Contratti digitali 2019/0770 EN

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.

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 24

Transposition

1. By 1 July 2021 Member States shall adopt and publish the measures necessary to comply with this Directive. They shall immediately inform the Commission thereof.

They shall apply those measures from 1 January 2022.

When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Directive.

2. The provisions of this Directive shall apply to the supply of digital_content or digital_services which occurs from 1 January 2022 with the exception of Articles 19 and 20 of this Directive which shall only apply to contracts concluded from that date.

whereas

(35) The commercial practice of bundling offers of digital_content or digital_services with the provision of goods or other services is subject to Directive 2005/29/EC of the European Parliament and of the Council (11) concerning unfair business-to- consumer commercial practices in the internal market.
Such bundling is not in itself prohibited under Directive 2005/29/EC.
However, it is prohibited where it is deemed unfair, following a case-by-case assessment pursuant to the criteria laid down in that Directive.
Union law on competition also allows addressing tying and bundling practices, when they affect the competitive process and harm consumers.

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(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.

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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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(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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(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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keyboard_tab Contratti digitali 2019/0770 EN

Contratti digitali 2019/0770 EN