(2) Article 26(1) and (2) of the Treaty on the Functioning of the European Union (TFEU) provide that the Union is to adopt measures with the aim of establishing or ensuring the functioning of the internal market, which is to comprise an area without internal frontiers in which the free movement of goods and services is ensured.
Article 169(1), and point (a) of Article 169(2), TFEU provide that the Union is to contribute to the attainment of a high level of consumer protection through measures adopted pursuant to Article 114 TFEU in the context of the completion of the internal market.
This directive aims to strike the right balance between achieving a high level of consumer protection and promoting the competitiveness of enterprises, while ensuring respect for the principle of subsidiarity.
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(9) This directive should fully harmonise certain key rules that have, so far, not been regulated at Union or national level.
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(10) This directive should define its scope in a clear and unequivocal manner and provide clear substantive rules for the digital_content or digital_services falling within its scope.
Both the scope of this directive and its substantive rules should be technologically neutral and future-proof.
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(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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(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.
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(13) Member States also remain free, for example, to regulate liability claims of a consumer against a third party other than a trader that supplies or undertakes to supply the digital_content or digital_service, such as a developer which is not at the same time the trader under this directive.
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(15) Member States should also remain free, for example, to regulate the rights of parties to withhold the performance of their obligations or part thereof until the other party performs its obligations.
For example, Member States should be free to regulate whether a consumer, in cases of a lack of conformity, is to be entitled to withhold payment of the price or part thereof until the trader has brought the digital_content or digital_service into conformity, or whether the trader is to be entitled to retain any reimbursement due to the consumer upon termination of the contract until the consumer complies with the obligation provided for in this directive to return the tangible medium to the trader.
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(16) Member States should also remain free to extend the application of the rules of this directive to contracts that are excluded from the scope of this directive, or to otherwise regulate such contracts.
For instance, Member States should remain free to extend the protection afforded to consumers by this directive also to natural or legal persons that are not consumers within the meaning of this directive, such as non-governmental organisations, start-ups or SMEs.
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(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.
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(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.
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(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.
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(21) directive (EU) 2019/771 should apply to contracts for the sale of goods, including goods_with_digital_elements.
The notion of goods_with_digital_elements should refer to goods that incorporate or are inter-connected with digital_content or a digital_service in such a way that the absence of that digital_content or digital_service would prevent the goods from performing their functions.
Digital content or a digital_service that is incorporated in or inter-connected with goods in that manner should fall within the scope of directive (EU) 2019/771 if it is provided with the goods under a sales contract concerning those goods.
Whether the supply of the incorporated or inter-connected digital_content or digital_service forms part of the sales contract with the seller should depend on the content of this contract.
This should include incorporated or inter-connected digital_content or digital_services the supply of which is explicitly required by the contract.
It should also include those sales contracts which can be understood as covering the supply of specific digital_content or a specific digital_service because they are normal for goods of the same type and the consumer could reasonably expect them given the nature of the goods and taking into account any public statement made by or on behalf of the seller or other persons in previous links of the chain of transactions, including the producer.
If, for example, a smart TV were advertised as including a particular video application, that video application would be considered to be part of the sales contract.
This should apply regardless of whether the digital_content or digital_service is pre-installed in the good itself or has to be downloaded subsequently on another device and is only inter-connected to the good.
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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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(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.
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(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.
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(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.
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(26) This directive should apply to contracts for the development of digital_content that is tailor-made to the specific requirements of the consumer including tailor-made software.
This directive should also apply to the supply of electronic files required in the context of 3D printing of goods, to the extent that such files fall under the definition of digital_content or digital_services within the meaning of this directive.
However, this directive should not regulate any rights or obligations related to goods produced with the use of 3D printing technology.
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(27) Given that this directive should apply to contracts which have as their object the supply of digital_content or a digital_service to the consumer, it should not apply where the main subject matter of the contract is the provision of professional services, such as translation services, architectural services, legal services or other professional advice services, which are often performed personally by the trader, regardless of whether digital means are used by the trader in order to produce the output of the service or to deliver or transmit it to the consumer.
Similarly, this directive should not apply to public services, such as social security services or public registers, where the digital means are only used for transmitting or communicating the service to the consumer.
This directive should also not apply to authentic instruments and other notarial acts, regardless of whether they are performed, recorded, reproduced or transmitted by digital means.
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(28) The market for number-independent interpersonal communications services, which do not connect with publicly assigned numbering resources, is rapidly evolving.
In recent years, the emergence of new digital_services which allow interpersonal communications over the internet, such as web-based email and online messaging services, has led more consumers to use such services.
