The Council of the EU and European Parliament are preparing to temporarily suspend their negotiations for the end of year recess. These negotiations have focused on the draft directive on the provision of digital contracts. So far, two trialogue meetings have been organised on 4 and 12 December but they did not tackle the most controversial questions, such as time limits and embedded content.
It should be recalled that the legislative proposal seeks to entirely harmonise a raft of rules relating to digital content compliance, possibilities available to consumers on claiming damages in the event of digital content compliance contract failings, as well as certain aspects involving the right to terminate a long-term contract and amend digital content.
The Council adopted its negotiating position on 8 June and the European Parliament did likewise on 21 November. The main differences between the two positions focus on: - embedded content: the co-legislators do not agree on the process applicable to integrated software in goods (such as smart fridges). The European Parliament would like this kind of content to be covered by the proposal on digital content, while the Council would like it to be subject to rules on tangible goods. The degree of harmonisation: overall, the two institutions follow the approach advocated by the European Commission, namely maximum targeted harmonisation. Nonetheless, they accept a number of derogations, to varying degrees: for example, on the responsibility of the trader in cases of compliance failings (legal guarantee), the Council supports a flexible solution consisting of a period that “should not be less than two years" while Parliament would like a fixed period of two years, except on digital content where member states can maintain the most favourable provisions in this regard. The burden of proof: Parliament and the Council do not agree on the period during which a consumer is obliged to prove the defective functioning of digital content or service (or the responsibility to prove the contrary incumbent on the trader). Parliament would like this period to be two years for digital content/services and one year for embedded content, while the Council would like to set a general one-year limit. The hierarchy of remedies: the European Parliament supports the Commission approach in favour of a hierarchy of damages, while the Council supported a more flexible solution to appease member states where this hierarchy does not exist (such as in Poland). The Council is also scrapping article 14 of the proposal on the right to damages and interest.
According to the information we have received there will be no more trialogues under the Estonian Presidency. They are expected to resume on 13 January under the new Bulgarian Presidency. (Original version in French by Sophie Petitjean)