Directive 1999/44 currently applies to certain aspects of the sale of consumer goods, such as conformity with the contract and the remedies available in the event of non-conformity. Soon, it will no longer apply and it will be replaced by a twofold (and more complex) regime laid down in Directive 2019/771 of 20 May 2019 on certain aspects concerning contracts for the sale of goods (the “Sale of Goods Directive”), and in Directive 2019/770 of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services (the “Digital Content and Services Directive”). These new directives cover issues such as conformity with the contract and burden of proof thereof, remedies, time limits for trader/seller liability, interoperability of digital content, etc.
Both directives are part of the EU’s Digital Single Market strategy and aim to develop the full potential of the Internal Market (i) by eliminating obstacles to cross-border trade as a consequence of diverging national legislations, and (ii) by modernising EU consumer law in view of the increasing volume of contracts relating to the supply of digital contents and services (such as mobile apps, video games, cloud computing services, etc.).
In general, the Sale of Goods Directive will apply to sales contracts for tangible goods concluded between a consumer and a professional seller. The Digital Content and Services Directive will apply to any contract where a professional trader supplies digital content or a digital service to a consumer and this consumer pays a price in return. Subject to certain conditions, the Digital Content and Services Directive will also apply in the event that the consumer does not pay a price but instead provides personal information to the trader. In the case of “hybrid contracts” involving the supply of both tangible items and digital content or services, specific rules exist in order to determine whether the Sale of Goods Directive or the Digital Content and Services Directive should apply.
Although the Sale of Goods Directive and the Digital Content and Services Directive contain similar provisions, they are not identical and sometimes even quite different. Furthermore, they do not systematically address the same issues. For example, only the Sale of Goods Directive contains provisions about commercial guarantees.
Here is a brief overview of some of the notable issues covered by the directives:
- criteria for the assessment of the conformity of the goods, digital services or digital contents with the contract;
- legal remedies available to consumers in the event of non-conformity (i.e. having the goods or digital content or services brought into conformity, price reduction or termination of the contract), while leaving room for the application of certain remedies provided for in general national contract law;
- obligations of Member States to ensure that consumers may invoke any lack of conformity appearing within a certain period of time – variable depending on the situation – starting from when the goods are delivered or when the digital content or services are supplied;
- a presumption that a lack of conformity already existed at the time when the goods were delivered or the digital content or services supplied, for a certain period of time (variable depending on the situation);
- rules regarding the consequences of the termination of the contract;
- provisions regarding modifications by the supplier of digital content or services that are provided over a certain period of time.
Member States have until 1 July 2021 to transpose these measures into national legislation and will be required to apply them as from 1 January 2022. It should be noted that, on that date, most of the provisions of the Digital Content and Services Directive will also apply to the contracts current at that time (i.e. not only to contracts concluded as from 1 January 2022).
Please contact Karel Janssens for further information regarding the above and/or for general advice on the Digital Single Market.