COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposals for Directives of the European Parliament and of the Council (1) on certain aspects concerning contracts for the supply of digital content and (2) on certain aspects concerning contracts for the online and other distance sales of goods
Date: 2015-12-09
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: approximation of laws, commercial contract, consumer protection, contract, digital technology, electronic commerce, information society, single market

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 9.12.2015  SWD(2015) 274 final   COMMISSION STAFF WORKING DOCUMENT  IMPACT ASSESSMENT  Accompanying the document Proposals for Directives of the European Parliament and of the Council  (1) on certain aspects concerning contracts for the supply of digital content   and   (2) on certain aspects concerning contracts for the online and other distance sales of goods  {COM(2015) 634 final} {COM(2015) 635 final} {SWD(2015) 275 final}  
 
 
1  WHAT IS THE PROBLEM AND WHY IS IT A PROBLEM .................................. 4 

TABLE OF CONTENTS 

1.2.1 
1.2.2 

Introduction ....................................................................................................... 4 
1.1 
1.2  Business-to-consumer (B2C) contracts ............................................................. 7 
Existing legal framework .................................................................... 7 
Problem  1:  Differences  in  consumer  contract  law  rules  hinder 
traders  from  selling  digital  content  and    goods  online  cross-
border ................................................................................................. 10 
Problem  2:  Consumers  are  not  confident  when  buying  digital 
content and  goods online cross-border ............................................. 13 

1.2.3 

1.2.4  How would the problem evolve in the absence of EU action: No 

policy change/baseline scenario ........................................................ 16 
1.3  Business to Business (B2B) contracts ............................................................. 18 
Existing EU legal framework for B2B transactions .......................... 18 

1.3.1 
1.3.2  Contract law rules do not seem to be a major hindrance for cross-

border B2B online transactions ......................................................... 19 
Specific issues related to digital content in the B2B context ............ 20 

1.3.3 

2  WHY DOES THE EU NEED TO ACT? .................................................................. 21 

3  WHAT SHOULD BE ACHIEVED? ........................................................................ 22 

4  WHAT ARE THE VARIOUS OPTIONS TO ACHIEVE THE OBJECTIVES? .... 22 

4.1  Scope: B2C transactions .................................................................................. 22 
4.2  The options ...................................................................................................... 23 
Option 1 - Setting up targeted, fully harmonised rules for the supply of digital 

content and targeted, fully harmonised rules for online sales of goods .......... 23 

Option 2 - Setting up targeted, fully harmonised rules for the supply of digital 
content  /  Application  of  the  trader's  law  combined  with  the  existing 
harmonised rules on goods .............................................................................. 23 

Option 3 - Setting up targeted, fully harmonised rules for the supply of digital 

content / No policy change for goods .............................................................. 24 

Option 4 – Minimum harmonisation rules for the supply of digital content / No 

policy change for goods .................................................................................. 24 

Option  5  –  A  voluntary  European  model  contract  combined  with  an  EU  trust 

mark ................................................................................................................. 25 
4.3  Discarded options ............................................................................................ 25 

5  WHAT ARE THE IMPACTS OF THE DIFFERENT POLICY OPTIONS AND 

WHO WILL BE AFFECTED? ................................................................................. 26 

5.1  No policy change/baseline scenario: See Section 1.2.4 .................................. 26 
5.2  Option  1:  Setting  up  targeted,  fully  harmonised  rules  for  the  supply  of 
digital  content  and  targeted,  fully  harmonised  rules  on  online  sales  of  
goods ............................................................................................................... 26 

2 

 
 
 
5.3  Option  2:  Setting  up  targeted,  fully  harmonised  rules  for  the  supply  of 
digital  content  –  Application  of  the  trader's  law  combined  with  the 
existing harmonised rules on goods ................................................................ 31 

5.4  Option  3:  Setting  up  targeted,  fully  harmonised  rules  for  the  supply  of 

digital content – No policy change for goods .................................................. 34 

5.5  Option  4:  A  minimum  harmonisation  Directive  setting  up  rules  for  the 

supply of digital content – No change for goods ............................................. 36 
5.6  Option 5: A voluntary model contract, combined with an EU trust mark ...... 38 

6  HOW DO THE OPTIONS COMPARE? .................................................................. 40 

6.1  Comparison of Policy Options ........................................................................ 40 
6.2  Preferred Policy Option ................................................................................... 45 
Nature of the instrument and legal basis ................................................................... 45 
Digital content ........................................................................................................... 46 
Types of digital content covered ...................................................................... 46 
Substantive content – areas of law covered .................................................... 46 
Goods ........................................................................................................................ 48 
Substantive content – areas of law covered .................................................... 48 

7  HOW WOULD ACTUAL IMPACTS BE MONITORED AND EVALUATED? .. 53 

3 

 
 
 
 
1  WHAT IS THE PROBLEM AND WHY IS IT A PROBLEM 

1.1 

Introduction 

Context  

Following  the  Guidelines  of  President  Juncker,  the  European  Commission  has  set  the 
creation of a Digital Single Market as one of its key priorities to generate additional growth 
in Europe. The Digital Single Market Strategy1 identified as one of its three main pillars to 
boost the EU’s digital economy "better access for consumers and businesses to online goods 
and services across Europe".  

The Digital Single Market Strategy considers e-commerce as a main driver for growth. The 
e-commerce market has indeed grown rapidly in recent years within the overall retail sector. 
According to Ecommerce Europe, the value of retail e-commerce in the EU in 2014 reached 
a total of €370 billion and grew by 13.4%% compared with 2013.2 Others estimate the online 
retail  sales  growth  at  an  average  annual  rate  of  22%  in  the  period  2000-2014,  surpassing 
€200 billion in 2014 and reaching a share of 7% of total retail in the EU.3 The Commission's 
recent estimate4 is within the range of the above estimates at €231 billion (around  1.8% of 
EU GDP). Enterprises' turnover from retail e-commerce as a share of total retail turnover has 
risen by 85% from 2009 to 2014.5 In the same period final expenditure of households (which 
follows retail sales in terms of volume and trends) only increased by 2.8%, showing again 
that retail trade is growing much faster online than offline.6 

However, e-commerce still has a significant untapped potential. The share of e-commerce in 
the total retail sector remains significantly lower in Europe compared to the United States: In 
2014, the share of e-commerce in total retail was 7.2% in the EU compared to 11.6% in the 
USA.7  A  main  reason  why  the  EU  is  currently  lagging  behind  the  US  on  exploiting  the 
growth potential of e-commerce is the insufficient development of cross-border e-commerce 
within  the  EU.  In  2014,  only  12%  of  EU  retailers  sold  online  to  consumers  in  other  EU 
countries,  while  more  than  one  third  (37%)8  did  so  domestically.  Only  15%  of  EU 
consumers  purchased  online  from  another  EU  country  in  2014,  while  44%  did  so 
domestically.9  As  for  traders'  online  purchases,  a  very  large  majority  (83.3%)  are  made 
domestically, with only an average of 12.2% coming from other EU countries.10  

Thus,  instead  of  taking  full  advantage  of  the  opportunities  of  the  Digital  Single  Market, 
businesses  and  consumers  are  too  often  constrained  to  their  own  domestic  markets.  The 
Digital  Single  Market  Strategy  however  promotes  better  access  for  consumers  and 
businesses to online trade of goods and services across Europe. The aim is for EU businesses 
to become more competitive by being able to sell more easily to more than just their national 
or  a  couple  of  neighbouring  national  markets.  An  increased  offer  would  also  strengthen 
competition in the markets. This would not only bring consumers a wider choice of products 

1 

2 

3  
4 

5  
6  
7 
8  

Commission  Communication  'A  Digital  Single  Market  Strategy  for  Europe',  COM  (2015)  192  final,  available  at:  http://ec.europa.eu/priorities/digital-single-market/docs/dsm-
communication_en.pdf 
European B2C E-commerce Report 2015. Ecommerce Europe. Excluding Bulgaria, Cyprus, Croatia, Lithuania, Luxembourg, Malta, Slovenia and Slovakia for which data are not 
available. http://www.ecommerce-europe.eu, p.29  
Euromonitor International data quoted in Duch-Brown N. and Martens B. “The European Digital Single market”, JRC IPTS Digital Economy Working Paper, forthcoming 2015 
Estimate  based  on  the  results  of  the  "Consumer  surveys  identifying  the  main  cross-border  obstacles  to  the  Digital  Single  Market  and  where  they  matter  most",  GfK,  2015, 
http://ec.europa.eu/consumers/consumer_evidence/market_studies/obstacles_dsm/docs/21.09_dsm_final_report.pdf  
From 3.9% to 7.3%, Eurostat, E-commerce by enterprises: summary of EU aggregates (NACE Rev. 2 activity) [isoc_ec_eu_en2]- 
Eurostat, National Accounts 2014, excluding Bulgaria Cyprus, Croatia, Lithuania, Luxembourg, Malta, Slovenia and Slovakia    
http://www.retailresearch.org/onlineretailing.php 
Flash 
http://ec.europa.eu/COMMFrontOffice/PublicOpinion/index.cfm/Survey/getSurveyDetail/instruments/FLASH/surveyKy/2032 
Eurostat survey on ICT usage in households and by individuals (2014), isoc_ec_ibuy 

Eurobarometer 

cross-border 

protection” 

“Retailers’ 

consumer 

attitudes 

towards 

(2015), 

trade 

p.27, 

396 

and 

Eurobarometer 

413 

"Companies 

engaged 

in 

online 

activities" 

(2015) 

p.61, 

9 
10   Flash 

http://ec.europa.eu/COMMFrontOffice/PublicOpinion/index.cfm/Survey/getSurveyDetail/instruments/FLASH/surveyKy/2058 

4 

 
 
                                                 
 
at  more  competitive  prices,  but  also  increase  their  confidence  to  buy  abroad  because  they 
would trust the high level of European consumer protection.  

However,  the  commercial  and  technological  pace  of  changes  due  to  digitalisation  is  very 
fast. If EU businesses are to become more competitive and if EU consumers are to have trust 
in  high-level  EU  consumer  protection  standards  allowing  them  to  engage  in  the  Digital 
Single  Market,  the  EU  needs  to  act  now  to  reap  the  benefits  of  digitalisation.  Otherwise, 
changes may come too late and opportunities could be lost.  

Approach 

Within this context, in order to quickly strengthen the competitiveness of EU businesses and 
boost EU growth, the Commission decided to deal as a priority with the digital dimension of 
retail,  namely  the  supply  of  digital  content  and  the  online  sales  of  goods.  Already  the 
Political  Guidelines  of  President  Juncker  announced  "ambitious  political  steps  towards  a 
connected Digital Single Market notably … by modernising and simplifying consumer rules 
for online and digital purchases”. The Digital Single Market Strategy includes in its list of 
key  actions  both  "harmonised  EU  rules  for  online  purchases  of  digital  content"  and  "key 
mandatory EU contractual rights for domestic and cross-border online sales of goods". Both 
these aspects of this digital supply/sales dimension are fundamental and need to be addressed 
together.  

The barriers to the supply of digital content clearly need to be addressed because the supply 
of  digital  content  has  a  particularly  strong  growth  potential.  Any  delay  regarding  digital 
content entails the risk that legal fragmentation and hence barriers to trade will increase, as 
some  Member  States  have  already  legislated,  others  are  doing  so  and  others  still  can  be 
expected to follow if no action is taken at EU level. 

Goods  still  represent  by  far  the  biggest  share  of  the  online  market:  of  the  €231  billion 
estimated  total  size  of  the  Digital  Single  Market,  some  €212  billion  stem  from  retail  in  
goods.11 The Digital Single Market potential would not be unleashed if only digital content, 
but  not  online  sales  of  goods,  was  addressed.  In  order  to  have  a  sizeable  impact  on  the 
overall  EU  economy,  the  online  sales  of  goods  also  needs  to  be  facilitated.  In  President 
Juncker's progress report12 on the European Commission's 10 Priorities, the need to "remove 
the  barriers  that  today  hamper  you  from  buying  online  the  pair  of  shoes  you  want  from 
another  Member  State"  is  mentioned  as  a  practical  example  among  many  others.  Online 
sales  of  goods  are  however  not  only  important  from  the  angle  of  business  turnover,  but 
require also a specific attention from the angle of creating consumers' trust into the Digital 
Single  Market.  It  is  important  to  give  clear  rights  to  consumers  in  order  to  mitigate  the 
distance-related  risks  (no  in-person  contact  with  the  seller,  no  "touch  and  feel"  of  the 
product) inherent to these transactions. 

Moreover, there is a particular reason coming out of the consultation process why any rules 
on the online sales of goods should be addressed together with the rules on digital content. 
The  already  mentioned  risk  of  legal  fragmentation  stemming  from  emerging  national 
legislations on digital content creates an urgent need for the EU to establish quickly uniform 
rules in order to avoid even more obstacles to the cross-border supply of digital content. One 
important trend emerging from the different consultations which the Commission has run for 
the preparation of the present initiative was that any rules on digital content should be as far 
as possible based on the rules on the sales of goods, deviations being justified only to take 
account of the specificity of digital content. Indeed this approach is appropriate and has been 
followed. To ensure such a consistent approach also during the legislative process, both sets 
of rules should be discussed as far as possible in parallel. 

Including services sold online, but consumed offline. 

11  
12   See under http://ec.europa.eu/priorities/soteu/docs/priorities-progress-report_en.pdf 

5 

 
                                                 
In its approach,  the Commission specifically also takes into account the lessons learnt from 
the proposal for a Regulation on a Common European Sales Law and the legislative process 
leading  to  the  Consumers  Rights  Directive.  The  idea  of  an  optional  instrument  has  been 
abandoned and it is no longer attempted to deal with an area where problems are identified in 
a comprehensive manner. Instead, the proposed initiative will be targeted and focused on key 
national  mandatory  consumer  contract  law  rules  which  create  obstacles  to  cross-border 
trade.13 

Complementarity and coherence with the REFIT exercise 

The context and approach as described above show that it is opportune to act fast on digital 
content and the online sales of goods. At the same time, it is recognised that harmonising the 
rules on online sales of goods has one downside, i.e. the risk to have rules on the online sales 
of goods which are different from the rules on the offline sale of goods. This could mean that 
retailers who are selling both online and offline would have to apply a different regime and 
that consumer rights may vary depending on whether they purchase online or offline. Given 
the  increasing  importance  of  the  omni-channel  distribution  model  (i.e.  selling  at  the  same 
time via multiple channels such as directly in a shop, online or otherwise at a distance), the 
Commission will take steps to avoid such a result and ensure that consumers and traders will 
indeed be able to rely on a coherent legal framework which is simple to apply everywhere in 
the EU. 

Therefore, together with the current work on this digital dimension, the Commission has, in 
the context of its Regulatory Fitness and Performance Programme (REFIT), launched an in-
depth analysis of the existing EU consumer legislation. This Fitness Check is considerably 
broader than the current initiative as it covers a number of consumer law directives, notably 
the Unfair Contract Terms Directive14, the Consumer Sales and Guarantees Directive,15 the 
Unfair  Commercial  Practices  Directive16,  the  Price  Indication  Directive17  the  Injunction 
Directive18 and the Misleading and Comparative Advertising Directive19.  

Data  from  the  Fitness  Check  Analysis  on  the  application  of  the  Consumer  Sales  and 
Guarantees Directive to off-line sales of goods are likely to be available in the 2nd half of 
2016. While these data and therefore the outcome of the Fitness Check exercise on this point 
are not known at this stage, its possible conclusions pointing to the need for a Commission 
initiative on the offline sales of goods could feed into the progress made by the co-legislators 
on the proposal on online sales of goods.  

