Source: EURLEX
Language: en
Format: md

**EUROPEAN UNION**

**THE EUROPEAN PARLIAMENT** **THE COUNCIL**

**Brussels, 20 May 2019**
**(OR. en)**

**2015/0287 (COD)**
**LEX 1917**

**PE-CONS 26/1/19**

**REV 1**

**JUSTCIV 38**

**CONSOM 44**

**AUDIO 21**

**DATAPROTECT 32**

**DAPIX 44**

**DIGIT 27**

**CODEC 332**

**DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL**

**ON CERTAIN ASPECTS CONCERNING CONTRACTS FOR THE SUPPLY OF DIGITAL**

**CONTENT AND DIGITAL SERVICES**

PE-CONS 26/1/19 REV 1

# **EN**

**DIRECTIVE (EU) 2019/...**

**OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL**

**of 20 May 2019**

**on certain aspects concerning contracts**

**for the supply of digital content and digital services**

**(Text with EEA relevance)**

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114

thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee **[1]**,

Acting in accordance with the ordinary legislative procedure **[2]**,

**1** OJ C 264, 20.7.2016, p. 57.
**2** Position of the European Parliament of 26 March 2019 (not yet published in the Official
Journal) and decision of the Council of 15 April 2019.

PE-CONS 26/1/19 REV 1 1

# **EN**

Whereas:

(1) The growth potential of e-commerce in the Union has not yet been fully exploited. The

Digital Single Market Strategy for Europe tackles in a holistic manner the major obstacles

to the development of cross-border e-commerce in the Union in order to unleash this

potential. Ensuring better access for consumers to digital content and digital services, and

making it easier for businesses to supply digital content and digital services, can contribute

to boosting the Union's digital economy and stimulating overall growth.

(2) Article 26(1) and (2) of the Treaty on the Functioning of the European Union (TFEU)

provide that the Union is to adopt measures with the aim of establishing or ensuring the

functioning of the internal market, which is to comprise an area without internal frontiers

in which the free movement of goods and services is ensured. Article 169(1), and point (a)

of Article 169(2), TFEU provide that the Union is to contribute to the attainment of a high

level of consumer protection through measures adopted pursuant to Article 114 TFEU in

the context of the completion of the internal market. This Directive aims to strike the right

balance between achieving a high level of consumer protection and promoting the

competitiveness of enterprises, while ensuring respect for the principle of subsidiarity.

(3) Certain aspects concerning contracts for the supply of digital content or digital services

should be harmonised, taking as a base a high level of consumer protection, in order to

achieve a genuine digital single market, increase legal certainty and reduce transaction

costs, in particular for small and medium-sized enterprises ('SMEs').

PE-CONS 26/1/19 REV 1 2

# **EN**

(4) Businesses, especially SMEs, often face additional costs, stemming from differences in

national mandatory consumer contract law rules, and legal uncertainty when offering

cross-border digital content or digital services. Businesses also face costs when adapting

their contracts to specific mandatory rules for the supply of digital content or digital

services, which are already being applied in several Member States, creating differences in

scope and content between specific national rules governing such contracts.

(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.

(6) In order to remedy such problems, both businesses and consumers should be able to rely on

fully harmonised contractual rights in certain core areas concerning the supply of digital

content or digital services across the Union. Full harmonisation of some key regulatory

aspects would considerably increase legal certainty for consumers and businesses.

PE-CONS 26/1/19 REV 1 3

# **EN**

(7) Harmonised consumer contract law rules in all Member States would make it easier for

businesses, especially SMEs, to supply digital content or digital services across the Union.

They would provide businesses with a stable contract law environment when supplying

digital content or digital services in other Member States. They would also prevent legal

fragmentation that otherwise would arise from new national legislation regulating

specifically digital content and digital services.

(8) Consumers should benefit from harmonised rights for the supply of digital content and

digital services that provide a high level of protection. They should have clear mandatory

rights when they receive or access digital content or digital services from anywhere in the

Union. Having such rights should increase their confidence in acquiring digital content or

digital services. It should also contribute to reducing the detriment consumers currently

suffer, since there would be a set of clear rights that will enable them to address problems

they face with digital content or digital services.

(9) This Directive should fully harmonise certain key rules that have, so far, not been regulated

at Union or national level.

(10) This Directive should define its scope in a clear and unequivocal manner and provide clear

substantive rules for the digital content or digital services falling within its scope. Both the

scope of this Directive and its substantive rules should be technologically neutral and

future-proof.

PE-CONS 26/1/19 REV 1 4

# **EN**

(11) This Directive should lay down common rules on certain requirements concerning

contracts between traders and consumers for the supply of digital content or a digital

service. For this purpose, rules on the conformity of digital content or a digital service with

the contract, remedies in the event of a lack of such conformity or a failure to supply and

the modalities for the exercise of those remedies, as well as on the modification of digital

content or a digital service, should be fully harmonised. Fully harmonised rules on some

essential elements of consumer contract law would make it easier for businesses, especially

SMEs, to offer their products in other Member States. Consumers would benefit from a

high level of consumer protection and welfare gains by fully harmonising key rules.

Member States are precluded within the scope of this Directive from providing for any

further formal or substantive requirements. For example, Member States should not

provide for rules on the reversal of the burden of proof that are different from those

provided for in this Directive, or for an obligation for the consumer to notify the trader of a

lack of conformity within a specific period.

PE-CONS 26/1/19 REV 1 5

# **EN**

(12) This Directive should not affect national law to the extent that the matters concerned are

not regulated by this Directive, such as national rules on the formation, validity, nullity or

effects of contracts or the legality of the digital content or the digital service. This

Directive should also not determine the legal nature of contracts for the supply of digital

content or a digital service, and the question of whether such contracts constitute, for

instance, a sales, service, rental or sui generis contract, should be left to national law. This

Directive should also not affect national rules that do not specifically concern consumer

contracts and provide for specific remedies for certain types of defects that were not

apparent at the time of conclusion of the contract, namely national provisions which may

lay down specific rules for the trader's liability for hidden defects. This Directive should

also not affect national laws providing for non-contractual remedies for the consumer, in

the event of lack of conformity of the digital content or digital service, against persons in

previous links of the chain of transactions, or other persons that fulfil the obligations of

such persons.

(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.

PE-CONS 26/1/19 REV 1 6

# **EN**

(14) Member States should also remain free, for example, to regulate the consequences of a

failure to supply, or of a lack of conformity of, digital content or a digital service, where

such failure to supply or lack of conformity is due to an impediment beyond the control of

the trader and where the trader could not be expected to have avoided or overcome the

impediment or its consequences, such as in the event of force majeure.

(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.

