Contratti digitali 2019/0770 EN

Member States shall not maintain or introduce, in their national law, provisions diverging from those laid down in this Directive, including more, or less, stringent provisions to ensure a different level of consumer protection, unless otherwise provided for in this Directive.

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 8

Objective requirements for conformity

1. In addition to complying with any subjective requirement for conformity, the digital_content or digital_service shall:

(a)

be fit for the purposes for which digital_content or digital_services of the same type would normally be used, taking into account, where applicable, any existing Union and national law, technical standards or, in the absence of such technical standards, applicable sector-specific industry codes of conduct;

(b)

be of the quantity and possess the qualities and performance features, including in relation to functionality, compatibility, accessibility, continuity and security, normal for digital_content or digital_services of the same type and which the consumer may reasonably expect, given the nature of the digital_content or digital_service and taking into account any public statement made by or on behalf of the trader, or other persons in previous links of the chain of transactions, particularly in advertising or on labelling unless the trader shows that:

(i)	the trader was not, and could not reasonably have been, aware of the public statement in question;

(ii)	by the time of conclusion of the contract, the public statement had been corrected in the same way as, or in a way comparable to how, it had been made; or

(iii)

the decision to acquire the digital_content or digital_service could not have been influenced by the public statement;

(c)	where applicable, be supplied along with any accessories and instructions which the consumer may reasonably expect to receive; and

(d)	comply with any trial version or preview of the digital_content or digital_service, made available by the trader before the conclusion of the contract.

2. The trader shall ensure that the consumer is informed of and supplied with updates, including security updates, that are necessary to keep the digital_content or digital_service in conformity, for the period of time:

(a)	during which the digital_content or digital_service is to be supplied under the contract, where the contract provides for a continuous supply over a period of time; or

(b)	that the consumer may reasonably expect, given the type and purpose of the digital_content or digital_service and taking into account the circumstances and nature of the contract, where the contract provides for a single act of supply or a series of individual acts of supply.

3. Where the consumer fails to install, within a reasonable time, updates supplied by the trader in accordance with paragraph 2, the trader shall not be liable for any lack of conformity resulting solely from the lack of the relevant update, provided that:

(a)	the trader informed the consumer about the availability of the update and the consequences of the failure of the consumer to install it; and

(b)	the failure of the consumer to install or the incorrect installation by the consumer of the update was not due to shortcomings in the installation instructions provided by the trader.

4. Where the contract provides for a continuous supply of digital_content or digital_service over a period of time, the digital_content or digital_service shall be in conformity throughout the duration of that period.

5. There shall be no lack of conformity within the meaning of paragraph 1 or 2 if, at the time of the conclusion of the contract, the consumer was specifically informed that a particular characteristic of the digital_content or digital_service was deviating from the objective requirements for conformity laid down in paragraph 1 or 2 and the consumer expressly and separately accepted that deviation when concluding the contract.

6. Unless the parties have agreed otherwise, digital_content or a digital_service shall be supplied in the most recent version available at the time of the conclusion of 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 22

Mandatory nature

1. Unless otherwise provided for in this Directive, any contractual term which, to the detriment of the consumer, excludes the application of the national measures transposing this Directive, derogates from them or varies their effects before the failure to supply or the lack of conformity is brought to the trader's attention by the consumer, or before the modification of the digital_content or digital_service in accordance with Article 19 is brought to the consumer's attention by the trader, shall not be binding on the consumer.

2. This Directive shall not prevent the trader from offering the consumer contractual arrangements that go beyond the protection provided for in this Directive.

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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(16) Member States should also remain free to extend the application of the rules of this Directive to contracts that are excluded from the scope of this Directive, or to otherwise regulate such contracts.
For instance, Member States should remain free to extend the protection afforded to consumers by this Directive also to natural or legal persons that are not consumers within the meaning of this Directive, such as non-governmental organisations, start-ups or SMEs.

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(25) Where digital_content and digital_services are not supplied in exchange for a price, this Directive should not apply to situations where the trader collects personal_data exclusively to supply digital_content or a digital_service, or for the sole purpose of meeting legal requirements.
Such situations can include, for instance, cases where the registration of the consumer is required by applicable laws for security and identification purposes.
This Directive should also not apply to situations where the trader only collects metadata, such as information concerning the consumer's device or browsing history, except where this situation is considered to be a contract under national law.
It should also not apply to situations where the consumer, without having concluded a contract with the trader, is exposed to advertisements exclusively in order to gain access to digital_content or a digital_service.
However, Member States should remain free to extend the application of this Directive to such situations, or to otherwise regulate such situations, which are excluded from the scope of this Directive.

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(37) The pursuit of activities falling within the scope of this Directive could involve the processing of personal_data.
Union law provides a comprehensive framework on the protection of personal_data.
In particular, this Directive is without prejudice to Regulation (EU) 2016/679 (12) and Directive 2002/58/EC (13) of the European Parliament and of the Council.
That framework applies to any personal_data processed in connection with the contracts covered by this Directive.
Consequently, personal_data should only be collected or otherwise processed in accordance with Regulation (EU) 2016/679 and Directive 2002/58/EC.
In the event of a conflict between this Directive and Union law on the protection of personal_data, the latter should prevail.

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(51) Many types of digital_content or digital_services are supplied continuously over a period of time, such as access to cloud services.
It is therefore necessary to ensure that the digital_content or digital_service is in conformity throughout the duration of the contract.
Short-term interruptions of the supply of digital_content or a digital_service should be treated as instances of lack of conformity where those interruptions are more than negligible or recur.
Moreover, given the frequent improvement of digital_content and digital_services, in particular by updates, the version of digital_content or of a digital_service supplied to the consumer should be the most recent one available at the time of the conclusion of the contract, unless the parties have agreed otherwise.

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(72) Where the contract is terminated, the consumer should not be required to pay for the use of the digital_content or digital_service for any period during which the digital_content or a digital_service was not in conformity because that would deprive the consumer of effective protection.
However, the consumer should also refrain from using the digital_content or digital_service and from making it available to third parties, for instance by deleting the digital_content or any usable copy or rendering the digital_content or digital_service otherwise inaccessible.

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keyboard_tab Contratti digitali 2019/0770 EN

Contratti digitali 2019/0770 EN