Contratti digitali 2019/0770 EN

The purpose of this Directive is to contribute to the proper functioning of the internal market while providing for a high level of consumer protection, by laying down common rules on certain requirements concerning contracts between traders and consumers for the supply of digital_content or digital_services, in particular, 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, and

—	the modification of digital_content or a digital_service.

Article 8

Objective requirements for conformity

1. In addition to complying with any subjective requirement for conformity, the digital_content or digital_service shall:

(a)

be fit for the purposes for which digital_content or digital_services of the same type would normally be used, taking into account, where applicable, any existing Union and national law, technical standards or, in the absence of such technical standards, applicable sector-specific industry codes of conduct;

(b)

be of the quantity and possess the qualities and performance features, including in relation to functionality, compatibility, accessibility, continuity and security, normal for digital_content or digital_services of the same type and which the consumer may reasonably expect, given the nature of the digital_content or digital_service and taking into account any public statement made by or on behalf of the trader, or other persons in previous links of the chain of transactions, particularly in advertising or on labelling unless the trader shows that:

(i)	the trader was not, and could not reasonably have been, aware of the public statement in question;

(ii)	by the time of conclusion of the contract, the public statement had been corrected in the same way as, or in a way comparable to how, it had been made; or

(iii)

the decision to acquire the digital_content or digital_service could not have been influenced by the public statement;

(c)	where applicable, be supplied along with any accessories and instructions which the consumer may reasonably expect to receive; and

(d)	comply with any trial version or preview of the digital_content or digital_service, made available by the trader before the conclusion of the contract.

2. The trader shall ensure that the consumer is informed of and supplied with updates, including security updates, that are necessary to keep the digital_content or digital_service in conformity, for the period of time:

(a)	during which the digital_content or digital_service is to be supplied under the contract, where the contract provides for a continuous supply over a period of time; or

(b)	that the consumer may reasonably expect, given the type and purpose of the digital_content or digital_service and taking into account the circumstances and nature of the contract, where the contract provides for a single act of supply or a series of individual acts of supply.

3. Where the consumer fails to install, within a reasonable time, updates supplied by the trader in accordance with paragraph 2, the trader shall not be liable for any lack of conformity resulting solely from the lack of the relevant update, provided that:

(a)	the trader informed the consumer about the availability of the update and the consequences of the failure of the consumer to install it; and

(b)	the failure of the consumer to install or the incorrect installation by the consumer of the update was not due to shortcomings in the installation instructions provided by the trader.

4. Where the contract provides for a continuous supply of digital_content or digital_service over a period of time, the digital_content or digital_service shall be in conformity throughout the duration of that period.

5. There shall be no lack of conformity within the meaning of paragraph 1 or 2 if, at the time of the conclusion of the contract, the consumer was specifically informed that a particular characteristic of the digital_content or digital_service was deviating from the objective requirements for conformity laid down in paragraph 1 or 2 and the consumer expressly and separately accepted that deviation when concluding the contract.

6. Unless the parties have agreed otherwise, digital_content or a digital_service shall be supplied in the most recent version available at the time of the conclusion of the contract.

Article 11

Liability of the trader

1. The trader shall be liable for any failure to supply the digital_content or digital_service in accordance with Article 5.

2. Where a contract provides for a single act of supply or a series of individual acts of supply, the trader shall be liable for any lack of conformity under Articles 7, 8 and 9 which exists at the time of supply, without prejudice to point (b) of Article 8(2).

If, under national law, the trader is only liable for a lack of conformity that becomes apparent within a period of time after supply, that period shall not be less than two years from the time of supply, without prejudice to point (b) of Article 8(2).

If, under national law, the rights laid down in Article 14 are also subject or only subject to a limitation period, Member States shall ensure that such limitation period allows the consumer to exercise the remedies laid down in Article 14 for any lack of conformity that exists at the time indicated in the first subparagraph and becomes apparent within the period of time indicated in the second subparagraph.

