keyboard_tab Contratti digitali 2019/0770 EN

• 3 Article 8 Objective requirements for conformity
• 1 Article 9 Incorrect integration of the digital content or digital service
• 8 Article 14 Remedies for lack of conformity
• 2 Article 26 Entry into force
• Article 27 Addressees

• digital_content 34
• digital_service 32
• conformity 27
• consumer 22
• trader 20
• shall 16
• contract 15
• lack 14
• into 14
• time 11
• supplied 9
• price 8
• paragraph 8
• which 7
• have 7
• period 6
• would 6
• accordance 5
• account 5
• article 5
• taking 5
• from 5
• reduction 5
•    the 5
• been 5
• nature 4
• reasonably 4
• statement 4
• informed 4
• supply 4
• bring 4
• public 4
• conclusion 4
• integration 4
• incorrect 4
• within 4
• entitled 4
•    where 3
• expect 3
• instructions 3
• value 3
• exchange 3
• payment 3
• provided 3
• update 3
• updates 3
• made 3
• proportionate 3
• type 3
• same 3

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:

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

• (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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• (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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• (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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• (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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• (62) In the case of lack of conformity, consumers should be entitled to have the digital_content or digital_service brought into conformity, to have a proportionate reduction in the price, or to terminate the contract.


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• (63) Depending on the technical characteristics of the digital_content or digital_service, the trader should be allowed to select a specific way of bringing the digital_content or digital_service into conformity, for example by issuing updates or making a new copy of the digital_content or digital_service available to the consumer.


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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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• (65) Where bringing digital_content or a digital_service into conformity is legally or factually impossible or where the trader refuses to bring the digital_content or digital_service into conformity because to do so would impose disproportionate costs on the trader, or where the trader has failed to bring the digital_content or digital_service into conformity within a reasonable time, free of charge and without causing significant inconvenience to the consumer, the consumer should be entitled to the remedies of price reduction or termination of the contract.

    In certain situations, it is justified that the consumer should be entitled to have the price reduced or the contract terminated immediately, for instance where the trader previously failed to successfully bring the digital_content or digital_service into conformity or where the consumer cannot be expected to maintain confidence in the ability of the trader to bring the digital_content or digital_service into conformity due to the serious nature of the lack of conformity.

    For example, the consumer should be entitled to directly request a price reduction or the termination of the contract where the consumer is supplied with anti-virus software which is itself infected with viruses and would constitute an instance of lack of conformity of such a serious nature.

    The same should apply where it is clear that the trader will not bring the digital_content or digital_service into conformity within a reasonable time or without significant inconvenience for the consumer.


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• (66) In a situation where the consumer is entitled to a reduction of the price paid for the digital_content or digital_service which is supplied over a period of time, the calculation of the price reduction should take into consideration the decrease of value of the digital_content or digital_service due both to the lack of conformity and to the time during which the consumer was unable to enjoy the digital_content or digital_service in conformity.


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• (67) Where the digital_content or digital_service is supplied in exchange for a price, the consumer should be able to terminate the contract only if the lack of conformity is not minor.

    However, where the digital_content or digital_service is not supplied in exchange for a price but personal_data are provided by the consumer, the consumer should be entitled to terminate the contract also in cases where the lack of conformity is minor, since the remedy of price reduction is not available to the consumer.

    In cases where the consumer pays a price and provides personal_data, the consumer should be entitled to all available remedies in the event of a lack of conformity.

    In particular, provided all other conditions are met, the consumer should be entitled to have the digital_content or digital_service brought into conformity, to have the price reduced in relation to the money paid for the digital_content or digital_service or to have the contract terminated.


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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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• (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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• (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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