The European Commission recently opened a consultation into the contract law barriers to sale of goods and digital content across the EU. The consultation is part of the EU's Digital Single Market Strategy of digital content and tangible goods.

Background consultation

One of the barriers hindering the cross-border e-commerce activities identified by the EC is the diversity of contract rules that apply in cross-border sales within the EU.

The EC recognises that this diversity may deter traders from expanding their e-commerce activities to other Member States, while it creates costs for traders who adapt their contracts or increases the legal risk for those who do not. For example, goods sold to consumers may – depending on the Member State the consumer is residing –be subject to a two years, five year or flexible mandatory statutory warranty period. Furthermore, agreements for the supply of digital content products may be characterised in the different Member States as service agreements, sales agreements, or lease agreements, resulting in different legal regimes applicable to agreements regarding the supply of digital content products in these Member States. As a result, the EC is of the opinion that this diversity may cause legal uncertainty for businesses about their obligations – and for users about their rights- when selling online (digital content) products both domestically and cross-border.

Opening of a consultation

With this new public consultation the EC strives to collect interested parties’ views on the possible solution of the problems this diversity of regulations on contracts for online sales brings about.

The EC invites all interested parties to participate in the consultation by concluding a questionnaire found on its website.  

This questionnaire covers various topics. For example:

  • the EC invites the participants to assist in identifying the appropriate scope of any future initiative encompassing the limitation of barriers to cross-border e-commerce activities caused by the diversity of the contract rules within the EU.
  • the questionnaire contains questions regarding the identification of main areas of contract law that currently are considered to be problematic.
  • furthermore, participants are invited to give their opinion about the scope of any future initiative and whether it should be limited to business-to-consumers transactions only or whether measures to remove contractual barriers should also apply to business-to-business transactions.
  • other relevant topics included in the questionnaire are the potential place of the burden of proof in case of defective digital content products, potential (mandatory) remedies available to consumers in case of defective digital content products, and potential time limits related to such remedies.

Action

The EC's online consultation questionnaire can be found here.