For such reasons, it is necessary to provide effective consumer protection with respect to such services.
This directive should therefore also apply to number-independent interpersonal communications services.
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(29) This directive should not apply to healthcare as defined in directive 2011/24/EU of the European Parliament and of the Council (5).
The exclusion of ‘healthcare’ from the scope of this directive should also apply to any digital_content or digital_service that constitutes a medical device, as defined in Council directive 93/42/EEC (6) or 90/385/EEC (7) or directive 98/79/EC of the European Parliament and of the Council (8), where such medical device is prescribed or provided by a health professional as defined in directive 2011/24/EU.
However, this directive should apply to any digital_content or digital_service that constitutes a medical device, such as health applications, that can be obtained by the consumer without being prescribed or provided by a health professional.
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(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.
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(31) This directive should not apply to digital_content or a digital_service that is provided to a public audience as part of an artistic performance or other event, such as a digital cinematographic projection or an audiovisual theatrical performance.
However, this directive should apply if digital_content or a digital_service is provided to a public audience by signal transmission such as digital television services.
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(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.
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(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.
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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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(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.
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(36) This directive should be without prejudice to other Union law governing a specific sector or subject matter, such as telecommunications, e-commerce and consumer protection.
It should also be without prejudice to Union and national law on copyright and related rights, including the portability of online content services.
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(37) The pursuit of activities falling within the scope of this directive could involve the processing of personal_data.
Union law provides a comprehensive framework on the protection of personal_data.
In particular, this directive is without prejudice to Regulation (EU) 2016/679 (12) and directive 2002/58/EC (13) of the European Parliament and of the Council.
That framework applies to any personal_data processed in connection with the contracts covered by this directive.
Consequently, personal_data should only be collected or otherwise processed in accordance with Regulation (EU) 2016/679 and directive 2002/58/EC.
In the event of a conflict between this directive and Union law on the protection of personal_data, the latter should prevail.
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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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(39) The right to erasure and the consumer's right to withdraw consent for the processing of personal_data should apply fully also in connection with the contracts covered by this directive.
The right of the consumer to terminate the contract in accordance with this directive should be without prejudice to the consumer's right under Regulation (EU) 2016/679 to withdraw any consent given to the processing of the consumer's personal_data.
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(40) This directive should not regulate the consequences for the contracts covered by this directive in the event that the consumer withdraws the consent for the processing of the consumer's personal_data.
Such consequences should remain a matter for national law.
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(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.
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(45) In order to be in conformity and to ensure that consumers are not deprived of their rights, for example in cases where the contract sets very low standards, the digital_content or digital_service should not only comply with the subjective requirements for conformity, but should in addition comply with the objective requirements for conformity set out in this directive.
Conformity should be assessed, inter alia, by considering the purpose for which digital_content or digital_services of the same type would normally be used.
It should also possess the qualities and performance features which are normal for digital_content or digital_services of the same type and which consumers can reasonably expect, given the nature of the digital_content or digital_service, and taking into account any public statements on the specific characteristics of the digital_content or digital_service made by or on behalf of the trader or other persons in previous links of the chain of transactions.
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(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.
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(47) For the period of time that the consumer would reasonably expect, the trader should provide the consumer with updates, including security updates, in order to keep the digital_content or digital_service in conformity and secure.
For instance, as regards digital_content or digital_services, the purpose of which is limited in time, the obligation to provide updates should be limited to that time, while for other types of digital_content or digital_service the period during which updates should be provided to the consumer could be equal to the liability period for lack of conformity or could extend beyond that period, which might be the case particularly with regard to security updates.
The consumer should remain free to choose whether to install the updates provided.
Where the consumer decides not to install the updates, the consumer should, however, not expect the digital_content or digital_service to remain in conformity.
The trader should inform the consumer that the consumer's decision not to install updates which are necessary for keeping the digital_content or digital_service in conformity, including security updates, will affect the trader's liability for conformity of those features of the digital_content or digital_service which the relevant updates are supposed to maintain in conformity.
This directive should not affect obligations to provide security updates laid down in Union law or in national law.
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(48) Regulation (EU) 2016/679 or any other Union law on data protection should fully apply to the processing of personal_data in connection with any contract falling within the scope of this directive.
In addition, this directive should be without prejudice to the rights, obligations and non-contractual remedies provided for by Regulation (EU) 2016/679.
