keyboard_tab Contratti digitali 2019/0770 EN

• 1 Article 4 Level of harmonisation
• 1 Article 8 Objective requirements for conformity
• 1 Article 10 Third-party rights
• 2 Article 11 Liability of the trader
• 3 Article 21 Enforcement

• digital_content 17
• consumer 16
• digital_service 15
• shall 15
• contract 14
• trader 14
• time 14
• article 14
• period 14
• conformity 13
• supply 12
• lack 9
• national 9
• ensure 8
• under 8
• supplied 6
• which 6
• provides 6
• down 6
• laid 6
• rights 5
• states 5
• from 5
• public 5
• liable 5
• within 5
• directive 4
• such 4
• bodies 4
• becomes 4
•    where 4
• reasonably 4
• been 4
• member 4
• paragraph 4
• statement 4
• conclusion 4
• provided 4
• subject 4
• provisions 4
• limitation 4
• apparent 4
• expect 3
• during 3
• organisations 3
• before 3
• updates 3
• informed 3
•    the 3
• only 3

Where a restriction resulting from a violation of any right of a third party, in particular intellectual property rights, prevents or limits the use of the digital_content or digital_service in accordance with Articles 7 and 8, Member States shall ensure that the consumer is entitled to the remedies for lack of conformity provided for in Article 14, unless national law provides for the nullity or rescission of the contract for the supply of the digital_content or digital_service in such cases.

• (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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• (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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• (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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• (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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• (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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• (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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• (51) Many types of digital_content or digital_services are supplied continuously over a period of time, such as access to cloud services.

    It is therefore necessary to ensure that the digital_content or digital_service is in conformity throughout the duration of the contract.

    Short-term interruptions of the supply of digital_content or a digital_service should be treated as instances of lack of conformity where those interruptions are more than negligible or recur.

    Moreover, given the frequent improvement of digital_content and digital_services, in particular by updates, the version of digital_content or of a digital_service supplied to the consumer should be the most recent one available at the time of the conclusion of the contract, unless the parties have agreed otherwise.


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• (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.


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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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• (70) The consumer could be discouraged from exercising remedies for a lack of conformity of digital_content or a digital_service if the consumer is deprived of access to content other than personal_data, which the consumer provided or created through the use of the digital_content or digital_service.

    In order to ensure that the consumer benefits from effective protection in relation to the right to terminate the contract, the trader should therefore, at the request of the consumer, make such content available to the consumer following the termination of the contract.


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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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• (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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• (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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