Towards new rules on sales and digital content: Analysis of the key issues

Please note: Each In-Depth Analysis is assigned a DOI (digital object identifier), which is a safe and long term way of ensuring a hyperlink to the full text of this report. However, when ESO creates this record, on occasion the DOI still has not been activated by the EU Bookshop. If you find the source url hyperlink does not work please use the alternative location hyperlink listed as a related url.In 2015, the European Commission presented two proposals for directives: on the online sale of goods to consumers, and on the supply of digital content to consumers. The two proposals need to be analysed in the context of the existing Consumer Sales Directive from 1999, which was under revision as part of the REFIT exercise in 2016-17.

If the two proposals enter into force, consumer sales transactions will be regulated by three instruments: with regard to tangible goods sold face to face – by the Consumer Sales Directive, with regard to tangible goods sold at a distance – the Online Sales Directive, and with regard to the sale of digital content – the Digital Content Directive.

Not surprisingly, the three texts have much in common as regards their structure and subject matter. They all deal with such issues as conformity (lack of defects), the consumer's remedies in cases of defects, the time limit for bringing such remedies and the burden of proof.

They also have two other systemic issues in common: the choice between minimum and maximum harmonisation, on the one hand, and between mandatory and default rules, on the other. The existing Consumer Rights Directive is a minimum harmonisation instrument, and allows Member States to grant consumers a higher level of protection, especially when it comes to the period of seller's liability or the freedom of choice of remedies to be pursued in the event of defects.

Similarly, the absence of any EU legislation specifically addressing contracts regarding the sale or rental of digital content or the provision of digital services means that Member States have been free to protect consumers to the extent they see fit.

Since the two proposals are framed as maximum harmonisation instruments, the question of the exact extent of consumer rights and the way they should be exercised is crucial.

• Primary Source

European Parliament: Directorate-General for Internal Policies of the Union: Publications available via the EU Bookshop http://bookshop.europa.eu/en/directorate-general-for-internal-policies-of-the-union-cbf.cKABstF7wAAAEjwYYY4e5K/

ESO: Background information: Contracts For Online And Other Distance Sales Of Goods [EU Legislation In Progress] http://www.europeansources.info/record/contracts-for-online-and-other-distance-sales-of-goods-eu-legislation-in-progress-2/

ESO: Background information: Commission proposes modern digital contract rules to simplify and promote access to digital content and online sales across the EU http://www.europeansources.info/record/press-release-commission-proposes-modern-digital-contract-rules-to-simplify-and-promote-access-to-digital-content-and-online-sales-across-the-eu/

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