Facts leading to a lack of compliance with requirements provided for by Regulation (EU) 2016/679, including core principles such as the requirements for data minimisation, data protection by design and data protection by default, may, depending on the circumstances of the case, also be considered to constitute a lack of conformity of the digital_content or digital_service with subjective or objective requirements for conformity provided for in this directive.
One example could be where a trader explicitly assumes an obligation in the contract, or the contract can be interpreted in that way, which is also linked to the trader's obligations under Regulation (EU) 2016/679.
In that case, such a contractual commitment can become part of the subjective requirements for conformity.
A second example could be where non-compliance with the obligations under Regulation (EU) 2016/679 could, at the same time render the digital_content or digital_service unfit for its intended purpose and, therefore, constitute a lack of conformity with the objective requirement for conformity which requires the digital_content or digital_service to be fit for the purposes for which digital_content or digital_services of the same type would be normally used.
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(50) When applying the rules of this directive, traders should make use of standards, open technical specifications, good practices and codes of conduct, including in relation to the commonly used and machine-readable format for retrieving the content other than personal_data, which was provided or created by the consumer when using the digital_content or digital_service, and including on the security of information systems and digital_environments, whether established at international level, Union level or at the level of a specific industry sector.
In this context, the Commission could call for the development of international and Union standards and the drawing up of a code of conduct by trade associations and other representative organisations that could support the uniform implementation of this directive.
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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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(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.
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(58) Member States should remain free to regulate national limitation periods.
However, such limitation periods should not prevent consumers from exercising their rights throughout the period of time during which the trader is liable for a lack of conformity.
While this directive should therefore not harmonise the starting point of national limitation periods, it should nevertheless ensure that such periods still allow consumers to exercise their remedies for any lack of conformity that becomes apparent at least during the period during which the trader is liable for a lack of conformity.
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(73) The principle of the liability of the trader for damages is an essential element of contracts for the supply of digital_content or digital_services.
Therefore, the consumer should be entitled to claim compensation for detriment caused by a lack of conformity or a failure to supply the digital_content or digital_service.
The compensation should put the consumer as much as possible into the position in which the consumer would have been had the digital_content or digital_service been duly supplied and been in conformity.
As such a right to damages already exists in all Member States, this directive should be without prejudice to national rules on the compensation of consumers for harm resulting from infringement of those rules.
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(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.
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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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(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.
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(79) Persons or organisations regarded under national law as having a legitimate interest in protecting consumer contractual and data protection rights should be afforded the right to initiate proceedings to ensure that the national provisions transposing this directive are applied, either before a court or before an administrative authority which is competent to decide upon complaints, or to initiate appropriate legal proceedings.
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(80) Nothing in this directive should prejudice the application of the rules of private international law, in particular Regulations (EC) No 593/2008 (14) and (EU) No 1215/2012 (15) of the European Parliament and of the Council.
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(81) The Annex to Regulation (EU) 2017/2394 of the European Parliament and of the Council (16) should be amended to include a reference to this directive so as to facilitate cross-border cooperation on enforcement of this directive.
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(82) Annex I to directive 2009/22/EC of the European Parliament and of the Council (17) should be amended to include a reference to this directive so as to ensure that the collective interests of consumers laid down in this directive are protected.
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(83) Consumers should be able to benefit from their rights under this directive as soon as the corresponding national transposition measures begin to apply.
Those national transposition measures should, therefore, also apply to contracts of an indefinite or fixed duration which were concluded before the application date and provide for the supply of digital_content or digital_services over a period of time, either continuously or through a series of individual acts of supply, but only as regards digital_content or a digital_service that is supplied from the date of application of the national transposition measures.
However, in order to ensure a balance between the legitimate interests of consumers and traders, the national measures transposing the provisions of this directive on the modification of the digital_content or digital_service and the right to redress should only apply to contracts concluded after the application date pursuant to this directive.
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(84) In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (18), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments.
With regard to this directive, the legislator considers the transmission of such documents to be justified.
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(86) Since the objectives of this directive, namely to contribute to the functioning of the internal market by tackling in a consistent manner contract law related obstacles for the supply of digital_content or digital_services while preventing legal fragmentation, cannot be sufficiently achieved by the Member States but can rather, by reasons of ensuring the overall coherence of the national laws through harmonised contract law rules which would also facilitate coordinated enforcement actions, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union.
In accordance with the principle of proportionality, as set out in that Article, this directive does not go beyond what is necessary in order to achieve those objectives.
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(87) This directive respects the fundamental rights and freedoms and observes the principles recognised, in particular, by the Charter of Fundamental Rights of the European Union, including those enshrined in Articles 16, 38 and 47 thereof,
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