period, or that the trader will issue updates whenever new features of a digital game become available, and the digital_content or digital_service is available or accessible to consumers only for the fixed duration of the contract or for as long as the indefinite contract is in force.

(59) Due to the specific nature and high complexity of digital_content and digital_services, as well as the trader's better knowledge and access to know-how, technical information and high-tech assistance, the trader is likely to be in a better position than the consumer to know why the digital_content or digital_service is not supplied or is not in conformity.

  The trader is also likely to be in a better position to assess whether the failure to supply or the lack of conformity is due to the in compatibility of the consumer's digital_environment with the technical requirements for the digital_content or digital_service.

  Therefore in the event of a dispute, while it is for the consumer to provide evidence that the digital_content or digital_service is not in conformity, the consumer should not have to prove that the lack of conformity existed at the time of supply of the digital_content or digital_service or, in the event of continuous supply, during the duration of the contract.

(60) Without prejudice to the fundamental right to the protection of private life, including confidentiality of communications, and to the protection of personal_data of the consumer, the consumer should cooperate with the trader in order for the trader to ascertain whether the cause of the lack of conformity lies in the consumer's digital_environment using the technically available means which are least intrusive for the consumer.

  This can often be done for instance by providing the trader with automatically generated incident reports or with details of the consumer's internet connection.

  Only in exceptional and duly justified circumstances where, despite the best use of all other means, there is no other way possible, consumers may need to allow virtual access to their digital_environment.

  However, where the consumer does not cooperate with the trader and the consumer had been informed of the consequences of non-cooperation, it should be for the consumer to prove not only that the digital_content or digital_service is not in conformity, but also that the digital_content or digital_service was not in conformity at the time of supply of the digital_content or digital_service where the contract provides for a single act of supply or a series of individual acts of supply or, where the contract provides for continuous supply over a period of time, for the duration of the contract.

(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.

(72) Where the contract is terminated, the consumer should not be required to pay for the use of the digital_content or digital_service for any period during which the digital_content or a digital_service was not in conformity because that would deprive the consumer of effective protection.

  However, the consumer should also refrain from using the digital_content or digital_service and from making it available to third parties, for instance by deleting the digital_content or any usable copy or rendering the digital_content or digital_service otherwise inaccessible.

(74) This Directive should also address modifications, such as updates and upgrades, which are carried out by traders on the digital_content or digital_service which is supplied or made accessible to the consumer over a period of time.

  Considering the fast-evolving character of digital_content and digital_services, such updates, upgrades or similar modifications may be necessary and are often advantageous for the consumer.

  Some modifications, for instance those stipulated as updates in the contract, may form part of the contractual commitment.

  Other modifications can be required to fulfil the objective requirements for conformity of the digital_content or digital_service as set out in this Directive.

  Yet other modifications, which would deviate from the objective requirements for conformity and which are foreseeable at the time of conclusion of the contract, would have to be expressly agreed to by the consumer when concluding the contract.

(75) In addition to modifications aimed at maintaining conformity, the trader should be allowed under certain conditions to modify features of the digital_content or digital_service, provided that the contract gives a valid reason for such a modification.

  Such valid reasons could encompass cases where the modification is necessary to adapt the digital_content or digital_service to a new technical environment or to an increased number of users or for other important operational reasons.

  Such modifications are often to the advantage of the consumer as they improve the digital_content or digital_service.

  Consequently, the parties to the contract should be able to include clauses in the contract which allow the trader to undertake modifications.

  In order to balance consumer and business interests, such a possibility for the trader should be coupled with a right for the consumer to terminate the contract where such modifications negatively impact the use of or access to the digital_content or digital_service in more than only a minor manner.

  The extent to which modifications negatively impact the use of or access to the digital_content or digital_service by the consumer should be objectively ascertained having regard to the nature and purpose of the digital_content or digital_service and to the quality, functionality, compatibility and other main features which are normal for digital_content or digital_services of the same type.

  The rules provided for in this Directive concerning such updates, upgrades or similar modifications should however not concern situations where the parties conclude a new contract for the supply of the digital_content or digital_service, for instance as a consequence of distributing a new version of the digital_content or digital_service.

(76) Consumers should be informed of modifications in a clear and comprehensible manner.

  Where a modification negatively impacts, in more than a minor manner, the access to or use of digital_content or a digital_service by the consumer, the consumer should be informed in a way that allows the information to be stored on a durable_medium.

  A durable_medium should enable the consumer to store the information for as long as is necessary to protect the interests of the consumer arising from the consumer's relationship with the trader.

  Such media should include, in particular, paper, DVDs, CDs, USB sticks, memory cards or hard disks as well as emails.

(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.