The package of measures on sales contracts is about to undergo new developments during December. The meeting on 12 December between the European Parliament, the Council of the EU and the European Commission should be the last on digital content and the first on goods. This is on condition that the national ambassadors give their agreement on Wednesday, 5 December, regarding the goods and that the text is endorsed by the Ministers of Justice on 7 December.
The two dossiers are indeed closely linked: at the end of 2015, the Commission presented a legislative package on sales contracts. It consists of a Directive on the provision of digital content, already at the trilogue stage, and a Directive on the sale of goods online and offline, pending the Council's position (see EUROPE 12107).
In a letter dated 26 November, the European Parliament's rapporteurs - Evelyn Gebhardt (S&D, Germany), Axel Voss (EPP, Germany) and Pascal Arimont (EPP, Belgium) - remind us that they will not validate the digital content agreement until the provisions on goods have been clarified.
Digital content: on the brink of agreement
As mentioned above, discussions on digital content are the most advanced. At this stage, seven trilogues have already taken place, settling most of the provisions of the text. But the co-legislators have yet to agree on the degree of harmonisation: will the deadlines introduced by the new directive be fixed or will Member States that so wish be able to adopt more protective provisions? Initially, Parliament supported maximum harmonisation with exceptions, while the Council advocated maximum harmonisation without exception.
The draft text states in any case that the objective is to ensure the conformity of digital content/service, to offer remedies to the aggrieved consumer or to provide rules in the event of a change in content/service or a termination of a long-term contract. For example, it provides for a flexible hierarchy of remedies and a right of set-off for the seller in the event of termination of a long-term contract that has resulted in a tariff advantage. The draft compromise, which applies as soon as there has been unnecessary payment or exchange of data, also introduces a revision clause five years after the entry into force of the new rules, which calls for consideration to be given to changing the level of harmonisation for content not covered, including digital content/services offered against advertising.
Status of discussions on the sale of goods
The text on the sale of goods is much less advanced. At this stage, all eyes are on the Council. The draft compromise prepared by the Austrian Presidency of the Council provides for the inclusion in this text of embedded content, renamed "goods with digital elements". Like the Parliament (see EUROPE 11967), he suggests that the legal guarantee should be set at a minimum of two years. But it contains different provisions for the reversal of the burden of proof: the deadline for proof would be set at 1 year (compared to 6 months for the moment) with the possibility of pushing up to 2 years (Parliament suggested 1 year only). As with digital content, it opts for a flexible hierarchy of remedies and to refer to updates in compliance criteria.
The Austrian Presidency's compromise will be examined by the Permanent Representatives Committee on 5 December, with a view to reaching agreement at the Justice and Home Affairs Council two days later. (Original version in French by Sophie Petitjean)