In this way the discussions on offline sales of goods will not have to start at zero and repeat 
issues that have already been discussed and agreed for the online sales of goods. This also 
means that any difference in the dates of entry into force of rules on the online and offline 
sales of  goods could be reduced, or even aligned by the co-legislators if they so choose thus 
actually  avoiding  any  risk  of  different  regimes  for  online  and  offline  sales.  Whilst  the 
outcome of the Fitness Check cannot be prejudged at this stage, fragmentation between the 
rules  on  online  and  offline  sales  of  goods  is  not  likely  to  occur  in  practice.  The  large 
consultation strategy undertaken for the current proposal on digital content and online sales 
of  goods  already  covers  many  issues  under  the  Sales  and  Guarantees  Directive  that  are 

See Section 4 for more details 

13 
14   Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31993L0013:en:HTML 
15   Directive  1999/44/EC  of  the  European  Parliament  and  of  the  Council  of  25  May  1999  on  certain  aspects  of  the  sale  of  consumer  goods  and  associated  guarantees:  http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31999L0044:en:HTML 

16   Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair B2C commercial practices  in the internal market and amending Council 
Directive  84/450/EEC,  Directives  97/7/EC,  98/27/EC  and  2002/65/EC  of  the  European  Parliament  and  of  the  Council  and  Regulation  (EC)  No  2006/2004  of  the  European 
Parliament and of the Council (‘Unfair Commercial Practices Directive’) http://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX:32005L0029 

17   Directive 98/6/EC of the European Parliament and of the Council of 16 February 1998 on consumer protection in the indication  of the prices of products offered to consumers: 

http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:31998L0006 

18   Directive  98/27/EC  of  the  European  Parliament  and  of  the  Council  of  19  May  1998  on  injunctions  for  the  protection  of  consumers'  interests:  http://eur-lex.europa.eu/legal-

content/en/ALL/?uri=CELEX:31998L0027 

19   Directive 2006/114/EC of the European Parliament  and of the Council of 12 December 2006 concerning misleading and comparative advertising, http://eur-lex.europa.eu/legal-

content/EN/TXT/?uri=celex:32006L0114  

6 

 
                                                 
equally relevant for online and offline sales of goods. In this way, a large part of the analysis 
work  concerning  the  provisions  of  this  initiative  to  identify  and  remedy  the  possible 
problems has already been undertaken in the context of the rules for online sales of goods as 
part of the present initiative.  

Scope of this impact assessment 

The  Digital  Single  Market  Strategy  for  Europe  tackles  in  a  holistic  manner  all  major 
obstacles to the development of cross-border e-commerce in the EU. Dealing with all those 
obstacles together and improving the situation for businesses and consumers will bring the 
expected boost to the Digital Single Market and the overall EU economy. The Digital Single 
Market  Strategy  identified  differences  in  contract  law  between  Member  States,  including 
differences  in  the  main  rights  and  obligations  of  the  parties  to  a  sales  contract,  among  the 
barriers  to  cross-border  e-commerce.  The  present  impact  assessment  focusses  on  these 
issues.  

1.2  Business-to-consumer (B2C) contracts 

1.2.1 Existing legal framework 

Overview of the existing EU legislation 
Substantive law - The Consumer Rights Directive20 has fully harmonised certain rules for 
online  sales  of  goods  and  supply  of  digital  content  (mainly  pre-contractual  information 
requirements and the right of withdrawal). However, there are no specific EU rules to protect 
consumers against non-conforming digital content. There are only minimum harmonisation 
rules  on  the  notion  of  conformity  with  the  contract  and  on  remedies  for  non-conforming 
goods  (under  the  Consumer  Sales  and  Guarantees  Directive)  the  implementation  of  which 
some  Member  States  have  chosen  to  extend  to  digital content.  In  addition,  for  both  digital 
content and goods there are minimum requirements on unfair standard contract terms (under 
the  Unfair  Contract  Terms  Directive).  Since  these  are  minimum  standards,  Member  States 
have  the  possibility  to  go  further  and  add  requirements  in  favour  of  consumers.  Many 
Member States have used this possibility on different points and to a different extent.  
Conflict of law rules - The Rome I Regulation21 allows contracting parties to choose which 
law applies to their contract and determines which law applies in the absence of choice. A 
trader  who  "directs  his  activities"  to  consumers  in  another  country  may  either  apply  the 
consumer's  national  law  or  choose  another  law  (in  practice  almost  always  the  trader's 
national  law).  In  this  latter  case,  however,  the  trader  must  also  respect  the  mandatory 
consumer contract law rules of the consumer's country to the extent that those rules provide a 
higher  level  of  consumer  protection.  When  the  trader  does  not  direct  his  activities  to 
consumers in a specific Member State but agrees to enter into a contract at the consumer’s 
own initiative, consumers do not benefit from the more protective rules of their national law.  

20   Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of 

the  European  Parliament  and  of  the  Council  and  repealing  Council  Directive  85/577/EEC  and  Directive  97/7/EC  of  the  European  Parliament  and  of  the  Council,  http://eur-

lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32011L0083 

21   Regulation  (EC)  No  593/2008  of  the  European  Parliament  and  of  the  Council  of  17  June  2008  on  the  law  applicable  to  contractual  obligations  (Rome  I)  http://eur-

lex.europa.eu/legal-content/EN/TXT/?uri=OJ:L:2008:177:TOC. A detailed explanation of the conflict of law rules can be found in Annex 7. 

7 

 
 
 
                                                 
Main differences between consumer mandatory contract law rules affecting  cross-border 
trade of goods 

There  are  several  key  contract  law  areas  where  differences  exist  between  Member  States' 
national  mandatory  rules  that  apply  to  consumer  sales  contracts.  These  differences  mainly 
result from national mandatory rules going beyond EU minimum harmonisation Directives.22  

Implementation of the Consumer Sales and Guarantees Directive: 

  Hierarchy of  remedies:  According to  the Directive, if a good is  non-conforming  a 
consumer is first required to request repair or replacement. Only as a second step can 
the  consumer  ask  for  termination  of  the  contract  or  price  reduction.  20  Member 
States23  have  followed  this  approach  while  other  Member  States  have  gone  beyond 
this  minimum  requirement  offering  the  consumer  from  the  beginning  a  free  choice 
between  repair,  replacement  or  termination.24  Another  group  of  Member  States25 
have  taken  over  the  hierarchy  of  remedies  but  also  provide  for  another  remedy, 
namely a right to reject non-conforming goods within a short deadline. 

  Notification duty by the consumer: Member States are authorised to stipulate that 
in order to benefit from their rights, consumers must inform the seller of the defect 
within  two  months  from  its  discovery.  In  case  of  non-notification  consumers  lose 
their right to remedies. While in 11 Member States26 consumers do not have to notify 
within  a  certain  timeframe,  in  12  Member  States,27  the  consumer  has  to  notify  the 
defect within 2 months, and in 5 Member States28 the consumer has to do so within a 
different period of time.  

  Reversal of the burden of proof: A consumer can only ask for a remedy if the good 
was non-conforming when delivered. The burden of proof is reversed during the first 
6 months, obliging the trader during this period to prove that no such defect existed at 
the  time  of  delivery.  While  25  Member  States  have  laid  down  a  shift  of  burden  of 
proof for 6 months, 3 Member States have extended this period (Poland to one year, 
France29  and Portugal to two years). 

  Legal guarantee period: The trader can be held liable for a period of no less than 2 
years for defects which were present at the time of delivery. While 23 Member States 
have made use of this 2 year period, in 1 Member State30 the period is 3 years and in 
2  Member  States31  it  is  unlimited.  In  2  other  Member  States32  there  is  no  specific 
legal  guarantee  period, but  the  consumer  rights  are  only  limited  by  the prescription 
period  (time  limits  in  national  legislations  within  which  rights  can  be  invoked  in 
court). 

Implementation of the Unfair Contract Terms Directive: 

  The  scope  of  unfairness  control:  The  Directive,  which  is  also  applicable  to 
contracts  for  the  supply  of  digital  content,  prohibits  traders  from  including  in  their 
contracts clauses which have not been individually negotiated and which are unfair to 

22   The information below is mainly drawn from the notifications by Member States to the Commission according to Articles 32 and 33 of the Consumer Rights Directive regarding 
see: 

and  Guarantees  Directive; 

the  Consumer  Sales 

notifications 

and 

full 

for 

of 

transposition 

the 
the  Unfair  Contract  Terms  Directive 
http://ec.europa.eu/consumers/consumer_rights/rights-contracts/directive/notifications/index_en.htm 

23    Austria, Belgium, Bulgaria, Czech Republic, Denmark, Estonia, Finland, France, Germany, Hungary, Italy, Latvia, Luxemburg, Malta, the Netherlands, Poland, Romania, Slovakia, 

Spain, Sweden  

24   Croatia, Cyprus, Greece, Lithuania, Portugal and Slovenia 
25  The United Kingdom and Ireland 
26   Austria, Bulgaria, Czech Republic, France, Germany, Greece, Ireland, Lithuania, Luxembourg, Poland and the United Kingdom,  
27   Belgium, Croatia, Cyprus, Estonia, Finland, Italy, Latvia, Malta, Portugal, Romania, Slovenia and Spain  
28   Within reasonable time in Denmark and Sweden; promptly in the Netherlands and immediately in Hungary (in these countries a notification within 2 months is always considered 

to be within the time limit); within 6 months in Slovakia. 

29   2 years as of 18 March 2016; currently 6 months 
30   Sweden 
31   Finland and the Netherlands 
32  

Ireland and the United Kingdom 

8 

 
                                                 
consumers.  However,  the  unfairness  control  does  not  cover  clauses  negotiated 
individually  between  the  trader  and  the  consumer,  nor  the  definition  of  the  main 
subject  matter  of  the  contract  or  the  adequacy  of  the  price  and  remuneration.  In  7 
Member  States33  individually  negotiated  contractual  terms  are  also  subject  to 
unfairness  control.  In  6  Member  States34  the  unfairness  control  is  extended  to  the 
main subject matter of the contract or to the adequacy of the price or remuneration. 

  List of unfair terms: The Directive provides an indicative, non-exhaustive list of 17 
clauses which may be regarded as unfair in a contract. Several Member States have 
gone  further,  providing  a  list  of  clauses  that  are  always  considered  as  unfair  (black 
lists)35 or a combination of a black list and a list of clauses that are presumed unfair 
(grey list).36 

There are also some other mandatory consumer contract law rules which do not have their 
origin in the implementation of EU consumer law. Some of those rules apply only in a single 
Member State.37 These are isolated cases as they concern only specific points for individual 
Member States. Consequently they are not considered as obstacles for intra-EU cross border 
trade.  There  are  also  two  examples  of  other  mandatory  contract  law  rules  which  exist  in 
several Member States: spares parts38 and merger clauses39. These rules, however, have not 
been  identified  by  stakeholders  as  possible  barriers  to  cross-border  trade.  Therefore,  the 
possible obstacles stemming from different national legislations to be analysed in this impact 
assessment  are  only  those  stemming  from  national  implementation  going  beyond  the 
minimum rules of the Sales and Guarantees and the Unfair Contract Terms Directives.  

Different national consumer contract law rules applying to digital content 

Most  Member  States  do  not  yet  have  specific  national  legislation  on  digital  content. 
Contracts for the supply of digital content is categorised differently from one Member State 
to another. For instance, depending on the Member State, these contracts are considered as 
sales  contracts,  as  services  contracts  or  as  rental  contracts.  In  addition,  contracts  for  the 
supply  of  digital  content  (for  example,  music,  video  games,  films,  cloud  storage  services, 
broadcast  of  sport  events)  are  also  categorised  differently  within  each  Member  State 
depending  on  the  type  of  digital  content  offered.40  As  a  consequence,  for  digital  content, 
national rights and obligations as well as the remedies for consumers vary within the same 
Member  State  as  well  as  between  Member  States.  This  is  for  example  the  case  for  the 
consequences  of  termination  of  cloud  computing  contracts.  In  France,  the  courts  impose  a 
cooperation  obligation  upon  a  service  provider  to  help  customers  migrate  data  after  the 
termination of the contract. An analysis of the Dutch provisions on services contracts (under 
which cloud contracts could legally be qualified) also shows that the provider has a duty to 
return  the  stored  data  received  from  the  customer.  In  many  other  Member  States,  such 
obligations do not exist.41  

Finland, Luxemburg, Malta, Portugal, Slovenia and Sweden  

33  Austria, Czech Republic, Finland, France, Luxemburg, Malta and Sweden 
34 
35   Belgium, Bulgaria, Czech Republic, Estonia, ,Greece, Lithuania, Luxemburg, Malta,  Portugal, Slovakia and Spain 
36   Austria,  France, Germany, Hungary, Italy, and the Netherlands 
37 

For example, Article L122-8A of the French Code de la Consommation protects consumers against unfair exploitation (abuse of weakness) with a criminal sanction in addition to 
the remedies available to avoid the contract. In the United Kingdom a rule in the new Consumer Rights Act requires that the goods are sold free of any third party rights and claims.   
38  While in most Member States there are no specific rules on the availability of spare parts for sold goods, in Spain, Slovakia, Portugal and Romania spare parts should be available 
to  consumers during a  certain  period of time. A similar rule exists in  Croatia, however it is  not  specifically designed for consumer protection and therefore does not  fall under 
Article 6 (2) of the Rome I Regulation. A similar rules in France concerns only pre-contractual information and the relationship between businesses. 

39  Belgium, Finland and the United Kingdom consider that the so-called "merger" clause (a clause which explicitly requires that the contract has to contain all terms that have been 
agreed between the parties, with the consequence that other statements or agreements do not form part of the contract) is not binding for consumers. In other Member States, for 
instance in Bulgaria, France and Poland, this clause is not specifically regulated, but if such clause is used, it will be subject to the unfair contract terms regime. Finally, in some 
other Member States, for instance in Germany, Ireland, Cyprus and Estonia, the merger clause is valid. In practice, in these Member States, the effect of the merger clause will 
again be substantially mitigated by the unfair contract terms regime. For instance, in Ireland merger clauses are considered by the Irish National Consumer Agency to be contrary to 
the general unfairness clause stemming from Directive 93/13/EEC on the unfair terms in  consumer contracts but they are not expressly included in the Irish grey list.Therefore 
those differences between Member States do not lead, in practice, to significantly different results. 

40  Comparative  Study  on  cloud  computing  contracts  (2014)  DLA  Piper,  p.33  and  seq.;    Analysis  of  the  applicable  legal  frameworks  and  suggestions  for  the  contours  of  a  model 
system of consumer protection in relation to digital content contracts; University of Amsterdam: Centre for the Study of European Contract Law (CSECL)Institute for Information 
Law (IViR): Amsterdam Centre for Law and Economics (ACLE) p.32 and seq 

41   Comparative Study on cloud computing contracts (2014) DLA Piper, p.70 

9 

 
                                                 
While some of these national rules are non-mandatory and can be modified contractually by 
the parties, others are of a mandatory character. 
Finally  some  Member  States  have  recently  enacted42  or  started  to  work43  on  specific 
mandatory rules on contracts for the supply of digital content. However, these rules differ in 
scope. For example, in the United Kingdom new legislation which sets specific mandatory 
rules for digital content only covers digital content paid for with money. In the Netherlands, 
however, digital content supplied on a  medium or through downloading that is paid for 'in 
kind',  i.e.  against  the  supply  of  the  consumer's  personal  data,  will  also  be  subject  to 
mandatory rules. 