(16) Member States should also remain free to extend the application of the rules of this

Directive to contracts that are excluded from the scope of this Directive, or to otherwise

regulate such contracts. For instance, Member States should remain free to extend the

protection afforded to consumers by this Directive also to natural or legal persons that are

not consumers within the meaning of this Directive, such as non-governmental

organisations, start-ups or SMEs.

PE-CONS 26/1/19 REV 1 7

# **EN**

(17) The definition of a consumer should cover natural persons who are acting outside their

trade, business, craft or profession. However, Member States should also remain free to

determine, in the case of dual purpose contracts, where the contract is concluded for

purposes that are partly within and partly outside the person's trade, and where the trade

purpose is so limited as not to be predominant in the overall context of the contract,

whether and under which conditions that person should also be considered a consumer.

(18) This Directive should apply to any contract whereby the trader supplies or undertakes to

supply digital content or digital service to the consumer. Platform providers could be

considered to be traders under this Directive if they act for purposes relating to their own

business and as the direct contractual partner of the consumer for the supply of digital

content or a digital service. Member States should remain free to extend the application of

this Directive to platform providers that do not fulfil the requirements for being considered

a trader under this Directive.

PE-CONS 26/1/19 REV 1 8

# **EN**

(19) The Directive should address problems across different categories of digital content, digital

services, and their supply. In order to cater for fast technological developments and to

maintain the future-proof nature of the notion of digital content or digital service, this

Directive should cover, inter alia, computer programmes, applications, video files, audio

files, music files, digital games, e-books or other e-publications, and also digital services

which allow the creation of, processing of, accessing or storage of data in digital form,

including software-as-a-service, such as video and audio sharing and other file hosting,

word processing or games offered in the cloud computing environment and social media.

As there are numerous ways for digital content or digital services to be supplied, such as

transmission on a tangible medium, downloading by consumers on their devices, web

streaming, allowing access to storage capabilities of digital content or access to the use of

social media, this Directive should apply independently of the medium used for the

transmission of, or for giving access to, the digital content or digital service. However, this

Directive should not apply to internet access services.

PE-CONS 26/1/19 REV 1 9

# **EN**

(20) This Directive and Directive (EU) 2019/... of the European Parliament and of the Council **[1]** []

should complement each other. While this Directive lays down rules on certain

requirements concerning contracts for the supply of digital content or digital services,

Directive (EU) 2019/... [] lays down rules on certain requirements concerning contracts for

the sale of goods. Accordingly, in order to meet the expectations of consumers and ensure

a clear-cut and simple legal framework for traders of digital content, this Directive should

also apply to digital content which is supplied on a tangible medium, such as DVDs, CDs,

USB sticks and memory cards, as well as to the tangible medium itself, provided that the

tangible medium serves exclusively as a carrier of the digital content. However, instead of

the provisions of this Directive on the trader's obligation to supply and on the consumer's

remedies for failure to supply, the provisions of Directive 2011/83/EU of the European

Parliament and of the Council **[2]** on obligations related to the delivery of goods and remedies

in the event of the failure to deliver should apply. In addition, the provisions of

Directive 2011/83/EU on, for example, the right of withdrawal and the nature of the

contract under which those goods are supplied, should also continue to apply to such

tangible media and the digital content supplied on it. This Directive is also without

prejudice to the distribution right applicable to these goods under copyright law.

**1** Directive (EU) 2019/... of the European Parliament and of the Council of ... (OJ …).
 OJ: Please insert in the text the serial number of the Directive contained in document
PE-CONS 27/19 (2015/0288(COD)) and insert the number, date, title and OJ reference of
that Directive in the footnote.

 OJ: Please insert in the text the serial number of the Directive contained in document
PE-CONS 27/19 (2015/0288(COD)).
**2** Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on
consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the
European Parliament and of the Council and repealing Council Directive 85/577/EEC and
Directive 97/7/EC of the European Parliament and of the Council (OJ L 304, 22.11.2011,
p. 64).

PE-CONS 26/1/19 REV 1 10

# **EN**

(21) Directive (EU) 2019/... [] should apply to contracts for the sale of goods, including goods

with digital elements. The notion of goods with digital elements should refer to goods that

incorporate or are inter-connected with digital content or a digital service in such a way

that the absence of that digital content or digital service would prevent the goods from

performing their functions. Digital content or a digital service that is incorporated in or

inter-connected with goods in that manner should fall within the scope of Directive (EU)

2019/... [] if it is provided with the goods under a sales contract concerning those goods.

Whether the supply of the incorporated or inter-connected digital content or digital service

forms part of the sales contract with the seller should depend on the content of this

contract. This should include incorporated or inter-connected digital content or digital

services the supply of which is explicitly required by the contract. It should also include

those sales contracts which can be understood as covering the supply of specific digital

content or a specific digital service because they are normal for goods of the same type and

the consumer could reasonably expect them given the nature of the goods and taking into

account any public statement made by or on behalf of the seller or other persons in

previous links of the chain of transactions, including the producer. If, for example, a smart

TV were advertised as including a particular video application, that video application

would be considered to be part of the sales contract. This should apply regardless of

whether the digital content or digital service is pre-installed in the good itself or has to be

downloaded subsequently on another device and is only inter-connected to the good.

 OJ: Please insert in the text the serial number of the Directive contained in document
PE-CONS 27/19 (2015/0288(COD)).

PE-CONS 26/1/19 REV 1 11

# **EN**

For example, a smart phone could come with a standardised pre-installed application

provided under the sales contract, such as an alarm application or a camera application.

Another possible example is that of a smart watch. In such a case, the watch itself would

be considered to be the good with digital elements, which can perform its functions only

with an application that is provided under the sales contract but has to be downloaded by

the consumer onto a smart phone; the application would then be the inter-connected digital

element. This should also apply if the incorporated or inter-connected digital content or

digital service is not supplied by the seller itself but is supplied, under the sales contract, by

a third party. In order to avoid uncertainty for both traders and consumers, in the event of

doubt as to whether the supply of the digital content or the digital service forms part of the

sales contract, Directive (EU) 2019/... [] should apply. Furthermore, ascertaining a bilateral

contractual relationship, between the seller and the consumer, of which the supply of the

incorporated or inter-connected digital content or digital service forms part should not be

affected by the mere fact that the consumer has to consent to a licensing agreement with a

third party in order to benefit from the digital content or the digital service.

 OJ: Please insert in the text the serial number of the Directive contained in document
PE-CONS 27/19 (2015/0288(COD)).

