Contratti digitali 2019/0770 EN

1. In the case of a lack of conformity, the consumer shall be entitled to have the digital_content or digital_service brought into conformity, to receive a proportionate reduction in the price, or to terminate the contract, under the conditions set out in this Article.

2. The consumer shall be entitled to have the digital_content or digital_service brought into conformity, unless this would be impossible or would impose costs on the trader that would be disproportionate, taking into account all the circumstances of the case including:

(a)	the value the digital_content or digital_service would have if there were no lack of conformity; and

(b)	the significance of the lack of conformity.

3. The trader shall bring the digital_content or digital_service into conformity pursuant to paragraph 2 within a reasonable time from the time the trader has been informed by the consumer about the lack of conformity, free of charge and without any significant inconvenience to the consumer, taking account of the nature of the digital_content or digital_service and the purpose for which the consumer required the digital_content or digital_service.

4. The consumer shall be entitled to either a proportionate reduction of the price in accordance with paragraph 5 where the digital_content or digital_service is supplied in exchange for a payment of a price, or the termination of the contract in accordance with paragraph 6, in any of the following cases:

(a)	the remedy to bring the digital_content or digital_service into conformity is impossible or disproportionate in accordance with paragraph 2;

(b)	the trader has not brought the digital_content or digital_service into conformity in accordance with paragraph 3;

(c)	a lack of conformity appears despite the trader's attempt to bring the digital_content or digital_service into conformity;

(d)	the lack of conformity is of such a serious nature as to justify an immediate price reduction or termination of the contract; or

(e)	the trader has declared, or it is clear from the circumstances, that the trader will not bring the digital_content or digital_service into conformity within a reasonable time, or without significant inconvenience for the consumer.

5. The reduction in price shall be proportionate to the decrease in the value of the digital_content or digital_service which was supplied to the consumer compared to the value that the digital_content or digital_service would have if it were in conformity.

Where the contract stipulates that the digital_content or digital_service shall be supplied over a period of time in exchange for the payment of a price, the reduction in price shall apply to the period of time during which the digital_content or digital_service was not in conformity.

6. Where the digital_content or digital_service is supplied in exchange for the payment of a price, the consumer shall be entitled to terminate the contract only if the lack of conformity is not minor. The burden of proof with regard to whether the lack of conformity is minor shall be on the trader.

Article 16

Obligations of the trader in the event of termination

1. In the event of termination of the contract, the trader shall reimburse the consumer for all sums paid under the contract.

However, in cases where the contract provides for the supply of the digital_content or digital_service in exchange for a payment of a price and over a period of time, and the digital_content or digital_service had been in conformity for a period of time prior to the termination of the contract, the trader shall reimburse the consumer only for the proportionate part of the price paid corresponding to the period of time during which the digital_content or digital_service was not in conformity, and any part of the price paid by the consumer in advance for any period of the contract that would have remained had the contract not been terminated.

2. In respect of personal_data of the consumer, the trader shall comply with the obligations applicable under Regulation (EU) 2016/679.

3. The trader shall 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, except where such content:

(a)	has no utility outside the context of the digital_content or digital_service supplied by the trader;

(b)	only relates to the consumer's activity when using the digital_content or digital_service supplied by the trader;

(c)	has been aggregated with other data by the trader and cannot be disaggregated or only with disproportionate efforts; or

(d)	has been generated jointly by the consumer and others, and other consumers are able to continue to make use of the content.

4. Except in the situations referred to in point (a), (b) or (c) of paragraph 3, the trader shall, at the request of the consumer, make available to the consumer 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.

The consumer shall be entitled to retrieve that digital_content free of charge, without hindrance from the trader, within a reasonable time and in a commonly used and machine-readable format.

5. The trader may prevent any further use of the digital_content or digital_service by the consumer, in particular by making the digital_content or digital_service inaccessible to the consumer or disabling the user account of the consumer, without prejudice to paragraph 4.

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.

whereas

(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.

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(23) Digital representations of value such as electronic vouchers or e-coupons are used by consumers to pay for different goods or services in the digital single market.
Such digital representations of value are becoming important in relation to the supply of digital_content or digital_services, and should therefore be considered as a method of payment within the meaning of this Directive.
Digital representations of value should also be understood to include virtual currencies, to the extent that they are recognised by national law.
Differentiation depending on the methods of payment could be a cause of discrimination and provide an unjustified incentive for businesses to move towards supplying digital_content or a digital_service against digital representations of value.
However, since digital representations of value have no other purpose than to serve as a method of payment, they themselves should not be considered digital_content or a digital_service within the meaning of this Directive.

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(78) The lack of conformity of the digital_content or digital_service as supplied to the consumer is often due to one of the transactions in a chain that links the original designer to the final trader.
While the final trader should be liable towards the consumer in the event of a lack of conformity, it is important to ensure that the trader has appropriate rights vis-à-vis different persons in the chain of transactions in order to be able to cover the liability towards the consumer.
Such rights should be limited to commercial transactions and they should therefore not cover situations where the trader is liable towards the consumer for the lack of conformity of digital_content or a digital_service that is composed of or built upon software which was supplied without the payment of a price under a free and open-source licence by a person in previous links of the chain of transactions.
However, it should be for the Member States under their applicable national law to identify the persons in the chain of transactions against which the final trader can turn and the modalities and conditions of such actions.

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keyboard_tab Contratti digitali 2019/0770 EN

Contratti digitali 2019/0770 EN