Emerging  national  legislation  on  digital  content  also  differs  in  terms  of  substance.  For 
instance,  in  Dutch  law  the  consumer  has  the  right  to  withhold  payment  until  the  trader 
performs  according  to  the  contract,  while  the  UK  Consumer  Rights  Act  does  not  provide 
consumers  with  any  statutory  rights  in  relation  to  withholding  performance  for  non-
conforming  digital  content.  In  Dutch  law  consumers'  rights  against  the  trader  are 
extinguished after two years from the moment the consumer has notified the trader about the 
defect. In the United Kingdom there is no notification duty for consumers and their rights are 
prescribed after a period of 6 years (5 years in Scotland). 

1.2.2  Problem  1:  Differences  in  consumer  contract  law  rules  hinder  traders  from 

selling digital content and goods online cross-border 

Differences  in  national  consumer  contract  laws  are  important  obstacles  for  B2C  online 
cross-border transactions. They represent additional costs for businesses. Faced with these 
costs,  many  businesses  prefer  to  stick  to  their  own  domestic  markets.  Businesses,  in 
particular  SMEs,  lose  opportunities  for  expansion  and  economies  of  scale.  Overall 
additional costs for EU retailers are around €4 billion. If contract law-related barriers were 
lifted over 122,000 additional retailers would start selling cross-border. 

Consistently  during  the  last  years  data  show  that  traders  consider  differences  in  national 
consumer protection and contract law rules as important obstacles to trade in other Member 
States.  In  201244  "Additional  costs  of  compliance  with  different  consumer  protection  rules 
and contract law (including legal advice)" ranked among the top two obstacles to developing 
cross-border  sales  and  was  mentioned  by  41%  of  all  retailers.  In  201445  "differences  in 
national consumer protection rules" and "differences in national contract law" were reported 
as important obstacles to developing online sales to other EU countries by respectively 41% 
and  39%  of  retailers  who  currently  sell  online.  A  vast  majority  of  business  organisations 
responding to the public consultation insisted on the negative effects of legal fragmentation 
and on the costs that differences in national legislations impose on businesses. 
Remedies  in  case  of  a  non-conforming  product  are  a  significant  problem.  For  49%46  of 
retailers  currently  selling  or  having  sold  in  the  past  online  cross-border,  "guarantees  and 
returns are too expensive". This number is even higher among traders who are not yet active 
in  cross-border  trade  but  are  currently  trying  to  sell  or  considering  selling  online  cross-
border in the EU. 67% estimate that "guarantees and returns are too expensive".47 

62%  of  EU  retailers  that  are  either  active  or  interested  in  online  cross-border  trade  would 
"definitely" or "to some extent" start or increase their online cross-border sales if the same 

42 

See  Chapter  3  of  the  UK  Consumer  Rights  Act  2015:  http://www.legislation.gov.uk/ukpga/2015/15/contents/enacted  and  the  Dutch  Law  of  14  June  2015 
https://zoek.officielebekendmakingen.nl/stb-2015-220.html 
Ireland: http://www.djei.ie/commerce/consumer/issues.htm#crbscheme 

. 

43  
44   Flash Eurobarometer 359 "Retailers' attitudes towards cross-border trade and consumer protection" (2013) p. 26 
45   Flash Eurobarometer 396 "Retailers' attitudes towards cross-border trade and consumer protection" (2015) p.43 
46   Flash Eurobarometer 413 "Companies engaged in online activities" (2015), Q.6a  breakdown by type of product and sector (B2B-B2C), 
47   Flash Eurobarometer 413 "Companies engaged in online activities" (2015), Q.6b. breakdown by type of product and sector (B2B-B2C)  

10 

 
                                                 
rules for e-commerce applied in the EU.48 Removing such obstacles is clearly an incentive 
for cross-border trade, especially when combined with other measures foreseen in the Digital 
Single Market Strategy, for instance to reduce parcel delivery costs. 

By  discouraging  traders  from  expanding  their  online  activities  abroad,  differences  in 
consumer contract laws prevent businesses from reaping the benefits of economies of scale. 
By selling to other Member States and building their share in new target markets, businesses 
could  decrease  their  production  and  development  costs  and  increase  their  efficiency.  This 
problem  is  particularly  relevant  for  SMEs,  i.e.  99%  of  all  European  businesses.  SMEs  are 
often  confined  to  a  small  home  market  with  high  production  and  development  costs.  A 
reduction of e-commerce costs would enable SMEs to achieve growth through exports and 
economies of scale that cannot be achieved from the domestic market alone.  

The  extent  to  which  contract  law-related  obstacles  cause  businesses  to  miss  out  on  the 
opportunities  offered  by  online  cross-border  trade  is  significant.  It  is  estimated  that  if  the 
barriers  related  to  contract  law  were  lifted,  the  number  of  businesses  selling  online  cross-
border  could  increase  by  more  than  5  percentage  points  (an  increase  of  around  12%  in 
relative terms) compared to the current situation.49 According to a conservative estimate, this 
means that over 122,000 more businesses would start selling online cross-border.50  

Differences  in  mandatory  consumer  contract  law  rules  for  goods  and  digital  content 
create additional costs for traders 

While online traders may choose to apply their own contract law when selling to a consumer 
in  another  Member  State,  they  also  have  to  respect  the  mandatory  consumer  contract  law 
rules in the consumer's Member State which provide a higher level of consumer protection, 
in case they direct their offer to consumers in the Member State concerned. Such mandatory 
rules currently exist mainly for goods.51 However, as already mentioned above52 mandatory 
rules  for  the  supply  of  digital  content  are  also  emerging  in  some  Member  States,  creating 
differences between national rules governing these contracts. In addition, in some Member 
States, certain contracts for the supply of digital content are assimilated to a sales contract, 
and therefore the differences in consumer mandatory rules for the sale of goods would also 
apply to digital content.53 All these differences have a direct impact on traders. 

For instance, a Polish trader directing his selling activities to consumers in  Sweden should 
respect  the  three-year  legal  guarantee  period  under  Swedish  law  instead  of  the  two-year 
period  that  applies  when  he  is  selling  to  Polish  consumers.  Likewise,  a  Portuguese  trader 
may  refuse  a  request  from  a  Portuguese  consumer  to  replace  a  non-conforming  product  3 
months after discovery of the defect, if the Portuguese consumer has not complied with his 
obligation to notify the defect within 2 months after discovery. However, a Portuguese trader 
targeting  a  German  consumer  will  not  be  able  to  rely  on  such  a  notifcation  duty  and  will 
have  to replace a non-conforming  product  sold to  a German consumer also 3 months after 
discovery, because such notification duty does not exist under German law.  

Businesses  may  adopt  different  practices  and  approaches  towards  contract  law-related 
differences  when  selling  cross-border.  Some  bear  the  additional  costs  of  adapting  their 
contracts  according  to the laws of the Member States that they target. Others do not  adapt 
their contracts but may shoulder additional costs to assess the legal and financial risk in case 

48   Flash Eurobarometer 413 "Companies engaged in online activities" (2015), Q.11 breakdown by type of product and sector (B2B-B2C) 
49   Regression analysis based on business replies to the Flash Eurobarometer 413 "Companies engaged in online activities" (2015)  regarding the following concerns "Guarantee and 

returns" and "Not knowing the rules which have to be followed". See Annex 4. The base is represented by enterprises already active online. 

50   See Annex 4. The estimated number of additional companies that would start selling online cross-border is of 122,324. This is a conservative estimate that applies the percentage 
point increase to the estimated number of companies already active online (the target group for Flash Eurobarometer 413). It does not take into account the companies currently not 
engaged in online transactions, but which could start selling online cross-border once the barriers are removed 

51   See Section 1.2.1 
52   See Section 1.2.1 
53   For  example,  in  Germany,  when    digital  content  can  be  saved  by  consumers  on  a    medium  or  on the  hard  drive  of  their  computer,  German  courts  apply  sales  law  rules  to  the 

contracts. See BGH, NWJ 1988, p.406 ff.; BGH, NJW 1990, p.302 ff.  

11 

 
                                                 
of  disputes  with  consumers  in  the  targeted  Member  States.  The  costs  stemming  from 
differences  in  consumer  contract  law  are  mainly  one-off  costs  (namely  the  costs  for 
identifying  the  foreign  rules,  possibly  translating  them,  analysing  them  and  consequently 
possibly  adapting  general  terms  and  conditions  and  even  the  business  model  accordingly), 
but also ongoing costs for periodical adaptations to changes in national laws or costs specific 
to litigation where expert opinion on foreign contract laws is needed. 

This has been confirmed through in-depth interviews held with businesses with experience 
or interest in cross-border online sales.54 According to this information, some traders adapt 
their contract terms and conditions to the consumer contract law rules of the Member States 
where  they  target  their  activities.  To  do  this,  some  seek  external  professional  advice  from 
lawyers  or  consulting  businesses,  at  a  cost  ranging  from  €4,000  to  €12,000  per  Member 
State.  Other  traders  believe  that  they  should  adapt  their  contracts  but  currently  do  not, 
because  the costs  involved  would  be  too  high.  Among  those  who  do  not  adapt  their  terms 
and conditions, some rely on national certification schemes such as quality labels and trust 
marks to ensure that their company complies with local consumer contract legislation. In the 
latter case, companies have to incur one-off costs to obtain the trust mark as well as periodic 
renewal costs. Again others rely on the platforms through which they sell their products to 
comply with the legislation of the targeted Member States. Finally, other traders do not take 
any measures at all in that respect, but satisfy all customers' requests without examining their 
legal grounds according to consumer contract law rules.  

The  one-off  contract  law-related  costs  incurred  by  businesses  are  estimated  at  around 
€9000.55 These figures are confirmed by a major EU retailers' association responding to the 
public  consultation,  which  reported  contract  law-related  costs  of  €9,000-10,000  for  its 
members to enter the market of one Member State. If one focuses, following a conservative 
approach, only on one-off costs incurred by exporting retailers (B2C) who actually examine 
the applicable foreign law in advance (47%56), the overall one-off contract law-related costs 
currently incurred by EU traders are estimated around €4 billion euros.57 

The impact of these one-off costs is likely to vary depending on the size of the company, and 
would  particularly  affect  micro  and  small  enterprises  with  a  smaller  turnover,  as  shown  in 
Table 2.58 For instance, the decision of a micro enterprise active in retail trade to export to 4 
Member  States  would  entail  contract  law-related  costs  of  approximately  €36,000,  which 
would surpass 10% of its annual turnover. 

Table 2: Contract law-related costs for businesses as a share of their annual turnover 

Wholesale and retail trade 

Average annual 
turnover per firm 

Number of Member States entered (with transaction costs per Member State = €9,000) 

1 Member State  2 Member States 

Micro 
Small 
Medium 
Large 
Source: Eurostat Structural Business Statistics 2012, SME Panel Survey 

358 439 
6 333 525 
45 049 125 
439 583 481 

2.51% 
0.14% 
0.02% 
0.002% 

5.02% 
0.28% 
0.04% 
0.004% 

3 Member States 
7.53% 
0.43% 
0.06% 
0.01% 

4 Member States 
10.04% 
0.57% 
0.08% 
0.01% 

27 (EU) 
67.79% 
3.84% 
0.54% 
0.06% 

Disproportionate contract law-related costs may thus constitute an additional disincentive for 
micro or smaller retailers to expand their business by entering foreign markets. 

54   6 businesses, among which 5 SMEs, from Belgium, Denmark, Luxemburg, Sweden and United Kingdom were interviewed in June - August 2015. See Annex 2  
55   This calculation is based on data from a SME Panel Survey (2011). This data can still be used in the present context, after the entry into force in 2013 of the Consumer Rights 

Directive, as they do not take into account costs related to pre-contractual obligations. See Annex 5 for detailed calculations. 

56   Flash Eurobarometer 321 "European contract law in consumer transactions" (2011), p. 58 found that 18% of retailers currently involved in cross-border trade are not at all informed 
about the consumer protection provisions in the contract laws of the EU countries where they target consumers, and another 32% are not well informed. It is assumed that these 
exporters have not  sought  legal  advice on foreign law at  all. On the opposite side, 8% said they  are fully informed and 39% well informed, hence it is assumed that only 47% 
actually examine the foreign contract law in advance 

57   For more details on the calculation see Annex 5 
58   Economies of scale in entering more than one Member State might be expected, but were not taken into account in order to limit complexity.  

12 

 
 
 
 
                                                 
The complex legal situation of digital content leads to uncertainty  

Specifically for digital content, legal uncertainty already exists at national level because the 
qualification of the contract for the supply of digital content is not always clear. This leads to 
uncertainty  about,  for  instance,  which  remedies  apply  under  which  conditions.59  This 
uncertainty becomes even more important for traders willing to sell cross-border, as they will 
often not know whether there are rules applying to digital content in the Member State they 
want to export to, what is the content of those rules and whether they are mandatory. Traders 
are  likely  to  face  difficulties  to  evaluate  the  legal  risk  when  developing  a  new  business 
model  that  could  apply  to  several  Member  States  or  even  all  over  the  EU.  Results  from  a 
recent study based on interviews with EU businesses selling digital content online show that 
approximately  a  quarter  of  the  businesses  interviewed  were  dissuaded  from  engaging  in 
cross-border  activities  due  to  legislative  gaps  and  differences  between  Member  States' 
national contract law rules.60  

1.2.3  Problem 2: Consumers are not confident when buying digital content and goods 

online cross-border  

Consumers prefer to stick to their own domestic markets due to perceived uncertainty. They 
miss opportunities and face a narrower range of goods at less competitive prices. If contract 
law-related  barriers  were  lifted,  between  around  8  and  13  million  additional  consumers 
would start buying online cross-border.  

Detriment  to  consumers  is  also  caused  by  the  lack  of  a  clear  contractual  framework  for 
digital content. This detriment is estimated between €9 - 11 billion in the EU just for music, 
anti-virus, games and cloud storage services. 

While 61% of EU consumers feel confident about purchasing online from a retailer/provider 
located in their own country, only 38% feel confident about purchasing online from another 
EU  country.61  Consumers'  confidence  in  buying  cross-border  has  been  low  over  the  years. 
Between  2012  and  2014,  consumer  confidence  about  purchasing  online  from  another 
Member State only increased from 36% to 38%. From 2006 to 2011, the share of consumers 
being equally confident in buying in other EU countries as in their own went up from 30% to 
34% (reaching the top level in 2008 with 35%).  