3. Where the contract provides for continuous supply over a period of time, the trader shall be liable for a lack of conformity under Articles 7, 8 and 9, that occurs or becomes apparent within the period of time during which the digital_content or digital_service is to be supplied under the contract.

If, under national law, the rights laid down in Article 14 are also subject or only subject to a limitation period, Member States shall ensure that such limitation period allows the consumer to exercise the remedies laid down in Article 14 for any lack of conformity that occurs or becomes apparent during the period of time referred to in the first subparagraph.

Article 13

Remedy for the failure to supply

1. Where the trader has failed to supply the digital_content or digital_service in accordance with Article 5, the consumer shall call upon the trader to supply the digital_content or digital_service. If the trader then fails to supply the digital_content or digital_service without undue delay, or within an additional period of time, as expressly agreed to by the parties, the consumer shall be entitled to terminate the contract.

2. Paragraph 1 shall not apply, and the consumer shall be entitled to terminate the contract immediately, where:

(a)	the trader has declared, or it is equally clear from the circumstances, that the trader will not supply the digital_content or digital_service;

(b)	the consumer and the trader have agreed, or it is clear from the circumstances attending the conclusion of the contract, that a specific time for the supply is essential for the consumer and the trader fails to supply the digital_content or digital_service by or at that time.

3. Where the consumer terminates the contract under paragraph 1 or 2 of this Article, Articles 15 to 18 shall apply accordingly.

Article 20

Right of redress

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.

Article 22

Mandatory nature

1. Unless otherwise provided for in this Directive, any contractual term which, to the detriment of the consumer, excludes the application of the national measures transposing this Directive, derogates from them or varies their effects before the failure to supply or the lack of conformity is brought to the trader's attention by the consumer, or before the modification of the digital_content or digital_service in accordance with Article 19 is brought to the consumer's attention by the trader, shall not be binding on the consumer.

2. This Directive shall not prevent the trader from offering the consumer contractual arrangements that go beyond the protection provided for in this Directive.

whereas

(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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(14) Member States should also remain free, for example, to regulate the consequences of a failure to supply, or of a lack of conformity of, digital_content or a digital_service, where such failure to supply or lack of conformity is due to an impediment beyond the control of the trader and where the trader could not be expected to have avoided or overcome the impediment or its consequences, such as in the event of force majeure.

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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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(44) Given that digital_content and digital_services are constantly developing, traders may agree with consumers to provide updates and features as they become available.
The conformity of the digital_content or digital_service should, therefore, also be assessed in relation to whether the digital_content or service is updated in the manner that has been stipulated in the contract.
failure to supply updates that had been agreed to in the contract should be considered a lack of conformity of the digital_content or digital_service.
Moreover, defective or incomplete updates should also be considered a lack of conformity of the digital_content or digital_service, given that that would mean that such updates are not performed in the manner stipulated in the contract.

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(55) The trader should be liable to the consumer in the event of a lack of conformity of the digital_content or digital_service, and for any failure to supply the digital_content or digital_service.
As digital_content or digital_services can be supplied to consumers through one or more individual acts of supply or continuously over a period of time, it is appropriate that the relevant time for the purpose of establishing conformity of the digital_content or digital_service be determined in the light of those different types of supply.

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(59) Due to the specific nature and high complexity of digital_content and digital_services, as well as the trader's better knowledge and access to know-how, technical information and high-tech assistance, the trader is likely to be in a better position than the consumer to know why the digital_content or digital_service is not supplied or is not in conformity.
The trader is also likely to be in a better position to assess whether the failure to supply or the lack of conformity is due to the in compatibility of the consumer's digital_environment with the technical requirements for the digital_content or digital_service.
Therefore in the event of a dispute, while it is for the consumer to provide evidence that the digital_content or digital_service is not in conformity, the consumer should not have to prove that the lack of conformity existed at the time of supply of the digital_content or digital_service or, in the event of continuous supply, during the duration of the contract.

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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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keyboard_tab Contratti digitali 2019/0770 EN

Contratti digitali 2019/0770 EN