Negotiations on the Directive on contracts for the provision of digital content will not be concluded under the Austrian Presidency of the Council of the European Union. The inter-institutional meeting of 12 December, although announced as decisive, came up against updates and the right to compensation.
As a reminder, this draft legislation aims to facilitate the trade of digital content, such as online music and films or applications or services such as Facebook or YouTube. It was supposed to be the subject of an agreement between the European Parliament and the Council on 12 December, after the Council gave the green light to the other part of the legislative package: the sale of goods (see EUROPE 12155).
In the end, this was not the case: according to our information, the co-legislators were unable to reach agreement on the issue of updates due to divisions in the Council.
The first stumbling block concerns updates. Some Member States, such as Italy, are concerned about the lack of consistency between the Directive on the provision of digital content and the Directive on the sale of goods, which deals with goods containing digital elements. The compromise text on the sale of digital goods/contents requires the seller to provide updates for the period of time that the consumer can reasonably expect, while the Council's position on the sale of goods containing digital elements limits this obligation to two years.
Another area of contention is the right to compensation for long-term contracts. This provision was the subject of a temporary agreement between the co-legislators in June 2018, which was reopened at the request of a small group of Member States (including France and Italy). The June version aligned this right with what is provided for in the Electronic Communications Code, namely a right of proportional compensation for sellers where the customer has received a material benefit. But the November version extended this right to tariff benefits in a broader sense.
In addition, it would still be up to the co-legislators to define the deadline for implementation of the text. No further trilogue is to be expected under the Austrian Presidency of the Council. It is expected to take place in January, following a meeting of the Council's working group on 7 January. (Original version in French by Sophie Petitjean)