New proposals for digital contracts rules: European Commission makes first good step to foster cross-border e-commerce


Ecommerce Europe is overall satisfied about the proposals that the European Commission published today to harmonize consumer protection and contract rules across the European Union for the supply of digital content and the distance sales of tangible goods. The European Union needs a balanced and future-proof legal framework for consumer and contractual policies and Ecommerce Europe is convinced that this is a first good step in that direction.

Ecommerce Europe welcomes the maximum targeted harmonization approach adopted by the Commission for the distance sales of tangible goods and the supply of digital content to consumers. The European e-commerce association is particularly satisfied that the directives will apply to both domestic and cross-border distance sales of tangible goods and supply of digital content. “We are confident that the directives will have the effect that rules will be uniform and easy to understand for both consumers and businesses, and this will help in fostering cross-border e-commerce in Europe”, declared Ms. Marlene ten Ham, Secretary General of Ecommerce Europe. However, the European e-commerce association has some remarks on the proposals.

Commission’s commitment on offline sales

Ecommerce Europe believes that it is unfortunate that the scope of the proposal on tangible goods does not include offline sales, since in a modern retail sector a shop should be able to easily offer different sale combinations (online and offline/cross-channel sales, sales of tangible goods, services and/or digital content) without any unreasonable legislative burdens for traders. Nevertheless, the European Commission has made the commitment that the rules proposed today for the distance sales of tangible goods could be modified during the legislative process by expanding, for instance, the scope to cover also offline sales.

Legal guarantee period

Ecommerce Europe welcomes the maximum harmonization at two years for the legal guarantee period for tangible goods, even though such a clear period for the supply of digital content – currently missing – would also be welcomed. Concerning tangible goods, Ecommerce Europe has also concerns about extending the period for the reversal of the burden of proof to two years, because the proposal does not provide for any notification period in which the consumer has to notify the non-conformity to the traders. Therefore, Ecommerce Europe foresees even more chances to bring the rules on the reversal of the burden of proof more in alignment for both digital content and tangible goods.

Remedies and non-conformity

Ecommerce Europe is pleased to see that distance sellers of tangible goods and suppliers of digital content will have a clear right to be entitled to pursue remedies against the person in the chain of transactions who is responsible for the non-conformity because of his/her act or omission. Also, the fact that the rules for non-conformity and remedies are – as much as possible – aligned for both the distance sale of tangible goods and the supply of digital content is a positive aspect for online traders. Ecommerce Europe believes that it is a missed opportunity that non-conformity for services has not been included in the scope of the proposals, since including this kind of product would have brought even more harmonization.

Finally, even though Ecommerce Europe does support a clear hierarchy for remedies as proposed in the texts published today by Commission, the association does not support the fact that the proposed choice for remedies is initially placed with the consumer. A system where the initial choice on how to repair the non-conformity is with the trader would be preferable.

Ecommerce Europe is confident that, during the legislative process, the European legislators will listen to the voice of the e-commerce industry in the same constructive manner that the European Commission did in the past months during the preparations of the proposals.

For a detailed overview of Ecommerce Europe’s recommendations on consumer policies, please click here to read the full position paper.