Las propuestas de directiva sobre compraventa en línea y sobre suministro de contenidos digitales (Parte I): ¿lograrán las nuevas reglas el objetivo de reducir la actual complejidad legal?
| Autor | Rosa Mila? Rafel |
| Páginas | 81-94 |
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Submission date: November 2016
Accepted date: December 2016
Published in: December 2016
ARTICLE
The Directive Proposals on
Online Sales and Supply of Digital
Content (Part I): will the new rules
attain their objective of reducing
legal complexity?*
Rosa Milà Rafel
Juan de la Cierva-Incorporación Researcher
Centro de Estudios de Consumo, Universidad de Castilla-La Mancha
Abstract
This article aims to critically analyse the two proposals for Directives that the European Commission
launched on 9 December 2015: the Online Sales Directive and the Digital Content Directive. Both proposals
are part of the Digital Single Market Strategy for Europe. Their main objective is to eliminate one of
the barriers to cross-border trade: differences in contract law between Member States. This article is
structured in two parts, which will be published separately. The first part of the article aims at answering
the question of whether the new rules will attain their objective of reducing the complexity of the legal
framework applicable to consumer protection in e-commerce. Section 2 briefly introduces the purpose
of the Directives and their precedents. Sections 3 and 4 discuss, with regard to each Directive, what kind
of contracts are covered by the Directives, how these contracts are currently regulated in Europe and
what the implications are of the new rules, if adopted, for the contract law of Member States. It can be
argued that whereas the Online Sales Directive will contribute to increasing the fragmentation of the
regulation on consumer sales, the Digital Content Directive will address the existing legal lacunae at the
EU level concerning certain aspects of contracts for the supply of digital content.
Rosa Milà Rafel
* A preliminary version of this article was presented at the 12th International Conference on Internet, Law and Politics:
building a European Digital Space, organised by the Universitat Oberta de Catalunya, Barcelona, 7-8 July, 2016, which
has been published in the congress proceedings
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Keywords
Digital Single Market, full harmonisation, consumer protection, online sales, supply of digital content,
remedies for lack of conformity
Topic
Consumer protection in online sales and supply of digital content
Las propuestas de directiva sobre compraventa en línea
y sobre suministro de contenidos digitales (Parte I):
¿lograrán las nuevas reglas el objetivo de reducir
la actual complejidad legal?
Resumen
El presente artículo tiene como objeto el análisis crítico de las dos propuestas de directiva que la
Comisión Europea presentó el 9 de diciembre de 2015: la Directiva sobre compraventa en línea y
la Directiva sobre contenidos digitales. Ambas propuestas forman parte de la Estrategia para un
Mercado Único Digital para Europa. Su principal objetivo es eliminar una de las barreras del comercio
transfronterizo: las diferencias entre el derecho contractual de los Estados miembros. El artículo se
estructura en dos partes que se publicarán de forma separada. En la primera parte del artículo se
pretende responder a la pregunta de si las nuevas reglas lograrán el objetivo de reducir la complejidad
del marco legal aplicable a la protección de los consumidores en el comercio electrónico. En el apartado
2 se presenta brevemente el propósito de las directivas y sus precedentes. En los apartados 3 y 4
se trata, respecto a cada directiva, los tipos de contrato que cubren, cuál es la regulación actual de
dichos contratos en Europa y cuáles son las repercusiones que, de adoptarse, tendrían esas nuevas
reglas dentro del derecho contractual de los Estados miembros. Puede sostenerse que, mientras que
la Directiva de compraventa en línea contribuirá a aumentar la fragmentación de la regulación de las
ventas de consumo, la Directiva de contenidos digitales servirá para abordar algunas de las lagunas
legales existentes, en el ámbito de la Unión Europea, respecto a ciertos aspectos de los contratos para
el suministro de contenidos digitales.
Palabras clave
Mercado Único Digital, armonización plena, protección del consumidor, compraventa en línea, suministro
de contenidos digitales, remedios por faltas de conformidad
Tema
Protección del consumidor en la compraventa en línea y en el suministro de contenidos digitales
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1. Introduction
This paper aims to critically analyse the two proposed
Directives that the European Commission launched on 9
December 2015, namely the Proposal for a Directive on
certain aspects concerning contracts for the supply of digital
content
1
(the “Digital Content Directive” or “DCD”)
2
and
the Proposal for a Directive on certain aspects concerning
contracts for the online and other distance sales of goods
3
(the “Online Sales Directive” or “OSD”).
4
Both proposals
are part of the Digital Single Market Strategy for Europe,
adopted by the European Commission in May 2015. This
strategy aims to transform the current 28 national digital
markets into an EU digital single market by tackling all major
obstacles to the development of cross-border e-commerce in
Europe.
5
The Commission estimates that dismantling these
barriers would increase European GDP by €4 billion per year.
6
This article is structured in two parts, which will be published
separately.
—
Part I, entitled “Will the new rules attain their objective
of reducing legal complexity?” and published in this
issue of the journal, aims at answering the question
of whether the new rules will attain their objective of
reducing the legal complexity of online sales and supply
of digital content in Europe. Firstly, it briefly introduces
the purpose of the Directives and their precedents. And,
secondly, with regard to each Directive, it discusses
what kind of contracts are covered by the Directives,
how these contracts are currently regulated in Europe
and what the implications of the new Directives are, if
adopted, for the contract law of Member States.
— Part II, entitled “Conformity and remedies for lack of
conformity”, will be published in the following issue
of this journal. It highlights the most significant rules
governing conformity and the remedies for lack of such
conformity with regard to each proposed Directive. It
also raises questions as to the justification of their
particular format. These will include suggestions that
I consider need to be clarified or revised.
2. Purpose of the proposed
Directives
2.1. Purpose of the proposed Directives:
to eliminate differences in contract law
between Member States that give rise
to additional transaction costs
The purpose of the proposed Directives is to eliminate one
of the barriers that are currently hindering cross-border
trade: namely, the respective differences in contract law
regulation between Member States. According to the
European Commission, differences in contract law between
Member States generate additional transaction costs when
concluding cross-border transactions that deter both
consumers and businesses alike from engaging in such
transactions.
