On Tuesday 22 January, the European Parliament (“EP”)and the Council reached a provisional agreement on the proposal for a Directive on certain aspects concerning contracts for the supply of digital content. The compromise text (which is not yet publicly available) reached between the institutions was negotiated on the basis of the EP Report and the Council’s General Approach.
According to the EP press release, the compromise agreement contains the following key provisions:
- Defective digital content or service: if it is not possible to fix it in a reasonable time, the consumer is entitled to a price reduction or a full reimbursement within 14 days;
- Reversal of the burden of proof: if a defect becomes apparent within one year of the date of supply, it is presumed that it already existed at that time, without the need for the consumer to prove it; 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 would apply throughout the duration of the contract;
- For subscriptions to digital content for a period of time, the trader may only modify the content if this is allowed by the contract, the consumer is notified reasonably in advance and is allowed to terminate the contract within at least 30 days of notice.
It should be noted that goods with digital elements (“smart goods”) are to be regulated under the sales of goods directive, on which negotiations are ongoing, and would not be covered by the proposed Directive.
The provisional agreement is expected to be officially confirmed when a deal is reached on the “twin” proposal on contracts for the sale of goods, since the co-legislators treat them as a package.
The provisional agreement is then expected to be confirmed by Member State ambassadors (COREPER) and subsequently endorsed at a joint meeting of the EP’s Internal Market and Consumer Protection (“IMCO”) and Legal Affairs (“JURI”) Committees. Afterwards, it will be submitted to the plenary for adoption during one of its upcoming sessions.
The Council will then be in a position to adopt the directive at a future Council meeting.
Once this last procedural step is completed, the new legislation will be published in the EU Official Journal and enter into force.
For the time being, the Justice and Home Affairs (“JHA”) Counsellors in Civil Law Matters are scheduled to continue today their examination of a document prepared by the Romanian Council Presidency (not yet available) focusing on the two proposals. The European Parliament’s Internal Market and Consumer Protection (“IMCO”) Committee is also scheduled to discuss the outcome of the last trilogue negotiations on 29 January 2019.
Contracts for the sales of goods
The Council adopted its General Approach on the proposal for a Directive on certain aspects concerning contracts for the sales of goods on 7 December 2018. Now the European Parliament and the Council are carrying out trilogue negotiations, with a view to reaching a first-reading agreement. The next round of trilogues is expected to take place on 29 January 2019.
The JHA Counsellors in Civil Law Matters were scheduled to continue their examination of a document prepared by the Romanian Council Presidency on 25 January 2019.
The European Parliament IMCO Committee discussed the proposal on 29 January 2019. During this meeting, the IMCO Committee MEPs were expected to be updated on the progress of trilogue negotiations.
In order for the file to be concluded under the current legislature, trilogue negotiations would need to be concluded by February 2019, to allow for the approval of the resulting compromise text in the European Parliament before the final plenary session starting on 15 April 2019. If an agreement is not reached in time, the proposal will have to be delayed until the new Parliament is elected.
Should the European Parliament and the Council reach an agreement during trilogues, the text of the agreement will be submitted to European Parliament for approval. Once adopted in plenary, the text will be formally approved by the Council. It will then be published in the Official Journal and enter into force.