Council of the EU's position on new rules for supply of digital content

On 8 June 2017, the Council of the EU adopted its position on a proposed directive setting out new rules for business-to-consumer contracts for the supply of digital content and digital services. This follows the European Commission's proposal for the directive in December 2015, along with other proposals regarding the Digital Single Market.

The proposed directive aims to provide a high level of consumer protection and legal certainty for European consumers, particularly when purchasing cross border digital content and services. It also intends to make it easier for businesses, especially SMEs, to sell content and services across the EU. Key elements of the Council's approach include:

• Scope of directive: it will include "embedded" digital content, "over the top" interpersonal communications services ( i.e. OTT), bundle contracts and the processing of personal data
• Remedies for lack of supply: to balance the interests of both consumers and suppliers, suppliers should be allowed a "second chance" in case of lack of supply before the contract can be terminated.
• Remedies for non-conformity: the text provides more flexibility for implementing the directive at the national level by setting out conditions for using the different remedies, rather than establishing a strict hierarchy between the different remedies.
• Limits for supplier's liability: to take into account differences at the national level, the compromise text does not fully harmonise prescription or guarantee periods, but states that the liability of the supplier for cases of lack of conformity may not be shorter than two years.
• Reversal of burden of proof: The burden of proof for lack of conformity rests with the supplier is set at one year.

The European Parliament is expected to announce its position on the proposed directive by Autumn 2017. The final text of the proposed directive must be agreed by the European Parliament and the Council as co-legislators.

Click here for the Council's press release