Proposal for Digital Content Directive: State of play and open issues


The Rapporteur for the Proposal for a Directive on Contracts for the supply of digital content, MEP Evelyne Gebhardt (S&D, DE) reported back to the IMCO Committee of the European Parliament about the outcome of trialogue negotiations on the draft law.

MEP Gebhardt stressed the fact that the Digital Content Directive is a complex dossier, also because two Committees are involved. According to her, the IMCO Committee is looking at the Directive from a consumer protection angle, while the JURI Committee is focusing more on the technical aspects. Nevertheless, the Rapporteur seemed convinced that EU negotiators will manage to reach an informal agreement in trialogue before the end of Bulgarian Presidency of the Council, meaning before the end of June 2018.

MEP Gebhardt mentioned that an agreement had been found on almost all topics, however a few major issues are still open, notably on the regime applicable for goods with embedded digital content and the level of harmonization.

Software embedded in goods

According to the Rapporteur, it is important that this Directive applies, and not the Directive on the Sales of Goods, otherwise “it would create huge discrepancies”. The Rapporteur also stated that the Parliament would continue to be tough on this issue.

In Ecommerce Europe’s opinion, it is crucial to align – as far as possible – contract rules for digital content and goods. This is the most effective way of ensuring that contract law will remain future-proof in the case of goods with embedded digital content and is clear and easy to understand for both traders and consumers.

Guarantee periods and the issue of the degree of harmonization

MEP Gebhardt reported that the Council wanted minimum harmonization. She stressed that the she is “not prepared to give an inch” on the topic and that it is not so clear why the Council would be so determined in having a minimum harmonization approach.

In Ecommerce Europe’s opinion, it is crucial to adopt a fully harmonized approach regarding the legal guarantee period for both the supply of digital content and the sales of goods. Minimum harmonization of EU rules, including contract law, is considered as one of the top barriers for merchants wishing to sell cross-border.

Next steps

Ecommerce Europe continues advocating for a fully harmonized approach with regard to the Digital Content Directive and the Goods Directive, as this is the only way forward to foster cross-border e-commerce in Europe and ensure a high degree of legal certainty for both traders and merchants.