The member state are both persisting and signing: they want “smart” products to be covered by the future rules on online and off-line goods. This is the message emanating from the orientation debate on contractual rules in Luxembourg during the Justice Council on Monday 4 June.
The “sales contracts” package presented at the end of 2015 is based on two proposals: one on the provision of digital content which is currently being negotiated at the trialogue and the other on the sale of online goods (which, since the end of 2017, applies to off-line goods as well) on which the Council has still not reached a position. The two dossiers are intrinsically linked, particularly because Parliament wants to regulate integrated digital content in tangible goods, on the same lines as digital content, while the Council wants to regulate them as tangible goods.
During the discussions, ministers stuck closely to their respective positions and indicated that integrated content should be covered by the proposal on tangible goods even if adaptations have to be made to them. In response to the concerns expressed by the European Parliament, Luxembourg emphasised that rental contracts and leasing should also be covered. The Netherlands called for a definition based on the functioning of the goods in question: if the goods can function without digital content, the said content is covered by the “digital content” directive; if the goods can only function on the basis of digital content, then the goods and digital content are covered by the scope of the directive on goods and in this case, integrated content.
Harmonisation level discrepancies
Ministers for Justice were more divided, however, on the question of regulating the guarantee period question and solutions for the sales of goods by drawing on the general guideline relating to the digital content directive (DCD). This means that the duration of the legal guarantee period cannot be less than two years and that the compliance of goods in question must be prioritised.
Therefore, with regard to modalities for damages, the United Kingdom rejected the idea of drawing on the general approach in the DCD; Finland supported more harmonisation whilst calling for specificities affecting goods to be taken into account, namely, the obligation of reporting defects, conditions for reducing prices and terminating contracts; Belgium called for the hierarchy of solutions presented in the 1994/44 directive be used as a possible basis of inspiration; Sweden called for a more robust hierarchy in the text on the sales of goods given that the termination of contracts in this context had more of an effect on businesses; the Czech Republic wanted further discussions.
With regard to the guarantee time frame, the majority of delegations supported minimal harmonisation (on the basis of what is included in the general approach for the DCD). Lithuania called for a maximum harmonisation of two years that would be valid in all member states, while the Netherlands called for harmonisation to be discussed “for each article and each subject”.
It should be pointed out that Germany, unsurprisingly, reaffirmed its opposition of principle to a directive on the sales of goods and asserted that this text did not provide any added value compared to the current rules.
Next steps
It is evident that the discussions begun two years ago still need to be continued. On digital content, another trialogue is expected for 18 June. On the sale of goods, the next Austrian Presidency is committed to working towards a general approach at the Council, with the goal of completing these two dossiers before the European Parliament elections. (Original version in French by Sophie Petitjean)