The  low  level  of  cross-border  e-commerce  in  the  EU  is  thus  mirrored  in  the  low  level  of 
consumer  confidence  in  buying  cross-border.  Consumers  would  benefit  from  increased 
involvement in cross-border trade. Stronger confidence in cross-border trade would boost the 
volume  of  transactions  and  increase  consumer  welfare  through  increased  availability  of  a 
wide variety of products at more competitive prices.62 It is estimated that reducing contract 
law-related  consumer  concerns  would  increase  the  number  of  consumers  buying  online 
cross-border by around 7 percentage points compared to the current situation (an increase of 
circa  13.5%  in  relative  terms);  this  means  that  between  around  8  to  13  million  additional 
consumers  would  start  buying  online  cross-border,  raising  the  total  number  of  consumers 
shopping online cross-border up to almost 70 million.63 The removal of contract-law related 
concerns would also increase the average sum spent annually by consumers in online cross-

See Section 1.2.1 

59 
60  Economic study on consumer digital content products, ICF International, 2015 (to be published) 
61  Eurobarometer 397, “Consumer attitudes towards cross-border trade and consumer protection” (2014) 
62   See Annex 4 for an overview of the expected increased household consumption and the decrease in consumer prices per Member State and for the EU. 
63   The estimated increase in cross-border buyers when contract  law related  barriers  are removed is  based on a regression analysis carried out  on data from  the "Consumer survey 
identifying the main cross-border obstacles to the Digital Single Market and where they matter most" (GfK for the European Commission, 2015). When extrapolating this increase 
to  the  general  population,  a  conservative  estimate  consists  of  replicating  only  the  relative  increase  in  cross-border  buyers  from  the  survey  sample  to  the  general  population  as 
represented in Eurostat data (15% of people buying online from other EU countries); a more optimistic scenario applies the percentage point increase in the survey sample to the 
population of citizens purchasing online (50% according to Eurostat). Thus, the indicative range of 64.4 to 69.6 million consumers buying online cross-border provides a realistic 
estimate. 

13 

 
                                                 
border  shopping  by  13.6%,  which  in  real  terms  would  represent  an  additional  annual 
spending of €40 per consumer buying online cross-border.64  

In  addition,  if  consumers  were  to  shop  online  cross-border,  they  would  be  able  to  take 
advantage of existing price divergences65 between Member States, as shown in Table 3. For 
example, a Swedish consumer could pay 17% less buying clothes in Germany while a UK 
consumer  could  pay  20%  less  buying  household  appliances  in  Ireland.  Whilst  these  price 
differences do not take account of factors such as differences in taxation and delivery costs 
(in  part  to  be  addressed  by  other  initiatives  in  the  Digital  Single  Market  strategy),  they 
nevertheless point to important potential opportunities for consumers. 

Table 3: Differences in price levels for consumer goods across the EU (EU-28 average=100) 

Footwear 

Clothing  

Household  
Appliances 
Malta = 147 
Hungary = 74 
73 
50% 

Most expensive country 
Cheapest country 
Difference  
Cheapest country/most 
expensive country,  in % 
Source: Eurostat 2015, Statistics explained, Comparative price levels of consumer goods and services 

Denmark = 129 
Bulgaria = 73 
56 
57% 

Sweden = 121 
Hungary = 70 
51 
58% 

Consumer  
Electronics 
Malta = 116 
Czech Republic= 85 
31 
73% 

Uncertainty when buying digital content and goods hinders cross-border trade  

Consumers'  lack  of  confidence  can  be  attributed  to  a  number  of  different  factors.  For 
instance,  the  difficulty  to  obtain  redress  is  an  issue;  23%  of  online  consumers  express 
concerns that it may be more difficult to solve problems cross-border. The redress situation 
for  online  transactions  for  extra-judicial  disputes  will  be  improved  by  the  Online  Dispute 
Resolution platform to  be launched at the beginning  of 201666 and  for judicial  disputes by 
the revised European Small Claim Procedure.67 

A lack of awareness by consumers about their rights may also play a role; 11% of EU online 
consumers  do  not  know  their  rights  when  buying  online  from  another  EU  country. 
Consumers also fear that other laws protect them less than their own; 8% are concerned that 
the level of consumer protection they will enjoy when buying from another EU country will 
be lower than in their own country.68  

One of the major factors creating a lack of confidence for  consumers to shop online cross-
border  is  their  uncertainty  about  their  key  contractual  rights.  Data  shows  that  the  lack  of 
certainty  about  contract  law  rights  is  often  related  to  non-conforming  products.  Indeed,  a 
quarter of the top 12 main concerns of EU  online consumers about online cross-border are 
related to non-conforming products: 20% of consumers believe that it will not be easy to get 
a  non-conforming  product  replaced  or  repaired,  20%  think  it  will  not  be  easy  to  return 
products  and  get  reimbursement  and  15%  are  concerned  that  the  product  will  not  be 
delivered at all or will be wrong or non-conforming.69 

To remedy this uncertainty, a possible approach could consist in better informing consumers 
about their rights. The Commission has been very active in informing consumers about their 
rights  buying  cross-border.  As  most  recent  example,  the  Commission  launched  in  2014  a 
major  information  campaign  on  consumer  rights,  among  others  when  buying  non-

64   The calculation refers to the average sum of money spent by persons buying online cross-border intra EU ( goods and offline services, plus digital content). The estimate (referring 
to the intra EU online cross-border purchases) is based on the data from the Consumer Survey "Identifying the main cross-border obstacles to the Digital Single Market and where 
they matter most," (GfK for the European Commission, 2015). It should be noted that the figure refers only to a first-round direct effect and does not give a picture of the impact on 
various aspects of the economy (which is instead tackled in the macro CGE model explained in Annex 4). 

65   Price differences may be  attributed to a wide range of factors such as labour costs. 
66   For more information on the Online Dispute Resolution platform see see : http://ec.europa.eu/consumers/solving_consumer_disputes/non-judicial_redress/adr-odr/index_en.htm 
67   Regulation  (EC)  No  861/2007  of  the  European  Parliament  and  of  the  Council  of  11  July  2007  establishing  a  European  Small  Claims  Procedure,  OJ  L  199,  31.07.2007.  The 
Commission proposed in 2013 the amendment of this regulation (COM (2013)794final). The revised regulation is in the final stages of the legislative process and is very likely to 
enter into application in 2017. 

68   GfK for the European Commission, "Consumer survey identifying the main cross-border obstacles to the Digital Single Market and where they matter most", 2015. Respondents 

could select up to 5 answers from a total of 23 options. 

69  GfK for the European Commission, "Consumer survey identifying the main cross-border obstacles to the Digital Single Market and where they matter most", 2015 

14 

 
 
                                                 
conforming products across borders.70 However, information activities in this area have their 
limits.  

Firstly,  in  the  current  legal  situation,  the  protection  consumers  enjoy  by  their  national  law 
when  buying  cross-border  depends  on  whether  a  trader  actively  directs  its  commercial 
activities  to  the  consumer’s  country.  A  consumer  who  chooses  to  make  a  purchase  from  a 
foreign  trader  who  does  not  actively  direct  its  commercial  activities  to  the  consumer’s 
country will not benefit from the potentially higher level of protection of his own country. 
For example, an Austrian consumer who purchases clothes in an Italian e-shop which does 
not  actively  direct  commercial  activities  to  Austria  will  have  to  notify  the  defect  to  the 
Italian trader to benefit from the legal guarantee while under his own law he does not have 
such  obligation.  If  the  consumer’s  Member  State  is  targeted  by  the  trader's  commercial 
activities  the  consumer  is  protected  by  his  own  law  to  the  extent  that  the  mandatory 
consumer contract law rules of his own law exceed the level of protection of the trader's law. 
This differentiation, i.e. whether a foreign trader actively directs its commercial activities to 
the consumer’s country, implies a legal assessment which depends on the circumstances of 
the  relevant  case  and  is  done  on  a  case-by-case  basis71.  An  information  campaign  cannot 
realistically enable a consumer to make such an assessment. 

Second, to be effective, information campaigns must include simple messages which can be 
remembered.  Consumer  information  campaigns  at  EU  level  in  areas  which  are  only 
minimally harmonised cannot include such a simple message, except that consumers enjoy 
in the EU common minimum rights when buying faulty products from other Member States. 
These  campaigns  cannot  inform  consumers  about  simple  and  clear  rights,  such  as  a  single 
legal guarantee period. Therefore, better consumer information on its own is not sufficient to 
eliminate consumers' uncertainty.  

Consumers' detriment due to lack of clear contract law rights for digital content 

A  very  large  share  of  consumers  are  watching  films,  listening  to  music,  playing  games, 
watching sport events or communicating online on their electronic devices everywhere in the 
EU.72 Online access of digital content is much more prevalent among younger internet users, 
showing that in the near future  the overall number of online digital  content  users could be 
expected to increase significantly.73  

Digital content provided without paying money, for instance by simply 'registering', accounts 
for a very large proportion of consumer digital content. Recent data shows that around 30% 
of consumers (legally) accessing antivirus and navigation software or cloud storage services, 
77% of those streaming events and more than 50% of those watching films and TV content, 
reading e-books or playing games do so without paying money.74 The importance of digital 
content not supplied against money is confirmed by additional recent data. During the last 12 
months,  82%  and  80%  respectively  of  EU  internet  users  watched  sport  events  and  audio-
visual content (films, series, video clips and TV content), 77% listened to music, 76% played 
games and 64% accessed e-books while not paying money.75 

However, recent data from 2015 shows also that over the last 12 months, at least 70 millions 
of consumers76 (nearly 1 in 3 online users) who have used music, anti-virus software, games 

For more information on information campains see: http://ec.europa.eu/justice/newsroom/consumer-marketing/events/140317_en.htm 
For more information on the notion of "directing activities" and the assessement made following the case law of the European Court of Justice see Annex 7 

70 
71 
72   For  example,  according  to  Flash  Eurobarometer  411,  2015  "Cross-border  access  to  online  content"  (Summary  p.6),  during  the  past  12  months  60%  of  EU  internet  users  have 

accessed music online, 59% have watched audio-visual content (films, TV content, video clips etc.) online and 37% have downloaded or played games online.  

73   During the past 12 months, 87 % of EU internet users aged 15-24 have accessed music online, 80% have watched audio-visual content (films, TV content, video clips etc.) online 

74  

and 58% have downloaded or played games online. Ibidem. p.6 
ICF International, "Economic Study on Consumer Digital Content Products", 2015 and  GfK for the European Commission, "Consumer survey identifying the main cross-border 
obstacles to the Digital Single Market and where they matter most", 2015 

75   Flash Eurobarometer 411, "Cross-border access to online content", 2015 (Summary p.7) 
76  

ICF International, "Economic Study on Consumer Digital Content Products", 2015. See Annex 6 

15 

 
                                                 
or  cloud  storage  services77  have  experienced  problems  with  their  digital  content  related  to 
quality, access or contract terms and conditions. Among online consumers who purchased or 
tried to purchase digital content online cross-border and experienced problems, 16% reported 
having received the wrong digital content, 13% a digital content of lower quality, 9% faulty 
digital content and 10% reported not having been able to access the digital content.78 

Only  10%  of  consumers  experiencing  problems  related  to  access,  quality  or  the  terms  and 
conditions of the supply of digital content receive remedies. Consumers79 reported that the 
reasons invoked by providers for not providing a remedy were that they were not obliged to 
do so either by the contract or by law, or that the consumer did not sufficiently prove that 
there was a problem with the digital content.  

Digital content is usually offered to consumers off-the-shelf, on the basis of non-negotiable 
contracts. The user can influence neither the digital content features nor the contract clauses. 
Many  consumer  contracts  for  digital  content  include  clauses  which  exclude  contractual 
remedies  or  limit  them  severely  (for  example  by  excluding  liability  altogether  or  offering 
service credits as the only available remedy).80 They also include clauses which enable the 
provider to unilaterally modify the digital content without specifying the conditions for such 
modifications,81  or  set  conditions  which  do  not  enable  consumers  to  easily  identify  that  a 
modification  has  taken  place  (for  example  by  inviting  consumers  to  check  regularly  the 
terms of the contract82 or the Service Level Agreement to learn about such changes instead 
of expressly informing consumers and allowing them to stop the use of the service in case 
they disagree with the changes). Often, when consumers want to change supplier, they have 
no guarantee that they will retrieve their data. These problems were reported by a relatively 
lower share of consumers, but they account for a sizeable share of consumer detriment.83  

As  a  result  of  the  problems  faced  with  digital  content  and  of  the  relatively  low  share  of 
consumers  receiving  remedies,  consumers  suffer  financial  and  non-financial  detriment.  In 
the  last  12  months  before  the  survey,  the  combined  financial  and  non-financial  detriment 
resulting  only  from  the  most  recent  problem  with  just  four  types  of  digital  content  is 
estimated in the range of €9 - 11 billion in the EU.84 This number is likely to increase in line 
with  the  growth  of  the  digital  content  market  in  the  EU  and  the  expected  increase  of  the 
number of EU consumers accessing digital content online in the near future.85 

1.2.4  How  would  the  problem  evolve  in  the  absence  of  EU  action:  No  policy 

change/baseline scenario 

The  e-commerce  market  in  the  EU  is  growing  rapidly,  at  double-digit  annual  rates,  many 
times  faster  than  the  growth  in  total  retail  sales.  However,  the  extent  of  e-commerce 

77  Data were collected from consumers, focusing on problems experienced with only these four main types of consumer digital content products: music, anti-virus software, games 

and cloud storage. 

78   GfK for the European Commission, "Consumer survey identifying the main cross-border obstacles to the Digital Single Market and where they matter most", 2015 
79  Approximately 50% of consumers who did not receive a remedy did not report a specific reason for this. This paragraph concerns the remaining share of consumers who provided 

information on the reasons why the supplier did not provide them a remedy. 

80   Examples of clauses identified during the work of the Cloud Computing Expert Group: “Any use of the cloud services is done at your own risk and you will be solely responsible 
for any damage to your computer system or other device or loss of data that results from using the cloud service";  "Service credits are your sole and exclusive remedy for any 
performance or availability issues for any service under the agreement and this SLA." 

81   Examples of clauses identified during the work of the Cloud Computing Expert Group: “X reserves the right at any time to modify this Agreement and to impose new or additional 
terms or conditions on your use of the Service. If you do not agree with them, you must stop using the Service and contact X  Support to retrieve your Content. Your continued use 
of the Service will be deemed acceptance of such modifications and additional terms and conditions”  

83  

82   Examples  of  clauses  identified  during  the  work  of  the  Cloud  Computing  Expert  Group:  “We  may  modify  this  agreement  at  any  time  by  posting  a  revised  version  on  the  legal 
information section of the Portal or by notifying you in accordance with subsection 9(a). Modified terms that relate to changes or additions to the Product or that are required by 
law will be effective immediately, and by continuing to use the Services you will be bound by the modified terms. All other modified terms will be effective upon renewal (including 
automatic renewal) of an existing Subscription or order for a new Subscription.” 
ICF International, "Economic Study on Consumer Digital Content Products", 2015. An average of approx. 4% of consumers experiencing problems reported problems with contract 
terms restricting trader's liability, unilateral modification clauses, non-retrieval of user generated data etc. Despite the relatively lower share of consumers experiencing problems 
with terms and conditions (compared to quality and access problems), problems relating to the above issues account for 36 to 40 per cent of the estimated gross financial consumers' 
detriment. See Annex 6. 
ICF International, "Economic Study on Consumer Digital Content Products", 2015. See Annex 6 
For the digital content sector as a whole, there has been strong growth in the recent years. 80% of (or 317 million Europeans) used the internet in 2014. Alongside increased internet 
penetration and usage, a growing number of smartphones, e-readers and tablet users are fuelling demand for digital content. Taking into account the significantly higher share of 
internet users aged 15-24 currently accessing digital content online (compared to the average of total EU population, see footnote 73), this increase can be reasonably expected to 
become apparent in the near future. 

