Proposal for contract rules for the supply of digital content: state of play

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The European Commission published a Proposal for a directive on certain aspects concerning contracts for the supply of digital content (Digital Content Proposal or DCP) in December 2015. Currently, there are no EU-wide contract rules for the supply digital content, even though some Member States have already their own national legislation. To avoid dealing with potentially 28 different sets of rules for digital content sold online, the Commission proposed to harmonize rules for digital content products. Ecommerce Europe has always supported full harmonization, also in this case, and saw the proposal as a good first good step to reduce burdens and costs for online merchants selling cross-border. Nevertheless, the proposal included some worrying provisions, in relation with the scope and the legal guarantee period.

Current state of play in the European Institutions

The European Parliament and the Council are currently discussing the proposal. Within the Parliament, the Legal Affairs Committee (JURI) and the Internal Market and Consumer Protection Committee (IMCO) are dealing with the proposal, while the Justice and Home Affairs (JHA) Ministers are covering the proposed directive from the Council side. JHA Ministers will meet on 9-10 June in Brussels and it might be possible the Council will adopt a “general approach” on the DCP. A “general approach” agreed in the Council can help to speed up the legislative procedure and even facilitate an agreement between the co-legislators, as it gives the Parliament an indication of the Council’s position prior to their first reading opinion. In view of the Council discussions, Ecommerce Europe has recently co-signed a joint statement on the DCP to highlight once more the position of the business sector to policymakers in order to ensure a balanced system for merchants. The statement is focusing on three specific items

1. Endorse full harmonization approach
Ecommerce Europe, together with the other cosigners of the statement, calls on policymakers to endorse the original proposal’s full harmonization approach. Full harmonization is the only way forward to solve the issue legal fragmentation, which is currently affecting cross-border e-commerce. Having the same rules all over the EU would help not only online merchants in selling more cross-border and at better prices, but also increasing consumers’ awareness of their rights in case of faulty products.

2. Aligning rules for the supply digital content and the sales of goods
Digital content and tangible goods are getting more and more intertwined. Therefore, the cosigners believe that aligning (as much as possible) the rules for the supply of digital content and the rules for the sales of goods is the most effective approach policymakers should adopt.

3. Avoid overlaps with existing EU data protection rules and clarify rules
Recently, the European Data Protection Supervisor (EDPS) released an opinion on the DCP and specifically warned about potential risks of overlaps between the proposed directive and the General Data Protection Regulation, which should be avoided. Data as a counter-performance (consumers “paying” with their data) also remains an unclear and controversial concept still under discussion, which should be removed from the proposal.

Next steps

The JHA Council is expected to discuss the DCP on 9-10 June and, potentially, adopt a general approach. The adoption of the European Parliament’s IMCO report of MEPs Gebhardt and Voss on contract rules for the supply of digital content has been postponed after summer and is now expected on 28 September 2017. The Plenary vote can be expected for early 2018.

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