Austria is currently the rotating Presidency of the Council of the EU until the end of the year and its objective is to conclude the inter-institutional negotiations on the contracts for providing digital content and launching negotiations on the selling of merchandise. Ideally, the final trilogue (more than likely to be in mid-December) on digital content will be the first on the subject of merchandise.
It should be recalled that the European Commission presented these two proposals at the end of 2015 as part of a sales contract package. The first, a directive on the provision of digital content, has already produced six trilogues, the most recent of which took place on 11 July (see EUROPE 11927, 12068). The second, a directive on the sales of merchandise was amended two years later by the European Commission to include off-line sales (in addition to online sales). The work of the co-legislators has therefore fallen behind and although the European Parliament has concluded its position (see EUROPE 11967), the Council is still working on its own position (see EUROPE 12033).
Integrated digital content
Although these proposals have been dealt with separately, they do present similarities. Therefore, in addition to the degree of harmonisation of the texts and therefore, the deadlines, one of the main questions posed involves the way in which integrated digital content will be tackled, such as washing machine software: Parliament would like this kind of content to be included in the proposal on digital content, whereas the Council wants it treated in the parallel proposal on merchandise. Given the different level of maturity in the two dossiers, the European Parliament is refusing to kick this issue into touch and is demanding assurances from the Council in its general approach on merchandise.
In reply to a question on the strategy adopted by the Austrian Presidency, a spokesperson explained “We are planning a joint trilogue after the Justice and Home Affairs Council (JHA) in December.”
Merchandise: all eyes turn to the Council
On 1 October a meeting of JHA attachés took place on the sale of merchandise, which followed four days of discussions between experts in September. These four days of meetings providing discussions on embedded digital content, methods of compensation, contract termination rights and compliance. The Austrian Presidency is now preparing a draft compromise on the basis of these discussions, which is expected to be distributed by 16 October.
Digital content
At this stage, no date has yet been set for another trilogue. According to our information, a seventh inter-institutional meeting could take place on the 19 or 20 November and an eighth and final meeting, ideally, on 11 or 12 December.
According to the four column graph (bringing together the Commission's proposals, the positions of the co-legislators and a column for the compromises), which was circulating in August, the aim is to cover all contracts involving payment or an exchange of personal data (except for data processed for providing a service/content or fulfilling legal obligations) and excluding software offered free of charge by the trader (as sought by the Parliament). In the event of bundled offers, the directive will only apply to digital content/services.
It should be pointed out that article 16, which was the subject of a temporary agreement, has now been reopened. The temporary compromise included the right to proportionate compensation (to the benefit of the trader) when a long-term contract was terminated by the consumer. Some member states argued that this right should not be limited to the promotional advantages granted in the form of material goods. According to one sauce, the following countries could support this list: France, Italy, Poland, Slovakia, Czech Republic, Hungary, Latvia, Ireland, United Kingdom, Portugal and Sweden. (Original version in French by Sophie Petitjean)