First and foremost, the existence of different national rules
governing the contractual rights of consumers generates
uncertainty among the latter as to the extent of their
essential contractual rights when purchasing from another
EU jurisdiction. In effect, the lack of legal certainty deters
consumers from making cross-border purchases and this
is especially true online. Consequently, consumers do not
exploit the potential of having access to a wider choice of
goods and digital content at more competitive prices.
In tandem with this, the reality of such legal diversity also
dissuades businesses, especially small or medium-sized
enterprises (SMEs), from selling goods online or supplying
1. Visit: < http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52015PC0634&from=EN>.
2. Brussels, 9.12.2015, COM (2015) 634 final.
3. Visit:
4. Brussels, 9.12.2015, COM (2015) 635 final.
5. European Commission (2014, p. 3). According to this communication, fragmentation and barriers in the European digital market prevent
Europe from making the most of its capabilities to lead the global digital economy. A Digital Single Market is “one in which the free
movement of goods, persons, services and capital is ensured and where individuals and businesses can seamlessly access and exercise
online activities under conditions of fair competition, and a high level of consumer and personal data protection, irrespective of their
nationality or place of residence”.
6. Explanatory Memorandum OSD, p. 12.
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7. Visit:
8. Explanatory Memorandum of the CESL, Context of the Proposal.
9. H. Beale (2016, p. 8).
10. Recital 6 OSD.
11. The economic grounds of the proposals are based on an impact assessment, which concluded that “if the barriers related to contract law
were lifted 122,000 more business would be selling online across borders. Increased online retail competition will lead to retail prices going
down in all Member States, averaging -0.25% at the EU level. As a result of this price decrease and increased consumer trust stemming from
uniform EU rights, there will be additional consumer demand. Household consumption […] would rise in every Member State with an EU
average of +0.23% [...] This increase in supply and demand will have direct effects on the main macroeconomic variables in each Member
State and in the EU as a whole. Overall real EU GDP is expected to gain about €4 billion per year” (Explanatory Memorandum OSD and DCD).
12. F. Gómez Pomar (2012, p. 235), who refers, among others, to the empirical contribution of S. Vogenauer and S. Weatherill (2006, pp.
105-148).
13. F. Gómez Pomar (2012, pp. 233-234).
14. F. Gómez Pomar (2012, p. 234).
15. F. Gómez Pomar (2012, p. 236).
16. In this vein, see European Economic and Social Committee (2016, conclusion and recommendation no. 3.1.2 and 1.2).
17. On 25 May 2016, the European Commission launched the Proposal for a Regulation of the European Parliament and of the Council on
addressing geo-blocking and other forms of discrimination based on customers’ nationality, place of residence or place of establishment
within the internal market and amending Regulation (eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52016PC0289
&from=EN>) (EC) No 2006/2004 and Directive 2009/22/EC, Brussels, 25.5.2016, COM (2016) 289 final.
digital content beyond their domestic markets. The reason
being that they have to meet the cost of adapting their
contracts to particular domestic markets.
Pursuant to Article 6 of Regulation (EC) No 593/2008 of the
European Parliament and of the Council of 17 June 2008 on
the law applicable to contractual obligations
7
(the “Rome I
Regulation”) governing cross-border transactions between
businesses and consumers, in such instances consumers
are entitled to the mandatory protection of the domestic
contract law rules applicable in their country of habitual
residence if the trader has directed its activity to consumers
in that Member State. These rules also need to be respected
“in cases where another applicable law has been chosen by
the parties and where the mandatory consumer protection
provisions of the Member State of the consumer provide a
higher level of protection”.
8
This scenario could arise in the
case of a trader that sells its products online via a website
across Europe.
9
Therefore, many businesses may prefer to
trade exclusively in their own domestic market or only export
to one or just a few Member States, which entails losing
opportunities for trade expansion and economies of scale.10
The proposed Directives establish a fully harmonised set
of contract law rules governing consumer rights in online
sales and the supply of digital content in Europe. The goal
is to promote cross-border e-commerce by reducing the
complexity of the legal framework governing this area that
in turn would both reduce the costs faced by businesses and
increase consumer trust.
11
Some empirical studies show that substantial legislative
differences among EU Member States, along with other
disparities, are a source of transaction costs in cross-border
12
However, this viewpoint is not without its critics.
Some authors claim that the harmonisation of European
contract law is unnecessary because the legal divergence
between Member States is not significant enough to generate
transaction costs that might affect cross-border trade.
These authors add that the existence of costs arising from
differing contract rules in Member States can be effectively
overcome by operators by selecting the law applicable to the
contract based on the rules governing international private
law.
13
However, as Prof. Fernando Gómez has noted, even
“the most intelligently designed rules on choice of law” are
not able to remove all transaction costs arising from legal
diversity.
14
Additionally, the abovementioned Article 6 of
the Rome I Regulation strictly restricts the choice of law in
business-to-consumer contracts.
However, it would be naïve to argue that the harmonisation
of contract law will in effect provide the magical solution
to eliminating all barriers to cross-border trade,
15
given
that many other factors influence these exchanges which
must be taken into account.
16
In this vein, it should be borne
in mind that the European Commission has announced
other measures as part of the first pillar of the Single
Market Strategy, namely putting forward new regulation
to address unjustified geo-blocking;
17
decreasing the costs
and inefficiency of cross-border parcel delivery services;
reducing the differences between national copyright
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regimes and allowing for wider online access to works by
users across the EU;
18
and redu cing the administ rative
burden on businesses arising from different VAT regimes.
2.2. The Common European Sales Law and the
new approach taken in the proposed Online
Sales and Digital Content Directives
2.2.1. The Common European Sales Law
This is not the first time that the European Commission
has set forth a proposal to achieve the abovementioned
objectives. In 2011, the Commission published the Proposal
COM 2011 (635) for a Regulation on a Common European
Sales Law19 (the “CESL”), in accordance with the notion that:
“disparities between national laws lead to complexity and
additional costs and dissuade parties from entering into
contractual relationships”.
