EU adopts Digital Contracts Directives: A missed chance in reducing legal fragmentation across the Union


On 15 April 2019, the Council of the European Union adopted the Digital Contracts Proposals, a package including a Directive on contracts for the supply of digital content (Digital Content Directive) and a Directive on contracts for the sales of goods (Sales of Goods Directive). Similar to the recently-adopted New Deal for Consumers’ Omnibus Directive, these two Directives also represent a step back in the creation of a fully harmonized EU Single Market.

Even though Ecommerce Europe and the wider business community have been asking the EU co-legislators to follow the full harmonization approach originally proposed by the European Commission, the Digital Contracts Proposals failed to achieve this objective on several points. In fact, expect for a few fully harmonized areas, both Directives will bring minimum harmonization on several important aspects of digital contracts, as Member States may keep or adopt different rules. For instance, EU countries will be allowed to go beyond a minimum length for the legal guarantee period that the Sales of goods Directive sets at 2 years.

Such approach is not only against the interests of online merchants but also against the interests of European consumers, since it will not contribute to clarification and simplification of businesses’ and consumers’ rights and obligations across the EU. Moreover, new elements, which were not originally proposed by the Commission, will likely represent an unreasonable burden for online merchants. For instance, in the case of goods with digital elements, the seller will have to ensure that the consumer is informed of and supplied with updates, including security updates, that are necessary to keep those goods in conformity.

In this regard, Ecommerce Europe considers that both directives represent a missed chance to bring more harmonization across the EU, which remains one of the biggest barriers for businesses seeking to expand cross-border.

The Digital Contracts Proposals still need to be signed and published in the Official Journal of the European Union. Member States will have two years to transpose the new rules into their national law.