On 12 January 2017, the Socialists and Democrats (S&D) Group in the European Parliament conducted a workshop on two proposals currently being considered by the European Parliament related to digital contracts. These are the Proposal for a Directive on contracts for the supply of digital content (digital content proposal) and the Proposal for a Directive on contracts for online and other distances sales of goods (tangible goods proposal).
State of Play of the two proposals
Representatives of the Commission and leading stakeholders offered their perspectives on the state of play with the two proposals, and how they hoped they would progress in the future. Salla Saastamoinen, Director for Civil and Commercial Justice at DG Justice and Consumers, European Commission, indicated that the Council will push for a general approach on the digital content proposal in June 2017.
Speaking on behalf of BEUC, the European Consumer Organization, Agustin Reyna stated that he viewed the progress on the digital content proposal much more favorably than that on the tangible goods proposal, and referred to the draft report of rapporteur Pascal Arimont as ‘highly negative.’
Meanwhile, on behalf of BusinessEurope, Pedro Oliveira generally expressed his support for the two proposals, while also identifying some issues with provisions on modifications of contract, which he said carried disproportionate obligations. He also stressed the need to ensure that legislation did not undermine the European digital sector, particularly in areas, such as apps and gaming, where EU firms are market leaders.
The Relationship between the Digital Content Proposal and the GDPR
One of the central topics of conversation during the workshop was the manner in which the digital content proposal will interact with the General Data Protection Regulation (GDPR). Several experts in the area of data protection voiced their concerns about the alignment of the proposal as it stands to the GDPR.
Giovanni Buttarelli, the European Data Protection Supervisor, argued that there was a danger of incoherence between the digital content proposal and the GDPR. In particular, Buttarelli warned that data could never be treated like a currency, as a result of the fundamental right to personal data protection. This was echoed by Prof. Wendehorst of the University of Vienna, who argued that the existence of contracts against data risked redefining the importance of free consent with regards to the use of personal data, as laid out in the GDPR.
Dr. Sachiko Scheuing (FEDMA) stressed the importance of respecting contractual freedom in formulating the digital content proposal. She argued that the right to return of data in the digital content proposal went much further than the GDPR, and stated that this should be reconsidered in light of the importance of data to many company’s business models.
Ecommerce Europe also strongly advocates for a digital content Directive that is fully coherent with the GDPR, provides legal certainty and protects personal data, while also respecting online merchants’ contractual freedom and the importance of data to many business models.
Legal Guarantees and Remedies
A further major issue of discussion was the proposed changes both in the digital content and tangible goods proposals to the legal framework for legal guarantees and remedies. Lucy Anderson (S&D, UK), the shadow rapporteur for the tangible goods proposal, criticized the provision to harmonize the maximum legal guarantee period at 2 years, arguing that it did not adhere to the need to pursue the highest possible level of consumer protection.
However, Katja Viertio, Deputy head of Unit, Contract Law at DG Justice and Consumers, European Commission, argued that the two-year level was appropriate, given the results of the Commission’s REFIT exercise, which show that 96% of defects in goods were identified within a two-year period. Ecommerce Europe shares this view, and strongly believes that a harmonized maximum legal guarantee period of two years, as proposed, offers the greatest legal clarity for both merchants and consumers.
For the tangible goods proposal, amendments to the Arimont Report will be considered on the 22-23 March 2017, and the final vote in the IMCO Committee is scheduled for 8 June 2017. For the digital content proposal, amendments to the Gebhardt/Voss Report will be considered on the 22-23 March 2017, and the final vote in a joint session of the IMCO and JURI Committees is scheduled for 30 May 2017. After this, both will be scheduled for the consideration of the plenary session of the European Parliament. Ecommerce Europe will advocate throughout for favorable legislative outcomes for the e-commerce sector.