Contratti digitali 2019/0770 EN

1. This Directive shall apply to any contract where the trader supplies or undertakes to supply digital_content or a digital_service to the consumer and the consumer pays or undertakes to pay a price.

This Directive shall also apply where the trader supplies or undertakes to supply digital_content or a digital_service to the consumer, and the consumer provides or undertakes to provide personal_data to the trader, except where the personal_data provided by the consumer are exclusively processed by the trader for the purpose of supplying the digital_content or digital_service in accordance with this Directive or for allowing the trader to comply with legal requirements to which the trader is subject, and the trader does not process those data for any other purpose.

2. This Directive shall also apply where the digital_content or digital_service is developed in accordance with the consumer's specifications.

3. With the exception of Articles 5 and 13, this Directive shall also apply to any tangible medium which serves exclusively as a carrier of digital_content.

4. This Directive shall not apply to digital_content or digital_services which are incorporated in or inter-connected with goods within the meaning of point (3) of Article 2, and which are provided with the goods under a sales contract concerning those goods, irrespective of whether such digital_content or digital_service is supplied by the seller or by a third party. In the event of doubt as to whether the supply of incorporated or inter-connected digital_content or an incorporated or inter-connected digital_service forms part of the sales contract, the digital_content or digital_service shall be presumed to be covered by the sales contract.

5. This Directive shall not apply to contracts regarding:

(a)	the provision of services other than digital_services, regardless of whether digital forms or means are used by the trader to produce the output of the service or to deliver or transmit it to the consumer;

(b)	electronic communications services as defined in point (4) of Article 2 of Directive (EU) 2018/1972, with the exception of number-independent interpersonal communications services as defined in point (7) of Article 2 of that Directive;

(c)	healthcare as defined in point (a) of Article 3 of Directive 2011/24/EU;

(d)

gambling services, namely, services that involve wagering a stake with pecuniary value in games of chance, including those with an element of skill, such as lotteries, casino games, poker games and betting transactions, by electronic means or any other technology for facilitating communication and at the individual request of a recipient of such services;

(e)	financial services as defined in point (b) of Article 2 of Directive 2002/65/EC;

(f)	software offered by the trader under a free and open-source licence, where the consumer does not pay a price and the personal_data provided by the consumer are exclusively processed by the trader for the purpose of improving the security, compatibility or interoperability of that specific software;

(g)	the supply of digital_content where the digital_content is made available to the general public other than by signal transmission as a part of a performance or event, such as digital cinematographic projections;

(h)	digital_content provided in accordance with Directive 2003/98/EC of the European Parliament and of the Council (21) by public sector bodies of the Member States.

6. Without prejudice to paragraph 4 of this Article, where a single contract between the same trader and the same consumer includes in a bundle elements of supply of digital_content or a digital_service and elements of the provision of other services or goods, this Directive shall only apply to the elements of the contract concerning the digital_content or digital_service.

Article 19 of this Directive shall not apply where a bundle within the meaning of Directive (EU) 2018/1972 includes elements of an internet access service as defined in point (2) of Article 2 of Regulation (EU) 2015/2120 of the European Parliament and of the Council (22) or a number-based interpersonal communications service as defined in point (6) of Article 2 of Directive (EU) 2018/1972.

Without prejudice to Article 107(2) of Directive (EU) 2018/1972, the effects that the termination of one element of a bundle contract may have on the other elements of the bundle contract shall be governed by national law.

7. If any provision of this Directive conflicts with a provision of another Union act governing a specific sector or subject matter, the provision of that other Union act shall take precedence over this Directive.

8. Union law on the protection of personal_data shall apply to any personal_data processed in connection with contracts referred to in paragraph 1.

In particular, this Directive shall be without prejudice to Regulation (EU) 2016/679 and Directive 2002/58/EC. In the event of conflict between the provisions of this Directive and Union law on the protection of personal_data, the latter prevails.

9. This Directive shall be without prejudice to Union and national law on copyright and related rights, including Directive 2001/29/EC of the European Parliament and of the Council (23).

10. This Directive shall not affect the freedom of Member States to regulate aspects of general contract law, such as rules on the formation, validity, nullity or effects of contracts, including the consequences of the termination of a contract in so far as they are not regulated in this Directive, or the right to damages.

Article 11

Liability of the trader

1. The trader shall be liable for any failure to supply the digital_content or digital_service in accordance with Article 5.

2. Where a contract provides for a single act of supply or a series of individual acts of supply, the trader shall be liable for any lack of conformity under Articles 7, 8 and 9 which exists at the time of supply, without prejudice to point (b) of Article 8(2).

If, under national law, the trader is only liable for a lack of conformity that becomes apparent within a period of time after supply, that period shall not be less than two years from the time of supply, without prejudice to point (b) of Article 8(2).

