keyboard_tab Contratti digitali 2019/0770 EN

(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.

(42) The digital_content or digital_service should comply with the requirements agreed between the trader and the consumer in the contract.

  In particular, it should comply with the description, quantity, for example the number of music files that can be accessed, quality, for example the picture resolution, language and version agreed in the contract.

  It should also possess the security, functionality, compatibility, interoperability and other features, as required by the contract.

  The requirements of the contract should include those resulting from the pre-contractual information which, in accordance with Directive 2011/83/EU, forms an integral part of the contract.

  Those requirements could also be set out in a service level agreement, where, under the applicable national law, such type of agreement forms part of the contractual relationship between the consumer and the trader.

(44) Given that digital_content and digital_services are constantly developing, traders may agree with consumers to provide updates and features as they become available.

  The conformity of the digital_content or digital_service should, therefore, also be assessed in relation to whether the digital_content or service is updated in the manner that has been stipulated in the contract.

  Failure to supply updates that had been agreed to in the contract should be considered a lack of conformity of the digital_content or digital_service.

  Moreover, defective or incomplete updates should also be considered a lack of conformity of the digital_content or digital_service, given that that would mean that such updates are not performed in the manner stipulated in the contract.

(50) When applying the rules of this Directive, traders should make use of standards, open technical specifications, good practices and codes of conduct, including in relation to the commonly used and machine-readable format for retrieving the content other than personal_data, which was provided or created by the consumer when using the digital_content or digital_service, and including on the security of information systems and digital_environments, whether established at international level, Union level or at the level of a specific industry sector.

  In this context, the Commission could call for the development of international and Union standards and the drawing up of a code of conduct by trade associations and other representative organisations that could support the uniform implementation of this Directive.

(54) Legal defects are a particularly important issue in relation to digital_content or digital_services, which are subject to intellectual property rights.

  Restrictions on the consumer's use of digital_content or a digital_service in accordance with this Directive could be a result of a violation of third-party rights.

  Such violation might effectively bar the consumer from enjoying the digital_content or digital_service or some of its features, for instance when the consumer cannot access the digital_content or digital_service at all or cannot do so lawfully.

  That might be due to the fact that the third party rightfully compels the trader to stop infringing those rights and to discontinue offering the digital_content or digital_service in question or that the consumer cannot use the digital_content or digital_service without infringing the law.

  In the event of a violation of third-party rights that results in a restriction that prevents or limits the use of the digital_content or digital_service in accordance with the subjective and objective requirements for conformity, the consumer should be entitled to the remedies for the lack of conformity, unless national law provides for the nullity of the contract, or for its rescission, for example for breach of legal warranty against eviction.

(56) Digital content or digital_services can be supplied to consumers through a single act of supply, for instance when consumers download an e-book and store it on their personal device.

  Similarly, the supply can consist of a series of such individual acts, for instance where consumers receive a link to download a new e-book every week.

  The distinctive element of this category of digital_content or digital_service is the fact that consumers thereafter have the possibility to access and use the digital_content or digital_service indefinitely.

  In such cases, the conformity of the digital_content or digital_service should be assessed at the time of supply, and therefore the trader should only be liable for any lack of conformity which exists at the time when the single act of supply or each individual act of supply takes place.

  In order to ensure legal certainty, traders and consumers should be able to rely on a harmonised minimum period during which the trader should be held liable for a lack of conformity.

  In relation to contracts which provide for a single act of supply or a series of individual acts of supply of the digital_content or digital_service, Member States should ensure that traders are liable for not less than two years from the time of supply, if under their respective national law the trader is only liable for any lack of conformity that becomes apparent within a period of time after supply.

(67) Where the digital_content or digital_service is supplied in exchange for a price, the consumer should be able to terminate the contract only if the lack of conformity is not minor.

  However, where the digital_content or digital_service is not supplied in exchange for a price but personal_data are provided by the consumer, the consumer should be entitled to terminate the contract also in cases where the lack of conformity is minor, since the remedy of price reduction is not available to the consumer.

  In cases where the consumer pays a price and provides personal_data, the consumer should be entitled to all available remedies in the event of a lack of conformity.

  In particular, provided all other conditions are met, the consumer should be entitled to have the digital_content or digital_service brought into conformity, to have the price reduced in relation to the money paid for the digital_content or digital_service or to have the contract terminated.

(70) The consumer could be discouraged from exercising remedies for a lack of conformity of digital_content or a digital_service if the consumer is deprived of access to content other than personal_data, which the consumer provided or created through the use of the digital_content or digital_service.

  In order to ensure that the consumer benefits from effective protection in relation to the right to terminate the contract, the trader should therefore, at the request of the consumer, make such content available to the consumer following the termination of the contract.

(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.

(84) In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (18), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments.

  With regard to this Directive, the legislator considers the transmission of such documents to be justified.