April 1, 2019

The proposed Directives: i) the Digital Content Directive; and ii) the Sale of Goods Directive, aim to harmonise key contractual rights, such as the remedies available to consumers and the ways to use those remedies, across the EU. 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.

Under the Digital Content Directive, people who buy or download music, apps, games or use cloud services or social media platforms will be better protected if a trader fails to supply the content or service or provides a defective one. These consumer protection rights will apply in an equal manner to consumers who provide data in exchange for such content or a service and to “paying” consumers alike.

The text states 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 cannot be shorter than two years. For continuous supplies, it should apply throughout the duration of the contract.

The Sale of Goods Directive applies to both online and offline (face-to-face) sales, e.g. whether a consumer buys a household appliance, a toy or a computer via the internet or over the counter in a local store.

Under the proposed rules, the trader will be liable if a defect appears within two years from the time the consumer receives the product (Member States may, however, introduce or maintain a longer legal guarantee period in their national laws, in order to keep the same level of consumer protection already granted in some countries). The reversed burden of proof will be of one year in the consumer’s favour. Member states will be 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 the proposed 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.

The two Directives will now be submitted for formal approval to the Council. They will enter into force 20 days after their publication in the EU Official Journal and will need to be implemented by Member States two and a half years after that at the latest. To read the European Parliament’s press release in full and for links to the proposed Directives, click here.