keyboard_tab Contratti digitali 2019/0770 EN

(3) Certain aspects concerning contracts for the supply of digital_content or digital_services should be harmonised, taking as a base a high level of consumer protection, in order to achieve a genuine digital single market, increase legal certainty and reduce transaction costs, in particular for small and medium-sized enterprises (‘SMEs’).

(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.

(6) In order to remedy such problems, both businesses and consumers should be able to rely on fully harmonised contractual rights in certain core areas concerning the supply of digital_content or digital_services across the Union.

  Full harmonisation of some key regulatory aspects would considerably increase legal certainty for consumers and businesses.

(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.

(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.

(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.

(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.

(24) Digital content or digital_services are often supplied also where the consumer does not pay a price but provides personal_data to the trader.

  Such business models are used in different forms in a considerable part of the market.

  While fully recognising that the protection of personal_data is a fundamental right and that therefore personal_data cannot be considered as a commodity, this Directive should ensure that consumers are, in the context of such business models, entitled to contractual remedies.

  This Directive should, therefore, apply to contracts where the trader supplies, or undertakes to supply, digital_content or a digital_service to the consumer, and the consumer provides, or undertakes to provide, personal_data.

  The personal_data could be provided to the trader either at the time when the contract is concluded or at a later time, such as when the consumer gives consent for the trader to use any personal_data that the consumer might upload or create with the use of the digital_content or digital_service.

  Union law on the protection of personal_data provides for an exhaustive list of legal grounds for the lawful processing of personal_data.

  This Directive should apply to any contract where the consumer provides or undertakes to provide personal_data to the trader.

  For example, this Directive should apply where the consumer opens a social media account and provides a name and email address that are used for purposes other than solely supplying the digital_content or digital_service, or other than complying with legal requirements.

  It should equally apply where the consumer gives consent for any material that constitutes personal_data, such as photographs or posts that the consumer uploads, to be processed by the trader for marketing purposes.

  Member States should however remain free to determine whether the requirements for the formation, existence and validity of a contract under national law are fulfilled.

(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.

(27) Given that this Directive should apply to contracts which have as their object the supply of digital_content or a digital_service to the consumer, it should not apply where the main subject matter of the contract is the provision of professional services, such as translation services, architectural services, legal services or other professional advice services, which are often performed personally by the trader, regardless of whether digital means are used by the trader in order to produce the output of the service or to deliver or transmit it to the consumer.

  Similarly, this Directive should not apply to public services, such as social security services or public registers, where the digital means are only used for transmitting or communicating the service to the consumer.

  This Directive should also not apply to authentic instruments and other notarial acts, regardless of whether they are performed, recorded, reproduced or transmitted by digital means.

(38) This Directive should not regulate the conditions for the lawful processing of personal_data, as this question is regulated, in particular, by Regulation (EU) 2016/679.

  As a consequence, any processing of personal_data in connection with a contract falling within the scope of this Directive is lawful only if it is in conformity with the provisions of Regulation (EU) 2016/679 relating to the legal grounds for the processing of personal_data.

  Where processing of personal_data is based on consent, in particular pursuant to point (a) of Article 6(1) of Regulation (EU) 2016/679, the specific provisions of that Regulation including those concerning the conditions for assessing whether consent is freely given apply.

  This Directive should not regulate the validity of the consent given.

  Regulation (EU) 2016/679 also contains comprehensive rights as to the erasure of data and data portability.

  This Directive should be without prejudice to those rights, which apply to any personal_data provided by the consumer to the trader or collected by the trader in connection with any contract falling within the scope of this Directive, and when the consumer terminated the contract in accordance with this Directive.

(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.

(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.

(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.

(79) Persons or organisations regarded under national law as having a legitimate interest in protecting consumer contractual and data protection rights should be afforded the right to initiate proceedings to ensure that the national provisions transposing this Directive are applied, either before a court or before an administrative authority which is competent to decide upon complaints, or to initiate appropriate legal proceedings.

(86) Since the objectives of this Directive, namely to contribute to the functioning of the internal market by tackling in a consistent manner contract law related obstacles for the supply of digital_content or digital_services while preventing legal fragmentation, cannot be sufficiently achieved by the Member States but can rather, by reasons of ensuring the overall coherence of the national laws through harmonised contract law rules which would also facilitate coordinated enforcement actions, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union.

  In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.