Panel I: From CESL to the Digital Single Market

The first panel of the Annual Conference could not have been more topical and relevant, since the very same day the European Commission closed its public consultation on contract rules for online purchases of digital content and tangible goods.

Lord John Thomas, then Lord Chief Justice of England and Wales, chaired the panel session and remarked that the Digital Market is probably one of the biggest changes that society is undergoing and that it is essential for Europe’s citizens to know how the law on the Digital Market is shaped. Lord Thomas noted that in this sense the Digital Single Market establishes the centrality of law to society, which is becoming ever more digitised and that the ongoing work on the Digital Single Market provides a real opportunity to take European contract law forward.

Christiane Wendehorst, Professor of Law at the University of Vienna, discussed the two main points of the public consultation: the supply of digital products on the one hand, and the online sale of tangible goods on the other. Regarding the online sale of tangible goods, Professor Wendehorst highlighted the risk that the instrument which is being prepared would come at a higher cost to national legal systems than what the CESL proposed, if the result would be a full harmonisation instrument. Regarding the supply of digital products, she reminded that any legislative action would have to be focused on the concerns of the users of digital products in the EU. She presented a list of ten focal points of concern and debate, including issues of data privacy, a right to receive updates, a right to re-sell digital content, and rights and duties of platform providers. It would be difficult to capture all those concerns under the umbrella of ‘quality’ or ‘conformity’, because, even if defined broadly, ‘conformity’ is an issue mainly when the product falls short of what the supplier himself provided as a description and/or industry standards set by the big global players. Here again, what was needed were more specific and comprehensive solutions.

Axel Metzger, Professor of Law at Humboldt University, observed that digital goods, which will be covered by the expected EU instrument, are now covered by IP law, and it would be interesting to try to bring such agreements under the umbrella of sales law, because sales law provides higher minimum rights to users. Professor Metzger discussed a number of issues that merit special attention in this regard. Firstly, there are different types of contracts that fall under the online purchase of digital content and the same rules would not necessarily fit them, such as contracts for digital goods and for digital services. Secondly, he pointed out that the counter performance of the purchaser under these contracts can be very different and range from simple monetary payments to the customer handing over information or data. Thirdly, he noted that the Commission should consider the consumer’s right of resale in the expected instrument, because at the moment different rules apply to that right, depending on the type of digital goods. Professor Metzger also emphasised the need to carefully consider interoperability issues and whether they should be addressed by establishing information requirements or as criteria for conformity and quality. Finally, he mentioned portability and the need to cover it in an instrument in this field. According to Professor Metzger, all these issues could be hard to cover by a mere contract law scenario and the EU legislator should introduce a holistic approach that addresses real consumer concerns even if they are not contract concerns.

After fruitful discussions, Lord Thomas closed the panel, reminding the audience that the ELI´s work in this field has to keep in mind that the benefits of any new instrument should be for the consumer.