keyboard_tab Contratti digitali 2019/0770 EN

(1) The growth potential of e-commerce in the Union has not yet been fully exploited.

  The Digital Single Market Strategy for Europe tackles in a holistic manner the major obstacles to the development of cross-border e-commerce in the Union in order to unleash this potential.

  Ensuring better access for consumers to digital_content and digital_services, and making it easier for businesses to supply digital_content and digital_services, can contribute to boosting the Union's digital economy and stimulating overall growth.

(10) This Directive should define its scope in a clear and unequivocal manner and provide clear substantive rules for the digital_content or digital_services falling within its scope.

  Both the scope of this Directive and its substantive rules should be technologically neutral and future-proof.

(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.

(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.

(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.

(75) In addition to modifications aimed at maintaining conformity, the trader should be allowed under certain conditions to modify features of the digital_content or digital_service, provided that the contract gives a valid reason for such a modification.

  Such valid reasons could encompass cases where the modification is necessary to adapt the digital_content or digital_service to a new technical environment or to an increased number of users or for other important operational reasons.

  Such modifications are often to the advantage of the consumer as they improve the digital_content or digital_service.

  Consequently, the parties to the contract should be able to include clauses in the contract which allow the trader to undertake modifications.

  In order to balance consumer and business interests, such a possibility for the trader should be coupled with a right for the consumer to terminate the contract where such modifications negatively impact the use of or access to the digital_content or digital_service in more than only a minor manner.

  The extent to which modifications negatively impact the use of or access to the digital_content or digital_service by the consumer should be objectively ascertained having regard to the nature and purpose of the digital_content or digital_service and to the quality, functionality, compatibility and other main features which are normal for digital_content or digital_services of the same type.

  The rules provided for in this Directive concerning such updates, upgrades or similar modifications should however not concern situations where the parties conclude a new contract for the supply of the digital_content or digital_service, for instance as a consequence of distributing a new version of the digital_content or digital_service.

(76) Consumers should be informed of modifications in a clear and comprehensible manner.

  Where a modification negatively impacts, in more than a minor manner, the access to or use of digital_content or a digital_service by the consumer, the consumer should be informed in a way that allows the information to be stored on a durable_medium.

  A durable_medium should enable the consumer to store the information for as long as is necessary to protect the interests of the consumer arising from the consumer's relationship with the trader.

  Such media should include, in particular, paper, DVDs, CDs, USB sticks, memory cards or hard disks as well as emails.

(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.

(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.