keyboard_tab Contratti digitali 2019/0770 EN

• 1 Article 1 Subject matter and purpose
• 3 Article 8 Objective requirements for conformity
• 2 Article 9 Incorrect integration of the digital content or digital service
• 1 Article 10 Third-party rights
• 5 Article 11 Liability of the trader
• 4 Article 12 Burden of proof
• 9 Article 14 Remedies for lack of conformity
• 1 Article 20 Right of redress
• 1 Article 22 Mandatory nature

• digital_content 50
• digital_service 47
• conformity 43
• consumer 40
• trader 38
• shall 33
• lack 27
• article 24
• time 24
• contract 23
• period 19
• supply 17
• supplied 14
• which 14
• into 12
• from 11
• under 10
• within 10
• accordance 9
• paragraph 8
•    the 8
• remedies 8
• price 8
• such 8
• liable 7
• have 7
• national 7
• burden 6
• provides 6
• would 6
• conclusion 6
• informed 6
• failure 6
• whether 6
• apparent 6
• becomes 6
• proof 6
• provided 6
• down 6
• entitled 6
• reasonably 5
• brought 5
• been 5
• applicable 5
• account 5
• taking 5
• before 5
• nature 5
• directive 5
• regard 5

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.

• (5) Consumers are not always confident when buying cross border and especially when it is done online.

    One of the major factors for consumers' lack of confidence is uncertainty about their key contractual rights and the lack of a clear contractual framework for digital_content or digital_services.

    Many consumers experience problems related to the quality of, or access to, digital_content or digital_services.

    For instance, they receive wrong or faulty digital_content or digital_services, or they are not able to access the digital_content or digital_service in question.

    As a result, consumers suffer financial and non-financial detriment.


- = -


• (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.


- = -


• (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.


- = -


• (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.


- = -


• (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.


- = -


• (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.


- = -


• (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.


- = -


• (48) Regulation (EU) 2016/679 or any other Union law on data protection should fully apply to the processing of personal_data in connection with any contract falling within the scope of this Directive.

    In addition, this Directive should be without prejudice to the rights, obligations and non-contractual remedies provided for by Regulation (EU) 2016/679.

    Facts leading to a lack of compliance with requirements provided for by Regulation (EU) 2016/679, including core principles such as the requirements for data minimisation, data protection by design and data protection by default, may, depending on the circumstances of the case, also be considered to constitute a lack of conformity of the digital_content or digital_service with subjective or objective requirements for conformity provided for in this Directive.

    One example could be where a trader explicitly assumes an obligation in the contract, or the contract can be interpreted in that way, which is also linked to the trader's obligations under Regulation (EU) 2016/679.

    In that case, such a contractual commitment can become part of the subjective requirements for conformity.

    A second example could be where non-compliance with the obligations under Regulation (EU) 2016/679 could, at the same time render the digital_content or digital_service unfit for its intended purpose and, therefore, constitute a lack of conformity with the objective requirement for conformity which requires the digital_content or digital_service to be fit for the purposes for which digital_content or digital_services of the same type would be normally used.


- = -


• (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.


- = -


• (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.


- = -


• (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.


- = -


• (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.


- = -


• (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.


- = -


• (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.


- = -


• (57) Digital content or digital_services could also be supplied to consumers in a continuous manner over a period of time.

    Continuous supply can include cases whereby the trader makes a digital_service available to consumers for a fixed or an indefinite period of time, such as a two-year cloud storage contract or an indefinite social media platform membership.

    The distinctive element of this category is the fact that the digital_content or digital_service is available or accessible to consumers only for the fixed duration of the contract or for as long as the indefinite contract is in force.

    Therefore, it is justified that the trader, in such cases, should only be liable for a lack of conformity which appears during that period of time.

    The element of continuous supply should not necessarily require a long-term supply.

    Cases such as web-streaming of a video clip should be considered continuous supply over a period of time, regardless of the actual duration of the audio-visual file.

    Cases where specific elements of the digital_content or digital_service are made available periodically or on several instances during the fixed duration of the contract, or for as long as the indefinite contract is in force, should also be considered a continuous supply over a period of time, for instance where the contract stipulates that a copy of anti-virus software can be used for a year and will be automatically updated on the first day of each month of this period, or that the trader will issue updates whenever new features of a digital game become available, and the digital_content or digital_service is available or accessible to consumers only for the fixed duration of the contract or for as long as the indefinite contract is in force.


- = -


• (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.


- = -


• (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.


- = -


• (60) Without prejudice to the fundamental right to the protection of private life, including confidentiality of communications, and to the protection of personal_data of the consumer, the consumer should cooperate with the trader in order for the trader to ascertain whether the cause of the lack of conformity lies in the consumer's digital_environment using the technically available means which are least intrusive for the consumer.

    This can often be done for instance by providing the trader with automatically generated incident reports or with details of the consumer's internet connection.

    Only in exceptional and duly justified circumstances where, despite the best use of all other means, there is no other way possible, consumers may need to allow virtual access to their digital_environment.

    However, where the consumer does not cooperate with the trader and the consumer had been informed of the consequences of non-cooperation, it should be for the consumer to prove not only that the digital_content or digital_service is not in conformity, but also that the digital_content or digital_service was not in conformity at the time of supply of the digital_content or digital_service where the contract provides for a single act of supply or a series of individual acts of supply or, where the contract provides for continuous supply over a period of time, for the duration of the contract.


- = -


• (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.


- = -


• (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.


- = -


• (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.


- = -


• (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.


- = -


• (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.


- = -


• (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.


- = -


• (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.


- = -


• (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.


- = -