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 3

Scope

1. This Directive shall apply to any contract where the trader supplies or undertakes to supply digital_content or a digital_service to the consumer and the consumer pays or undertakes to pay a price.

This Directive shall also apply 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 to the trader, except where the personal_data provided by the consumer are exclusively processed by the trader for the purpose of supplying the digital_content or digital_service in accordance with this Directive or for allowing the trader to comply with legal requirements to which the trader is subject, and the trader does not process those data for any other purpose.

2. This Directive shall also apply where the digital_content or digital_service is developed in accordance with the consumer's specifications.

3. With the exception of Articles 5 and 13, this Directive shall also apply to any tangible medium which serves exclusively as a carrier of digital_content.

4. This Directive shall not apply to digital_content or digital_services which are incorporated in or inter-connected with goods within the meaning of point (3) of Article 2, and which are provided with the goods under a sales contract concerning those goods, irrespective of whether such digital_content or digital_service is supplied by the seller or by a third party. In the event of doubt as to whether the supply of incorporated or inter-connected digital_content or an incorporated or inter-connected digital_service forms part of the sales contract, the digital_content or digital_service shall be presumed to be covered by the sales contract.

5. This Directive shall not apply to contracts regarding:

(a)	the provision of services other than digital_services, regardless of whether digital forms or means are used by the trader to produce the output of the service or to deliver or transmit it to the consumer;

(b)	electronic communications services as defined in point (4) of Article 2 of Directive (EU) 2018/1972, with the exception of number-independent interpersonal communications services as defined in point (7) of Article 2 of that Directive;

(c)	healthcare as defined in point (a) of Article 3 of Directive 2011/24/EU;

(d)

gambling services, namely, services that involve wagering a stake with pecuniary value in games of chance, including those with an element of skill, such as lotteries, casino games, poker games and betting transactions, by electronic means or any other technology for facilitating communication and at the individual request of a recipient of such services;

(e)	financial services as defined in point (b) of Article 2 of Directive 2002/65/EC;

(f)	software offered by the trader under a free and open-source licence, where the consumer does not pay a price and the personal_data provided by the consumer are exclusively processed by the trader for the purpose of improving the security, compatibility or interoperability of that specific software;

(g)	the supply of digital_content where the digital_content is made available to the general public other than by signal transmission as a part of a performance or event, such as digital cinematographic projections;

(h)	digital_content provided in accordance with Directive 2003/98/EC of the European Parliament and of the Council (21) by public sector bodies of the Member States.

6. Without prejudice to paragraph 4 of this Article, where a single contract between the same trader and the same consumer includes in a bundle elements of supply of digital_content or a digital_service and elements of the provision of other services or goods, this Directive shall only apply to the elements of the contract concerning the digital_content or digital_service.

Article 19 of this Directive shall not apply where a bundle within the meaning of Directive (EU) 2018/1972 includes elements of an internet access service as defined in point (2) of Article 2 of Regulation (EU) 2015/2120 of the European Parliament and of the Council (22) or a number-based interpersonal communications service as defined in point (6) of Article 2 of Directive (EU) 2018/1972.

Without prejudice to Article 107(2) of Directive (EU) 2018/1972, the effects that the termination of one element of a bundle contract may have on the other elements of the bundle contract shall be governed by national law.

7. If any provision of this Directive conflicts with a provision of another Union act governing a specific sector or subject matter, the provision of that other Union act shall take precedence over this Directive.

8. Union law on the protection of personal_data shall apply to any personal_data processed in connection with contracts referred to in paragraph 1.

In particular, this Directive shall be without prejudice to Regulation (EU) 2016/679 and Directive 2002/58/EC. In the event of conflict between the provisions of this Directive and Union law on the protection of personal_data, the latter prevails.

9. This Directive shall be without prejudice to Union and national law on copyright and related rights, including Directive 2001/29/EC of the European Parliament and of the Council (23).

10. This Directive shall not affect the freedom of Member States to regulate aspects of general contract law, such as rules on the formation, validity, nullity or effects of contracts, including the consequences of the termination of a contract in so far as they are not regulated in this Directive, or the right to damages.

Article 5

Supply of the digital_content or digital_service

1. The trader shall supply the digital_content or digital_service to the consumer. Unless the parties have agreed otherwise, the trader shall supply the digital_content or digital_service without undue delay after the conclusion of the contract.