20
Regarding the legal instrument chosen, the CESL was an
optional contract law regime in the form of a Regulation.
This would in effect create a second contractual law regime
within each Member State’s national law, which could co-
exist alongside the pre-existing domestic rules governing
the law of contract. The CESL was an “opt-in” instrument for
cross-border contracts, in other words it was only applicable
“on a voluntary basis, upon an express agreement of the
parties”.
21
With regard to the scope of the CESL, it governed cross-
border sales of goods; the supply of digital content; and
the provision of related services, most notably repair,
maintenance or installation of the goods or digital content.
As for its personal scope, the CESL not only covered
business-to-consumer (B2C) transactions but also business-
to-business (B2B) transactions, in the event that at least one
of the parties was an SME (Art. 7 CESL). The content of the
CESL consisted of a comprehensive set of rules covering
the entire life cycle of the contract and could be found in
Annex I of the Regulation.
22
On 26 February 2014, the European Parliament approved
an amended version of the CESL.
23
However, it was never
endorsed by the Council, who were opposed to it.
24
In late
2014, the Commission announced the withdrawal of the
CESL
25
to concentrate on the proposals for the Online
Sales Directive and the Digital Content Directive, both of
which drew heavily for their inspiration on the experience
acquired during the CESL negotiations. In point of fact, in the
new proposals the Commission had taken into account the
amendments made by the European Parliament to the CESL.
2.2.2. The new approach taken in the proposed Online Sales and
Digital Content Directives
In the Online Sales Directive and in the Digital Content
Directive the European Commission has abandoned the
approach previously adopted in the CESL. The new proposals
differ from the CESL in “form, scope and content”.
26
With regard to the legal instrument chosen, the new proposals
comprise two full harmonisation Directives. Therefore, they
will in effect create a single set of rules providing the same
level of consumer protection across the European Union.
27
18. On 9 December 2015, the European Commission presented the Proposal for a Regulation of the European Parliament and of the Council
on ensuring the cross-border portability of online content services in the internal market (europa.eu/legal-content/EN/TXT/
HTML/?uri=CELEX:52015PC0627&qid=1472147519695&from=ES>), Brussels, 9.12.2015, COM (2015) 627 final); on 14 September 2016, the
Proposal for a Directive of the European Parliament and of the Council on copyright in the Digital Single Market, (tp://eur-lex.europa.
eu/legal-content/EN/TXT/HTML/?uri=COM:2016:593:FIN&qid=1474729047876&from=ES>), Brussels, 14.9.2016, COM (2016), 593 final and
the Proposal for a Regulation of the European Parliament and of the Council laying down rules on the exercise of copyright and related
rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes
(opa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:52016PC0594&qid=1474729139314&from=ES>), Brussels, 14.9.2016,
COM (2016), 594 final.
19. Visit:
20. Recital 13 CESL.
21. Recital 9 CESL.
22. See F. Gómez Pomar and M. Gili Saldaña (2012) for an analysis of some of the rules.
23. European Parliament (2014).
24. H. Beale (2016, p. 9) and R. Manko (2016, p. 2).
25. European Commission (2014, p. 12).
26. H. Beale (2016, p. 6) and European Law Institute (2016, p. 8).
27. Explanatory Memorandum OSD.
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Member States shall not be permitted to adopt or maintain
provisions with a different level of consumer protection
from the ones laid down in the provisions of the Directives,
including more or less stringent ones.
28
Additionally, the
proposals do not follow the approach of an optional regime
as the consumer contract law rules applicable under the
Directives are mandatory for the contracts coming under
their scope of application.
29
With respect to the scope of the proposals, they are
intended to be applicable to domestic as well as cross-
border contracts that come under the provisions of
the D irectives.
30
In particular, the personal scope of the
Directives is much narrower than that of the CESL, because
their provisions are only applicable to B2C transactions.
Unlike the CESL, the Directives’ provisions will not apply
to B2B transactions.
The content of the proposed Directives is also narrower.
31
Unlike the CESL, both Directives focus on rules targeted
to key consumer contractual rights needed to overcome
contract-law-related barriers in cross-border transactions. In
the main, the new proposals lay down rules on conformity of
the goods and the digital content with the contract, as well
as remedies in case of non-conformity and the modalities
for the exercise of these remedies.
Regarding the Commission’s new approach, some
commentators have argued that the Directives’ narrow
scope of application – only B2C contracts, leaving out B2B
transactions – and the limited number of issues covered
– mainly, lack of conformity and remedies for lack of
conformity, and no other relevant issues – is not the most
effective way to remove legal uncertainty for both traders
and consumers with the ultimate objective of fostering
cross-border e-commerce.
32
3. Online Sales Directive:
types of contracts covered,
current legislation and
the implications for the contract
law of Member States
3.1. Contracts covered: distance sales of goods,
including online sales
Regarding the kind of contracts covered by the proposed
Directives, the Online Sales Directive applies to sales contracts
for tangible movable goods that are concluded online or
through any other means of distance communication, such
as telephone or postal mail [Arts. 1 and 2.e) OSD]. However,
it shall not apply if the tangible good is a “durable medium
incorporating digital content where the durable medium
has been used exclusively as a carrier for the supply of the
digital content to the consumer”, such as DVDs and CDs
(Art. 1.3 OSD).
3.2. Current legislation on distance sales
of goods
In relation to the abovementioned contracts, the Directive
fully harmonises the rules on conformity, remedies for
lack of conformity and modalities for the exercise of such
remedies (Art. 1.1 OSD). These rules had already been
harmonised by the existing Directive 1999/44/EC of the
European Parliament and of the Council of 25 May 1999
on certain aspects of the sale of consumer goods and
associated guarantees
33
(the “Consumer Sales Directive
1999/44/EC” or “CSD”), which the Online Sales Directive
takes as its basis and currently applies to any consumer
sales of goods, including online sales.