PE-CONS 26/1/19 REV 1 12

# **EN**

(22) In contrast, if the absence of the incorporated or inter-connected digital content or digital

service does not prevent the goods from performing their functions, or if the consumer

concludes a contract for the supply of digital content or a digital service which does not

form part of a sales contract concerning goods with digital elements, that contract should

be considered to be separate from the contract for the sale of the goods, even if the seller

acts as an intermediary of that second contract with the third-party supplier, and could fall

within the scope of this Directive. For instance, if the consumer downloads a game

application from an app store onto a smart phone, the contract for the supply of the game

application is separate from the contract for the sale of the smart phone itself. Directive

(EU) 2019/... [] should therefore only apply to the sales contract concerning the smart

phone, while the supply of the game application could fall under this Directive, if the

conditions of this Directive are met. Another example would be where it is expressly

agreed that the consumer buys a smart phone without a specific operating system and the

consumer subsequently concludes a contract for the supply of an operating system from a

third party. In such a case, the supply of the separately bought operating system would not

form part of the sales contract and therefore would not fall within the scope of Directive

(EU) 2019/... **[+]**, but could fall within the scope of this Directive, if the conditions of this

Directive are met.

 OJ: Please insert in the text the serial number of the Directive contained in document
PE-CONS 27/19 (2015/0288(COD)).

PE-CONS 26/1/19 REV 1 13

# **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.

PE-CONS 26/1/19 REV 1 14

# **EN**

(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 e-mail 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.

PE-CONS 26/1/19 REV 1 15

# **EN**

(25) Where digital content and digital services are not supplied in exchange for a price, this

Directive should not apply to situations where the trader collects personal data exclusively

to supply digital content or a digital service, or for the sole purpose of meeting legal

requirements. Such situations can include, for instance, cases where the registration of the

consumer is required by applicable laws for security and identification purposes. This

Directive should also not apply to situations where the trader only collects metadata, such

as information concerning the consumer's device or browsing history, except where this

situation is considered to be a contract under national law. It should also not apply to

situations where the consumer, without having concluded a contract with the trader, is

exposed to advertisements exclusively in order to gain access to digital content or a digital

service. However, Member States should remain free to extend the application of this

Directive to such situations, or to otherwise regulate such situations, which are excluded

from the scope of this Directive.

(26) This Directive should apply to contracts for the development of digital content that is

tailor-made to the specific requirements of the consumer including tailor-made software.

This Directive should also apply to the supply of electronic files required in the context of

3D printing of goods, to the extent that such files fall under the definition of digital content

or digital services within the meaning of this Directive. However, this Directive should not

regulate any rights or obligations related to goods produced with the use of 3D printing

technology.

PE-CONS 26/1/19 REV 1 16

# **EN**

(27) Given that this Directive should apply to contracts which have as their object the supply of

digital content or a digital service to the consumer, it should not apply where the main

subject matter of the contract is the provision of professional services, such as translation

services, architectural services, legal services or other professional advice services, which

are often performed personally by the trader, regardless of whether digital means are used

by the trader in order to produce the output of the service or to deliver or transmit it to the

consumer. Similarly, this Directive should not apply to public services, such as social

security services or public registers, where the digital means are only used for transmitting

or communicating the service to the consumer. This Directive should also not apply to

authentic instruments and other notarial acts, regardless of whether they are performed,

recorded, reproduced or transmitted by digital means.

(28) The market for number-independent interpersonal communications services, which do not

connect with publicly assigned numbering resources, is rapidly evolving. In recent years,

the emergence of new digital services which allow interpersonal communications over the

internet, such as web-based e-mail and online messaging services, has led more consumers

to use such services. For such reasons, it is necessary to provide effective consumer

protection with respect to such services. This Directive should therefore also apply to

number-independent interpersonal communications services.

PE-CONS 26/1/19 REV 1 17

# **EN**

(29) This Directive should not apply to healthcare as defined in Directive 2011/24/EU of the

European Parliament and of the Council **[1]** . The exclusion of 'healthcare' from the scope of

this Directive should also apply to any digital content or digital service that constitutes a

medical device, as defined in Council Directive 93/42/EEC **[2]** or 90/385/EEC **[3]** or

Directive 98/79/EC of the European Parliament and of the Council **[4]**, where such medical

device is prescribed or provided by a health professional as defined in

Directive 2011/24/EU. However, this Directive should apply to any digital content or

digital service that constitutes a medical device, such as health applications, that can be

obtained by the consumer without being prescribed or provided by a health professional.

**1** Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on
the application of patients' rights in cross-border healthcare (OJ L 88, 4.4.2011, p. 45).
**2** Council Directive 93/42/EEC of 14 June 1993 concerning medical devices (OJ L 169,
12.7.1993, p. 1).
**3** Council Directive 90/385/EEC of 20 June 1990 on the approximation of the laws of the
Member States relating to active implantable medical devices (OJ L 189, 20.7.1990, p. 17).
**4** Directive 98/79/EC of the European Parliament and of the Council of 27 October 1998 on _in_
_vitro_ diagnostic medical devices (OJ L 331, 7.12.1998, p. 1).

PE-CONS 26/1/19 REV 1 18

# **EN**

(30) Union law relating to financial services contains numerous rules on consumer protection.

Financial services, as defined by the law applicable to that sector, in particular in Directive

2002/65/EC of the European Parliament and of the Council **[1]**, also cover digital content or

digital services relating, or giving access, to financial services and are therefore covered by

the protection of Union financial services law. Contracts relating to digital content or

digital services that constitute a financial service should therefore be excluded from the

scope of this Directive.

(31) This Directive should not apply to digital content or a digital service that is provided to a

public audience as part of an artistic performance or other event, such as a digital

cinematographic projection or an audiovisual theatrical performance. However, this

Directive should apply if digital content or a digital service is provided to a public

audience by signal transmission such as digital television services.

(32) Free and open source software, where the source code is openly shared and users can freely

access, use, modify and redistribute the software or modified versions thereof, can

contribute to research and innovation in the market for digital content and digital services.

In order to avoid imposing obstacles to such market developments, this Directive should

also not apply to free and open source software, provided that it is not supplied in

exchange for a price and that the consumer's personal data are exclusively used for

improving the security, compatibility or interoperability of the software.

**1** Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002
concerning the distance marketing of consumer financial services and amending Council
Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC (OJ L 271, 9.10.2002, p. 16).

