European justice and home affairs ministers will try to reach agreement in principle (general guidelines) in Luxembourg on Thursday 8 June on a draft directive on aspects of contracts for the supply of digital content.
This aim was confirmed by national sherpas on the COREPER committee on Wednesday 31 May, but there are delays in talks at the European Parliament due to the large number of amendments tabled by MEPs.
The draft directive was unveiled early in 2016 at the same time as a draft directive on online or remote sales of tangible goods and aims to eliminate the main obstacles connected with contract law that are hindering cross-border trade (see EUROPE 11468). It proposes to harmonise the responsibly of the supplier in the event of default, reversing the burden of proof, the right to end a contract and the use of personal data.
We understand that the Council will move in the direction of a flexible solution for the duration of guarantees. The European Commission put forward a hierarchy of remedies, but a compromise from the Maltese Presidency of the Council suggests making it easier for consumers to cancel contracts without having to wait for repairs or for the product to be brought into line. It also suggests using national rules for permanent contracts.
As suggested by the European Parliament’s co-rapporteurs (see EUROPE 11657), the Maltese proposal adds objective conformity criteria in addition to the subjective criteria included in the contract put forward in the initial legislation. It sets the timing for reversal of the burden of proof at one year, compared with the indefinite time period laid down in the European Commission’s proposal.
No distinction between active and passive supply of data
When it comes to application of the directive and the tricky question of contracts against the provision of the user client’s data (using the information, for example, provided by messaging service WhatsApp), the European Commission suggested extending the scope of application to contracts opposing the supply of data, noting that this should cover the active supply of data (thus ruling out cookies).
The Maltese Presidency’s compromise suggests not making a distinction between active and passive supply of data. The directive would thus apply as soon as a contract exists and the consumer provides information (under the general regulation on the protection of data), thus excluding cookies in practice.
Parliament's co-rapporteurs suggest a move in the opposite direction because they recommend including data provided passively by the user.
As for integrated digital content (for example, software in a washing machine), the Council suggests referring to the rules for tangible goods, but Parliament's co-rapporteurs want this content to be viewed as digital content from the moment it becomes part of the product and cannot be easily uninstalled. (Original version in French by Sophie Petitjean)