84  
85 

16 

 
                                                 
penetration  varies  significantly  between  Member  States.86  While  the  growth  and  size  of 
national  e-commerce  sales  is  influenced  by  many  factors,  such  as  the  quality,  availability, 
and  cost  of  high-speed  internet  services,  the  role  of  traditional  distance  sales  channels 
(catalogues) and general economic conditions, data suggest that the size of the overall retail 
market influences the size of the domestic e-commerce sector87. National e-retailers appear to 
be  held  back  by  the  scale  of  their  national  markets.  Similarly,  consumer  e-purchases  are 
restrained by the limited domestic offer. The implication is that without EU intervention the 
growth of cross-border e-commerce in the EU will continue to be held back by uncertainty 
and regulatory fragmentation.  

Without  EU  intervention  to  tackle  these  problems,  businesses  will  continue  to  face 
unnecessary costs and consumers will remain unsure about their rights and face unnecessary 
difficulties  in  enforcing  them.  Businesses  will  still  have  to  comply  with  the  national 
mandatory  consumer  contract  law  rules  when  selling  online  to  other  EU  countries.  Some 
57%  of  businesses  have  indicated  that  differences  in  Member  States’  e-commerce  laws 
discourage  them  from  selling  across  borders.88  Businesses  that  adapt  their  terms  and 
conditions or want to assess in advance the legal and financial risk in the event of disputes 
will continue to face additional contract law-related costs of about €9,000 per Member State 
to which they wish to export. Overall contract law-related one-off costs, which have already 
reached around 4 billion, will increase in line with the number of EU businesses exporting to 
other Member States, and the number of Member States to which they export.89  

Moreover, it can be expected for digital content that other Member States, alongside the UK, 
the  Netherlands  and  soon  Ireland90,  will  enact  specific  but  different  mandatory  consumer 
national laws for digital content. This will impose additional costs for those businesses who 
want to sell digital content in other Member States.  

Contract law-related costs will continue to impose an especially disproportionate burden on 
SMEs,  and  in  particular  micro  and  small  businesses  who  wish  to  expand  their  activities 
cross-border. It will hinder SMEs from exploiting economies of scale. 

Additional  contract  law-related  costs  absorb  resources  that  businesses  could  otherwise  use 
for  more  productive  activities,  such  as  research  and  development.  As  a  barrier  to  market 
entry,  these  costs  also  reduce  incentives  for  innovation.  The  persistence  of  contract  law-
related barriers to market entry will continue to limit competition, resulting in less consumer 
choice  and  higher  prices.  Although  one  might  expect  the  percentage  of  consumers  buying 
online  cross-border  to  continue  to  increase  at  a  moderate  rate,  the  persistence  of  contract 
law-related concerns will deter  a share  of EU  consumers  from buying  online cross-border; 
they will thus continue not to benefit from better prices in other EU Member States. 

Consumers will continue to benefit from the rights and remedies in existing EU legislation. 
Enforcement of the existing EU consumer protection legislation should be strengthened by 
the revision, announced in  the Digital  Single Market Strategy, of the Consumer Protection 
Cooperation  Regulation,  which  will  clarify  and  develop  the  powers  of  enforcement 
authorities and improve the coordination of their market monitoring activities. Furthermore, 
the Online Dispute Resolution platform should make it easier for consumers to reach an out-
of-court settlement and the improved Small Claims procedure91 will make it easier to obtain 
court redress. 

Differing  national  regimes  will  however  remain  an  obstacle  to  efficient  enforcement.  The 
continued  existence  of  different  national  regimes  will  impose  an  additional  burden  on 

"Online Retailing in Europe, US & Canada, 2015-2016", Centre for Retail Research, 2015 
Ibidem 

86 
87  
88   Flash Eurobarometer 413 "Companies engaged in online activities" (2015), p.53   
89 
90   See Section 1.2.1 "Different national consumer contract law rules applying to digital content" 
91  COM (2013)794final 

See Section 1.2.2 

17 

 
                                                 
national court systems, which will be required (as at present) to apply the laws of other EU 
Member States in some disputes. In addition, the lack of legal clarity could have a negative 
impact on the ability to exercise one's right to an effective remedy before the courts. All in 
all,  the  added  workload  will  to  some  extent  decrease  the  overall  efficiency  of  justice 
compared to the current situation.  

A  number  of  other  measures  announced  by  the  Commission  in  the  Digital  Single  Market 
Strategy to secure Europe's position in the digital economy will also benefit both consumers 
and  businesses.  For  example,  giving  copyright  law  a  more  European  dimension,  notably 
through  cross-border  portability  and  other  measures  to  improve  consumers'  cross-border 
access to legally acquired content, will remove a key obstacle to cross-border online sales. 
This  will  form  a  comprehensive  package  with  action  against  geo-blocking  that  is  not 
compatible  with  a  single  market  and  with  action  on  company-erected  barriers  that  come 
under  the  competition  sector  enquiry  into  e-commerce.  The  actions  set  out  in  the  Strategy 
will substantially contribute to market transparency and improve competition both in terms 
of prices and consumers' access to a wider variety of products. At the same time they create 
a level playing field for companies to engage in cross-border trade and help them scale up. In 
the  first  half  of  2016  the  Commission  will  also  launch  measures  to  improve  price 
transparency  and  enhance  regulatory  oversight  on  parcel  delivery.  This  action  will  address 
the problems related to the delivery and return costs, which were identified in recent surveys 
as  major  consumer  concerns  when  it  comes  to  online  purchases  from  other  EU  countries. 
Parcel  delivery  has  also  been  identified  as  a  major  obstacle  by  EU  retailers,  especially  by 
SMEs  that  lack  purchasing  power  in  relation  to  postal  operators.  Measures  towards 
affordable,  high-quality  cross-border  parcel  delivery  services  will  thus  enhance  both 
consumers'  and  retailers'  confidence  in  engaging  in  cross-border  e-commerce.  Reducing 
VAT-related  burdens  and  obstacles  to  selling  across  borders  is  another  action  that  is 
expected to yield significant savings for EU businesses that wish to make cross-border sales. 
All  these  measures,  which  fall  under  the  first  pillar  of  the  Digital  Single  Market,  are 
complemented by additional actions under the two other pillars of the Strategy, such as the 
on-going consultation and analysis of the role played by platforms in the market, including 
in terms of B2B level-playing field and enforcement of consumer rules.  

However, the 16 actions announced in the Strategy are to be considered as a whole, as their 
synergy will deliver maximum impact and address long standing bottlenecks hampering the 
achievement of a truly integrated market. The achievement of its intended benefits requires 
that  each  one  of  the  key  obstacles  is  addressed.  Therefore,  without  additional  action  on 
contract  law-related  barriers  -  one  of  the  major  obstacles  identified  by  the  Digital  Single 
Market Strategy - its benefits will remain limited and incomplete.  

1.3  Business to Business (B2B) contracts 

1.3.1  Existing EU legal framework for B2B transactions 

B2B contracts are dominated by the principle of contractual freedom. Thus, very limited EU 
legislation  applies  to  these  contracts:  only  the  Directive  on  Electronic  Commerce92  has 
introduced some rules on pre-contractual information for electronic contracts. A set of rules 
concerning  goods  was  introduced  by  the  1980  UN  Convention  on  Contracts  for  the 
International  Sales  of  Goods93  (CISG).  For  digital  content  there  is  currently  no  EU 
legislation on conformity and remedies. For both goods and digital content national contract 
laws apply. These rules are generally not mandatory and can therefore be waived or changed 
by  agreement  of  the  parties.  For  digital  content,  the  rules  may  differ  not  only  as  to  the 

92   Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in 

the Internal Market,  http://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32000L0031 

93   http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG.html The CISG is not ratified by all Member States (UK, Ireland, Portugal and Malta are not members). 

18 

 
                                                 
substance of the rules themselves but also as to the legal qualification given to contracts for 
the supply of digital content. 

1.3.2  Contract law rules do not seem to be a major hindrance for cross-border B2B 

online transactions  

The evidence on whether specific contract law-related obstacles hinder B2B cross-border 
trade is not conclusive. A very large majority of stakeholders insist that the focus of the 
current EU initiative should remain on B2C.  

Among businesses currently selling online to other businesses, 49% sell cross-border within 
the  EU.  Around  half  of  these  businesses  derive  up  to  25%  of  their  annual  turnover  from 
cross-border  sales.94  Contract  law  obstacles  highlighted  in  the  B2C  context  hindering 
businesses from selling cross-border are not as significant in the B2B context. While 35% of 
businesses trying or considering B2C cross border sales regard guarantees and returns as a 
major problem, this is the case for only 14% of businesses active in B2B. It should be noted 
that  the  share  of  14%  of  companies  reporting  the  above  contract  law-related  problems  for 
B2B transactions as major ones are all SMEs. This may be an indication that such problems 
are more prevalent for SMEs compared to large companies.95  

The relatively low prevalence of contract law-related obstacles for the B2B market has been 
confirmed  by  the  Stakeholders'  Consultation  Group96:  a  large  majority  of  stakeholders 
highlighted that contract law rules do not represent an important obstacle for businesses to 
sell  cross-border  to  other  businesses.  Indeed,  according  to  a  recent  business  survey,  over 
80%  of  businesses  that  sell,  used  to  sell,  or  are  considering  selling  to  other  businesses  in 
other EU countries reported that differences in national rules would not directly influence the 
scale of their cross-border activities.97  

The major concerns reported by businesses that are trying or considering buying online from 
other EU countries are not related to contract law. They relate to the cost of resolving cross-
border  complaints  and  disputes  (46%),  high  delivery  costs  (42%),  lack  of  language  skills 
(29%),  data  protection  (29%),  foreign  suppliers  refusing  to  deliver  to  their  country  (26%), 
product  labelling  requirements  and  copyright  (each  25%)  and  payment  systems  (24%).98 
Contrary to the retail sector, there is currently no evidence of actual or perceived problems 
related  to  differences  in  contract  law  rules  that  hinder  EU  businesses  from  buying  online 
from other Member States. 
As  a  consequence,  a  very  large  majority  of  stakeholders99  who  responded  to  the  public 
consultation considered that the focus of the initiative should remain on B2C and not include 
B2B contracts. Discussion with Member States also showed a clear lack of demand for an 
initiative  tackling  contractual  issues  for  B2B.  Business  organisations  in  the  Stakeholders' 
Consultation  Group  referred  to  the  generally  non-mandatory  nature  of  B2B  rules.  They 
highlighted  the  significance  of  freedom  of  contract  as  an  overarching  principle  in  B2B 
contracts, be it in terms of the freedom to choose the law that will apply to the contract or the 
freedom  to  adapt  B2B  contract  law  default  rules  which  would  in  many  cases  pre-empt 
potential problems regarding contractual issues. 

94   Flash Eurobarometer 413 "Companies engaged in online activities" (2015). Breakdown of results by product sold and type of activity: For 25.3% of companies selling B2B online, 
1-25% of their online sales came from other EU countries. For 9.6% this share was between 26-50%, only for 1.7% the share was 51-75% and for 3.8% of companies' intra-EU 
online cross-border sales accounted for 76-100% of their total e-sales. 
Ibidem.  Due  to  the  low  sample  of  large  enterprises  responding  to  these  questions,  it  would  need  to  be  further  investigated  whether  such  problems  are  also  relevant  for  large 
companies. 

95  

96   See Annex 2  
97   Flash Eurobarometer 413 "Companies engaged in online activities" (2015), breakdown of results by product sold and type of activity. Only 18,3% of businesses that sell, used to 
sell,  or  are  considering  selling  to  other  businesses  in  other  EU  countries  reported  that  they  would  definitely  start  or  increase  online  cross-border  sales  if  the  same  rules  for  e-
commerce applied in the EU 

98   Flash Eurobarometer 413 "Companies engaged in online activities" (2015), p.76  
99   See Annex 2  

19 

 
                                                 
The underlying message confirmed by both recent data and stakeholders is that, contrary to 
consumers who are generally less well informed about products, market characteristics and 
business practices and find themselves in a structurally imbalanced position compared with 
the trader, this is mostly not the case for professional business-buyers, where imbalances in 
bargaining  power  are  due  to  the  respective  market  situations  which  will  be  different  on  a 
case-by-case basis. 

1.3.3  Specific issues related to digital content in the B2B context 

Certain  specific  contract  law-related  problems  in  the  B2B  context  have  been  identified  in 
relation to cloud computing services.  

The possibility to access the cloud and use digital content such as applications and software 
or  store  data  can  spare  businesses  the  expense  of  purchasing,  installing  and  maintaining 
hardware  and  software  locally;  however,  in  2014  only  19%  of  EU  enterprises  used  paid 
cloud  computing  services,  mostly  for  hosting  their  e-mail  systems  and  storing  files  in 
electronic  form.100  101  Almost  half  (46  %)  of  those  firms  used  advanced  cloud  services 
to  financial  and  accounting  software  applications,  customer  relationship 
relating 
management or to the use of computing power to run business applications.  

Four out of ten businesses (39%) that used the cloud in 2014 reported the risk of a security 
breach as the main limiting factor in the purchase of cloud computing services.102 From the 
businesses’ point of view, the risk of a security breach is not only a technical issue but also a 
matter of contract terms governing the service providers’ liability and accountability103. This 
conclusion  has  been  confirmed  by  the  Expert  Group  on  Cloud  Computing  Contracts.104 
Experts pointed out the important financial risk of cloud services' users who face contractual 
clauses  unreasonably  limiting  the  liability  of  cloud  service  providers  in  case  of  a  security 
breach.  Indeed,  businesses,  and  in  particular  SMEs,  which  do  not  necessarily  have 
sophisticated  backup  solutions,  may  lose  entire  parts  of  their  business  if  they  do  not  have 
access to their data for a period of time. 

Moreover,  issues  of  uncertainty  about  the  location  of  data  may  arise,  due  to  the  fact  that 
cloud service providers may use data centres in different countries. This factor was reported 
as  limiting  the  use  of  cloud  computing,  particularly  for  large  businesses  already  using  the 
cloud  (46%).105  Other  contract  law  issues  may  exist.  For  example,  the  question  arises 
whether  traders  should  have  an  obligation  to  help  customers  transfer  their  data  when  they 
want  to  change  provider.  Understanding  the  exact  quality  level  of  the  service  that  was 
promised is also challenging for users, in particular when they have to demonstrate that the 
service did not function properly. These issues have been identified by the Expert Group on 
Cloud  Computing  Contracts  as  also  affecting  businesses  and  in  particular  technologically 
less equipped SMEs.106 In reply to the public consultation, the main EU SMEs organisation 
pointed out the need to protect SMEs in this area. 

