keyboard_tab Contratti digitali 2019/0770 EN

(3) certain aspects concerning contracts for the supply of digital_content or digital_services should be harmonised, taking as a base a high level of consumer protection, in order to achieve a genuine digital single market, increase legal certainty and reduce transaction costs, in particular for small and medium-sized enterprises (‘SMEs’).

(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.

(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.

(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.

(9) This Directive should fully harmonise certain key rules that have, so far, not been regulated at Union or national level.

(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.

(12) This Directive should not affect national law to the extent that the matters concerned are not regulated by this Directive, such as national rules on the formation, validity, nullity or effects of contracts or the legality of the digital_content or the digital_service.

  This Directive should also not determine the legal nature of contracts for the supply of digital_content or a digital_service, and the question of whether such contracts constitute, for instance, a sales, service, rental or sui generis contract, should be left to national law.

  This Directive should also not affect national rules that do not specifically concern consumer contracts and provide for specific remedies for certain types of defects that were not apparent at the time of conclusion of the contract, namely national provisions which may lay down specific rules for the trader's liability for hidden defects.

  This Directive should also not affect national laws providing for non-contractual remedies for the consumer, in the event of lack of conformity of the digital_content or digital_service, against persons in previous links of the chain of transactions, or other persons that fulfil the obligations of such persons.

(20) This Directive and Directive (EU) 2019/771 of the European Parliament and of the Council (3) should complement each other.

  While this Directive lays down rules on certain requirements concerning contracts for the supply of digital_content or digital_services, Directive (EU) 2019/771 lays down rules on certain requirements concerning contracts for the sale of goods.

  Accordingly, in order to meet the expectations of consumers and ensure a clear-cut and simple legal framework for traders of digital_content, this Directive should also apply to digital_content which is supplied on a tangible medium, such as DVDs, CDs, USB sticks and memory cards, as well as to the tangible medium itself, provided that the tangible medium serves exclusively as a carrier of the digital_content.

  However, instead of the provisions of this Directive on the trader's obligation to supply and on the consumer's remedies for failure to supply, the provisions of Directive 2011/83/EU of the European Parliament and of the Council (4) on obligations related to the delivery of goods and remedies in the event of the failure to deliver should apply.

  In addition, the provisions of Directive 2011/83/EU on, for example, the right of withdrawal and the nature of the contract under which those goods are supplied, should also continue to apply to such tangible media and the digital_content supplied on it.

  This Directive is also without prejudice to the distribution right applicable to these goods under copyright law.

(46) The standard of reasonableness with regard to any reference in this Directive to what can be reasonably expected by a person should be objectively ascertained, having regard to the nature and purpose of the digital_content or digital_service, the circumstances of the case and to the usages and practices of the parties involved.

  In particular, what is considered to be a reasonable time for bringing the digital_content or digital_service into conformity should be objectively ascertained, having regard to the nature of the lack of conformity.

(53) Restrictions of the consumer's use of the digital_content or digital_service in accordance with this Directive could result from limitations imposed by the holder of intellectual property rights in accordance with intellectual property law.

  Such restrictions can arise from the end-user license agreement under which the digital_content or digital_service is supplied to the consumer.

  This can be the case when, for instance, an end-user licence agreement prohibits the consumer from making use of certain features related to the functionality of the digital_content or digital_service.

  Such a restriction could render the digital_content or digital_service in breach of the objective requirements for conformity laid down in this Directive, if it concerned features which are usually found in digital_content or digital_services of the same type and which the consumer can reasonably expect.

  In such cases, the consumer should be able to claim the remedies provided for in this Directive for the lack of conformity against the trader who supplied the digital_content or digital_service.

  The trader should only be able to avoid such liability by fulfilling the conditions for derogating from the objective requirements for conformity as laid down in this Directive, namely only if the trader specifically informs the consumer before the conclusion of the contract that a particular characteristic of the digital_content or digital_service deviates from the objective requirements for conformity and the consumer has expressly and separately accepted that deviation.

(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.

(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.

(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.

(71) The consumer should be entitled to retrieve the content within a reasonable time, without hindrance from the trader, in a commonly used machine-readable format and free of charge, with the exception of costs generated by the consumer's own digital_environment, for instance the costs of a network connection as those costs are not specifically linked to the retrieval of the content.

  However, the obligation of the trader to make available such content should not apply where the content only has utility within the context of using the digital_content or digital_service, or relates only to the consumer's activity when using the digital_content or digital_service or has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts.

  In such cases, the content does not have significant practical use or interest for the consumer while taking into account also the interests of the trader.

  Moreover, the obligation of the trader to make available to the consumer, upon termination of the contract, any content that is not personal_data and has been provided or created by the consumer should be without prejudice to the trader's right not to disclose certain content in accordance with applicable law.

(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.