PE-CONS 26/1/19 REV 1 19

# **EN**

(33) Digital content or digital services are often combined with the provision of goods or other

services and offered to the consumer within the same contract comprising a bundle of

different elements, such as the provision of digital television and the purchase of electronic

equipment. In such cases, the contract between the consumer and the trader includes

elements of a contract for the supply of digital content or a digital service, but also

elements of other contract types, such as sale of goods or services contracts. This Directive

should only apply to the elements of the overall contract that consist of the supply of

digital content or digital services. The other elements of the contract should be governed

by the rules applicable to those contracts under national law or, as applicable, other Union

law governing a specific sector or subject matter. Likewise, any effects that the termination

of one element of the bundle contract could have on the other elements of that bundle

contract should be governed by national law. However, in order to ensure consistency with

the sector-specific provisions of Directive (EU) 2018/1972 of the European Parliament and

of the Council **[1]** regulating bundle contracts, where a trader offers, within the meaning of

that Directive, digital content or a digital service in combination with a number-based

interpersonal communications service or an internet access service, the provisions of this

Directive on the modification of digital content should not apply to the digital content or

digital service element of the bundle. The relevant provisions of Directive (EU) 2018/1972

should instead apply to all elements of the bundle, including the digital content or digital

service.

**1** Directive (EU) 2018/1972 of the European Parliament and of the Council of
11 December 2018 establishing the European Electronic Communications Code (OJ L 321,
17.12.2018, p. 36).

PE-CONS 26/1/19 REV 1 20

# **EN**

(34) The provisions of this Directive concerning bundle contracts should only apply to cases

where the different elements of the bundle are offered by the same trader to the same

consumer under a single contract. This Directive should not affect national laws governing

the conditions under which a contract for the supply of digital content or digital services

can be considered to be linked with or ancillary to another contract that the consumer has

concluded with the same or another trader, the remedies to be exercised under each

contract or the effect that the termination of one contract would have on the other contract.

(35) The commercial practice of bundling offers of digital content or digital services with the

provision of goods or other services is subject to Directive 2005/29/EC of the European

Parliament and of the Council **[1]** concerning unfair business-to-consumer commercial

practices in the internal market. Such bundling is not in itself prohibited under

Directive 2005/29/EC. However, it is prohibited where it is deemed unfair, following a

case-by-case assessment pursuant to the criteria laid down in that Directive. Union law on

competition also allows addressing tying and bundling practices, when they affect the

competitive process and harm consumers.

**1** Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005
concerning unfair business-to-consumer commercial practices in the internal market and
amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of
the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the
European Parliament and of the Council ('Unfair Commercial Practices Directive')
(OJ L 149, 11.6.2005, p. 22).

PE-CONS 26/1/19 REV 1 21

# **EN**

(36) This Directive should be without prejudice to other Union law governing a specific sector

or subject matter, such as telecommunications, e-commerce and consumer protection. It

should also be without prejudice to Union and national law on copyright and related rights,

including the portability of online content services.

(37) The pursuit of activities falling within the scope of this Directive could involve the

processing of personal data. Union law provides a comprehensive framework on the

protection of personal data. In particular, this Directive is without prejudice to Regulation

(EU) 2016/679 **[1]** and Directive 2002/58/EC **[2]** of the European Parliament and of the Council.

That framework applies to any personal data processed in connection with the contracts

covered by this Directive. Consequently, personal data should only be collected or

otherwise processed in accordance with Regulation (EU) 2016/679 and

Directive 2002/58/EC. In the event of a conflict between this Directive and Union law on

the protection of personal data, the latter should prevail.

**1** Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016
on the protection of natural persons with regard to the processing of personal data and on the
free movement of such data, and repealing Directive 95/46/EC (General Data Protection
Regulation) (OJ L 119, 4.5.2016, p. 1).
**2** Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002
concerning the processing of personal data and the protection of privacy in the electronic
communications sector (Directive on privacy and electronic communications) (OJ L 201,
31.7.2002, p. 37).

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# **EN**

(38) This Directive should not regulate the conditions for the lawful processing of personal

data, as this question is regulated, in particular, by Regulation (EU) 2016/679. As a

consequence, any processing of personal data in connection with a contract falling within

the scope of this Directive is lawful only if it is in conformity with the provisions of

Regulation (EU) 2016/679 relating to the legal grounds for the processing of personal data.

Where processing of personal data is based on consent, in particular pursuant to point (a)

of Article 6(1) of Regulation (EU) 2016/679, the specific provisions of that Regulation

including those concerning the conditions for assessing whether consent is freely given

apply. This Directive should not regulate the validity of the consent given. Regulation

(EU) 2016/679 also contains comprehensive rights as to the erasure of data and data

portability. This Directive should be without prejudice to those rights, which apply to any

personal data provided by the consumer to the trader or collected by the trader in

connection with any contract falling within the scope of this Directive, and when the

consumer terminated the contract in accordance with this Directive.

(39) The right to erasure and the consumer's right to withdraw consent for the processing of

personal data should apply fully also in connection with the contracts covered by this

Directive. The right of the consumer to terminate the contract in accordance with this

Directive should be without prejudice to the consumer's right under Regulation (EU)

2016/679 to withdraw any consent given to the processing of the consumer's personal data.

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# **EN**

(40) This Directive should not regulate the consequences for the contracts covered by this

Directive in the event that the consumer withdraws the consent for the processing of the

consumer's personal data. Such consequences should remain a matter for national law.

(41) There are various ways for the trader to supply digital content or digital services to

consumers. It is opportune to set simple and clear rules as to the modalities and the time for

performing that obligation to supply which is the main contractual obligation of the trader,

by making the digital content or a digital service available or accessible to the consumer.

The digital content or digital service should be considered to be made available or

accessible to the consumer when the digital content or digital service, or any means

suitable for accessing or downloading it, has reached the sphere of the consumer and no

further action is required by the trader in order to enable the consumer to use the digital

content or digital service in accordance with the contract. Considering that the trader is not

in principle responsible for acts or omissions of a third party which operates a physical or

virtual facility, for instance an electronic platform or a cloud storage facility, that the

consumer selects for receiving or storing the digital content or digital service, it should be

sufficient for the trader to supply the digital content or digital service to that third party.

However, the physical or virtual facility cannot be considered to be chosen by the

consumer if it is under the trader's control or is contractually linked to the trader, or where

the consumer selected that physical or virtual facility for receipt of the digital content or

digital service but that choice was the only one offered by the trader to receive or access

the digital content or digital service.

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# **EN**

Where the physical or virtual facility cannot be considered to have been chosen by the

consumer, the obligation of the trader to supply the digital content or digital service should

not be considered to have been fulfilled if the digital content or digital service is supplied

to the physical or virtual facility but the consumer cannot receive or access the digital

content or digital service in accordance with this Directive. In those cases, the consumer

should have the same remedies as would apply if the trader had failed to supply the digital

content or digital service. With regard to the time of supply, in line with market practices

and technical possibilities, and in order to provide for a certain degree of flexibility, the

digital content or digital service should be supplied without undue delay, unless the parties

decide to agree otherwise in order to cater for other supply models.

