Contract rules for the B2C sales of goods: need for a fully harmonized framework!

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Ecommerce Europe is closely monitoring the legislative process of the Proposal for a Directive on Contracts for the online and other distance sales of goods and strongly advocates for a legislation that includes the maximum possible level of harmonization while providing for the greatest degree of legal certainty for both traders and consumers. At the European Parliament’s IMCO Committee meeting of 21 March 2017, Members of the EU Parliament (MEPs) discussed the draft amendments to the draft Report of MEP Arimont, Rapporteur for the proposal. MEPs discussed many items, including full harmonization, extension of the scope of the law to cover all sales, notification obligation for consumers in case of defective products, legal guarantee period and many others.

Align rules for all B2C sales is fundamental

One of the most welcomed elements of MEP Arimont’s draft report is the extension of the scope of the Proposal to cover all B2C sales, instead of only distance sales. Several Shadow Rapporteurs support full harmonization, and in Ecommerce Europe’s view it is essential to aligning as much as possible contract rules for distance and face-to-face sales. Ecommerce Europe wants to avoid consumers’ and merchants’ confusion when buying and selling cross-border, and full harmonization of B2C contract rules is the only way ahead to ensure legal certainty for all parties. That is why Ecommerce Europe is strongly advocating for the extension of the scope of the Directive to cover all B2C sales, also considering the rise of omni-channel shops, which blurs the distinction between online and offline sales.

The benefits of a fully harmonized legal guarantee period

One of the fundamental elements of the Proposal, which is also supported by the Rapporteur and other MEPs, is to fully harmonize the different regimes for the legal guarantee periods. Currently, a minimum harmonization of the legal guarantee periods across the EU creates legal uncertainty and hampers the growth cross-border e-commerce. For that reason, the Proposal introduces a harmonized maximum legal guarantee period of two years applicable in all EU Member States, something that Ecommerce Europe has always supported.

From Ecommerce Europe’s perspective, full harmonization of the legal guarantee period should be based on a fixed period in time and not on a variable expected lifespan guarantee. That is because – in practice – around 95% of the claims for a defective product occur within two years after delivery. Moreover, consumers are more aware of their legal guarantee rights in case of an easy to understand fixed period. Regimes with a legal guarantee system based on reasonable expected lifespan are way too complex for all parties involved and should therefore be avoided.

The issue of tangible goods with embedded digital content

An important issue that policymakers has to carefully assess is the relation between the Proposal on contract rules for the sales of good and the Proposal for a Directive on contract rules for the supply of digital content, in particular the question of which law is applicable for goods with embedded digital content. For the sake of clarity and legal certainty for both traders and consumers, it is highly preferable that tangible goods with embedded digital would be governed by the tangible goods proposal. This is also the most logical framework, given that tangible goods with embedded digital content are subject to the same wear-and-tear as other tangible goods.

Notification obligation for defective products

Ecommerce Europe is also concerned about the lack of a notification obligations for consumers in case of a defective product, a concern that is also shared by some MEPs in the IMCO Committee meeting of 21 March. Ecommerce Europe suggests to introduce such a notification obligation because the trader who has to ‘repair’ the non-conformity has an interest in knowing as soon as possible that the product is non-conform. The consumer will have 2 months from the moment that he/she notices the defect to inform the trader. That would also help the trader in acting swiftly to solve the issue and repair/replace the non-conform product, and potentially avoid extra damages caused by a malfunctioning good.

Next Steps

Following the meeting of the 20-21 March, the IMCO Committee is expected to vote on MEP Arimont’s report as a whole on 8 June 2017. Ecommerce Europe will stay closely in contact with all policymakers in order to make sure that the voice of online merchants is heard.

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