However, the Consumer Sales Directive 1999/44/EC is a
minimum-harmonisation directive, since it only ensures a
28. Arts. 3 OSD and 4 DCD.
29. Recital 11 OSD and Arts. 18 OSD and 19 DCD.
30. These will be examined in sections 3 and 4 below.
31. European Law Institute (2016, p. 9). However, according to the ELI Statement, the proposals for the Directives on Online Sales and Digital
Content “cover some issues that the CESL did not cover, and in many respects they are more intrusive upon the laws of the Member States
than the CESL would have been, in the sense that they will result in a larger change in the Member State’s existing consumer protection”.
32. Beale (2016, pp. 5 and 26), J. Smits (2016, pp. 6-7) and European Law Institute (2016, p. 9).
33. Official Journal L 171, 07/07/1999 P. 0012 – 0016. Visit:
from=ENH>.
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uniform minimum level of consumer protection. Member
States are allowed to improve the minimum standards by
introducing provisions to ensure a higher level of consumer
protection.
34
This has given rise to a situation where at
present, national legislation transposing the Consumer
Sales Directive 1999/44/EC effectively imposes different
regulations on some essential elements of th e consumer
sales contract. For instance, national contract law may
impose different regulations where:
35
a) th ere exists a
hierarchy among the remedies available in the case of lack
of conform ity
36
or where the consumer has a free choice
of remedies; b) where the trader is liable for the lack of
conformity for the minimum period of 2 years or where this
period is extended;
37
c) where the burden of proof is reversed
during the first 6 months or where this period is extended;
or d) where in order to benefit from his or her rights under
the contract, the consumer must first inform the seller of the
lack of conformity within a stipulated time period from the
date on which he or she detected such lack of conformity.
38
3.3. Increases in the current level of consumer
protection in most Member States,
but with some reductions in others
In order to eliminate such differences, the Online Sales
Directive fully harmonises certain rules for online and
other distance sales of goods. One advantage of full
harmonisation is that the new Directive would establish
a set of uniform rules imposing clear consumer rights
applicable in all Member States, thereby creating a
business-friendly environment.
39
From a consumer
protection point of view, full harmonisation is to be
welcomed since the new rules would either increase or
maintain the current level of protection in most Member
States.
40
However, this positive picture is not true for all Member
States, particul arly for those whose national law exceeds
EU standards and imposes even higher levels of consumer
protection. So if the Online Sales Directive is eventually
approved in these Member States, the existing level of
consumer protection will effectively be diminished.
41
For instance, currently in the UK
42
pursuant to domestic
statute law consumers enjoy a period of six years from
the date the goods are delivered within which the
consumer may pursue remedies for lack of conformity.
43
Conversely, under the Online Sales Directive remedies
for lack of conformity are only available for a period of
two y ears. Therefo re, the adoption of the Online Sales
Directive would effectively mean a loss of rights for UK
consumers.
44
34. Arts. 1.1 and 8.2 CSD and recital 5 OSD.
35. Recital 5 OSD.
36. According to the Explanatory Memorandum OSD, p. 6, “20 Member States have followed this approach (Austria, Belgium, Bulgaria, Czech
Republic, Denmark, Estonia, Finland, Germany, Hungary, Italy, Latvia, Luxemburg, Malta, the Netherlands, Poland, Romania, Slovakia, Spain,
Sweden), while other Member States have either offered the consumers a free choice of remedies, or have taken over the hierarchy of
remedies but have also provided for another remedy”.
37. According to the Explanatory Memorandum OSD, p. 6, “while 23 Member States have implemented this 2-year period, in 1 Member State
(Sweden) that period is longer and in 2 Member States (Finland and the Netherlands) it is unlimited. In 2 other Member States (Ireland and
the United Kingdom) there is no specific legal guarantee period, but the consumer rights are limited” by time limits within which rights
can be invoked in court.
38. According to the Explanatory Memorandum OSD, p. 6, “while in 11 Member States consumers do not have such an obligation, in 12 Member
States (Belgium, Croatia, Cyprus, Estonia, Finland, Italy, Latvia, Malta, Portugal, Romania, Slovenia and Spain) the consumer has to notify
the defect within 2 months and in 5 Member States (Denmark, Sweden, the Netherlands, Hungary and Slovakia) the consumer has to do
so within a different period of time”.
39. Explanatory Memorandum OSD.
40. The new elements and clarifications set to be introduced under the Online Sales Directive will be analysed in the second part of this article
which will be published in the next issue of this journal.
41. European Law Institute (2016, p. 18-19) and J. Smits (2016, p. 3).
42. At the closing date of this paper the UK is still a Member State of the European Union, despite the result of the referendum held on 23
June 2016 in favour of leaving the European Union.
43. See the explanatory notes (<http://www.legislation.gov.uk/ukpga/2015/15/notes>) of the Consumer Rights Act 2015 (<http://www.
legislation.gov.uk/ukpga/2015/15/pdfs/ukpga_20150015_en.pdf>) and Section 5 of the Limitation Act 1980 (<http://www.legislation.gov.
uk/ukpga/1980/58>).
44. H. Beale (2016, pp. 19-20).
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45. The Explanatory Memorandum of the OSD adds that the Commission will take steps to avoid the risk of increasing the current legal
fragmentation and “ensure that consumers and traders will indeed be able to rely on a coherent legal framework which is simple to apply
everywhere in the EU”.
46. J. Smits (2016, pp. 7-8).
47. See also E. Arroyo Amayuelas (2016, p. 27).
48. Explanatory Memorandum OSD.
49. European Parliament (2016, comment 16).
50. European Economic and Social Committee (2016, comments 1.8 and 3.5).
51. European Law Institute (2016, pp. 8-9).
52. Regulatory Fitness and Performance Programme.
53. European Parliament (2016, comment 16).
54. See the document approved by the Council working group with the “basic principles and political guidelines for future work” [Council of
the European Union (2016, p. 2)]. The European Economic and Social Committee also considers that “the rules on sales of digital content
[are] the priority” [see European Economic and Social Committee (2016, conclusions and recommendations no. 1.10)].
3.4. Further fragmentation of contractual
remedies available in consumer sales
Moreover, it can be argued that if the Online Sales Directive
comes into force, it will fail to achieve its objective of
decreasing the complexity of the legal framework applicable
to cross-border consumer sale of goods contracts. On
the contrary, the Online Sales Directive will effectively
contribute to increasing the degree of fragmentation in the
regulation of consumer sales across Europe. The reason is
that face-to-face sales of goods are not governed by the
Directive, which only covers online and other distance sales
of goods (Art. 1.1. OSD).
