Despite the interruption of interinstitutional negotiations, technical work is ongoing on the draft directive on the supply of digital content. A summary of work carried out up until 11 July dates back to the last trialogue meeting and shows that most of the technical measures have been provisionally agreed.
The draft legislation aims to facilitate trade in digital content such as music and films online or apps or services such as Facebook or YouTube. At this stage, six trialogues have taken place, but the negotiators disagree over the degree of harmonisation and the treatment of smart goods (see EUROPE 12046).
Although a number of technical questions are still open – such as third party rights and conformity criteria – a more detailed picture of the future rules is panning out.
Scope of application. The directive will apply when there is payment of a price or the exchange of personal data, except where said data is processed to provide content or services or to meet legal obligations.
It would not apply to free software provided free-of-charge by the trader, as demanded by the European Parliament.
The provisional agreement also foresees that in the event of conflict with other legislation, the other legislation shall prevail.
Conformity. The text introduces objective and subjective conformity criteria (Articles 6 and 6a), which stipulate, for example, that the seller should not be held responsible for the non-conformity of content or services due to the user’s failure to download updates.
The timing for reversing the burden of proof has not yet been settled. The European Parliament wants two years, and the Council one year.
In the event of non-conformity of goods, the text foresees a hierarchy of remedies, putting the ending of a contract or the reimbursement of goods or services at the end of the list. Such a scenario would only be possible if it is not a minor fault and if making it conform is impossible or disproportionate, if it fails, if the fault is very serious or re-appears or if the process of making it conform could not be carried out within a reasonable timeframe or would cause inconvenience to the consumer.
In the event of cancellation of a contract, the trader should reimburse the consumer for the value of the goods or services for the time during which it did not conform (Article 13a). The text also foresees that the consumer should not have to pay a fee for reimbursement.
Long-term contracts. During the 28 June trialogue, the co-legislators reached agreement on the right to cancel a long-term contract after the twelfth month (Article 16).
Upon request from the European Parliament the text includes proportionate compensation limited, upon request from the Council, to material goods. In other words, if a consumer received promotional advantage in the form of a product, he may either return it or keep it. In the latter case, the seller may require proportionate compensation that should correspond to the pro-rata value of the product in time agreed at the time the contract was signed or the remainder of the price (or another calculation method set by the member states), which should not exceed the compensation as calculated).
We understand, however, that this measure could be re-discussed by the member states.
Harmonisation and embedded content. Despite efforts at technical level, the text us far from being adopted.
Two substantial issues remain. The first concerns the level of harmonisation: the European Parliament wants maximum harmonisation with exceptions, while the Council prefers maximum harmonisation without exceptions.
The second issue is embedded content. The European Parliament wants to foresee rules in the directive on digital content, whereas the Council wants to incorporate them in the directive on tangible goods, which it has not yet adopted (see EUROPE 12033).
Parliament is therefore calling for guarantees in this other text before envisaging any compromise.
At this stage, no new date has been put forward for a trialogue meeting.
The state of progress can be seen here: http://bit.ly/2LfYmLl (Original version in French by Sophie Petitjean)