However, despite these similarities between the problems faced by consumers and SMEs as 
cloud  service  users,  there  are  also  specificities  that  have  to  be  taken  into  account  to 
determine  the  right  approach  of  intervention  for  each  sector.  Both  the  Expert  Group  on 
Cloud  Computing  Contracts  and  the  Stakeholders'  Consultation  Group107  insisted  on  the 

100   Eurostat,  Statistics  explained  "Cloud  computing  -  statistics  on  the  use  by  enterprises"  http://ec.europa.eu/eurostat/statistics-explained/index.php/Cloud_computing_-

_statistics_on_the_use_by_enterprises 

101   If one excludes SMEs, the percentage of businesses using cloud computing goes up to 35%, which shows that cloud usage is still limited among SMEs. 
102   Eurostat, see footnote 100 
103   See 

computing 

contracts, 

synthesis 

meeting 

meeting 

Expert 

group 

cloud 

the 

on 

of 

of 

5/6 

March 

2014; 

http://ec.europa.eu/justice/contract/files/expert_groups/5_6_march_meeting__synthesis_final_en.pdf 

104   Expert  Group  on  Cloud  Computing  Contracts  -  Detailed  information  on  the  composition  of  the  Expert  Group  and  minutes  of  the  meetings  available  at: 

http://ec.europa.eu/justice/contract/cloud-computing/expert-group/index_en.htm 

105   Eurostat,  Statistics  explained  "Cloud  computing  -  statistics  on  the  use  by  enterprises"  http://ec.europa.eu/eurostat/statistics-explained/index.php/Cloud_computing_-

_statistics_on_the_use_by_enterprises 

106   See 

Expert 

cloud 
http://ec.europa.eu/justice/contract/files/expert_groups/27_28_march__final_synthesis_en.pdf 

group  meeting 

computing 

contracts, 

synthesis 

on 

of 

the  meeting 

of 

27/28  March 

2014, 

part 

III, 

availability; 

107   See Annex 2 

20 

 
                                                 
need not to overburden businesses selling digital content to other businesses with obligations 
that would hamper their competitiveness in a fast evolving market.108 They also made clear 
that while it is true that SMEs users are often the weak part in cloud computing contracts, the 
freedom of contract in the B2B environment should not be jeopardized. A recent experience 
in the food supply chain shows that in order to find solutions to the asymmetry and possible 
misuses  of  bargaining  powers  between  businesses,  a  non-legislative  approach  could  be  a 
possible alternative.109 

Overall  contract  law  related  problems  in  B2B  relations  may  stem  from  differences  in 
bargaining  power,  difficulties  to  agree  on  the  applicable  law  or  difficulties  to  find 
information about foreign law, especially for SMEs. The need to also protect SMEs has been 
recognised in the Digital Single Market Strategy and will be analysed in the context of other 
actions announced in the Strategy. 

2  WHY DOES THE EU NEED TO ACT? 

When  selling  goods  to  consumers  in  other  Member  States,  businesses  are  confronted  with 
different mandatory consumer contract law rules resulting from the current possibility given 
to Member States to go beyond the minimum requirements set out by EU legislation.110  

For digital content, existing legislation already contains mandatory rules to some extent. In 
addition,  market  trends  prompt  Members  States  to  take  action  independently.  Several 
Member States have recently enacted or started preparatory work to adopt mandatory rules 
on contracts for the supply of digital content. These national rules differ however in scope 
and in content.111 It is to be expected that other Member States will follow this trend if the 
EU does not act. Given the heterogeneity of the online market for digital content it would be 
difficult  for  the  market  to  overcome  the  existing  legal  complexity  and  fragmentation. 
Contractual  practice  so  far  has  not  produced  consumer  rights  with  an  adequate  level  of 
consumer protection.  

All  these  different  national  mandatory  rules  –both  affecting  digital  content  and  the  online 
sale of goods - create costs and complexity for businesses and negatively affect the volume 
of cross-border trade as well as consumer welfare. Consumers are deprived of more offers at 
more competitive prices.  

As already explained112, in order to rapidly strengthen the competitiveness of EU businesses 
and  boost  EU  growth,  it  is  necessary  to  act  now  and  to  deal  as  a  priority  with  the  digital 
dimension of retail, i.e. both the supply of digital content and the online sales of goods. For 
digital  content,  there  is  in  addition  a  specific  need  for  the  EU  to  act  swiftly  in  order  to 
prevent legal fragmentation from increasing and to raise the potential of the current digital 
revolution  and  growth  opportunities.  Finally,  in  order  to  maintain  consistency  between  the 
rules  on digital  content and on the sale of goods as  far as  the specificity of digital content 
does not require deviations, it is reasonable to discuss both sets of rules together. 

This  initiative  complies  with  the  principle  of  subsidiarity,  as  Member  States  on  their  own 
initiative  would  not  be able to  remove  the  barriers  that exist  between  national legislations. 
Each  Member  State  individually  would  not  be  able  to  ensure  the  overall  coherence  of  its 
legislation  with  other  Member  States'  legislations.  This  is  why  an  initiative  at  EU  level  is 
necessary.  The  legal  basis  for  the  initiative  would  be  Article  114  TFEU  on  its  own  or  in 
combination with Article 81 TFEU, depending on the option retained. 

Such an initiative will provide consumers with harmonised contract law rights when buying 
goods online. It will reduce costs for businesses as they will no longer have to face different 

108   See Annex 2 
109   http://ec.europa.eu/enterprise/sectors/food/files/competitiveness/good_practices_en.pdf 
110   See Section 1.2.1 
111   See Section 1.2.1 
112  See Section 1.1 

21 

 
                                                 
consumer mandatory rules resulting from the current possibility given to Member States to 
go beyond the minimum requirements set out by EU legislation. Consumers would benefit 
from  more  offers  at  better  prices.  In  addition,  for  digital  content,  an  initiative  at  EU  level 
would secure the development of consumer rights in a coherent manner while ensuring that 
all consumers in the EU benefit from a high level of consumer protection. It will create legal 
certainty for businesses which want to sell their digital content in other Member States.  

Harmonised  contract  law  rules  in  the  EU  would  facilitate  coordinated  enforcement  actions 
undertaken  by  the  Consumer  Protection  Co-operation  authorities.  They  will  provide  a 
consistent  legal  basis  for  these  actions  which  result  in  negotiated  undertakings  at  the  EU 
level.  These  coordinated  actions  offer  businesses  a  "one-stop-shop"  enforcement  approach 
and  strengthen  enforcement  of  EU  legislation  for  the  benefit  of  EU  consumers.113  For 
example,  the  recent  in-app  purchases  action114  enabled  providers  to  negotiate  with  the 
Commission and the Consumer Protection Authorities in a coordinated manner instead of 28 
separate national authorities.  

Finally, the present initiative will add value to other measures in the Digital Single Market. 
Other  measures,  such  as  reducing  VAT-related  burdens,  developing  high-quality  cross-
border parcel delivery services or a modernised copyright law will create new opportunities 
for European consumers and companies. These opportunities can only be exploited to their 
maximum extent if they are completed by an initiative on contract law-related obstacles, as 
contracts are the tools for all transactions related to these other measures.  

3  WHAT SHOULD BE ACHIEVED? 

General  objective:  Contribute  to  faster  growth  of  the  Digital  Single  Market,  for  the 
benefit of both consumers and businesses.  
Specific Objectives: 
  Reduce business costs resulting from differences in contract law  
  Reduce the uncertainty faced by businesses due to the complex legal framework 
  Contribute to building consumer trust in online cross-border shopping in the EU 
  Reduce  the  detriment  faced  by  consumers  with  respect  to  non-conforming  digital 

content or certain unbalanced contract terms  

The general objective of the initiative is to contribute to faster growth of the Digital Single 
Market using the potential of e-commerce. The initiative will increase most consumers' trust 
in  the  Digital  Single  Market  by  providing  a  high  level  of  consumer  protection  and  ensure 
more  offers  and  better  prices  for  consumers.  At  the  same  time,  it  will  create  a  friendly 
environment  for  businesses  and  contribute  to  increasing  the  volume  of  cross-border  trade. 
More concretely, with regard to online sale of goods, the aim is to avoid the patchwork of 
different key mandatory consumer contract rules between the Member States which creates 
costs  and  uncertainty  for  both  businesses  and  consumers.  For  digital  content,  the  aim  is 
avoid  fragmentation  and  uncertainty  for  businesses  and  consumers  as  well  as  consumer 
detriment. Consumers should have concrete rights when they acquire digital content but do 
not get what was promised.  

4  WHAT ARE THE VARIOUS OPTIONS TO ACHIEVE THE OBJECTIVES? 

4.1  Scope: B2C transactions 

While differences in mandatory consumer contract law rules have been identified as one of 
the  main  obstacles  that  hinder  the  development  of  cross-border  e-commerce,  there  is 

113  Article 9 of the Consumer Protection Cooperation Regulation 
114   For 

information 

further 

of  
22.12.2014:http://ec.europa.eu/justice/newsroom/consumer-marketing/news/1401222_en.htm.  Another  recent  example  is  the  CPC  coordinated  action  on  car  rental;  see  the  press 
release of 13.07.2015 http://ec.europa.eu/justice/newsroom/consumer-marketing/news/150713_en.htm 

Protection  Cooperation 

purchases  Consumer 

the  Commission's 

release 

action, 

in-app 

press 

see 

the 

on 

22 

 
                                                 
currently no evidence115 that differences in contract law rules do hinder EU businesses from 
buying online from other Member States. While SMEs face some problems as cloud service 
users,  business  representatives  have  argued  in  the  Stakeholders  Consultation  Group  that 
these  issues  would  be  best  addressed  in  other  initiatives  announced  in  the  Digital  Single 
Market Strategy. During the public consultation, all stakeholders and Member States argued 
that the current initiative should focus on B2C contracts only, with the exception of the main 
SMEs  association  which  supported  the  extension  of  rules  on  digital  content  to  B2B 
transactions.116 

4.2  The options 

Option 1 - Setting up targeted, fully harmonised rules for the supply of digital content 
and targeted, fully harmonised rules for online sales of goods 

Level of 
harmonisation 

Legislative/non 
legislative  

Substantial law areas covered117/level 
of consumer protection 

Impact on Rome I 

Digital 
content118 

 goods 

Full: Member 
States will not be 
able to maintain 
or introduce more 
protective rules  

Full: Member 
States will not be 
able to maintain 
or introduce more 
mandatory 
consumer 
protective rules 

Legislative 

Legislative 

Targeted: conformity requirements, 
remedies, modalities how to exercise 
those remedies and consumer rights 
relating to modification and termination 
of long term contracts; high level of 
consumer protection 

Targeted: conformity requirements, 
remedies and modalities how to 
exercise those remedies; higher level of 
consumer protection than the existing 
harmonisation level, but on specific 
points lower than some national laws 

None 

None 

Positions  of  stakeholders119:  For  digital  content, 
the  vast  majority  of  consumer 
representatives  favour  fully  harmonised  rules,  provided  that  a  high  level  of  consumer 
protection  is  guaranteed.  The  majority  of  businesses  also  support  a  full,  targeted 
harmonisation. However, several IT associations and big companies do no not see the need 
for such harmonised rules. Nevertheless, they acknowledge that if legislative action should 
be taken at all, it should be at EU level. The majority of responding Member States supports 
harmonised EU rules for online sales of digital content. For goods, consumer representatives 
would favour harmonised rules, provided that the level of consumer protection is increased 
in  comparison  to  the  current  situation.  Businesses  also  generally  support  harmonisation, in 
particular  the  fact  that  it  would  be  full  harmonisation.  Member  States  are  more  divided; 
while  some  would  support  EU  harmonised  rules,  others  do  not  see  the  need  to  act  at  this 
stage.  However,  a  majority  of  stakeholders  and  Member  States  warn  about  the  possible 
fragmentation between online and offline sales of goods.   

Option 2 - Setting up targeted, fully harmonised rules for the supply of digital content / 
Application of the trader's law combined with the existing harmonised rules on goods 

Level of 
harmonisation 

Legislative/non 
legislative 

Substantial law areas 
covered/level of consumer 
protection 

Impact on Rome I 

115   See Section 1.4 
116   See Annex 2 
117   See Section 1.2.1 for a detailed description of the relevant substantial law areas 
118   For digital content, options 1, 2, and 4 are the same. 
119   See Annex 2 to the consultation for a detailed summary. 

23 

 
 
 
 
                                                 
Digital 
content 

Full: Member States 
will not be able to 
maintain or introduce 
more protective rules 

Legislative 

Targeted: conformity 
requirements, remedies, 
modalities how to exercise 
those remedies and consumer 
rights relating to modification 
and termination of long term 
contracts; high level of 
consumer protection 

None 

 Goods 

Application of the 
trader's law with the 
existing rules for  
goods subject to EU 
minimum 
harmonisation. 

Legislative 

No further harmonisation – 
existing minimum 
harmonisation rules remain. 
Consumer protection will 
depend on the protection 
granted by the trader's law 

Derogation from Article 6 of 
the Rome I Regulation is 
needed. This could be 
implemented in a separate 
legal instrument without 
formally amending the Rome 
I Regulation. Such a 
derogation to the Rome I 
Regulation would need to be 
based on Article 81 TFEU; it 
would not apply in Denmark 
and might not apply in the 
UK and Ireland. 

Positions  of  stakeholders:  For  digital  content,  see  under  Option  1.  For  goods,  consumer 
representatives  unanimously  oppose  such  an  approach.  Some  businesses  would  favour 
harmonised  rules  but  some  would  see  the  application  of  traders'  law  as  a  good  solution. 
Among  Member  States  which  answered  to  this  question  in  the  context  of  the  public 
consultation,  a  number  of  them  explicitly  oppose  any  form  of  the  application  of  the  home 
option and a re-opening of the Rome I Regulation while a couple showed some openness.  

Option 3 - Setting up targeted, fully harmonised rules for the supply of digital content / 
No policy change for goods 

Level of 
harmonisation 

Legislative/non 
legislative 

Substantial law areas covered/level of 
consumer protection 

Impact on Rome I 

Digital 
content 

Full: Member 
States will not be 
able to maintain 
or introduce 
more protective 
rules 

Legislative 

Targeted: conformity requirements, 
remedies, modalities how to exercise 
those remedies and consumer rights 
relating to modification and termination 
of long term contracts; high level of 
consumer protection 

 Goods120 

N/A 

N/A 

N/A 

None 

N/A 

Positions of stakeholders: For digital content, see under Option 1. For goods, a majority of 
stakeholders and Member States warn about the possible fragmentation between online and 
offline  sales  of    goods.  In  line  with  this,  many  suggest  waiting  for  the  end  of  the  REFIT 
Fitness check evaluation.  

Option 4 – Minimum harmonisation rules for the supply of digital content / No policy 
change for  goods 

Level of 
harmonisation 

Legislative/non 
legislative 

Substantial law areas covered/level of 
consumer protection 

Impact on Rome I 

120  For  goods, options 3 and 4 are the same. 

24 

 
 
 
                                                 
Digital 
content 

Minimum: 
Member States 
would be able to 
maintain or 
introduce more 
consumer 
protective rules 

Legislative 

Targeted: conformity requirements, 
remedies, modalities how to exercise 
those remedies and consumer rights 
relating to modification and termination 
of long term contracts; high level of 
consumer protection 

None 

 Goods 

N/A 

N/A 

N/A 

N/A 

Positions of stakeholders: For digital content, the vast majority of consumer representatives 
favoured  fully  harmonised  rules,  provided  that  a  high  level  of  consumer  protection  is 
guaranteed.  Businesses  oppose  minimum  harmonisation.  Member  States  also  generally 
preferred full harmonisation over minimum harmonisation. For goods, see under Option 3.  

Option 5 – A voluntary European model contract combined with an EU trust mark 

Level of 
harmonisation 

Legislative/non 
legislative 

Substantial law areas covered/level 
of consumer protection 

Impact on Rome I 

Digital 
content 

 Goods 

N/A 

Non-legislative 

N/A 

Non-legislative 

Depending on the outcome of 
stakeholders' discussion  

Depending on the outcome of 
stakeholders' discussion 

None 

None 

Positions  of  stakeholders:  For  digital  content  and  for  goods,  stakeholders  and  Member 
States in their majority are rather sceptical about the added value of such an approach, with 
limited exceptions. 

Note: all the options presented would apply to cross-border and domestic online sales. 