(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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# **EN**

(43) The notion of functionality should be understood to refer to the ways in which digital

content or a digital service can be used. For instance, the absence or presence of any

technical restrictions such as protection via Digital Rights Management or region coding

could have an impact on the ability of the digital content or digital service to perform all its

functions having regard to its purpose. The notion of interoperability relates to whether and

to what extent digital content or a digital service is able to function with hardware or

software that is different from those with which digital content or digital services of the

same type are normally used. Successful functioning could include, for instance, the ability

of the digital content or digital service to exchange information with such other software or

hardware and to use the information exchanged.

(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.

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# **EN**

(45) In order to be in conformity and to ensure that consumers are not deprived of their rights,

for example in cases where the contract sets very low standards, the digital content or

digital service should not only comply with the subjective requirements for conformity, but

should in addition comply with the objective requirements for conformity set out in this

Directive. Conformity should be assessed, inter alia, by considering the purpose for which

digital content or digital services of the same type would normally be used. It should also

possess the qualities and performance features which are normal for digital content or

digital services of the same type and which consumers can reasonably expect, given the

nature of the digital content or digital service, and taking into account any public

statements on the specific characteristics of the digital content or digital service made by or

on behalf of the trader or other persons in previous links of the chain of transactions.

(46) The standard of reasonableness with regard to any reference in this Directive to what can

be reasonably expected by a person should be objectively ascertained, having regard to the

nature and purpose of the digital content or digital service, the circumstances of the case

and to the usages and practices of the parties involved. In particular, what is considered to

be a reasonable time for bringing the digital content or digital service into conformity

should be objectively ascertained, having regard to the nature of the lack of conformity.

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# **EN**

(47) For the period of time that the consumer would reasonably expect, the trader should

provide the consumer with updates, including security updates, in order to keep the digital

content or digital service in conformity and secure. For instance, as regards digital content

or digital services, the purpose of which is limited in time, the obligation to provide

updates should be limited to that time, while for other types of digital content or digital

service the period during which updates should be provided to the consumer could be equal

to the liability period for lack of conformity or could extend beyond that period, which

might be the case particularly with regard to security updates. The consumer should remain

free to choose whether to install the updates provided. Where the consumer decides not to

install the updates, the consumer should, however, not expect the digital content or digital

service to remain in conformity. The trader should inform the consumer that the

consumer's decision not to install updates which are necessary for keeping the digital

content or digital service in conformity, including security updates, will affect the trader's

liability for conformity of those features of the digital content or digital service which the

relevant updates are supposed to maintain in conformity. This Directive should not affect

obligations to provide security updates laid down in Union law or in national law.

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# **EN**

(48) Regulation (EU) 2016/679 or any other Union law on data protection should fully apply to

the processing of personal data in connection with any contract falling within the scope of

this Directive. In addition, this Directive should be without prejudice to the rights,

obligations and non-contractual remedies provided for by Regulation (EU) 2016/679. Facts

leading to a lack of compliance with requirements provided for by Regulation (EU)

2016/679, including core principles such as the requirements for data minimisation, data

protection by design and data protection by default, may, depending on the circumstances

of the case, also be considered to constitute a lack of conformity of the digital content or

digital service with subjective or objective requirements for conformity provided for in this

Directive. One example could be where a trader explicitly assumes an obligation in the

contract, or the contract can be interpreted in that way, which is also linked to the trader's

obligations under Regulation (EU) 2016/679. In that case, such a contractual commitment

can become part of the subjective requirements for conformity. A second example could be

where non-compliance with the obligations under Regulation (EU) 2016/679 could, at the

same time render the digital content or digital service unfit for its intended purpose and,

therefore, constitute a lack of conformity with the objective requirement for conformity

which requires the digital content or digital service to be fit for the purposes for which

digital content or digital services of the same type would be normally used.

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# **EN**

This would be the case, for example, if the trader of data encryption software fails to

implement appropriate measures as required by Regulation (EU) 2016/679 to ensure that

by design personal data are not disclosed to unauthorised recipients, thus rendering the

encryption software unfit for its intended purpose which is the secure transferring of data

by the consumer to their intended recipient. Finally, there could be cases where the trader's

non-compliance with its obligations under Regulation (EU) 2016/679 can also constitute a

lack of conformity of the digital content or digital service with the objective requirement

for conformity which requires the digital content or digital service to possess the features

which are normal for digital content or digital services of the same type and which the

consumer can reasonably expect. For instance, if the trader of an online shopping

application fails to take the measures provided for in Regulation (EU) 2016/679 for the

security of processing of the consumer's personal data and as a result the consumer's credit

card information is exposed to malware or spyware, that failure could also constitute a lack

of conformity of the digital content or digital service within the meaning of this Directive,

as the consumer would reasonably expect that an application of this type would normally

possess features preventing the disclosure of payment details. Where the facts leading to

non-compliance with requirements under Regulation (EU) 2016/679 also constitute a lack

of conformity of the digital content or digital service with subjective or objective

requirements for conformity as provided for in this Directive, the consumer should be

entitled to the remedies for the lack of conformity provided for by this Directive, unless the

contract is already void or voidable under national law.

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# **EN**

(49) In order to ensure sufficient flexibility, it should be possible for the parties to deviate from

the objective requirements for conformity. Such a deviation should only be possible if the

consumer was specifically informed about it and if the consumer accepts it separately from

other statements or agreements and by way of active and unequivocal conduct. Both

conditions could, for instance, be fulfilled by ticking a box, pressing a button or activating

a similar function.

(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.

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# **EN**

(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.

(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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# **EN**

(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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# **EN**

(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.

(55) The trader should be liable to the consumer in the event of a lack of conformity of the

digital content or digital service, and for any failure to supply the digital content or digital

service. As digital content or digital services can be supplied to consumers through one or

more individual acts of supply or continuously over a period of time, it is appropriate that

the relevant time for the purpose of establishing conformity of the digital content or digital

service be determined in the light of those different types of supply.

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# **EN**

(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.

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# **EN**

(57) Digital content or digital services could also be supplied to consumers in a continuous

manner over a period of time. Continuous supply can include cases whereby the trader

makes a digital service available to consumers for a fixed or an indefinite period of time,

such as a two-year cloud storage contract or an indefinite social media platform

membership. The distinctive element of this category is the fact that the digital content or

digital service is available or accessible to consumers only for the fixed duration of the

contract or for as long as the indefinite contract is in force. Therefore, it is justified that the

trader, in such cases, should only be liable for a lack of conformity which appears during

that period of time. The element of continuous supply should not necessarily require a

long-term supply. Cases such as web-streaming of a video clip should be considered

continuous supply over a period of time, regardless of the actual duration of the audio

visual file. Cases where specific elements of the digital content or digital service are made

available periodically or on several instances during the fixed duration of the contract, or

for as long as the indefinite contract is in force, should also be considered a continuous

supply over a period of time, for instance where the contract stipulates that a copy of anti

virus software can be used for a year and will be automatically updated on the first day of

each month of this period, or that the trader will issue updates whenever new features of a

digital game become available, and the digital content or digital service is available or

accessible to consumers only for the fixed duration of the contract or for as long as the

indefinite contract is in force.