As a consequence, full harmonisation of the rules governing
online sales may run the risk of having binding online sales
rules which differ from the rules regulating face-to-face
sales.
45
If the proposal is finally approved, consumers would
end up having different rights depending on whether they
purchased goods online or offline. Whereas the contractual
remedies for online and other distance sales would be
regulated under the Online Sales Directive, remedies for
face-to-face sales would be governed under the current
Consumer Sales Directive 1999/44/EC.
46
It goes without
saying that having different rules for consumer protection
depending on whether the consumer has purchased the
goods online or offline lacks credible justification.
47
This
is all the more pertinent given the “increasing importance
of the omni-channel distribution model”, in other words,
“selling at the same time via multiple channels”.
48
The European Parliament has warned the European
Commission about the risk of having different rules for online
sales of goods and face-to-face sales and is of the view that:
“online and offline sales should be dealt with coherently
and treated equally on the basis of the existing high level
of consumer protection, as different legal standards might
be perceived by consumers as a denial of their rights”.
49
The European Economic and Social Committee shares this
opinion.
50
3.5. The uncertain future of the proposal
The Online Sales Directive faces an uncertain future. The
reductions in the current level of consumer protection
in some Member States and its controversial scope of
application have given rise to increasing reservations
about the proposal in many Member States and among
stakeholders.
51
The European Parliament have called “on
the Commission … to consider whether the Commission’s
planned proposal for tangible goods ought not to be
launched at the same time as the REFIT”
52
of the whole
consumers acquis.
53
Furthermore, the Council has given
priority to the consideration of the Digital Content Directive
over the Online Sales Directive.
54
4. Digital Content Directive:
types of contracts covered,
current legislation and
the implications for the contract
law of Member States
By contrast, the Digital Content Directive has been well
received. Many European consumers experience problems
when the digital content they have bought, such as games,
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55. Explanatory Memorandum DCD, p. 3. See also H. Beale (2016, p. 6).
56. Recital 12 DCD.
57. 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. Visit: tp://eur-lex.europa.eu/legal-content/
EN/TXT/HTML/?uri=CELEX:32011L0083&qid=1472750441674&from=EN>.
58. Recital 11 DCD.
59. For instance, “tailor-made software” or “the supply of visual modelling files required in the context of 3D printing”, although “the goods
produced with the use of 3D printing technology” are not covered (recital 16 DCD).
60. H. Beale (2016, p. 11).
61. V. Mak (2016, p. 8).
62. Art. 3.9 DCD. In this vein, see M. E. Storme (2016, p. 5) and S. Cámara Lapuente (2016b, pp. 16-17).
applications, movies, music, cloud storage, software,
etc., is faulty or because they find themselves unable to
access it.
55
Protection of consumer rights against lack
of conformity of digital content has not to date been
regulated either at an EU level or in most Member States.
Therefore, there is a pressing need to regulate this field
so as to reduce the negative fallout suffered by many
European consumers.
4.1. Contracts covered: the supply
of digital content in exchange
for a price or for personal data
The Digital Content Directive covers contracts for the supply
of digital content in exchange for a price or for personal
data or any other data actively provided by the consumer
(Art. 3 DCD). Unlike the Online Sales Directive, the Digital
Content Directive does not limit its scope of application to
distance contracts. Its purpose, as set forth in the recitals, is
to avoid legal fragmentation between different distribution
channels.
56
4.1.1. What kind of digital content is included within the scope
of the DCD?
The Directive introduces a broad definition of “digital
content” that is wider in scope than the one employed under
the prior Directive 2011/83/EU of the European Parliament
and of the Council of 25 October 2011 on consumer rights
57
(the “Consumer Rights Directive 2011/83/EU” or “CRD”). The
purpose is to make the regulation technologically neutral
and resistant to the passage of time, and ensure it effectively
covers the rapid technologi cal developments of the sector.58
In particular, the Digital Content Directive applies to
contracts in which the supplier agrees to provide the
consumer with “data which is produced and supplied in
digital form, for example video, audio, applications, digital
games and any other software” [Art. 2.1.a) DCD]. This is the
case regardless of the medium used for its transmission,
whether in durable form, for example DVDs and CDs, or
by any other means, such as downloading the digital
content by consumers on their devices, web-streaming,
etc., and irrespective of the way the content has been
developed, including digital content developed by the
supplier according to the consumer’s specifications (Art.
3.2 DCD).
59
But it also applies when the supplier supplies “digital
services” to the consumer.
60
In particular this includes
services such as cloud computing that allow consumers “[…]
the creation, processing or storage of data in digital form,
where such data is provided by the consumer” [Art. 2.1.b)
DCD]; and access to the use of social media platforms that
allow consumers “[…] sharing of and any other interaction
with data in digital form provided by other users of the
service” [Art. 2.1.c) DCD].
61
Contracts within the scope of the Digital Content Directive
will be governed by its terms regardless of how the contract
is classified under domestic law; thus a sale or licensing
agreement, a rental and a service contract will be treated
alike.
62
Nevertheless, the classification of the contract under
national law continues to be relevant to those aspects of the
contractual relationship not harmonised by the Directive,
“such as rules on formation, the validity or effects of
contracts, including the consequences of the termination
of a contract”.
4.1.2. Consideration: in exchange for a price or for personal data
One of the main features of the Digital Content Directive is
that its regulation does not only apply to contracts where
the supplier supplies digital content in exchange for a
price, but also to those agreements in which the counter-
performance consists of personal data or any other data
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(Art. 3.1 DCD).
63
By doing so, the Digital Content Directive
takes into accoun t that in the contempo rary market,
information about individuals has “a value comparable to
money”.
64
However, the Directive does not apply if the data
collected is “strictly necessary for the performance of the
contract or for meeting legal requirements” (Art. 3.4 DCD).
