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Earlier this year the European Union shelved the idea for a Common European Sales Law. It also published its Digital Single Market Strategy. One of its pillars was to ensure better access for consumers and businesses to online goods and services across Europe - it is felt that the Digital Market does not achieve its potential, with resulting costs to consumers and businesses.
The European Commission has therefore adopted two new proposals for Directives: one on the supply of digital content such as streaming music, and one on the online sale of goods, such as buying books online.
So CESL returns in a new form, albeit that the new rules are less wide in their scope, and take the form of Directives rather than a Regulation.
The Directive on digital content includes the following key provisions:
(a) if the digital content is defective, the consumer can ask for a remedy. There will be no time limit to the supplier's liability for such defects, because, unlike goods, digital content is not subject to wear and tear.
(b) if the digital content is defective, it will not be up to the consumer to prove that the defect existed at the time of supply, but rather for the supplier to prove that this was not the case.
(c) consumers will have the right to terminate long-term contract and contracts to which the supplier makes major changes.
(d) if the consumer has obtained digital content or a service in exchange for personal data, the new rules clarify that the supplier should stop using the data if the contract ends.
The Directive on goods includes the following key provisions:
(a) in the EU it is already the case that for a certain period of time a consumer asking for a remedy for a defective product does not have to prove that the defect existed at the time of delivery, it is up to the seller to prove the opposite. Currently the time period during which the seller has this burden of proof varies by member state. Under the new rules it will be extended to two years throughout the EU.
(b) consumers will not lose their rights if they do not inform the seller about a defect within a certain period of time, as is currently the case in some member states.
(c) if the seller is unable or fails to repair or replace a defective product, consumers will have the right to terminate a contract and be reimbursed also in the case of minor defects.
(d) for second hand goods purchased online, consumers will be able to exercise their rights within a two year period as is the case with new goods.
The rules fully harmonise the rules on goods and digital content. Businesses that have only recently changed their processes and marketing to comply with the Consumer Rights Directive and the UK Consumer Rights Act 2015 will be groaning at the prospect of more change especially as there is already talk of changes to terms and conditions with the Which? project to consider them.
It also remains to be seen if a fully harmonised approach will actually remove or reduce rights for UK consumers that have been introduced by the Consumer Rights Act. That said, as the proposals are for Directives rather than a Regulation, there may be some leeway for the UK implementing legislation to interpret the provisions as closely to the Consumer Rights Act as possible. Trying to fit EU and UK consumer law together has led to problems in the past. In fact, one of the reasons for introducing the Consumer Rights Act was to remove a fragmented approach and inconsistencies, so hopefully if these Directives are passed, they will be implemented in a more efficient way.
As ever it would be good to hear your views.
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