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.

(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.

(15) Member States should also remain free, for example, to regulate the rights of parties to withhold the performance of their obligations or part thereof until the other party performs its obligations.

  For example, Member States should be free to regulate whether a consumer, in cases of a lack of conformity, is to be entitled to withhold payment of the price or part thereof until the trader has brought the digital_content or digital_service into conformity, or whether the trader is to be entitled to retain any reimbursement due to the consumer upon termination of the contract until the consumer complies with the obligation provided for in this Directive to return the tangible medium to the trader.

(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.

(26) This Directive should apply to contracts for the development of digital_content that is tailor-made to the specific requirements of the consumer including tailor-made software.

  This Directive should also apply to the supply of electronic files required in the context of 3D printing of goods, to the extent that such files fall under the definition of digital_content or digital_services within the meaning of this Directive.

  However, this Directive should not regulate any rights or obligations related to goods produced with the use of 3D printing technology.

(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.

(47) For the period of time that the consumer would reasonably expect, the trader should provide the consumer with updates, including security updates, in order to keep the digital_content or digital_service in conformity and secure.

  For instance, as regards digital_content or digital_services, the purpose of which is limited in time, the obligation to provide updates should be limited to that time, while for other types of digital_content or digital_service the period during which updates should be provided to the consumer could be equal to the liability period for lack of conformity or could extend beyond that period, which might be the case particularly with regard to security updates.

  The consumer should remain free to choose whether to install the updates provided.

  Where the consumer decides not to install the updates, the consumer should, however, not expect the digital_content or digital_service to remain in conformity.

  The trader should inform the consumer that the consumer's decision not to install updates which are necessary for keeping the digital_content or digital_service in conformity, including security updates, will affect the trader's liability for conformity of those features of the digital_content or digital_service which the relevant updates are supposed to maintain in conformity.

  This Directive should not affect obligations to provide security updates laid down in Union law or in national law.

(48) Regulation (EU) 2016/679 or any other Union law on data protection should fully apply to the processing of personal_data in connection with any contract falling within the scope of this Directive.

  In addition, this Directive should be without prejudice to the rights, obligations and non-contractual remedies provided for by Regulation (EU) 2016/679.

  Facts leading to a lack of compliance with requirements provided for by Regulation (EU) 2016/679, including core principles such as the requirements for data minimisation, data protection by design and data protection by default, may, depending on the circumstances of the case, also be considered to constitute a lack of conformity of the digital_content or digital_service with subjective or objective requirements for conformity provided for in this Directive.

  One example could be where a trader explicitly assumes an obligation in the contract, or the contract can be interpreted in that way, which is also linked to the trader's obligations under Regulation (EU) 2016/679.

  In that case, such a contractual commitment can become part of the subjective requirements for conformity.

  A second example could be where non-compliance with the obligations under Regulation (EU) 2016/679 could, at the same time render the digital_content or digital_service unfit for its intended purpose and, therefore, constitute a lack of conformity with the objective requirement for conformity which requires the digital_content or digital_service to be fit for the purposes for which digital_content or digital_services of the same type would be normally used.

(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.

(64) Given the diversity of digital_content and digital_services, it is not appropriate to set fixed deadlines for the exercise of rights or the fulfilling of obligations related to digital_content or digital_services.

  Such deadlines would not take account of such diversity and could be either too short or too long, depending on the case.

  It is therefore more appropriate to require that digital_content and digital_services be brought into conformity within a reasonable time.

  Such requirement should not prevent the parties from agreeing on a specific time for bringing the digital_content or digital_service into conformity.

  The digital_content or digital_service should be brought into conformity free of any charge.

  In particular, the consumer should not incur any costs associated with the development of an update for the digital_content or digital_service.

(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.

(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.