Goods with Digital Elements, Digital Content and Digital Services in Directives 2019/770 and 2019/771

Abstract

Directives 2019/770 and 2019/771 are a new set of complimentary maximum harmonisation directives which will greatly modernise European Contract and Consumer Law.

Both directives focus on the matters of conformity and of the remedies for the lack of it, with different objective scopes of application. Directive 2019/770 is applicable to contracts for the supply of digital content and digital services, a previous unregulated area in EU law and in many Member States, a subject in dire need of intervention. Directive 2019/771 replaces the old Directive 1999/44/EC with an updated framework for the online and offline sale of goods, including the case of goods with incorporated or inter-connected digital services or content (referred to as goods with digital elements).

The Directives greatly improve on the old concept of conformity with the contract (including a new obligation to supply updates continuously for a reasonable period) and the effects of the remedies available to consumers. Directive 2019/770 also includes provisions on the matter of modifications beyond the scope of conformity, creating a fairer and more transparent contractual relationship between consumers and traders.

However, these directives are not without controversy. Many legal challenges are raised, with notable emphasis on the restrictive notion of consumer and the provision of personal data as a counter-performance.

Keywords: Consumer Law, Digital Service, Digital Content, Directive, Contract, Conformity, Modification, Update

JEL Classification: K12, K13, K24