On 20 may 2019, the Council of the European Union and the European Parliament have adopted two directives:
- The Directive (EU) 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services (the "Digital Content Directive"); and
- The Directive (EU) 2019/771 on certain aspects concerning contracts for the sale of goods (the "Sales of Goods Directive"').
The aim is to achieve a genuine digital single market. These directives complete and exist together with the Directive 2011/83/UE on consumer rights.
What is the relevance of these new directives?
European Union aims to make it easier and safer for consumers to buy and for companies to sell cross-border providing legal certainty and a high level of protection for European consumers. Both directives are based on the principle of maximum European harmonization. This means that Member States shall not maintain or introduce provisions diverging from those laid down by these directives, including more or less stringent provisions to ensure a different level of consumer protection, except otherwise provided by the concerned directive.
The Digital Content Directive
This directive provides a high level of protection to consumers paying for or providing personal data in exchange of digital content and services. The protection of consumers where a service or product is paid by means other than money in the strict sense is an important step towards achieving a high level of protection for European consumers. Furthermore, where a consumer provides personal data in exchange, all GDPR dispositions remain applicable and permit to protect the consumer's personal data.
The scope of the Digital Content Directive includes, among others, data produced and supplied in digital form, services allowing for the creation, processing (Netflix, etc.) or storage of data in digital form, services allowing sharing data (including social media network), OTTs and any durable medium used exclusively as a carrier of digital content. For example, the Digital Content Directive covers e-books, computer programs, video files, music files, video-on-demand, etc.
Concerning new rules introduced by the Digital Content Directive, it imposes that digital contents or services fit to their expected purposes and have the qualities and performance features, which the consumer may reasonably expect. This directive also aims at harmonising remedies for lack of conformity (conformity, proportionate reduction in the price, termination of the contract). Furthermore, the Digital Content Directive imposes a minimum legal guarantee: (i) no shorter than two years from the time of supply for single act of supply; and (ii) within the period of time during which the digital content or service is to be supplied under the contract for continuous supply.
Interaction between both directives
The Sale of Goods Directive applies to the sale of all goods, including products with a digital element incorporated or inter-connected. In case of doubt as to whether the supply is an incorporated or inter-connected digital content or service, the Digital Content Directive provides that the digital content or service shall be assumed to be covered by the sales contract and thus by the Sale of Goods Directive.
The date of entry into force of these directives is the 11th of June 2019. Member States shall adopt the necessary measures to comply with the directives at the latest on 1st of July 2021 and they shall apply those measures as from 1st of January 2022.