4.3  Discarded options  

Building in particular on the experience drawn from the negotiations of previous initiatives 
aiming  at  harmonising  contract  law  rules,  such  as  the  proposal  for  a  Regulation  on  a 
Common European Sales Law and the Consumer Rights Directive, the following options are 
discarded:  

  Optional  instrument:  while  having  received  strong  support  from  the  European 
Parliament, the proposal for a Regulation on a Common European Sales Law121 did not 
find  a  majority  in  Council.  One  of  the  main  reasons  for  this  opposition  in  the  Council 
was the optional character of the proposal. Therefore, this option has not been taken into 
consideration as it was not considered politically feasible.  

  Comprehensive,  instead  of  targeted,  problem-focussed  set  of  rules:  another  main 
lesson drawn from the experience with the negotiation of the proposal for a Regulation 
on  a  Common  European  Sales  Law  is  not  to  provide  for  a  truly  comprehensive  set  of 
rules,  but  a  much  more  targeted  and  problem-oriented  regulation  approach.  Therefore, 
this option of a truly comprehensive set of rules has not been taken into consideration as 
it was not considered politically feasible. 

  Information measures: While information is important and useful to improve consumer 
knowledge about their rights, information measures on their own are not sufficient. First, 
information measures would not create sufficient consumer trust as they could not ensure 
that  all  consumers  benefit  from  the  protection  provided  by  their  national  law  when 
buying  cross-border.  Second,  information  campaign  can  realistically  not  eliminate  the 
uncertainty  faced  by  consumers  when  buying  online  outside  their  home  market  in  the 
context of a rather complex legal framework characterised by minimum harmonisation.122 

121   COM(2011)0636final 
122   See Section 1.2.3. 

25 

 
 
                                                 
Therefore,  this  option  has  not  been  taken  into  consideration  as  it  was  not  considered 
sufficient to meet the objectives.  

5  WHAT  ARE  THE  IMPACTS  OF  THE  DIFFERENT  POLICY  OPTIONS  AND  WHO  WILL  BE 
AFFECTED? 

5.1 No policy change/baseline scenario: See Section 1.2.4  

5.2 Option 1: Setting up targeted, fully harmonised rules for the supply of digital 
content and targeted, fully harmonised rules on online sales of goods  
Economic Impacts 
Operating costs and conduct of business  
o Fully harmonised rules specific for digital content throughout the EU will remove the complexity 
caused by different national rules that currently apply to contracts for the supply of digital content. 
It would also prevent legal fragmentation that otherwise will arise from new national legislations.  
o All  businesses  supplying  digital  content  to  consumers  both  domestically  and  cross-border,  i.e. 
around 228,500123 EU companies, will incur one-off costs of approximately €6,800124 to adapt to the 
new rules on digital content. The overall one-off adjustment costs for all EU businesses could thus 
be estimated at about €1.55  bn. 

o Increased  consumer  rights  for  digital  content  may  increase  the  number  of  requests  for  remedies, 
since consumers would have specific and clear rights that they would be more likely to invoke. This 
could entail an increase in businesses' costs for providing remedies. However, these costs will only 
be imposed on businesses that supply non-conforming digital content to their customers, and would 
in practice be an incentive for those businesses to improve the quality of digital content offered.  
o On  the  other  hand,  greater  clarity  on  consumer  rights  stemming  from  fully  harmonised  rights  is 
expected  to  result  in  simpler  complaint  handling  for  businesses  and  a  reduction  in  time  and  staff 
training  costs  required  for  resolving  issues.  This  can  be  expected  to  counterbalance  part  of  the 
increased costs for providing remedies. 

o  By fully harmonising the remaining consumer contract law rules for the online sale of goods which 
constitute  obstacles  for  cross-border  trade,  all  key  mandatory  consumer  protection  contract  law 
rules that would fall under the scope of article 6(2) of the Rome I Regulation would no longer differ 
among Member States' national legislations. Therefore, there will be no more differences between 
national consumer contract laws that could constitute an obstacle to cross-border e-commerce.  

o All businesses selling goods online, i.e. around 1.1 million EU companies,125 will have to incur the 
one-off costs of approximately €6,800 per company to adapt  to the new legislation for the online 
sales of goods. The overall one-off costs for all EU companies selling online would thus amount to 
close  to  €7.5  bn.  Businesses  currently  selling  only  offline  will  not  have  to  incur  any  adaptation 
costs.  

o The possibility that for a transitional period the rules on online and offline sales of goods may differ 
is very limited in practice, since all necessary steps will be taken to ensure coherence between the 
two regimes.126 If such differences were to actually occur for a short transitional period, they could 
affect businesses selling both online and offline. Businesses also selling cross-border would not be 
negatively  affected,  since  any  additional  costs  arising  from  a  potential  divergence  of  regimes  in 
their domestic market would be counterbalanced by the significant cost savings resulting from not 
having to adapt to other Member States' national consumer contract laws when selling online cross-
border. Therefore, any possible negative effects would only concern those businesses that currently 

123   Average between low (196,000) and high (261,000) estimates. The number of enterprises selling online is obtained by multiplying the total number of enterprises corresponding to 
the NACE categories covered by EB 413 (NACE: C, G,H, I, J - Source: Eurostat Structural Business Statistics) by the indicator on the % of enterprises  selling through computer 
mediated  networks  (source:  Eurostat  survey  on  ICT  use  by  enterprises).  In  doing  that  it  is  assumed  that  the  incidence  of  enterprises  selling  online  among  micro-enterprises  is 
between 50% (lowe estimate) and 70% (higher estimate) of that observed for 10+ enterprises. The percentages of businesses (base: EB 413 enterprises selling online) selling digital 
services entirely delivered online to individual consumers (proxy for in digital content) and selling online to consumers and selling goods to consumers (proxy for  goods online) 
are then applied to obtain the estimate on the current number of companies selling digital content online to consumers and companies selling  goods online to consumers. 

124   Based on data from the IFF Research study "Consumer Rights and Business Practices (March 2013), prepared for UK Department for Business Innovation and Skills. Estimate 
includes  the  average  costs  per  business  for  updating  terms  and  conditions  (approx.€5,300)  and  for  developing  new  versions  of  documentation  (including  receipts,  invoices  and 
consumer 
report 
of 
are 
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/274801/bis-13-914-iff-report-consumer-rights-and-business-practices.pdf 

conditions 

contracts) 

(approx. 

changed 

€1,500) 

26-27 

pages 

terms 

when 

and 

See 

full 

the 

125   1,068,500 companies, average between low (916,000) and high (1,221,000) estimates. For the calculation of estimates see footnote 123  
126   On this issue see further analysis in Section 1.1, Section 6.2 and Annex 3 

26 

 
 
                                                 
sell  and  will  continue  to  both  online  and  offline  but  only  domestically.  However,  in  practice  the 
impact  of  such  a  differentiation  would  overall  not  be  very  important  and  could  be  dealt  with 
through  adapted  business  practices.  For  example,  if  the  reversal  of  the  burden  of  proof  period  is 
extended, in 26 Member States there might be a transitional divergence on the respective rules for 
online  and  offline  sales.  However,  recent  data  show  that  the  shift  of  the  burden  of  proof  often 
operates  de  facto  throughout  the  entire  2-year  legal  guarantee  period,  and  there  is  very  limited 
change  in  traders’  behaviour  before  or  after  the  6  months  on  this  point.  Therefore  the  practical 
impact on businesses of possibly temporarily divergent rules on this point would not be significant. 
Moreover,  as  indicated  by  retail  representatives  during  the  consultation  process,  omni-channel 
businesses  could  cope  with  possible,  transitional  differences  between  the  regimes  for  online  and 
offline sales of  goods by applying the respective higher standards, which would enable them to use 
a single business model and thus save any potential additional costs. 

o Around  50%  of  the  total  one-off  adaptation  costs  (e.g.  about  €4  bn)  would  be  incurred  by 
businesses  currently  selling  online  only  domestically.127  Among  those  businesses,  some  may 
continue to sell only domestically also in the future, and therefore would not directly benefit from 
the  cost  savings  resulting  from  a  single  consumer  contract  law  regime  throughout  the  EU. 
Nevertheless,  a  significant  share  of  EU  companies  is  deterred  from  selling  cross-border  also 
because  of  consumer  contract  law  differences.128  Therefore,  at  least  a  part  of  these  previously 
deterred  companies  can  be  reasonably  expected  to  start  selling  cross-border  once  the  consumer 
contract law-related barriers are lifted. New exporters who would already have adapted to the new 
rules for the online sales of  goods would then be able to sell to consumers in other Member States 
without having to comply with potential more protective mandatory consumer contract law rules. In 
this  way  a  business  could  save  up  to  €90,000  if  it  wishes  to  sell  in  10  Member  States  and  up  to 
€243,000 if it wishes to sell to all 27 other Member States. 

o Businesses  currently  selling  online  cross-border  would  only  have  to  incur  once  these  adaptation 
costs, and would then be able to expand their cross-border activities to more Member States at no 
additional  adaptation  costs.  They  would  thus  save  the  costs  of  about  €9,000  currently  incurred  to 
find about the mandatory consumer contract law rules in each additional Member State they wish to 
sell to.  

o Eliminating  consumer  contract  law  differences  for  both  the  supply  of  digital  content  and  the 
online sale of  goods could increase the number of  EU  businesses currently selling  online cross-
border by 5.3 percentage points (or 12% in relative terms). According to a conservative estimate, 
this  means  that  over  122,000129  more  businesses  could  be  expected  to  start  selling  online  cross-
border.130 
Administrative burdens on businesses 
o There will be no additional information obligations on businesses  
Trade flows 
o Trade  flows  will  increase.  Removing  contract  law-related  barriers  that  hinder  cross-border  online 
trade  could  increase  exports  of  Member  States  within  the  EU  in  nominal  terms  by  an  average  of 
0.04%, ranging from +0.14% in Slovakia to +0.0% in Lithuania and Croatia131. 

o There  will  be  no  discrimination  or  any  kind  of  obstacle  to  the  activity  of  businesses  from  third 
countries.  When  selling  to  EU  consumers  and  in  case  the  litigation  ends  up  in  an  EU  court,  the 
latter will be subject to the same rules as EU businesses. 
Competitiveness of businesses 
o Removing contract law-related barriers will facilitate cross border trade. This will put pressure on 
competition in domestic markets. For digital content, businesses may seek to increase their prices to 
cope with the costs associated with the new obligations on conformity,  remedies and other rights. 
However,  higher  competition  will  encourage  businesses  to  become  more  innovative,  improve 
quality or reduce prices in order to stay competitive. 

127   Estimate based on the share of respondents to the Digital Single Market firms survey. Among companies selling  goods to consumers online, 54% sell only domestically.  
128   "Differences in national consumer protection rules" and "differences in national contract law" were reported as important obstacles to developing online sales to other EU countries 
by respectively 41% and 39% of retailers who currently sell online. Flash Eurobarometer 396 "Retailers' attitudes towards cross-border trade and consumer protection" (2015) p.43. 
129   See Annex 4. The estimated number of additional companies that would start selling online cross-border is of 122,324. This is a conservative estimate that applies the percentage 
point increase to the estimated number of companies already active online (the target group for Flash Eurobarometer 413). It does not take into account the companies currently not 
engaged in online transactions, but which could start selling online cross-border once the barriers are removed 

130   See footnote 50  and Annex 4 
131   See Annex 4 

27 

 
                                                 
Position of SMEs 
o SMEs, in particular micro and small businesses, will benefit compared to the current situation: the 
smaller a business is the more significant cost savings from fully harmonised cross-border rules for 
goods will be. When selling online, SMEs will only have to adapt their terms and conditions once 
to the new harmonised rules. They will be able to trade with up to 27 other Member States on this 
basis.  

o SMEs will have to incur the one-off costs of approximately €6,800 to adapt to the new legislation 
for the online sales of goods. The overall one-off costs for SMEs selling online (about 98% of all 
EU companies selling online)132 would thus amount to about €7.3 bn. SMEs currently selling only 
offline will not have to incur any adaptation costs at all.  As a fragmentation between the rules on 
online  and  offline  sales  of  goods  seems  in  practice  not  very  likely  or  would  probably  not  have  a 
significant impact133, SMEs selling both online and offline will only be faced with limited costs for 
not more than a relatively short transitional period of different regimes for their online and offline 
sales.  In  any  case,  retail  business  representatives  have  mentioned  during  the  consultation  process 
that  omni-channel  businesses  could  cope  with  possible,  only  transitional  differences  between  the 
online and the offline regimes for goods by applying the respective higher standards to all of their 
sales and in this way keeping a single business model. 

o SMEs, in particular micro and small businesses will be able to supply digital content cross-border 
as well as domestically based on a clear set of fully harmonised EU rules. While SMEs will have to 
comply with the new EU consumer mandatory rules for digital content, these rules will be largely 
harmonised. Therefore SMEs will have to incur the  costs of approximately €6,800 to adapt to the 
new legislation only once, avoiding the additional costs that would arise from legal fragmentation 
due to divergent new national legislations. Since SMEs constitute the vast majority (around 92%)134 
of all EU businesses supplying digital content, almost all the overall one-off adaptation costs, i.e. 
€1.5 bn, will be incurred by SMEs. 

o Increased  consumer  rights  for  digital  content  may  increase  the  number  of  consumer  requests  for 
remedies. However, the obligations concerning remedies will only impose costs on those businesses 
that  supply  digital  content  that  does  not  conform  to  the  contract.  In  addition,  greater  clarity  on 
consumer rights is expected to result in simpler complaint handling for businesses and a reduction 
in time and staff costs required to resolve issues. 
Functioning of the internal market and competition 
o By making it easier for traders to expand their online activities abroad, fully harmonised rules on 

goods and digital content will strengthen competition.  

o These fully harmonised rules will also allow businesses to better exploit economies of scale: they 
will be able to build their share in new markets, decrease their production or development costs and 
increase their efficiency.  
Innovation and research 
o Cost  savings  and  enhanced  competition  could  on  the  one  hand  provide  businesses  with  greater 
opportunities for R&D and other forms of investment, and on the other hand increase incentives to 
invest in R&D and other efficiency-enhancing measures.  

o However,  applying  the  same  standards  for  paid  digital  content  also  to  content  provided  against 
another counter performance may, to a certain extent, discourage businesses from developing new 
business models based on a counter performance other than money.  
Public authorities 
o Full harmonisation Directives would entail implementation costs for all Member States. However, 
they would enable Member States to better adapt the new EU rules to their own legal system,  for 
instance by ensuring consistency with their general contract law rules (which will not be affected by 
the  new  EU  legislation).  The  introduction  of  fully  harmonised  rules  on  the  sale  of  goods  in 
particular would entail, to a different extent depending on the previous implementation, the partial 
amendment or repeal of the relevant implementation provisions of the current Consumer Sales and 
Guarantees Directive. As this option would leave the Rome I Regulation untouched, there would be 
no effects on the international private law rules in force. 

o A  Regulation  would  be  directly  applicable  in  all  Member  States,  and  could  thus  incur  minimal 

132   Estimate based on the share of respondents to the Digital Single Market firms survey (EB413). Among companies selling goods to consumers online, 98% are SMEs 
133   See Section 1.1. 
134   Estimate based on the share of respondents to the Digital Single Market firms survey. Among companies selling digital content to consumers online, 99% are SMEs. 