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# **EN**

(58) Member States should remain free to regulate national limitation periods. However, such

limitation periods should not prevent consumers from exercising their rights throughout the

period of time during which the trader is liable for a lack of conformity. While this

Directive should therefore not harmonise the starting point of national limitation periods, it

should nevertheless ensure that such periods still allow consumers to exercise their

remedies for any lack of conformity that becomes apparent at least during the period

during which the trader is liable for a lack of conformity.

(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 incompatibility 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.

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# **EN**

Instead, it should be for the trader to prove that the digital content or digital service was in

conformity at that time or during that period. That burden of proof should be on the trader

for a lack of conformity which becomes apparent within one year from the time of supply

where the contract provides for a single act of supply or a series of individual acts of

supply, and for the duration of the contract where the contract provides for continuous

supply over a period of time. However, where the trader proves that the consumer's digital

environment is not compatible with the technical requirements, of which the trader

informed the consumer in a clear and comprehensible manner before the conclusion of the

contract, the consumer should have the burden of proving that the lack of conformity of the

digital content or digital service existed at the time of supply of the digital content or

digital service where the contract provides for a single act of supply or a series of

individual acts of supply or, where the contract provides for continuous supply over a

period of time, for the duration of the contract.

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# **EN**

(60) Without prejudice to the fundamental right to the protection of private life, including

confidentiality of communications, and to the protection of personal data of the consumer,

the consumer should cooperate with the trader in order for the trader to ascertain whether

the cause of the lack of conformity lies in the consumer's digital environment using the

technically available means which are least intrusive for the consumer. This can often be

done for instance by providing the trader with automatically generated incident reports or

with details of the consumer's internet connection. Only in exceptional and duly justified

circumstances where, despite the best use of all other means, there is no other way

possible, consumers may need to allow virtual access to their digital environment.

However, where the consumer does not cooperate with the trader and the consumer had

been informed of the consequences of non-cooperation, it should be for the consumer to

prove not only that the digital content or digital service is not in conformity, but also that

the digital content or digital service was not in conformity at the time of supply of the

digital content or digital service where the contract provides for a single act of supply or a

series of individual acts of supply or, where the contract provides for continuous supply

over a period of time, for the duration of the contract.

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# **EN**

(61) Where the trader has failed to supply the digital content or digital service, the consumer

should call upon the trader to supply the digital content or digital service. In such cases, the

trader should act without undue delay, or within an additional period of time as expressly

agreed to by the parties. Considering that digital content or a digital service is supplied in

digital form, the supply should not require, in the majority of situations, any additional

time to make the digital content or digital service available to the consumer. Therefore, in

such cases, the obligation of the trader to supply the digital content or digital service

without undue delay should mean having to supply it immediately. If the trader then fails

to supply the digital content or digital service, the consumer should be entitled to terminate

the contract. In specific circumstances, such as where it is clear that the trader will not

supply the digital content or digital service or where a specific time for the supply is

essential for the consumer, the consumer should be entitled to terminate the contract

without first calling upon the trader to supply the digital content or digital service.

(62) In the case of lack of conformity, consumers should be entitled to have the digital content

or digital service brought into conformity, to have a proportionate reduction in the price, or

to terminate the contract.

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# **EN**

(63) Depending on the technical characteristics of the digital content or digital service, the

trader should be allowed to select a specific way of bringing the digital content or digital

service into conformity, for example by issuing updates or making a new copy of the

digital content or digital service available to the consumer.

(64) Given the diversity of digital content and digital services, it is not appropriate to set fixed

deadlines for the exercise of rights or the fulfilling of obligations related to digital content

or digital services. Such deadlines would not take account of such diversity and could be

either too short or too long, depending on the case. It is therefore more appropriate to

require that digital content and digital services be brought into conformity within a

reasonable time. Such requirement should not prevent the parties from agreeing on a

specific time for bringing the digital content or digital service into conformity. The digital

content or digital service should be brought into conformity free of any charge. In

particular, the consumer should not incur any costs associated with the development of an

update for the digital content or digital service.

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# **EN**

(65) Where bringing digital content or a digital service into conformity is legally or factually

impossible or where the trader refuses to bring the digital content or digital service into

conformity because to do so would impose disproportionate costs on the trader, or where

the trader has failed to bring the digital content or digital service into conformity within a

reasonable time, free of charge and without causing significant inconvenience to the

consumer, the consumer should be entitled to the remedies of price reduction or

termination of the contract. In certain situations, it is justified that the consumer should be

entitled to have the price reduced or the contract terminated immediately, for instance

where the trader previously failed to successfully bring the digital content or digital service

into conformity or where the consumer cannot be expected to maintain confidence in the

ability of the trader to bring the digital content or digital service into conformity due to the

serious nature of the lack of conformity. For example, the consumer should be entitled to

directly request a price reduction or the termination of the contract where the consumer is

supplied with anti-virus software which is itself infected with viruses and would constitute

an instance of lack of conformity of such a serious nature. The same should apply where it

is clear 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.

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# **EN**

(66) In a situation where the consumer is entitled to a reduction of the price paid for the digital

content or digital service which is supplied over a period of time, the calculation of the

price reduction should take into consideration the decrease of value of the digital content or

digital service due both to the lack of conformity and to the time during which the

consumer was unable to enjoy the digital content or digital service in conformity.

(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.

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# **EN**

(68) Where the consumer terminates the contract, the trader should reimburse the price paid by

the consumer. However, there is a need to balance the legitimate interests of consumers

and traders where the digital content or digital service is supplied over a period of time and

the digital content or digital service was in conformity only for part of that period.

Therefore, upon termination, the consumer should only be entitled to the part of the price

paid that corresponds and is in proportion to the length of time during which the digital

content or digital service was not in conformity. The consumer should also be entitled to

any part of the price paid in advance for any period that would have remained after the

contract was terminated.

(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.

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# **EN**

(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.

(71) The consumer should be entitled to retrieve the content within a reasonable time, without

hindrance from the trader, in a commonly used machine-readable format and free of

charge, with the exception of costs generated by the consumer's own digital environment,

for instance the costs of a network connection as those costs are not specifically linked to

the retrieval of the content. However, the obligation of the trader to make available such

content should not apply where the content only has utility within the context of using the

digital content or digital service, or relates only to the consumer's activity when using the

digital content or digital service or has been aggregated with other data by the trader and

cannot be disaggregated or only with disproportionate efforts. In such cases, the content

does not have significant practical use or interest for the consumer while taking into

account also the interests of the trader. Moreover, the obligation of the trader to make

available to the consumer, upon termination of the contract, any content that is not personal

data and has been provided or created by the consumer should be without prejudice to the

trader's right not to disclose certain content in accordance with applicable law.

