One of the three pillars on which The Digital Single Market Strategy, adopted by the Commission on 6 May 2015, is based, is to build better access for consumers and businesses to digital goods and services across Europe. Such an aim cannot be reached without a robust set of rules to ensure the rights of consumers are respected. For consumers to have confidence in the rules it is necessary that they are clear, consistent and easily enforceable.
The European Commission has acted in parallel, presenting two proposals for Directives, one on the online provision of goods, and one on the supply of digital content, and at the same time launching a REFIT of the entire European Consumer Law.
The proposed Directives attempt to regulate aspects of the relationship between traders and consumers based on the means of purchase (on line and distance) or on the content of the purchase (digital content), but not the type of contract, which is irrelevant. They also look at conformity, remedies and enforcement.
Regarding the REFIT of European Consumer Law, a public consultation has been launched as an exercise within the Fitness check to evaluate if the current directives are fit for purpose on the basis of the following criteria: effectiveness, efficiency, coherence, relevance and EU added value.
The following six directives are subject to this Fitness Check:
- Unfair Contract Terms Directive 93/13/EEC (UCPD);
- Consumer Sales and Guarantees Directive 1999/44/EC (CSGD);
- Unfair Commercial Practices Directive 2005/29/EC (UCPD);
- Price Indication Directive 98/6/EC (PID);
- Misleading and Comparative Advertising Directive 2006/114/EC (MCAD);
- Injunctions Directive 2009/22/EC (ID);
- In addition, this consultation covers also the Consumer Rights Directive 2011/83/EU (CRD) which is subject to a separate evaluation.
The Commission is trying to find out if and how the EU rules have been beneficial to consumers and businesses, identify problems in the protection of consumer rights and judge the effectiveness of redress and enforcement mechanisms in protecting consumer rights and identify areas for improvement.
There are however practical considerations around the timing of two proposed Directives, since it is not clear how these interact with the REFIT of the consumer acquis and the announced revision of the Consumer Rights Directive. The tangible goods proposal introduces different rights for consumers in online and offline sales without offering a valid justification for this discrepancy, and although the digital content proposal tackles previously uncharted territory, it still seems illogical to propose new legislation before the existing legislative framework has been properly reviewed. It would make more sense to introduce new legislation alongside amendments to the existing body of law to ensure consistency.