In particular, the Directive only applies where the personal
data is actively provided by the consumer, such as his or
her name, e-mail, address or photos when registering on the
supplier’s website. However, the Directive does not cover
cases in which the supplier collects information about the
consumer without him or her actively supplying it, for
example by means of cookies.
65
This exclusion is a highly questionable omission. The
European Law Institute Statement on the proposal has
pointed out that the consumer should also enjoy protection
under the Directive when “data are produced through active
use of a digital product but transferred automatically and
without any further action on the part of the consumer”; and
“more importantly, […] where the information is collected
by means of a cookie”.
66
4.2. Current EU and national legislation on
contracts for the supply of digital content
The Digital Content Directive will create a single fully
harmonised set of rules providing the same level of
consumer protection across the European Union (Art. 4
DCD). In particular, it will fully harmonise the rules on the
conformity of the digital content with the contract, the
remedies available to consumers for lack of conformity and
the modalities for the exercise of these remedies. Besides,
the Directive will also regulate some aspects concerning
the right to terminate long-term contracts, as well as
modification of the digital content (Art. 1 DCD).
67
Currently, businesses and consumers alike suffer uncertainty
about their contractual rights when they want to export to
or buy in other Member States.
68
As I mentioned before,
at the EU level there are no specific rules that protect
consumers again st the lack of conformity of digital content.
69
In 2011, the Consumer Rights Directive 2011/83/EU fully
harmonised some rules regarding contracts for the supply
of digital content, but those rules focused on other issues,
in particular on providing some special rules regarding the
pre-contractual information that the trader is obliged to
provide the consumer and some particular details about the
right of withdrawal.
70
Besides, even though the Consumer
Sales Directive 1999/44/EC is currently applicable to the sale
of digital content offered on a durable medium such as DVDs
and CDs, this Directive does not provide specific rules for
intangible digital content and does not include rules that take
into consideration the specific features of digital content.
71
To date, at the national level only two Member States, the
UK
72
and the Netherlands
73
have got around to adopting
63. In this point, the proposal incorporates the amendment adopted by the European Parliament in the first reading concerning the CESL.
64. Recital 14 DCD. It adds that “introducing differentiation depending on the nature of the counter-performance would discriminate between
different business models; it would provide an unjustified incentive for business to move towards offering digital content against data”.
65. Recital 14 DCD.
66. European Law Institute (2016, pp. 15-16). In the same vein, V. Mak (2016, p. 9) and S. Cámara Lapuente (2016b, pp. 21-26).
67. The main issues raised by the Digital Content Directive rules on conformity and the remedies for lack of conformity will be analysed in the
second part of this article, which will be published in the next issue of this journal.
68. Explanatory Memorandum DCD, p. 3. See also H. Beale (2016, p. 7).
69. R. Manko (2015, p. 11).
70. In particular, the Consumer Rights Directive 2011/83/EU contains special rules regarding the pre-contractual information that the trader
shall provide to the consumer. He or she has the duty to inform the consumer about the functionality and the interoperability of the digital
content with the hardware and software [Arts. 5.1.g) and h), 5.2, 6.1. r) and s) and 6.2) CRD]. On the other hand, when the contract for
supply of digital content is a distance contract or an off-premises contract, the Directive recognises the consumer’s right of withdrawal
unless certain circumstances exist [Art. 16.m) CRD].
71. In order to avoid overlap with the Consumer Sales Directive 1999/44/EC, the Digital Content Directive will amend Art. 1.2.b) CSD by
introducing a new exception into the concept of consumer goods: “a durable medium incorporating digital content where it has been used
exclusively as carrier of the digital content to the consumer […]”.
72. Chapter 3 of the UK Consumer Rights Act 2015 (Sections 33 to 77) is especially devoted to contracts for the supply of digital content.
73. Regarding the Dutch regulation on the supply of digital content, see R. Manko (2016, pp. 1-3), according to which an “amendment to the
Civil Code [was] enacted in March 2014 [that] made the rules on consumer sale (with exceptions) explicitly applicable to such contracts
[…] As from June 2015, another amendment of the Civil Code excluded from the scope of consumer sales those contracts under which
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specific legislation on digital content. In the other Member
States there are as yet no specific rules on this matter.
Many apply the same set of rules developed for other kinds
of products and services. In particular, they usually apply
sales of goods legislation to digital content supplied on a
durable medium and rules on services if the digital content is
downloaded from the internet or is web streamed.
74
Finally,
in other Member States it is unclear which regulation applies
to digital content.
75
4.3. The Digital Content Directive fills the
current legal gap at the EU level
As a conclusion it is fair to say that the Digital Content
Directive will fill the existing legal lacunae in the consumer
acquis at the EU level concerning certain aspects of
contracts for the supply of digital content.
76
If the
Digital Content Directive is approved, both business and
consumers will be able “to rely on fully harmonised rules
for the supply of digital content setting out Union-wide
contractual rights which are essential for this type of
transactions”.
77
This in turn will increase both business
certainty and consumer confidence when purchasing and
selling digital content.
Moreover, the new legal regulation under the Directive
looks likely to achieve its objective of reducing the legal
fragmentation caused by the different national rules
that currently apply to contracts for the supply of digital
content. More importantly, it would also prevent further
legal fragmentation in the future “that otherwise would
arise from new national legislations regulating specifically
digital content”.
78
4.4. The problem of embedded digital content:
which rules should apply?
Nevertheless, a question arises that is not a dequately
addressed by the Digital Content Directive. Namely, which
rules should apply to embedded digital content? The
Directive does not apply to what are called “smart goods”,
that is, smartphones, smart TVs, sat navs or connected cars,
because in these cases the digital content is “embedded in
goods in such a way that it operates as an integral part of
the goods and its functions are subordinate to the main
functionalities of the goods” (recital 11 DCD). Instead, “smart
goods” fall under the Online Sales Directive.
Pursuant to the legislation drafted in the proposed
Directives, the conformity of embedded digital content
should be assessed under the rules governing tangible
goods. For instance, if a consumer buys a sat nav which
has road maps pre-installed, the conformity of these maps
will not be assessed under the Digital Content Directive but
rather by the Online Sales Directive.