2. The trader shall have complied with the obligation to supply when:

(a)	the digital_content or any means suitable for accessing or downloading the digital_content is made available or accessible to the consumer, or to a physical or virtual facility chosen by the consumer for that purpose;

(b)	the digital_service is made accessible to the consumer or to a physical or virtual facility chosen by the consumer for that purpose.

Article 12

Burden of proof

1. The burden of proof with regard to whether the digital_content or digital_service was supplied in accordance with Article 5 shall be on the trader.

2. In cases referred to in Article 11(2), the burden of proof with regard to whether the supplied digital_content or digital_service was in conformity at the time of supply shall be on the trader for a lack of conformity which becomes apparent within a period of one year from the time when the digital_content or digital_service was supplied.

3. In cases referred to in Article 11(3), the burden of proof with regard to whether the digital_content or digital_service was in conformity within the period of time during which the digital_content or digital_service is to be supplied under the contract shall be on the trader for a lack of conformity which becomes apparent within that period.

4. Paragraphs 2 and 3 shall not apply where the trader demonstrates that the digital_environment of the consumer is not compatible with the technical requirements of the digital_content or digital_service and where the trader informed the consumer of such requirements in a clear and comprehensible manner before the conclusion of the contract.

5. The consumer shall cooperate with the trader, to the extent reasonably possible and necessary, to ascertain whether the cause of the lack of conformity of the digital_content or digital_service at the time specified in Article 11(2) or (3), as applicable, lay in the consumer's digital_environment. The obligation to cooperate shall be limited to the technically available means which are least intrusive for the consumer. Where the consumer fails to cooperate, and where the trader informed the consumer of such requirement in a clear and comprehensible manner before the conclusion of the contract, the burden of proof with regard to whether the lack of conformity existed at the time specified in Article 11(2) or (3), as applicable, shall be on the consumer.

Article 15

Exercise of the right of termination

The consumer shall exercise the right to terminate the contract by means of a statement to the trader expressing the decision to terminate the contract.

Article 18

Time limits and means of reimbursement by the trader

1. Any reimbursement that is owed to the consumer by the trader, pursuant to Article 14(4) and (5) or 16(1), due to a price reduction or termination of the contract shall be carried out without undue delay and, in any event, within 14 days of the date on which the trader is informed of the consumer's decision to invoke the consumer's right for a price reduction or to terminate the contract.

2. The trader shall carry out the reimbursement using the same means of payment as the consumer used to pay for the digital_content or digital_service, unless the consumer expressly agrees otherwise, and provided that the consumer does not incur any fees as a result of such reimbursement.

3. The trader shall not impose any fee on the consumer in respect of the reimbursement.

Article 21

Enforcement

1. Member States shall ensure that adequate and effective means exist to ensure compliance with this Directive.

2. The means referred to in paragraph 1 shall include provisions whereby one or more of the following bodies, as determined by national law, may take action under national law before the courts or before the competent administrative bodies to ensure that the national provisions transposing this Directive are applied:

(a)	public bodies or their representatives;

(b)	consumer organisations having a legitimate interest in protecting consumers;

(c)	professional organisations having a legitimate interest in acting;

(d)	not-for-profit bodies, organisations or associations, active in the field of the protection of data subjects' rights and freedoms as defined in Article 80 of Regulation (EU) 2016/679.

whereas

(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.

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(41) There are various ways for the trader to supply digital_content or digital_services to consumers.
It is opportune to set simple and clear rules as to the modalities and the time for performing that obligation to supply which is the main contractual obligation of the trader, by making the digital_content or a digital_service available or accessible to the consumer.
The digital_content or digital_service should be considered to be made available or accessible to the consumer when the digital_content or digital_service, or any means suitable for accessing or downloading it, has reached the sphere of the consumer and no further action is required by the trader in order to enable the consumer to use the digital_content or digital_service in accordance with the contract.
Considering that the trader is not in principle responsible for acts or omissions of a third party which operates a physical or virtual facility, for instance an electronic platform or a cloud storage facility, that the consumer selects for receiving or storing the digital_content or digital_service, it should be sufficient for the trader to supply the digital_content or digital_service to that third party.
However, the physical or virtual facility cannot be considered to be chosen by the consumer if it is under the trader's control or is contractually linked to the trader, or where the consumer selected that physical or virtual facility for receipt of the digital_content or digital_service but that choice was the only one offered by the trader to receive or access the digital_content or digital_service.

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(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.

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keyboard_tab Contratti digitali 2019/0770 EN

Contratti digitali 2019/0770 EN