The European Council has adopted two new directives on the supply of digital content and sale of goods to consumers, following their approval by the European Parliament last month. The new directives harmonise key contractual rights, such as the remedies available to consumers and the ways to use those remedies. They are part of the Digital Single Market strategy, which aims to ensure better access for consumers and businesses to online goods and services across Europe.
Digital content directive
The aim of the digital content directive is that consumers buying or downloading music, apps, games or using cloud services or social media platforms will be better protected if a trader fails to supply the content or service or it is defective. These consumer protection rights will apply in an equal manner to consumers who provide (personal) data in exchange for such content or a service and to “paying” consumers alike.
The text provides that, if it is not possible to fix defective digital content or a service in a reasonable amount of time, the consumer is entitled to a price reduction or a full reimbursement within 14 days. If a defect appears within one year of the date of supply, it is presumed that it existed already, without the consumer needing to prove it (reversal of the burden of proof). For continuous supplies, the burden of proof remains with the trader throughout the contract.
The guarantee period for one-off supplies may not be shorter than two years. For continuous supplies, it applies for the duration of the contract.
Sale of goods
The directive on the sales of goods applies to both online and face to face sales, e.g., whether a consumer buys a household appliance, a toy or a computer via the internet or in a local store.
The trader will be liable if a defect appears within two years from the time the consumer received the product (member states may, however, introduce or maintain a longer legal guarantee period in their national laws, to keep the same level of consumer protection already granted in some countries). The reversed burden of proof would be of one year in the consumers’ favour. Member states are allowed to extend this to two years.
Goods with digital elements (e.g. “smart” fridges, smartphones and TVs or connected watches) are also covered by this Directive. Consumers buying these products will be entitled to receive the necessary updates during “a period of time the consumer may reasonably expect”, based on the type and purpose of the goods and digital elements.
Both directives are based on the principle of maximum harmonisation, which means member states cannot deviate from the requirements. However, on some aspects, some room is foreseen for EU countries to go beyond the requirements in order in particular to maintain the level of consumer protection already applied at national level.
The two directives will now be formally signed and publish in the Official Journal. Member states will have two years to transpose the new rules into their national law.
