keyboard_tab Contratti digitali 2019/0770 EN

(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.

(33) Digital content or digital_services are often combined with the provision of goods or other services and offered to the consumer within the same contract comprising a bundle of different elements, such as the provision of digital television and the purchase of electronic equipment.

  In such cases, the contract between the consumer and the trader includes elements of a contract for the supply of digital_content or a digital_service, but also elements of other contract types, such as sale of goods or services contracts.

  This Directive should only apply to the elements of the overall contract that consist of the supply of digital_content or digital_services.

  The other elements of the contract should be governed by the rules applicable to those contracts under national law or, as applicable, other Union law governing a specific sector or subject matter.

  Likewise, any effects that the termination of one element of the bundle contract could have on the other elements of that bundle contract should be governed by national law.

  However, in order to ensure consistency with the sector-specific provisions of Directive (EU) 2018/1972 of the European Parliament and of the Council (10) regulating bundle contracts, where a trader offers, within the meaning of that Directive, digital_content or a digital_service in combination with a number-based interpersonal communications service or an internet access service, the provisions of this Directive on the modification of digital_content should not apply to the digital_content or digital_service element of the bundle.

  The relevant provisions of Directive (EU) 2018/1972 should instead apply to all elements of the bundle, including the digital_content or digital_service.

(74) This Directive should also address modifications, such as updates and upgrades, which are carried out by traders on the digital_content or digital_service which is supplied or made accessible to the consumer over a period of time.

  Considering the fast-evolving character of digital_content and digital_services, such updates, upgrades or similar modifications may be necessary and are often advantageous for the consumer.

  Some modifications, for instance those stipulated as updates in the contract, may form part of the contractual commitment.

  Other modifications can be required to fulfil the objective requirements for conformity of the digital_content or digital_service as set out in this Directive.

  Yet other modifications, which would deviate from the objective requirements for conformity and which are foreseeable at the time of conclusion of the contract, would have to be expressly agreed to by the consumer when concluding the contract.

(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.

(83) Consumers should be able to benefit from their rights under this Directive as soon as the corresponding national transposition measures begin to apply.

  Those national transposition measures should, therefore, also apply to contracts of an indefinite or fixed duration which were concluded before the application date and provide for the supply of digital_content or digital_services over a period of time, either continuously or through a series of individual acts of supply, but only as regards digital_content or a digital_service that is supplied from the date of application of the national transposition measures.

  However, in order to ensure a balance between the legitimate interests of consumers and traders, the national measures transposing the provisions of this Directive on the modification of the digital_content or digital_service and the right to redress should only apply to contracts concluded after the application date pursuant to this Directive.