It has been suggested that the solution offered by the
proposal in relation to embedded digital content should be
reconsidered because it does not take into account the fact
that the latest smart goods effectively bring together not
only features of tangible goods but also of digital content.
79
However, the conformity rules on sale of goods do not take
into consideration the specific features of digital content. One
solution proposed by the European Law Institute Statement
on the Digital Content Directive is to apply the rules of the
Online Sales Directive to hardware while the associated
software comes under the Digital Content Directive.
80
the digital content is not individualised and controlled by the consumer. Effectively, therefore, contracts for the streaming of digital content
are not treated as sales contracts, but are rather treated as contracts for the provision of services”. Regarding this last amendment, see
the Dutch Act of June 4, 2015 amending Books 6 and 7 of the Dutch Civil Code (stb-2015-220.
html>).
74. H. Beale (2016, p. 6).
75. R. Manko (2016, p. 2).
76. Explanatory Memorandum DCD. See also R. Manko (2015, p. 11). Regarding Spanish law, see S. Cámara Lapuente (2016a, pp. 211-269).
77. Recital 5 DCD.
78. Recital 6 DCD.
79. C. Wendehorst (2016, p. 7).
80. The European Law Institute (2016, pp. 11-12) proposal is “to apply both the OSD and the DCD to the sale of goods with embedded digital
content, with the conformity criteria of the OSD applying to the hardware, and the conformity criteria of the DCD applying to the software,
plus a clause clarifying that any non-conformity of the digital content automatically also means non-conformity of the goods. This is the
solution adopted by Section 16 of the UK Consumer Rights Act 2015”. A similar point has been raised by the Council of the European Union
(2016, p. 8).
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5. Conclusions
The main findings of the first part of this article are the
following:
a) There are serious questions as to whether the new
approach taken by the Commission in the proposed
directives will effectively remove legal uncertainty for
both traders and consumers. The reason is their narrow
scope of application, dealing only with B2C contracts,
and the limited number of issues covered.
b)
The Online Sales Directive introduces some improvements
and clarifications into the Consumer Sales Directive
that will either increase or maintain the current level
of protection in most Mem ber States. Neverthel ess,
in some Member States the Online Sales Directive will
undoubtedly lead to a reduction in the existing level of
protection. The new elements and clarifications set to
be introduced under the Online Sales Directive will be
analysed in the second part of this article, which will be
published in the next issue of this journal.
c) It can be argued that if the Online Sales Directive comes
into force, it will fail to achieve its objective of reducing
the legal complexity of consumer sales in Europe. On
the contrary, it will contribute to increasing the degree
of legal fragmentation. Consumers will end up having
different rights depending on whether they buy goods
online or offline. However, this differentiation lacks any
justification and thus online and offline sales should be
dealt with coherently and treated equally.
d)
The Digital Content Directive will address the existing legal
lacunae at the EU level concerning the protection of consumer
rights against lack of conformity of digital content. This in
turn will increase both business certainty and consumer
confidence when purchasing and selling digital content.
e) Moreover, the Digital Content Directive would attain its
objective to decrease the legal fragmentation caused
by the different national rules that currently apply to
contracts for the supply of digital content. The main
issues raised by the Digital Content Directive rules on
conformity and the remedies for lack of conformity will
be analysed in the second part of this article, which will
be published in the next issue of this journal.
f)
Nevertheless, there is a question that is not well settled in
the Digital Content Directive. Namely, which rules should
apply to embedded digital content? The solution offered
by the proposal should be reconsidered, because it does
not take into account the fact that the latest smart goods
effectively bring together not only features of tangible
goods but also of digital content. One solution could be
to apply the rules of the Online Sales Directive to the
hardware while the associated software comes under
the Digital Content Directive.
References
ARROYO AMAYUELAS, E. (2016). “La propuesta de Directiva relativa a determinados aspectos de los
contratos de compraventa en línea y otras ventas de bienes a distancia”. InDret. Vol. 3/2016, pp. 1-33.
BEALE, H. (2016). “Scope of application and general approach of the new rules for contracts in the digital
environment”. Workshop for the Juri Committee on Legal Affairs of the European Parliament, New
rules for contracts in the digital environment, pp. 1-30. .epgencms.europarl.europa.eu/
cmsdata/upload/4a1651c4-0db0-4142-9580-89b47010ae9f/pe_536.493_print.pdf>
CÁMARA LAPUENTE, S. (2016a). “La protección del consumidor en el contrato sobre contenidos digitales”.
In: A. ORTI VALLEJO and M. JIMÉNEZ HORWITZ. (eds.). Estudios sobre el contrato de compraventa:
Análisis de la transposición de la Directiva 2011/83/UE en los ordenamientos español y alemán. Cizur
Menor: Thomson Reuters Aranzadi, pp. 211-269.
CÁMARA LAPUENTE, S. (2016b). “El régimen de la falta de conformidad en el contrato de suministro
de contenidos digitales según la Propuesta de Directiva de 9.12.2015”. InDret. Vol. 3/2016, pp. 1-92.
IDP No. 23 (December, 2016) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
Eloi PuigEloi Puig
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93
The Directive Proposals on Online Sales and Supply of Digital Content...
Eloi PuigEloi Puig
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Rosa Milà Rafel
COUNCIL OF THE EURO PEAN UNION. (2016). Note from the Presidency to Council about the Proposal for a
Directive of the European Parliament and of the Council on certain aspects concerning contracts for the
supply of digital content (first reading), policy debate, Interinstitutional File: 2015/0287 (COD). Brussels,
2 June 2016. <http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CONSIL:ST_9768_2016_
INIT&from=EN>
EUROPEAN COMMISSION. (2014). Communication from the Commission to the European Parliament, the
Council, the European Economic and Social Committee and the Committee of the Regions, Commission
Work Programme 2015, A New Start. Strasbourg, 14.12.2014, COM (2014) 910 final.
eu/atwork/pdf/cwp_2015_en.pdf>
EUROPEAN ECONOMIC AND SOCIAL COMMITTEE. (2016). Opinion of the EESC on the Proposal for a
directive of the European Parliament and of the Council on certain aspects concerning contracts
for the supply of digital content COM(2015) 634 final – 2015/0287 (COD) and the Proposal for a
directive of the European Parliament and of the Council on certain aspects concerning contracts for
the online and other distance sales of goods. COM(2015) 635 final – 2015/0288 (COD), rapporteur:
Mr Pegado Liz, Brussels, 27 April 2016, Official Journal of the European Union, 20.7.2016. org/10.4337/9781781005279.00019>
dm.eesc.europa.eu/EESCDocumentSearch/Pages/opinionsresults.aspx?k=(documenttype:AC)%20
(documentlanguage:en)%20(documentnumber:6292)%20(documentyear:2015)>
EUROPEAN LAW INSTITUTE (2016). Statement of the European Law Institute on the European
Commission’s Proposed Directive on the Supply of Digital Content to Consumers COM (2015) 634.