PE-CONS 26/1/19 REV 1 45

# **EN**

(72) Where the contract is terminated, the consumer should not be required to pay for the use of

the digital content or digital service for any period during which the digital content or a

digital service was not in conformity because that would deprive the consumer of effective

protection. However, the consumer should also refrain from using the digital content or

digital service and from making it available to third parties, for instance by deleting the

digital content or any usable copy or rendering the digital content or digital service

otherwise inaccessible.

(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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# **EN**

(74) This Directive should also address modifications, such as updates and upgrades, which are

carried out by traders on the digital content or digital service which is supplied or made

accessible to the consumer over a period of time. Considering the fast-evolving character

of digital content and digital services, such updates, upgrades or similar modifications may

be necessary and are often advantageous for the consumer. Some modifications, for

instance those stipulated as updates in the contract, may form part of the contractual

commitment. Other modifications can be required to fulfil the objective requirements for

conformity of the digital content or digital service as set out in this Directive. Yet other

modifications, which would deviate from the objective requirements for conformity and

which are foreseeable at the time of conclusion of the contract, would have to be expressly

agreed to by the consumer when concluding the contract.

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# **EN**

(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.

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# **EN**

(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 e-mails.

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# **EN**

(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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# **EN**

(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.

(79) Persons or organisations regarded under national law as having a legitimate interest in

protecting consumer contractual and data protection rights should be afforded the right to

initiate proceedings to ensure that the national provisions transposing this Directive are

applied, either before a court or before an administrative authority which is competent to

decide upon complaints, or to initiate appropriate legal proceedings.

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# **EN**

(80) Nothing in this Directive should prejudice the application of the rules of private

international law, in particular Regulations (EC) No 593/2008 **[1]** and (EU) No 1215/2012 **[2]** of

the European Parliament and of the Council.

(81) The Annex to Regulation (EU) 2017/2394 of the European Parliament and of the Council **[3]**

should be amended to include a reference to this Directive so as to facilitate cross-border

cooperation on enforcement of this Directive.

(82) Annex I to Directive 2009/22/EC of the European Parliament and of the Council **[4]** should

be amended to include a reference to this Directive so as to ensure that the collective

interests of consumers laid down in this Directive are protected.

**1** Regulation (EC) No 593/2008 of the European Parliament and of the Council of
17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008,
p. 6).
**2** Regulation (EU) No 1215/2012 of the European Parliament and of the Council of
12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil
and commercial matters (OJ L 351, 20.12.2012, p. 1).
**3** Regulation (EU) 2017/2394 of the European Parliament and of the Council of
12 December 2017 on cooperation between national authorities responsible for the
enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004
(OJ L 345, 27.12.2017, p. 1).
**4** Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on
injunctions for the protection of consumers' interests (OJ L 110, 1.5.2009, p. 30).

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(83) Consumers should be able to benefit from their rights under this Directive as soon as the

corresponding national transposition measures begin to apply. Those national transposition

measures should, therefore, also apply to contracts of an indefinite or fixed duration which

were concluded before the application date and provide for the supply of digital content or

digital services over a period of time, either continuously or through a series of individual

acts of supply, but only as regards digital content or a digital service that is supplied from

the date of application of the national transposition measures. However, in order to ensure

a balance between the legitimate interests of consumers and traders, the national measures

transposing the provisions of this Directive on the modification of the digital content or

digital service and the right to redress should only apply to contracts concluded after the

application date pursuant to this Directive.

(84) In accordance with the Joint Political Declaration of 28 September 2011 of Member States

and the Commission on explanatory documents **[1]**, 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.

**1** OJ C 369, 17.12.2011, p. 14.

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# **EN**

(85) The European Data Protection Supervisor was consulted in accordance with Regulation

(EC) No 45/2001 of the European Parliament and of the Council **[1]** and delivered an opinion

on 14 March 2017 **[2]** .

(86) Since the objectives of this Directive, namely to contribute to the functioning of the

internal market by tackling in a consistent manner contract law related obstacles for the

supply of digital content or digital services while preventing legal fragmentation, cannot be

sufficiently achieved by the Member States but can rather, by reasons of ensuring the

overall coherence of the national laws through harmonised contract law rules which would

also facilitate coordinated enforcement actions, be better achieved at Union level, the

Union may adopt measures, in accordance with the principle of subsidiarity as set out in

Article 5 of the Treaty on European Union. In accordance with the principle of

proportionality, as set out in that Article, this Directive does not go beyond what is

necessary in order to achieve those objectives.

(87) This Directive respects the fundamental rights and freedoms and observes the principles

recognised, in particular, by the Charter of Fundamental Rights of the European Union,

including those enshrined in Articles 16, 38 and 47 thereof,

HAVE ADOPTED THIS DIRECTIVE:

**1** Regulation (EC) No 45/2001 of the European Parliament and of the Council of
18 December 2000 on the protection of individuals with regard to the processing of personal
data by the Community institutions and bodies and on the free movement of such data
(OJ L 8, 12.1.2001, p. 1).
**2** OJ C 200, 23.6.2017, p. 10.

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# **EN**

_Article 1_

_Subject matter and purpose_

The purpose of this Directive is to contribute to the proper functioning of the internal market while

providing for a high level of consumer protection, by laying down common rules on certain

requirements concerning contracts between traders and consumers for the supply of digital content

or digital services, in particular, rules on:

–
the conformity of digital content or a digital service with the contract,

–
remedies in the event of a lack of such conformity or a failure to supply, and the modalities

for the exercise of those remedies, and

–
the modification of digital content or a digital service.

