DIGITALEUROPE welcomes Council’s progress on the Tangible Goods Directive and calls for balanced negotiations with the European Parliament

On 7 December, the Council of the European Union reached a general approach on the Commission’s proposal for a Directive on certain aspects concerning contracts for the sales of goods. Also known as the Tangible Goods Directive, this proposal aims to establish a single set of rules adapted to the digital age, that will increase consumers’ confidence in cross-border shopping and help businesses expand their activities.

DIGITALEUROPE welcomes Member States’ progress and ambitious position on the text and is looking forward to smooth negotiations with the European Parliament.

“The eCommerce sector continues its double-digit growth in Europe with forecasts predicting 13% turnover growth in 2018, amounting to 602 billion euros. The new digital contract rules are necessary for EU consumers and businesses to take full advantage of the Digital Single Market and will be instrumental in unlocking the potential of online shopping across Europe”, commented Cecilia Bonefeld-Dahl, DIGITALEUROPE’s Director- General.

DIGITALEUROPE has always stressed the need for balanced contractual rules that will offer high-level consumer protection and ensure industry’s ability to offer innovative products and services. With upcoming trialogue negotiations, DIGITALEUROPE would like to make two key recommendations:

• Software updates: With the extension of the scope to cover digital content embedded in goods, DIGITALEUROPE acknowledges the need to include rules and obligations on software updates as a conformity requirement. However, we strongly advise co-legislators to limit this obligation to a fully harmonised period of two years as it could be technically impossible to comply with this obligation in Member States where legal guarantee periods are longer. Additionally, we urge negotiators to insert a provision stating that the seller should not be held liable for any lack of conformity update which is due to the consumer’s failure to install an update that the seller has made available to them. Such a provision would avert situations where consumers could refuse updates that happen to be the only way to achieve conformity for a particular good.
• Durability: DIGITALEUROPE advises against the Council and Parliament’s intention to include the concept of ‘durability’ in the list of conformity requirements. Proposed provisions are extremely vague and would be complicated to apply in practice because of the difficulty to ascertain whether a particular good is able to maintain its functions and performance ‘through normal use’. Including durability-related obligations in the Tangible Goods Directive could create confusion in terms of the Directive’s enforcement, as well as disputes between sellers, consumers and manufacturers.