servicios digitales

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Royal Decree-Law 7/2021, of April 27 (“RDL 7/2021”) transposes various EU provisions, including Directive 2019/770, on certain aspects concerning contracts for the supply of digital content and digital services, and Directive 2019/771, on certain aspects concerning contracts for the sale of goods, both of May 20, 2019 (the “Directives”).

The Directives have a common purpose: harmonizing certain aspects concerning these contracts to achieve a true digital single market, increase legal certainty and reduce transaction costs.

Transposing the Directives into Spanish law entails significantly amending the consolidated Consumer Protection Act (TRLGDCU). In particular, article 16 of RDL 7/2021 provides the amendments to the TRLGDCU that are required for the correct transposition of the Directives.

We highlight the following new developments:

a) Scope of application of the TRLGDCU:

The TRLGDCU’s scope of application is extended and will now cover goods with digital elements and contracts for the supply of digital content and digital services.

b) Conformity of the goods, digital content or digital services:

Goods, digital content and digital services will only be in conformity with the contract if they fulfill a set of new requirements (e.g., having all updates, accessories and instructions). There are subjective and objective requirements for conformity.

c) Non-conformity of the goods, content or digital services:

Under the newly worded TRLGDCU, in case of infringement of third party rights (particularly intellectual property rights) preventing or limiting the use of the goods, digital content or digital services, consumers will be entitled to (i) have the trader bring the goods, digital content or digital services into conformity; (ii) receive a proportionate reduction in the price; or (iii) terminate the contract.

The new TRLGDCU, for the first time, also provides that in case of non-conformity of the goods, content or services, consumers will be entitled to withhold payment of any outstanding part of the price until the trader brings the goods, content or services into conformity.

Along these lines, consumers will no longer be required to make any payments for the normal use of the goods replaced by the trader during the time period prior to their replacement.

Finally, another new development is that consumers will be entitled to a proportionate price reduction or contract termination if: (i) any non-conformity appears after the trader tried to bring the goods, content or services into conformity; (ii) the non-conformity is as serious as to justify an immediate price reduction or contract termination; or (iii) the non-conformity is not serious but the consumer has provided personal data to the trader in return.

d) Time periods under the TRLGDCU

RDL 7/2021 also modifies various time periods provided in the TRLGDCU:

  • The legal guarantee period for goods is extended from two to three years within delivery, and the legal guarantee period for digital content or digital services is set at two years.
  • The time period during which it will be presumed that there was a prior non-conformity, unless proven otherwise, will be extended from six months to: (i) two years from the delivery of the good; or (ii) one year from the supply of the digital content or digital services.
  • Within one year from delivery of the conforming good or the supply of the conforming content or services, traders will be held liable for any non-conformity that triggered the remedies for non-conformity at first, there being a presumption that it is the same non-conformity if the new defects have the same origin as the defects that first became apparent.
  • The limitation period to exercise remedies for non-conformity is extended from three to five years starting when the non-conformity became apparent.
  • The time period during which the producer must ensure appropriate technical support and spare parts is extended from five to 10 years from the date on which the good stops being manufactured.
  • Any repayment by the trader to the consumer due to a price reduction or contract termination must be made within 14 days from the date on which the trader was informed of the consumer’s decision.
  • This reform will enter into force on January 1, 2022, except for the provisions on (i) the modification of the digital content or digital services; and (ii) contract termination for the modification of the digital content or digital services, which will only apply to the contracts concluded from that date.

Author: Cristina Olesti

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cristina.olesti@cuatrecasas.com