Harmonising Private Law in Cyberspace: The New Directives in the Digital Single Market Context

Abstract

This article is an overview of the latest developments in EU private law in the Digital Single Market context. After several years of uncertainty, in 2019 the EU adopted directives on the sale of goods (Directive 2019/771) and distance sale of content and services (Directive 2019/7770). Both directives are an important upgrade of the present consumer protection regime as well as an addition to the significant list of instruments promised in the 2015 Digital Single Market strategy. This article has two purposes: the first is to establish that the directives are not completely novel but are a result of the tradition dating to Principles of European Contract Law (PECL), Draft Common Frame of Reference (DFCR) and Common European Sales Law (CESL). We also aim to question the basic suitability of civil law as a tool for regulating the Digital Single Market, in particular in light of the new technologies (AI, smart contracts, big data, robotics, etc.) We conclude that, while the directives are an important addition to the body of harmonized EU private law, the problems of new technology may need to be addressed separately and that, technology on occasion (e.g. smart contracts) has the capacity to fulfil the tasks used to be given to civil law.

Keywords: EU private law, Digital single market, Sale of goods, Distance sales, Contract law, European sales law

JEL Classification: K12, K20, K30