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.

(4) businesses, especially SMEs, often face additional costs, stemming from differences in national mandatory consumer contract law rules, and legal uncertainty when offering cross-border digital_content or digital_services.

  businesses also face costs when adapting their contracts to specific mandatory rules for the supply of digital_content or digital_services, which are already being applied in several Member States, creating differences in scope and content between specific national rules governing such contracts.

(6) In order to remedy such problems, both businesses and consumers should be able to rely on fully harmonised contractual rights in certain core areas concerning the supply of digital_content or digital_services across the Union.

  Full harmonisation of some key regulatory aspects would considerably increase legal certainty for consumers and businesses.

(7) Harmonised consumer contract law rules in all Member States would make it easier for businesses, especially SMEs, to supply digital_content or digital_services across the Union.

  They would provide businesses with a stable contract law environment when supplying digital_content or digital_services in other Member States.

  They would also prevent legal fragmentation that otherwise would arise from new national legislation regulating specifically digital_content and digital_services.

(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.

(17) The definition of a consumer should cover natural persons who are acting outside their trade, business, craft or profession.

  However, Member States should also remain free to determine, in the case of dual purpose contracts, where the contract is concluded for purposes that are partly within and partly outside the person's trade, and where the trade purpose is so limited as not to be predominant in the overall context of the contract, whether and under which conditions that person should also be considered a consumer.

(18) This Directive should apply to any contract whereby the trader supplies or undertakes to supply digital_content or digital_service to the consumer.

  Platform providers could be considered to be traders under this Directive if they act for purposes relating to their own business and as the direct contractual partner of the consumer for the supply of digital_content or a digital_service.

  Member States should remain free to extend the application of this Directive to platform providers that do not fulfil the requirements for being considered a trader under this Directive.

(23) Digital representations of value such as electronic vouchers or e-coupons are used by consumers to pay for different goods or services in the digital single market.

  Such digital representations of value are becoming important in relation to the supply of digital_content or digital_services, and should therefore be considered as a method of payment within the meaning of this Directive.

  Digital representations of value should also be understood to include virtual currencies, to the extent that they are recognised by national law.

  Differentiation depending on the methods of payment could be a cause of discrimination and provide an unjustified incentive for businesses to move towards supplying digital_content or a digital_service against digital representations of value.

  However, since digital representations of value have no other purpose than to serve as a method of payment, they themselves should not be considered digital_content or a digital_service within the meaning of this Directive.

(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.

(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.

(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.