Approved by the ELI Council on 7 September 2016. .europeanlawinstitute.eu/fileadmin/
user_upload/p_eli/Publications/Statement_of_the_European_Law_Institute_on_the_European_
Commission_s_Proposed_Directive_on_the_Supply_of_Digital_Content_to_Consumers.pdf.>
EUROPEAN PARLIAMENT. (2014). European Parliament legislative resolution of 26 February 2014 on
the proposal for a regulation of the European Parliament and of the Council on a Common European
Sales Law. COM(2011)0635 – C7-0329/2011 – 2011/0284(COD) (Ordinary legislative procedure: first
reading). <http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2014-
0159+0+DOC+XML+V0//EN#BKMD-40>
EUROPEAN PARLIAMENT (2016). Resolution of 19 January 2016 on the initiative “Towards a Digital
Single Market Act”. 2015/2147(INI), 19 January 2016, Strasbourg.
sides/getDoc.do?pubRef=-//EP//TEXT+TA+P8-TA-2016-0009+0+DOC+XML+V0//EN>
GÓMEZ POMAR, F. (2012). “Private law II: contract”. In: T. EGER and H. SCHÄFER (eds.). Research Handbook
of the Economics of European Union Law. Massachusetts: Edward Elgar Publishing, Inc., pp. 229-276.
GÓMEZ POMAR, F.; GILI SALDAÑA, M. (2012). “El futuro instrumento opcional del Derecho contractual
europeo: una breve introducción a las cuestiones de formación, interpretación, contenido y efectos.
InDret. Vol. 1/2012, pp. 1-27.
MANKO, R. (2015). “Contract Law and the Digital Single Market. Towards a new online consumer sales
law?”. In-depth analysis, European Parliamentary Research Service, pp. 1-29. www.europarl.
europa.eu/RegData/etudes/IDAN/2015/568322/EPRS_IDA(2015)568322_EN.pdf.>
MANKO, R. (2016). “Contracts for supply of digital content to consumers”. Briefing, EU Legislation
in Progress, European Parliamentary Research Service, pp. 1-12. oparl.europa.eu/
RegData/etudes/BRIE/2016/581980/EPRS_BRI(2016)581980_EN.pdf>
MAK, V. (2016). “The new proposal for harmonised rules on certain aspects concerning contracts for
the supply of digital content”. Workshop for the Juri Committee on Legal Affairs of the European
Parliament, New rules for contracts in the digital environment, pp. 1-28. <http://www.epgencms.
europarl.europa.eu/cmsdata/upload/a6bdaf0a-d4cf-4c30-a7e8-31f33c72c0a8/pe__536.494_en.pdf>
IDP No. 23 (December, 2016) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
Eloi PuigEloi Puig
Jose R. Agustina
www.uoc.edu/idp
Universitat Oberta de Catalunya
94
The Directive Proposals on Online Sales and Supply of Digital Content...
Eloi PuigEloi Puig
94
Rosa Milà Rafel
SMITS, J. (2016). “The new proposal for harmonised rules for the online sales of tangible Goods:
conformity, lack of conformity and remedies”. Workshop for the Juri Committee on Legal Affairs
of the European Parliament, New rules for contracts in the digital environment, pp. 1-16. org/10.7238/idp.v0i23.3082>
www.epgencms.europarl.europa.eu/cmsdata/upload/3f55190a-e9dc-43f0-a977-b7ee0e824485/
pe_536.492_en_print.pdf>
STORME, M. E. (2016). “Scope of the proposed Directives (distance sales (ODSGDir) and supply of digital
content (SDCDir))”. New EU Rules for Digital Contracts Conference, organised by the Academy of
European Law, Brussels, 18 February 2016. tps://www.era.int/upload/dokumente/18123.pdf>
VOGENAUER, S.; WEATHERILL, S. (eds.). (2006). “The European Community’s Competence to Pursue the
Harmonisation of Contract Law - an Empirical Contribution to the Debate”. In: The Harmonisation of
European Contract Law: Implications for European Private Laws, Business and Legal Practice. Oxford:
Hart Publishing, pp. 105-148.
WENDEHORST, C. (2016). “Sale of goods and supply of digital content – two worlds apart? Why the law
on sale of goods need to respond better to the challenges of the digital age”. Workshop for the
Juri Committee on Legal Affairs of the European Parliament, New rules for contracts in the digital
environment, pp. 1-21. europarl.europa.eu/cmsdata/upload/f897bc4f-95d1-
44c4-930a-3c0a55b983da/pe%20556%20928%20EN_final.pdf>
Recommended citation
MILÀ RAFEL, Rosa (2016). “The Directive Proposals on Online Sales and Supply of Digital Content (Part
I): will the new rules attain their objective of reducing the legal complexity?”. IDP. Revista de Internet,
Derecho y Política. No. 23, pp. 81-94. UOC [Accessed: dd/mm/yy].
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About the author
Rosa Milà Rafel
rosa.mila@uclm.es
Juan de la Cierva-Incorporación Researcher
Civil Law and Private International Law Department
Universidad de Castilla-La Mancha
Facultad de Ciencias Jurídicas y Sociales de Toledo
Cobertizo de San Pedro Mártir, s/n
45071 Toledo
