Contratti digitali 2019/0770 EN

(b)	a service that allows the sharing of or any other interaction with data in digital form uploaded or created by the consumer or other users of that service;

(3)	‘ goods_with_digital_elements’ means any tangible movable items 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;

(4)	‘ integration’ means the linking and incorporation of digital_content or a digital_service with the components of the consumer's digital_environment in order for the digital_content or digital_service to be used in accordance with the requirements for conformity provided for by this Directive;

(5)

‘ trader’ means any natural or legal person, irrespective of whether privately or publicly owned, that is acting, including through any other person acting in that natural or legal person's name or on that person's behalf, for purposes relating to that person's trade, business, craft, or profession, in relation to contracts covered by this Directive;

(6)	‘ consumer’ means any natural person who, in relation to contracts covered by this Directive, is acting for purposes which are outside that person's trade, business, craft, or profession;

(7)	‘ price’ means money or a digital representation of value that is due in exchange for the supply of digital_content or a digital_service;

(8)	‘ personal_data’ means personal_data as defined in point (1) of Article 4 of Regulation (EU) 2016/679;

(9)	‘ digital_environment’ means hardware, software and any network connection used by the consumer to access or make use of digital_content or a digital_service;

(10)	‘ compatibility’ means the ability of the digital_content or digital_service to function with hardware or software with which digital_content or digital_services of the same type are normally used, without the need to convert the digital_content or digital_service;

(11)	‘ functionality’ means the ability of the digital_content or digital_service to perform its functions having regard to its purpose;

(12)	‘ interoperability’ means the ability of the digital_content or digital_service to function with hardware or software different from those with which digital_content or digital_services of the same type are normally used;

(13)

‘ durable_medium’ means any instrument which enables the consumer or the trader to store information addressed personally to that person in a way that is accessible for future reference, for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored.

Article 16

Obligations of the trader in the event of termination

1. In the event of termination of the contract, the trader shall reimburse the consumer for all sums paid under the contract.

However, in cases where the contract provides for the supply of the digital_content or digital_service in exchange for a payment of a price and over a period of time, and the digital_content or digital_service had been in conformity for a period of time prior to the termination of the contract, the trader shall reimburse the consumer only for the proportionate part of the price paid corresponding to the period of time during which the digital_content or digital_service was not in conformity, and any part of the price paid by the consumer in advance for any period of the contract that would have remained had the contract not been terminated.

2. In respect of personal_data of the consumer, the trader shall comply with the obligations applicable under Regulation (EU) 2016/679.

3. The trader shall 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, except where such content:

(a)	has no utility outside the context of the digital_content or digital_service supplied by the trader;

(b)	only relates to the consumer's activity when using the digital_content or digital_service supplied by the trader;

(c)	has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts; or

(d)	has been generated jointly by the consumer and others, and other consumers are able to continue to make use of the content.

4. Except in the situations referred to in point (a), (b) or (c) of paragraph 3, the trader shall, at the request of the consumer, make available to the consumer 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.

The consumer shall be entitled to retrieve that digital_content free of charge, without hindrance from the trader, within a reasonable time and in a commonly used and machine-readable format.

5. The trader may prevent any further use of the digital_content or digital_service by the consumer, in particular by making the digital_content or digital_service inaccessible to the consumer or disabling the user account of the consumer, without prejudice to paragraph 4.

whereas

(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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(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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(50) When applying the rules of this Directive, traders should make use of standards, open technical specifications, good practices and codes of conduct, including in relation to the commonly used and machine-readable format for retrieving the content other than personal_data, which was provided or created by the consumer when using the digital_content or digital_service, and including on the security of information systems and digital_environments, whether established at international level, Union level or at the level of a specific industry sector.
In this context, the Commission could call for the development of international and Union standards and the drawing up of a code of conduct by trade associations and other representative organisations that could support the uniform implementation of this Directive.

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(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.

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(61) Where the trader has failed to supply the digital_content or digital_service, the consumer should call upon the trader to supply the digital_content or digital_service.
In such cases, the trader should act without undue delay, or within an additional period of time as expressly agreed to by the parties.
Considering that digital_content or a digital_service is supplied in digital form, the supply should not require, in the majority of situations, any additional time to make the digital_content or digital_service available to the consumer.
Therefore, in such cases, the obligation of the trader to supply the digital_content or digital_service without undue delay should mean having to supply it immediately.
If the trader then fails to supply the digital_content or digital_service, the consumer should be entitled to terminate the contract.
In specific circumstances, such as where it is clear that the trader will not supply the digital_content or digital_service or where a specific time for the supply is essential for the consumer, the consumer should be entitled to terminate the contract without first calling upon the trader to supply 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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keyboard_tab Contratti digitali 2019/0770 EN

Contratti digitali 2019/0770 EN