keyboard_tab Contratti digitali 2019/0770 EN

(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.

(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.

(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.

(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.

(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.

(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.

(41) There are various ways for the trader to supply digital_content or digital_services to consumers.

  It is opportune to set simple and clear rules as to the modalities and the time for performing that obligation to supply which is the main contractual obligation of the trader, by making the digital_content or a digital_service available or accessible to the consumer.

  The digital_content or digital_service should be considered to be made available or accessible to the consumer when the digital_content or digital_service, or any means suitable for accessing or downloading it, has reached the sphere of the consumer and no further action is required by the trader in order to enable the consumer to use the digital_content or digital_service in accordance with the contract.

  Considering that the trader is not in principle responsible for acts or omissions of a third party which operates a physical or virtual facility, for instance an electronic platform or a cloud storage facility, that the consumer selects for receiving or storing the digital_content or digital_service, it should be sufficient for the trader to supply the digital_content or digital_service to that third party.

  However, the physical or virtual facility cannot be considered to be chosen by the consumer if it is under the trader's control or is contractually linked to the trader, or where the consumer selected that physical or virtual facility for receipt of the digital_content or digital_service but that choice was the only one offered by the trader to receive or access the digital_content or digital_service.

(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.

(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.

(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.

(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.