keyboard_tab Contratti digitali 2019/0770 EN

• 1 Article 14 Remedies for lack of conformity
• 1 Article 19 Modification of the digital content or digital service
• 1 Article 20 Right of redress

• digital_content 26
• digital_service 26
• conformity 21
• consumer 19
• shall 15
• trader 14
• contract 11
• lack 10
• paragraph 9
• price 8
• time 8
• modification 8
• into 8
• accordance 8
• entitled 7
• without 6
• article 6
• reduction 5
•    the 5
• would 5
• such 5
• terminate 5
• supplied 5
• have 4
• bring 4
• payment 3
• exchange 3
• person 3
• period 3
• informed 3
• from 3
• case 3
• within 3
• remedies 3
• which 3
• value 3
• maintain 3
•    where 3
• proportionate 3
• minor 3
• brought 3
• conditions 3
• apply 3
• right 2
• termination 2
• cost 2
• following 2
• because 2
• articles 2
• made 2

Where the trader is liable to the consumer because of any failure to supply the digital_content or digital_service, or because of a lack of conformity resulting from an act or omission by a person in previous links of the chain of transactions, the trader shall be entitled to pursue remedies against the person or persons liable in the chain of commercial transactions. The person against whom the trader may pursue remedies, and the relevant actions and conditions of exercise, shall be determined by national law.

• (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.


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• (22) In contrast, if the absence of the incorporated or inter-connected digital_content or digital_service does not prevent the goods from performing their functions, or if the consumer concludes a contract for the supply of digital_content or a digital_service which does not form part of a sales contract concerning goods_with_digital_elements, that contract should be considered to be separate from the contract for the sale of the goods, even if the seller acts as an intermediary of that second contract with the third-party supplier, and could fall within the scope of this Directive.

    For instance, if the consumer downloads a game application from an app store onto a smart phone, the contract for the supply of the game application is separate from the contract for the sale of the smart phone itself.

    Directive (EU) 2019/771 should therefore only apply to the sales contract concerning the smart phone, while the supply of the game application could fall under this Directive, if the conditions of this Directive are met.

    Another example would be where it is expressly agreed that the consumer buys a smart phone without a specific operating system and the consumer subsequently concludes a contract for the supply of an operating system from a third party.

    In such a case, the supply of the separately bought operating system would not form part of the sales contract and therefore would not fall within the scope of Directive (EU) 2019/771, but could fall within the scope of this Directive, if the conditions of this Directive are met.


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• (34) The provisions of this Directive concerning bundle contracts should only apply to cases where the different elements of the bundle are offered by the same trader to the same consumer under a single contract.

    This Directive should not affect national laws governing the conditions under which a contract for the supply of digital_content or digital_services can be considered to be linked with or ancillary to another contract that the consumer has concluded with the same or another trader, the remedies to be exercised under each contract or the effect that the termination of one contract would have on the other contract.


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• (38) This Directive should not regulate the conditions for the lawful processing of personal_data, as this question is regulated, in particular, by Regulation (EU) 2016/679.

    As a consequence, any processing of personal_data in connection with a contract falling within the scope of this Directive is lawful only if it is in conformity with the provisions of Regulation (EU) 2016/679 relating to the legal grounds for the processing of personal_data.

    Where processing of personal_data is based on consent, in particular pursuant to point (a) of Article 6(1) of Regulation (EU) 2016/679, the specific provisions of that Regulation including those concerning the conditions for assessing whether consent is freely given apply.

    This Directive should not regulate the validity of the consent given.

    Regulation (EU) 2016/679 also contains comprehensive rights as to the erasure of data and data portability.

    This Directive should be without prejudice to those rights, which apply to any personal_data provided by the consumer to the trader or collected by the trader in connection with any contract falling within the scope of this Directive, and when the consumer terminated the contract in accordance with this Directive.


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• (49) In order to ensure sufficient flexibility, it should be possible for the parties to deviate from the objective requirements for conformity.

    Such a deviation should only be possible if the consumer was specifically informed about it and if the consumer accepts it separately from other statements or agreements and by way of active and unequivocal conduct.

    Both conditions could, for instance, be fulfilled by ticking a box, pressing a button or activating a similar function.


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• (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.


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• (67) Where the digital_content or digital_service is supplied in exchange for a price, the consumer should be able to terminate the contract only if the lack of conformity is not minor.

    However, where the digital_content or digital_service is not supplied in exchange for a price but personal_data are provided by the consumer, the consumer should be entitled to terminate the contract also in cases where the lack of conformity is minor, since the remedy of price reduction is not available to the consumer.

    In cases where the consumer pays a price and provides personal_data, the consumer should be entitled to all available remedies in the event of a lack of conformity.

    In particular, provided all other conditions are met, the consumer should be entitled to have the digital_content or digital_service brought into conformity, to have the price reduced in relation to the money paid for the digital_content or digital_service or to have the contract terminated.


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• (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.


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• (78) The lack of conformity of the digital_content or digital_service as supplied to the consumer is often due to one of the transactions in a chain that links the original designer to the final trader.

    While the final trader should be liable towards the consumer in the event of a lack of conformity, it is important to ensure that the trader has appropriate rights vis-à-vis different persons in the chain of transactions in order to be able to cover the liability towards the consumer.

    Such rights should be limited to commercial transactions and they should therefore not cover situations where the trader is liable towards the consumer for the lack of conformity of digital_content or a digital_service that is composed of or built upon software which was supplied without the payment of a price under a free and open-source licence by a person in previous links of the chain of transactions.

    However, it should be for the Member States under their applicable national law to identify the persons in the chain of transactions against which the final trader can turn and the modalities and conditions of such actions.


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