If, under national law, the rights laid down in Article 14 are also subject or only subject to a limitation period, Member States shall ensure that such limitation period allows the consumer to exercise the remedies laid down in Article 14 for any lack of conformity that exists at the time indicated in the first subparagraph and becomes apparent within the period of time indicated in the second subparagraph.

3. Where the contract provides for continuous supply over a period of time, the trader shall be liable for a lack of conformity under Articles 7, 8 and 9, that occurs or becomes apparent within the period of time during which the digital_content or digital_service is to be supplied under the contract.

If, under national law, the rights laid down in Article 14 are also subject or only subject to a limitation period, Member States shall ensure that such limitation period allows the consumer to exercise the remedies laid down in Article 14 for any lack of conformity that occurs or becomes apparent during the period of time referred to in the first subparagraph.

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 25

Review

The Commission shall, not later than 12 June 2024 review the application of this Directive and submit a report to the European Parliament, to the Council and to the European Economic and Social Committee. The report shall examine, inter alia, the case for harmonisation of rules applicable to contracts for the supply of digital_content or digital_services other than that covered by this Directive, including supplied against advertisements.

whereas

(13) Member States also remain free, for example, to regulate liability claims of a consumer against a third party other than a trader that supplies or undertakes to supply the digital_content or digital_service, such as a developer which is not at the same time the trader under this Directive.

- = -

(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.

- = -

(24) Digital content or digital_services are often supplied also where the consumer does not pay a price but provides personal_data to the trader.
Such business models are used in different forms in a considerable part of the market.
While fully recognising that the protection of personal_data is a fundamental right and that therefore personal_data cannot be considered as a commodity, this Directive should ensure that consumers are, in the context of such business models, entitled to contractual remedies.
This Directive should, therefore, apply to contracts where the trader supplies, or undertakes to supply, digital_content or a digital_service to the consumer, and the consumer provides, or undertakes to provide, personal_data.
The personal_data could be provided to the trader either at the time when the contract is concluded or at a later time, such as when the consumer gives consent for the trader to use any personal_data that the consumer might upload or create with the use of the digital_content or digital_service.
Union law on the protection of personal_data provides for an exhaustive list of legal grounds for the lawful processing of personal_data.
This Directive should apply to any contract where the consumer provides or undertakes to provide personal_data to the trader.
For example, this Directive should apply where the consumer opens a social media account and provides a name and email address that are used for purposes other than solely supplying the digital_content or digital_service, or other than complying with legal requirements.
It should equally apply where the consumer gives consent for any material that constitutes personal_data, such as photographs or posts that the consumer uploads, to be processed by the trader for marketing purposes.
Member States should however remain free to determine whether the requirements for the formation, existence and validity of a contract under national law are fulfilled.

- = -

(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.

- = -

(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.

- = -

(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.

- = -

(59) Due to the specific nature and high complexity of digital_content and digital_services, as well as the trader's better knowledge and access to know-how, technical information and high-tech assistance, the trader is likely to be in a better position than the consumer to know why the digital_content or digital_service is not supplied or is not in conformity.
The trader is also likely to be in a better position to assess whether the failure to supply or the lack of conformity is due to the in compatibility of the consumer's digital_environment with the technical requirements for the digital_content or digital_service.
Therefore in the event of a dispute, while it is for the consumer to provide evidence that the digital_content or digital_service is not in conformity, the consumer should not have to prove that the lack of conformity existed at the time of supply of the digital_content or digital_service or, in the event of continuous supply, during the duration of the contract.

- = -

(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.

- = -

(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.

- = -

(75) In addition to modifications aimed at maintaining conformity, the trader should be allowed under certain conditions to modify features of the digital_content or digital_service, provided that the contract gives a valid reason for such a modification.
Such valid reasons could encompass cases where the modification is necessary to adapt the digital_content or digital_service to a new technical environment or to an increased number of users or for other important operational reasons.
Such modifications are often to the advantage of the consumer as they improve the digital_content or digital_service.
Consequently, the parties to the contract should be able to include clauses in the contract which allow the trader to undertake modifications.
In order to balance consumer and business interests, such a possibility for the trader should be coupled with a right for the consumer to terminate the contract where such modifications negatively impact the use of or access to the digital_content or digital_service in more than only a minor manner.
The extent to which modifications negatively impact the use of or access to the digital_content or digital_service by the consumer should be objectively ascertained having regard to the nature and purpose of the digital_content or digital_service and to the quality, functionality, compatibility and other main features which are normal for digital_content or digital_services of the same type.
The rules provided for in this Directive concerning such updates, upgrades or similar modifications should however not concern situations where the parties conclude a new contract for the supply of the digital_content or digital_service, for instance as a consequence of distributing a new version of the digital_content or digital_service.

- = -

(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.

- = -

keyboard_tab Contratti digitali 2019/0770 EN

Contratti digitali 2019/0770 EN