Contratti digitali 2019/0770 EN

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 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 12

Burden of proof

1. the burden of proof with regard to whether the digital_content or digital_service was supplied in accordance with Article 5 shall be on the trader.

2. In cases referred to in Article 11(2), the burden of proof with regard to whether the supplied digital_content or digital_service was in conformity at the time of supply shall be on the trader for a lack of conformity which becomes apparent within a period of one year from the time when the digital_content or digital_service was supplied.

3. In cases referred to in Article 11(3), the burden of proof with regard to whether the digital_content or digital_service was in conformity within the period of time during which the digital_content or digital_service is to be supplied under the contract shall be on the trader for a lack of conformity which becomes apparent within that period.

4. Paragraphs 2 and 3 shall not apply where the trader demonstrates that the digital_environment of the consumer is not compatible with the technical requirements of the digital_content or digital_service and where the trader informed the consumer of such requirements in a clear and comprehensible manner before the conclusion of the contract.

5. the consumer shall cooperate with the trader, to the extent reasonably possible and necessary, to ascertain whether the cause of the lack of conformity of the digital_content or digital_service at the time specified in Article 11(2) or (3), as applicable, lay in the consumer's digital_environment. The obligation to cooperate shall be limited to the technically available means which are least intrusive for the consumer. Where the consumer fails to cooperate, and where the trader informed the consumer of such requirement in a clear and comprehensible manner before the conclusion of the contract, the burden of proof with regard to whether the lack of conformity existed at the time specified in Article 11(2) or (3), as applicable, shall be on the consumer.

Article 14

Remedies for lack of conformity

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 17

Obligations of the consumer in the event of termination

1. After the termination of the contract, the consumer shall refrain from using the digital_content or digital_service and from making it available to third parties.

2. Where the digital_content was supplied on a tangible medium, the consumer shall, at the request and at the expense of the trader, return the tangible medium to the trader without undue delay. If the trader decides to request the return of the tangible medium, that request shall be made within 14 days of the day on which the trader is informed of the consumer's decision to terminate the contract.

3. the consumer shall not be liable to pay for any use made of the digital_content or digital_service in the period, prior to the termination of the contract, during which the digital_content or the digital_service was not in conformity.

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 19

Modification of the digital_content or digital_service

1. Where the contract provides that the digital_content or digital_service is to be supplied or made accessible to the consumer over a period of time, the trader may modify the digital_content or digital_service beyond what is necessary to maintain the digital_content or digital_service in conformity in accordance with Articles 7 and 8, if the following conditions are met:

(a)	the contract allows, and provides a valid reason for, such a modification;

(b)	such a modification is made without additional cost to the consumer;

(c)	the consumer is informed in a clear and comprehensible manner of the modification; and

(d)

in the cases referred to in paragraph 2, the consumer is informed reasonably in advance on a durable_medium of the features and time of the modification and of the right to terminate the contract in accordance with paragraph 2, or of the possibility to maintain the digital_content or digital_service without such a modification in accordance with paragraph 4.

2. the consumer shall be entitled to terminate the contract if the modification negatively impacts the consumer's access to or use of the digital_content or digital_service, unless such negative impact is only minor. In that case, the consumer shall be entitled to terminate the contract free of charge within 30 days of the receipt of the information or of the time when the digital_content or digital_service has been modified by the trader, whichever is later.

3. Where the consumer terminates the contract in accordance with paragraph 2 of this Article, Articles 15 to 18 shall apply accordingly.

4. Paragraphs 2 and 3 of this Article shall not apply if the trader has enabled the consumer to maintain without additional cost the digital_content or digital_service without the modification, and the digital_content or digital_service remains in conformity.

Article 21

Enforcement

1. Member States shall ensure that adequate and effective means exist to ensure compliance with this Directive.

2. the means referred to in paragraph 1 shall include provisions whereby one or more of the following bodies, as determined by national law, may take action under national law before the courts or before the competent administrative bodies to ensure that the national provisions transposing this Directive are applied:

(a)	public bodies or their representatives;

(b)	consumer organisations having a legitimate interest in protecting consumers;

(c)	professional organisations having a legitimate interest in acting;

(d)	not-for-profit bodies, organisations or associations, active in the field of the protection of data subjects' rights and freedoms as defined in Article 80 of Regulation (EU) 2016/679.

Article 24

Transposition

1. By 1 July 2021 Member States shall adopt and publish the measures necessary to comply with this Directive. They shall immediately inform the Commission thereof.

They shall apply those measures from 1 January 2022.

When Member States adopt those measures, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

Member States shall communicate to the Commission the text of the provisions of national law which they adopt in the field covered by this Directive.

2. the provisions of this Directive shall apply to the supply of digital_content or digital_services which occurs from 1 January 2022 with the exception of Articles 19 and 20 of this Directive which shall only apply to contracts concluded from that date.

whereas

keyboard_tab Contratti digitali 2019/0770 EN

Contratti digitali 2019/0770 EN