The EC has re-published its Directive on sales of goods to consumers as part of its push to complete its Digital Single Market strategy.

What’s the issue?

On 6 May 2015, the European Commission’s Digital Single Market (DSM) strategy was announced. The scope of the DSM strategy is ambitious, covering a wide range of areas including cross border e-commerce, preventing unjustified geo-blocking, reform of the copyright, audio visual and communications legal frameworks, competition and VAT. The strategy also set down a tight timeframe for achieving the desired changes.

Despite having made significant progress in a number of areas with the launch of 35 legislative proposals and policy initiatives, only six of these proposals have been adopted. In its mid-term review in May 2017, the Commission identified completion of its proposals together with further action on the data economy, cybersecurity and online platforms as priorities.

What’s the development?

The Commission has adopted its 2018 Work Programme. It prioritised completion of the Electronic Communications Code, the proposed copyright reform, cybersecurity proposals and consumer protection proposals. Alongside this, it plans to present proposals on fairness in platform-to-business relations, countering fake news and revising guidelines on significant market power in the electronic communications sector. In addition, it has highlighted facilitating the development of new technologies including autonomous vehicles and AI.

Of particular note is the publication of the revised proposed Directive on online and other distance sales of goods. This is now intended to cover all sales of goods to consumers (rather than online sales only) as the Commission has now decided it would be better to have a single set of rules covering the sale of goods to consumers. The substantive proposals have not changed and, as previously noted, differ from the UK Consumer Rights Act (CRA) in a number of areas including:

  • no short term right to reject;
  • no claim for refund or reduction after a single repair attempt;
  • emerging defect presumed to have been present on delivery for up to two years (rather than six months under the CRA);
  • remedy for defects discovered within two years (whereas it is five years in Scotland and six in the rest of the UK);
  • consumers need to expressly accept known defects (under the CRA, they have to be obvious or drawn to the consumer’s attention);
  • a statutory right to withhold payment of outstanding amounts until defects are fixed (not present in the CRA);
  • less scope for deduction from refund sums payable to the consumer on rejection of goods.

What does this mean for you?

Brexit is obviously an issue in relation to all DSM initiatives which remain incomplete at the date of the UK’s departure. The UK will have to decide whether to keep pace with the EU. The differences between the EC’s consumer proposals and the UK’s CRA, highlight the issues the UK will face as its regime starts to diverge from that of the EU. While the current lack of harmonisation in some aspects of consumer protection law across the EU means that businesses are used to dealing with a fragmented regime, once the UK becomes the ‘odd one out’, whether in consumer protection law or other areas, cross-border trade is likely to become more of a challenge for many businesses.