Contratti digitali 2019/0770 EN

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 9

Incorrect integration of the digital_content or digital_service

Any lack of conformity resulting from the incorrect integration of the digital_content or digital_service into the consumer's digital_environment shall be regarded as lack of conformity of the digital_content or digital_service if:

(a)	the digital_content or digital_service was integrated by the trader or under the trader's responsibility; or

(b)	the digital_content or digital_service was intended to be integrated by the consumer and the incorrect integration was due to shortcomings in the integration instructions provided by the trader.

Article 10

Third-party rights

Where a restriction resulting from a violation of any right of a third party, in particular intellectual property rights, prevents or limits the use of the digital_content or digital_service in accordance with Articles 7 and 8, Member States shall ensure that the consumer is entitled to the remedies for lack of conformity provided for in Article 14, unless national law provides for the nullity or rescission of the contract for the supply of the digital_content or digital_service in such cases.

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 20

Right of redress

Where the trader is liable to the consumer because of any failure to supply the digital_content or digital_service, or because of a lack of conformity resulting from an act or omission by a person in previous links of the chain of transactions, the trader shall be entitled to pursue remedies against the person or persons liable in the chain of commercial transactions. The person against whom the trader may pursue remedies, and the relevant actions and conditions of exercise, shall be determined by national law.

whereas

(5) Consumers are not always confident when buying cross border and especially when it is done online.
One of the major factors for consumers' lack of confidence is uncertainty about their key contractual rights and the lack of a clear contractual framework for digital_content or digital_services.
Many consumers experience problems related to the quality of, or access to, digital_content or digital_services.
For instance, they receive wrong or faulty digital_content or digital_services, or they are not able to access the digital_content or digital_service in question.
As a result, consumers suffer financial and non-financial detriment.

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(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.

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(52) In order to work properly, the digital_content or digital_service needs to be correctly integrated into the consumer's hardware and software environment.
A lack of conformity of the digital_content or digital_service that results from an incorrect integration should be regarded as a lack of conformity of the digital_content or digital_service itself, where it was integrated by the trader or under its control, or by the consumer following the trader's instructions for integration, and the incorrect integration was due to shortcomings in the required integration instructions, such as incompleteness or a lack of clarity making the integration instructions difficult to use for the average consumer.

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(53) Restrictions of the consumer's use of the digital_content or digital_service in accordance with this Directive could result from limitations imposed by the holder of intellectual property rights in accordance with intellectual property law.
Such restrictions can arise from the end-user license agreement under which the digital_content or digital_service is supplied to the consumer.
This can be the case when, for instance, an end-user licence agreement prohibits the consumer from making use of certain features related to the functionality of the digital_content or digital_service.
Such a restriction could render the digital_content or digital_service in breach of the objective requirements for conformity laid down in this Directive, if it concerned features which are usually found in digital_content or digital_services of the same type and which the consumer can reasonably expect.
In such cases, the consumer should be able to claim the remedies provided for in this Directive for the lack of conformity against the trader who supplied the digital_content or digital_service.
The trader should only be able to avoid such liability by fulfilling the conditions for derogating from the objective requirements for conformity as laid down in this Directive, namely only if the trader specifically informs the consumer before the conclusion of the contract that a particular characteristic of the digital_content or digital_service deviates from the objective requirements for conformity and the consumer has expressly and separately accepted that deviation.

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(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.

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(73) The principle of the liability of the trader for damages is an essential element of contracts for the supply of digital_content or digital_services.
Therefore, the consumer should be entitled to claim compensation for detriment caused by a lack of conformity or a failure to supply the digital_content or digital_service.
The compensation should put the consumer as much as possible into the position in which the consumer would have been had the digital_content or digital_service been duly supplied and been in conformity.
As such a right to damages already exists in all Member States, this Directive should be without prejudice to national rules on the compensation of consumers for harm resulting from infringement of those rules.

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(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.

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keyboard_tab Contratti digitali 2019/0770 EN

Contratti digitali 2019/0770 EN