On Thursday 8 June, the Council of the EU set out its negotiating position on the draft directive relating to certain aspects of contracts providing digital content. All the delegations, apart from Austria, supported the compromise prepared by the Maltese Presidency.
It should be pointed out that the draft directive, presented at the beginning of 2016 at the same time as a draft directive on online or remote sales of tangible goods, seeks to remove the main barriers relating to contract law which are currently hampering cross-border trade (see EUROPE 11468). It contains criteria for concluding content non-compliance, solutions available to consumers relating to complaints and identifying possible ways of compensation in the event of compliance or provision failings.
The Council’s general approach supports the “maximum targeted use” proposed by the Commission, even though it leaves a certain room for manoeuvre to the member states with regard to time limits on the reversal of the burden of proof.
Result of compromise
During the round the table discussions, half of the member states spoke and ten of them presented a statement to be added to the meeting’s minutes.
Austria is the only state to have expressed its opposition to the text and believes that, “The compromise text contains uncertainties that could create serious legal insecurity”. It criticises, for example, the idea of regulating integrated digital content (e.g., software contained in washing machine) such as tangible goods. It also believes that the deadline for the reversal of the burden of proof by a year, as contained in the compromise, is too long and it could have been limited to six months, contrary to the Czech Republic’s wish for this to be extended to two years. Finally, it also criticises, “The almost unlimited universal law businesses have for introducing amendments that undermine the position of the consumer” and suggests that the amendment should be reasonably accepted by the consumer.
Latvia, Lithuania and Luxembourg submitted a joint declaration in which they expressed their regret that the member states can maintain different national provisions, particularly with regard to the periods of legal guarantee, the termination of permanent contracts and the consequences of terminating group contracts.
Portugal, France, Italy, Romania and Cyprus also submitted a joint declaration criticising the two different time limits for the reversal of the burden of proof and making providers responsible in the event of non-compliance of content or service (legal guarantee). It should be pointed out that the compromise allows member states to freely decide on the duration of the latter, whilst explaining that this cannot be less than two years.
The Czech Republic criticised the lack of clarity on integrated digital content, the lack of maximum harmonisation on the reversal of the burden of proof and the “reasonable deadline” to attain compliance.
It should be pointed out that the European Parliament has still not reached a position on this text as the vote at the legal affairs and consumer protection committees in Parliament are planned for 28 September. The Council’s general approach can be seen at: http://urlz.fr/5nrX . (Original version in French by Sophie Petitjean)