_Article 2_

_Definitions_

For the purposes of this Directive, the following definitions apply:

(1) 'digital content' means data which are produced and supplied in digital form;

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# **EN**

(2) 'digital service' means:

(a) a service that allows the consumer to create, process, store or access data in digital

form; or

(b) a service that allows the sharing of or any other interaction with data in digital form

uploaded or created by the consumer or other users of that service;

(3) 'goods with digital elements' means any tangible movable items that incorporate, or are

inter-connected with, digital content or a digital service in such a way that the absence of

that digital content or digital service would prevent the goods from performing their

functions;

(4) 'integration' means the linking and incorporation of digital content or a digital service with

the components of the consumer's digital environment in order for the digital content or

digital service to be used in accordance with the requirements for conformity provided for

by this Directive;

(5) 'trader' means any natural or legal person, irrespective of whether privately or publicly

owned, that is acting, including through any other person acting in that natural or legal

person's name or on that person's behalf, for purposes relating to that person's trade,

business, craft, or profession, in relation to contracts covered by this Directive;

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# **EN**

(6) 'consumer' means any natural person who, in relation to contracts covered by this

Directive, is acting for purposes which are outside that person's trade, business, craft, or

profession;

(7) 'price' means money or a digital representation of value that is due in exchange for the

supply of digital content or a digital service;

(8) 'personal data' means personal data as defined in point (1) of Article 4 of Regulation (EU)

2016/679;

(9) 'digital environment' means hardware, software and any network connection used by the

consumer to access or make use of digital content or a digital service;

(10) 'compatibility' means the ability of the digital content or digital service to function with

hardware or software with which digital content or digital services of the same type are

normally used, without the need to convert the digital content or digital service;

(11) 'functionality' means the ability of the digital content or digital service to perform its

functions having regard to its purpose;

(12) 'interoperability' means the ability of the digital content or digital service to function with

hardware or software different from those with which digital content or digital services of

the same type are normally used;

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# **EN**

(13) 'durable medium' means any instrument which enables the consumer or the trader to store

information addressed personally to that person in a way that is accessible for future

reference, for a period of time adequate for the purposes of the information and which

allows the unchanged reproduction of the information stored.

_Article 3_

_Scope_

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.

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# **EN**

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;

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# **EN**

(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 **[1]** by public sector bodies of the Member States.

**1** Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003
on the re-use of public sector information (OJ L 345, 31.12.2003, p. 90).

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# **EN**

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 **[1]** 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.

**1** Regulation (EU) 2015/2120 of the European Parliament and of the Council of
25 November 2015 laying down measures concerning open internet access and retail
charges for regulated intra-EU communications and amending Directive 2002/22/EC and
Regulation (EU) No 531/2012 (OJ L 310, 26.11.2015, p. 1).

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# **EN**

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 **[1]** .

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.

**1** Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related rights in the information society
(OJ L 167, 22.6.2001, p. 10).

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# **EN**

_Article 4_

_Level of harmonisation_

Member States shall not maintain or introduce, in their national law, provisions diverging from

those laid down in this Directive, including more, or less, stringent provisions to ensure a different

level of consumer protection, unless otherwise provided for in this Directive.

_Article 5_

_Supply of the digital content or digital service_

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.

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# **EN**

_Article 6_

_Conformity of the digital content or digital service_

The trader shall supply to the consumer digital content or a digital service that meets the

requirements set out in Articles 7, 8 and 9, where applicable, without prejudice to Article 10.

_Article 7_

_Subjective requirements for conformity_

In order to conform with the contract, the digital content or digital service shall, in particular, where

applicable:

(a) be of the description, quantity and quality, and possess the functionality, compatibility,

interoperability and other features, as required by the contract;

(b) be fit for any particular purpose for which the consumer requires it and which the

consumer made known to the trader at the latest at the time of the conclusion of the

contract, and in respect of which the trader has given acceptance;

(c) be supplied with all accessories, instructions, including on installation, and customer

assistance as required by the contract; and

(d) be updated as stipulated by the contract.

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# **EN**

_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;

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# **EN**

(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.

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# **EN**

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.

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# **EN**

_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.

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# **EN**

_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.

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# **EN**

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.

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# **EN**

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.

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# **EN**

_Article 13_

_Remedy for the failure to supply_

1. Where the trader has failed to supply the digital content or digital service in accordance

with Article 5, the consumer shall call upon the trader to supply the digital content or

digital service. If the trader then fails to supply the digital content or digital service without

undue delay, or within an additional period of time, as expressly agreed to by the parties,

the consumer shall be entitled to terminate the contract.

2. Paragraph 1 shall not apply, and the consumer shall be entitled to terminate the contract

immediately, where:

(a) the trader has declared, or it is equally clear from the circumstances, that the trader

will not supply the digital content or digital service;

(b) the consumer and the trader have agreed, or it is clear from the circumstances

attending the conclusion of the contract, that a specific time for the supply is

essential for the consumer and the trader fails to supply the digital content or digital

service by or at that time.

3. Where the consumer terminates the contract under paragraph 1 or 2 of this Article,

Articles 15 to 18 shall apply accordingly.

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_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.

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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.

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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 15_

_Exercise of the right of termination_

The consumer shall exercise the right to terminate the contract by means of a statement to the trader

expressing the decision to terminate the contract.

_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.

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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

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(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.

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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.

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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.

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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 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.

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_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.

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_Article 22_

_Mandatory nature_

1. Unless otherwise provided for in this Directive, any contractual term which, to the

detriment of the consumer, excludes the application of the national measures transposing

this Directive, derogates from them or varies their effects before the failure to supply or the

lack of conformity is brought to the trader's attention by the consumer, or before the

modification of the digital content or digital service in accordance with Article 19 is

brought to the consumer's attention by the trader, shall not be binding on the consumer.

2. This Directive shall not prevent the trader from offering the consumer contractual

arrangements that go beyond the protection provided for in this Directive.

_Article 23_

_Amendments to Regulation (EU) 2017/2394 and Directive 2009/22/EC_

(1) In the Annex to Regulation (EU) 2017/2394, the following point is added:

'28. Directive (EU) 2019/... of the European Parliament and of the Council of ... on

certain aspects concerning contracts for the supply of digital content and digital

services (OJ L ..., p. ...) [] .'.

 OJ: Please insert in the text the serial number, the date and OJ reference of this Directive.

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(2) In Annex I to Directive 2009/22/EC, the following point is added:

'17. Directive (EU) 2019/... of the European Parliament and of the Council of ... on

certain aspects concerning contracts for the supply of digital content and digital

services (OJ L ..., p. ...) [] .'.

_Article 24_

_Transposition_

1. By ... [first day of the month corresponding to the month following the period of two years

after the entry into force of this Directive] 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 ... [first day of the month corresponding to the

month following the period of two years and six months after the entry into force of this

Directive].

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.

 OJ: Please insert in the text the serial number, the date and OJ reference of this Directive.

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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 ... [first day of the month corresponding to the month

following the period of two years and six months after the entry into force of this

Directive] with the exception of Articles 19 and 20 of this Directive which shall only apply

to contracts concluded from that date.

_Article 25_

_Review_

The Commission shall, not later than ... [five years after the entry into force of this Directive]

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.

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_Article 26_

_Entry into force_

This Directive shall enter into force on the twentieth day following that of its publication in the

_Official Journal of the European Union_ .

_Article 27_

_Addressees_

This Directive is addressed to the Member States.

Done at Brussels,

_For the European Parliament_ _For the Council_

_The President_ _The President_

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