Contratti digitali 2019/0770 EN

1. The burden of proof with regard to whether the digital_content or digital_service was supplied in accordance with Article 5 shall be on the trader.

2. In cases referred to in Article 11(2), the burden of proof with regard to whether the supplied digital_content or digital_service was in conformity at the time of supply shall be on the trader for a lack of conformity which becomes apparent within a period of one year from the time when the digital_content or digital_service was supplied.

3. In cases referred to in Article 11(3), the burden of proof with regard to whether the digital_content or digital_service was in conformity within the period of time during which the digital_content or digital_service is to be supplied under the contract shall be on the trader for a lack of conformity which becomes apparent within that period.

4. Paragraphs 2 and 3 shall not apply where the trader demonstrates that the digital_environment of the consumer is not compatible with the technical requirements of the digital_content or digital_service and where the trader informed the consumer of such requirements in a clear and comprehensible manner before the conclusion of the contract.

5. The consumer shall cooperate with the trader, to the extent reasonably possible and necessary, to ascertain whether the cause of the lack of conformity of the digital_content or digital_service at the time specified in Article 11(2) or (3), as applicable, lay in the consumer's digital_environment. The obligation to cooperate shall be limited to the technically available means which are least intrusive for the consumer. Where the consumer fails to cooperate, and where the trader informed the consumer of such requirement in a clear and comprehensible manner before the conclusion of the contract, the burden of proof with regard to whether the lack of conformity existed at the time specified in Article 11(2) or (3), as applicable, shall be on the consumer.

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.

whereas

(11) This Directive should lay down common rules on certain requirements concerning contracts between traders and consumers for the supply of digital_content or a digital_service.
For this purpose, rules on the conformity of digital_content or a digital_service with the contract, remedies in the event of a lack of such conformity or a failure to supply and the modalities for the exercise of those remedies, as well as on the modification of digital_content or a digital_service, should be fully harmonised.
Fully harmonised rules on some essential elements of consumer contract law would make it easier for businesses, especially SMEs, to offer their products in other Member States.
Consumers would benefit from a high level of consumer protection and welfare gains by fully harmonising key rules.
Member States are precluded within the scope of this Directive from providing for any further formal or substantive requirements.
For example, Member States should not provide for rules on the reversal of the burden of proof that are different from those provided for in this Directive, or for an obligation for the consumer to notify the trader of a lack of conformity within a specific period.

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keyboard_tab Contratti digitali 2019/0770 EN

Contratti digitali 2019/0770 EN