keyboard_tab Contratti digitali 2019/0770 EN

• 2 Article 2 Definitions
• 1 Article 4 Level of harmonisation
• 2 Article 8 Objective requirements for conformity
• 1 Article 9 Incorrect integration of the digital content or digital service
• 1 Article 10 Third-party rights
• 1 Article 11 Liability of the trader
• 1 Article 12 Burden of proof
• 2 Article 13 Remedy for the failure to supply
• 2 Article 14 Remedies for lack of conformity
• 2 Article 16 Obligations of the trader in the event of termination
• 2 Article 17 Obligations of the consumer in the event of termination
• 1 Article 20 Right of redress
• 2 Article 22 Mandatory nature
• 3 Article 24 Transposition

• digital_content 79
• digital_service 72
• consumer 70
• trader 63
• shall 57
• conformity 45
• contract 35
• article 32
• time 32
• which 28
• lack 26
• period 26
• supply 25
• from 23
• supplied 20
• directive 15
• means 13
• within 13
• under 13
• into 12
•    the 12
• paragraph 11
• person 11
• price 11
• accordance 11
• such 11
• provided 10
• without 9
• entitled 9
• been 9
• have 9
• national 9
• liable 8
• would 8
• states 8
• only 8
• member 8
•    where 8
• termination 8
• apply 7
• conclusion 7
• provides 7
• informed 7
• during 7
• laid 7
• down 7
• whether 7
• remedies 6
• becomes 6
• apparent 6

Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more, or less, stringent provisions to ensure a different level of consumer protection, unless otherwise provided for in this Directive.

Any lack of conformity resulting from the incorrect integration of the digital_content or digital_service into the consumer's digital_environment shall be regarded as lack of conformity of the digital_content or digital_service if:

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.

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.

• (4) Businesses, especially SMEs, often face additional costs, stemming from differences in national mandatory consumer contract law rules, and legal uncertainty when offering cross-border digital_content or digital_services.

    Businesses also face costs when adapting their contracts to specific mandatory rules for the supply of digital_content or digital_services, which are already being applied in several Member States, creating differences in scope and content between specific national rules governing such contracts.


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• (7) Harmonised consumer contract law rules in all Member States would make it easier for businesses, especially SMEs, to supply digital_content or digital_services across the Union.

    They would provide businesses with a stable contract law environment when supplying digital_content or digital_services in other Member States.

    They would also prevent legal fragmentation that otherwise would arise from new national legislation regulating specifically digital_content and digital_services.


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• (8) Consumers should benefit from harmonised rights for the supply of digital_content and digital_services that provide a high level of protection.

    They should have clear mandatory rights when they receive or access digital_content or digital_services from anywhere in the Union.

    Having such rights should increase their confidence in acquiring digital_content or digital_services.

    It should also contribute to reducing the detriment consumers currently suffer, since there would be a set of clear rights that will enable them to address problems they face with digital_content or digital_services.


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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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• (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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• (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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• (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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• (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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• (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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• (43) The notion of functionality should be understood to refer to the ways in which digital_content or a digital_service can be used.

    For instance, the absence or presence of any technical restrictions such as protection via Digital Rights Management or region coding could have an impact on the ability of the digital_content or digital_service to perform all its functions having regard to its purpose.

    The notion of interoperability relates to whether and to what extent digital_content or a digital_service is able to function with hardware or software that is different from those with which digital_content or digital_services of the same type are normally used.

    Successful functioning could include, for instance, the ability of the digital_content or digital_service to exchange information with such other software or hardware and to use the information exchanged.


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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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• (52) In order to work properly, the digital_content or digital_service needs to be correctly integrated into the consumer's hardware and software environment.

    A lack of conformity of the digital_content or digital_service that results from an incorrect integration should be regarded as a lack of conformity of the digital_content or digital_service itself, where it was integrated by the trader or under its control, or by the consumer following the trader's instructions for integration, and the incorrect integration was due to shortcomings in the required integration instructions, such as incompleteness or a lack of clarity making the integration instructions difficult to use for the average consumer.


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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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• (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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• (64) Given the diversity of digital_content and digital_services, it is not appropriate to set fixed deadlines for the exercise of rights or the fulfilling of obligations related to digital_content or digital_services.

    Such deadlines would not take account of such diversity and could be either too short or too long, depending on the case.

    It is therefore more appropriate to require that digital_content and digital_services be brought into conformity within a reasonable time.

    Such requirement should not prevent the parties from agreeing on a specific time for bringing the digital_content or digital_service into conformity.

    The digital_content or digital_service should be brought into conformity free of any charge.

    In particular, the consumer should not incur any costs associated with the development of an update for the digital_content or digital_service.


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• (69) Where personal_data are provided by the consumer to the trader, the trader should comply with the obligations under Regulation (EU) 2016/679.

    Such obligations should also be complied with in cases where the consumer pays a price and provides personal_data.

    Upon termination of the contract, the trader should also refrain from using any content other than personal_data, which was provided or created by the consumer when using the digital_content or digital_service supplied by the trader.

    Such content could include digital images, video and audio files and content created on mobile devices.

    However, the trader should be entitled to continue to use the content provided or created by the consumer in cases where such content either has no utility outside the context of the digital_content or digital_service supplied by the trader, only relates to the consumer's activity, has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts, or has been generated jointly by the consumer and others, and other consumers can continue to make use of it.


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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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• (71) The consumer should be entitled to retrieve the content within a reasonable time, without hindrance from the trader, in a commonly used machine-readable format and free of charge, with the exception of costs generated by the consumer's own digital_environment, for instance the costs of a network connection as those costs are not specifically linked to the retrieval of the content.

    However, the obligation of the trader to make available such content should not apply where the content only has utility within the context of using the digital_content or digital_service, or relates only to the consumer's activity when using the digital_content or digital_service or has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts.

    In such cases, the content does not have significant practical use or interest for the consumer while taking into account also the interests of the trader.

    Moreover, the obligation of the trader to make available to the consumer, upon termination of the contract, any content that is not personal_data and has been provided or created by the consumer should be without prejudice to the trader's right not to disclose certain content in accordance with applicable law.


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• (72) Where the contract is terminated, the consumer should not be required to pay for the use of the digital_content or digital_service for any period during which the digital_content or a digital_service was not in conformity because that would deprive the consumer of effective protection.

    However, the consumer should also refrain from using the digital_content or digital_service and from making it available to third parties, for instance by deleting the digital_content or any usable copy or rendering the digital_content or digital_service otherwise inaccessible.


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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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• (76) Consumers should be informed of modifications in a clear and comprehensible manner.

    Where a modification negatively impacts, in more than a minor manner, the access to or use of digital_content or a digital_service by the consumer, the consumer should be informed in a way that allows the information to be stored on a durable_medium.

    A durable_medium should enable the consumer to store the information for as long as is necessary to protect the interests of the consumer arising from the consumer's relationship with the trader.

    Such media should include, in particular, paper, DVDs, CDs, USB sticks, memory cards or hard disks as well as emails.


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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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