28 

 
                                                 
implementation  costs.  However,  it  would  become  integral  part  of  a  national  law  which  is  not 
adapted  to  the  Regulation.  Therefore,  it  would  either  lead  to  adaptation  of  related  national  legal 
areas which will cause implementation costs or would cause frictions/overlaps with related national 
legal areas. 

o Fully  harmonised  rules  should  facilitate  enforcement  in  cross-border  cases  and  information 
campaigns  all  over  the  EU.  It  would  provide  the  competent  authorities  with  a  clear  message  that 
could  be  more  easily  communicated  throughout  the EU,  enabling  them  for  example  to  inform  all 
EU consumers about a single legal guarantee period or give them a concrete picture on what their 
rights are and how they can exercise them across the EU.  
Consumers and households 
o Consumers  (including  active  consumers)  will  benefit  from  fully  harmonised  rights  for  digital 
content at a high level of protection. They will have clear rights when they access digital content 
from  anywhere  in  the  EU.  This  will  increase  their  confidence  in  buying/accessing  such 
products/services and contribute to reducing consumers' detriment, since there will be a set of clear 
rights that will enable consumers to address the problems they face with digital content.  

o The fully harmonised key consumer contract law rules on the online sale of goods would improve 
the overall level of consumer protection in the EU. While broadly following the current level of the 
Consumer Sales and Guarantees Directive, they would raise the EU level of consumer protection on 
important issues that would significantly contribute to boosting consumers' confidence when buying 
online.  Even  though  in  a  very  few  Member  States,  -which  have  gone  beyond  the  Sales  and 
Guarantees Directive in their implementation-, the level of protection on individual points may be 
lowered,  this  will  be  counterbalanced  by  the  overall  very  high  level  of  consumer  protection 
throughout  the  EU,  the  increase  of  consumers'  confidence  in  cross-border  purchasing  and  the 
enhanced  cross-border  enforcement  of  consumer  protection  rules,  facilitated  by  fully  harmonised 
clearer and simpler rules applicable throughout the EU. 

o  Fully harmonised rules for both the supply of digital content and the online sale of goods would 
reduce contract law-related consumer concerns and could increase the number of consumers buying 
online  cross-border  by  about  7  percentage  points  (or  13.5%  in  relative  terms);  this  means  that 
between  around  8  and  13  million  additional  consumers  could  start  buying  online  cross-border, 
raising the total number of consumers shopping online cross-border to between around 64 and 70 
million.135  The  average  sum  spent  annually  by  consumers  in  online  cross-border  shopping  would 
also increase by about 14%, which in real terms would represent an additional annual spending of 
€40 per consumer buying online cross-border. 

o Consumers will benefit from a wider choice of products, since they will have access to offers from 
traders  across  the  EU,  at  more  competitive  prices.  Consumer  prices  are  projected  to  drop  in  all 
Member States, ranging from  -0.35% in Spain to  -0.05% in Lithuania and Romania. The average 
decrease  in  consumer  prices  across  the  EU  can  be  estimated  at  -0.25%.  In  addition,  household 
consumption, which mirrors consumers' welfare, would equally rise in every Member State, ranging 
from  +0.05  in  Lithuania  to  +0.38  in  Spain,  with  an  average  of  +0.23  for  the  EU28  (which 
corresponds to about €18 bn). Consumer welfare gains are likely to be higher than suggested by the 
increase  in  real  consumption,  as  consumers  would  also  enjoy  a  wider  choice  of  products  and 
services: a considerable benefit that cannot be captured by the volume of consumption. A study on 
e-commerce in goods136 found that consumer welfare gains from increased choice in an integrated 
Single Market for e-commerce would be even higher than gains from lower prices. 
Macroeconomic environment 
o Full  harmonisation  of  rules  on  digital  content  will  increase  consumer  confidence,  which  should 
lead to an increase of domestic and cross-border trade of digital content and thus will have positive 
effects on household consumption and GDP.137  

o By eliminating  costs for businesses selling  goods to other Member States, this  option  would also 

generate an increase of supply in cross-border trade of goods. 

o As  a  result  of  fully  harmonised  rules  on  both  digital  content  and  the  online  sale  of  goods,  EU 

135   See footnote 63 and Annex 4 
136   Consumer market study on the functioning of e-commerce and Internet marketing and selling techniques in the retails of goods, Civic Consulting, 2011, p.5 
137   See Section 6.2 and Annex 4 

29 

 
                                                 
GDP is projected to permanently increase in real terms by 0.03% or about €4 bn per year, with the 
highest increase in Slovenia (+0.06%) and the lowest in Romania (0.0%).138 Discounting to today’s 
prices, the net present value of the additional output over a 10-year period would be about €28 bn.  
o The  estimated  impact  on  main  macro  –economic  variables  (GDP,  Household  consumption  etc.) 
reflects the overall outcome of the planned legislative action, including a possible substitution effect 
between  offline  and  online  trade. The  model139  also  reflects  the  adaptation  process  of  offline 
businesses as a result of increased competition coming from online cross-border trade, meaning that 
they will have to become more efficient to remain in the market. 
Social impacts  
Employment and labour markets  
o Higher  levels  of  economic  activity  are  expected  to  have  a  positive  net  effect  on  the  levels  of 
employment  in  the  EU.  To  illustrate  the  possible  effects  of  this  option  on  employment,  it  can  be 
assumed that the permanent increase of EU GDP by €4 bn per year would lead to a net increase in 
employment in the order of magnitude of approximately 60,000 jobs. 140  

o In  the  context  of  this  impact  assessment  it  is  not  possible  to  further  allocate  these  estimated 
employment  effects  among  different  sectors  of  the  economy.  This  would  require  more  specific 
assumptions about future business models, thus adding highly speculative elements to the analysis. 
However, it can be assumed that an additional growth in online sales could to some extent have a 
negative  effect  on  physical  stores.  This  is  of  course  already  a  current  trend,  resulting  from 
digitalisation  and  internet  penetration.  Indeed,  current  estimates  foresee  that  the  rapid  growth  of 
online sales means that sales in-store will be negative in 2015 by -1.4% in Europe and -1.9% in the 
U.S. 141 

o However, online will continue to be one channel of distribution rather than being the sole channel. 
Multi-channel  or  omni-channel  business  models  are  increasingly  applied  by  businesses  which 
operate online as well as in physical stores, to cope with competition. 
Environmental Impacts 
Transport and the use of energy  
o Fully harmonised rules across the EU will boost online sales of goods. This could in turn increase 
the  use  of  transport  for  delivery  purposes,  leading  to  an  increase  in  CO2  and  other  vehicle 
emissions.  However,  more  online  purchases  could  also  limit  the  number  of  buyers  actually  using 
their vehicles to make their purchases, and thus counterbalance the increase in CO2 emissions. For 
example, if 10  people order products online and these are delivered at home by one single truck, 
this would probably lead to a decrease of the CO2 compared to a situation where these 10 people 
may use their personal car to go to the shop and buy the product. 

o An increase of trade of digital content supplied online will have no environmental impacts, since 
no  transport  for  delivery  is  required.  An  increase  in  trade  of  digital  content  on  a    medium  could 
entail  a  certain  increase  of  transport  for  delivery.  However,  such  increase  is  not  expected  to  be 
significant, given the weight of the  media concerned and that the trend of the digital content market 
is rapidly shifting towards in formats. 
Impacts on Fundamental Rights (Charter of Fundamental Rights) 
Consumer Protection (Article 38)  
o A set of fully harmonised rules for online sales of goods will ensure a fully harmonised high level 
of  consumer  protection  throughout  the  EU  in  conformity  with  Article  38  of  the  Charter  of 
Fundamental  rights. However, these rules  will replace the current national  rules for goods, which 
could lead to changes to the level of protection consumers enjoy in certain Member States. Member 
States will not be able to adopt or maintain more protective measures.142 

o A  set  of  fully  harmonised  rules  for  digital  content  will  enhance  consumer  protection  throughout 
the  EU,  since  it  will  provide  EU  consumers  with  clear  and  specific  rights  when  they  buy/access 
digital content at home or in other Member States. 

o Public authorities will not be competent to enforce EU rules towards third country businesses that 
do not have subsidiaries in Europe. However, consumers will be able to take court action in their 

138   See Section 6.2 and Annex 4 
139   See details on the model in Annex 4 
140   According to Eurostat, EU GDP is currently at about €14 trillion and employment at about 220 million, and thus the output per worker is about €60,000 to €65,000. If EU GDP 
increases by about €4 billion following the removal of barriers  to cross-border trade, and assuming that other variables remain the same, this could be expected to lead to a net 
increase in employment in the order of magnitude of approximately 60,000 jobs. 

141   http://www.retailmenot.com/corp/static/filer_public/86/ed/86ed38d1-9cb9-461c-a683-ab8e7b4e1ffc/online_retailing_in_europe_us_and_canada.pdf 
142   For a detailed assessment of the impacts on the level of consumer protection in each Member State see Section 6.2 and Annex 8 

30 

 
                                                 
own countries under the Brussels I Regulation, and, in the cases foreseen by the Rome I Regulation, 
request the application of the more protective measures of their own law. 
Personal data protection (Articles 7 and 8) 
o No impact. The rules provided will be in full conformity with Articles 7 and 8 of the Charter and 
current and future EU legislation on data protection, in particular Directive 95/46/EC (that is likely 
to  be  replaced  by  the  future  General  Data  Protection  Regulation).  These  rules  will  clarify  the 
contractual obligation of the trader when digital content is supplied against a counter performance 
other than money (for example personal data), but will not lay down specific rules on personal data 
protection. 

o Rules covering digital content provided against personal data will increase consumers' awareness of 

the economic value of their personal data and further contribute to better protection.  
Freedom to conduct a business (Article 16) 
o Businesses will be facilitated to sell goods and/or digital content in the EU, both domestically and 

cross-border. Their ability to expand their business will therefore be reinforced. 
Right to an effective remedy (Article 47) 
o Clear contract law rights for online contracts (in particular for digital content) will have a positive 
impact on the ability to exercise one's right to an effective remedy before the courts. The new rules 
will clarify the remedies available in case of disputes. 

5.3 Option 2: Setting up targeted, fully harmonised rules for the supply of digital 
content – Application of the trader's law combined with the existing harmonised rules 
on goods 
Economic impacts  
Operating costs and conduct of business  
o For the impact of fully harmonised rules specific for digital content, see analysis under Option 1. 
o For  goods,  the  current  minimum  harmonisation  rules  will  continue  to  apply,  and  the  differences 
between  national  legislations  will  be  maintained.  Traders  will  however  be  able  to  sell  goods  to 
consumers  in  every  Member  State  under  their  own  law,  as  there  will  be  a  derogation  from  Article 
6(2)  of  the  Rome  I  Regulation.  They  will  no  longer  be  obliged  to  comply  with  the  mandatory 
consumer  protection  rules  that  provide  for  a  higher  level  of  consumer  protection  than  under  their 
national law and therefore will not incur additional costs.  

o New  exporters  who  were  previously  deterred  from  selling  online  cross-border  because  of  the 
additional  contract  law-related  costs  as  well  as  existing  exporters  who  wish  to  expand  their  cross-
border activities to more Member States could therefore save up to €90,000 if they wish to sell in 10 
Member States, and up to €243,000 if they wish to sell to all 27 other Member States.  

o Eliminating supply-side barriers for both the supply of digital content and the online sale of goods 
could increase the number of EU businesses currently selling online cross-border by 5.3 percentage 
points  (or  12%  in  relative  terms).  According  to  a  conservative  estimate,  this  means  that  about 
122,000 more businesses could be expected to start selling online cross-border.143 
Administrative burdens on businesses 
o No additional administrative burdens will be imposed on traders. 
Trade and investment flows 
o Trade and investment flows will be improved as businesses will be able to sell  digital content and 
goods  more  easily  in  other  Member  States.  In  particular,  eliminating  contract  law-related  costs  for 
businesses selling goods will facilitate cross-border trade. This would however be counterbalanced to 
some  extent  by  the  fact  that  consumers'  confidence  will  not  be  improved,  as  the  demand-side 
concerns would not be addressed and consumers would no longer benefit from the more protective 
rules of their own country.  

o Removing  only supply-side barriers to cross-border online trade could increase exports of Member 
States within the EU in nominal terms by an average of 0.01%, ranging from +0.04% in Slovakia to 
0% in Belgium, Czech Republic, Estonia, Hungary, Lithuania, United Kingdom and Croatia144. 

o There  will  be  no  discrimination  or  any  kind  of  obstacle  to  the  activity  of  businesses  from  third 
countries  active  in  the  digital  content  market.  When  selling  to  EU  consumers,  the  latter  will  be 

143   See Annex 4 
144   See Annex 4 

31 

 
 
                                                 
subject to their own (third country) law. 

Competitiveness of business 
o Traders  would  not  face  additional  contract  law-related  costs  when  selling  goods  in  other  Member 
States, and thus the number of traders seeking to export to other Member States can be expected to 
increase. This is likely to increase competition and encourage businesses to become more innovative 
and improve the quality of their products or to reduce prices in order to stay competitive.  
Position of SMEs 
o Micro and small businesses selling goods cross-border would benefit in particular, by saving costs of 
complying with more protective mandatory rules of the consumer's national law. SMEs will be able 
to trade in all 27 other Member States at no additional contract law-related  costs. 

o Due  to  the  possible  decrease  of  consumers'  confidence  in  buying  goods  cross-border,  SMEs  (more 
than  bigger,  better-known  businesses)  may  be  faced  with  a  difficulty  to  sell  to  consumers  in  other 
Member States, since consumers will be more likely to trust more well-known, familiar brands than 
small businesses abroad. 

o  For the impact of the fully harmonised rules for digital content on SMEs, see analysis under Policy 

Option 1 
Functioning of the internal market and competition 
o By eliminating contract law-related barriers for businesses, competition will be strengthened in both 

domestic and cross-border markets. 
Innovation and research 
o Cost  savings  and  enhanced  competition  will  on  the  one  hand  provide  businesses  with  greater 
opportunities for R&D and other forms of investment, and on the other hand increase incentives to 
invest in R&D and other efficiency-enhancing measures.  

o However, applying the same standards for paid services and those provided against another counter 
performance  may, to a certain  extent,  discourage businesses  from  developing new business  models 
based on a counter performance other than money. 
Member States/Public authorities 
o A full harmonisation Directive will entail implementation costs for Member States. However, it will 

be possible for them to adapt the EU rules to their own legal system. 

o A  Regulation  will  be  directly  applicable  in  all  Member  States,  and  could  thus  incur  minimal 
implementation costs. However, it will become an integral part of a national law which is not adapted 
to the Regulation. Therefore, it will either lead to adaptation of related national legal areas which will 
cause implementation costs or will cause frictions/overlaps with related national legal areas. 

o Fully  harmonised  rules  for  digital  content  products  should  facilitate  enforcement  in  cross-border 

cases and information campaigns all over the EU. 

o This  option  requires  a  derogation  to  the  Rome  I  Regulation  on  the  law  applicable  to  contractual 
obligations. Most Member States are reluctant towards this  prospect and political feasibility of this 
option could be thus undermined. 
Consumers and households 
o For the impact of fully harmonised rules specific for digital content, see analysis under Option 1. 
o The  current  minimum  harmonisation  consumer  protection  rules  for  the  sales  of  goods  will  be 
maintained. However, European consumers would no longer benefit from a higher level of consumer 
protection that their own national  law going in its implementation beyond  the Consumer Sales and 
Guarantees Directive may provide on top of the trader's law. Vice versa, consumers may benefit from 
a potentially higher level of the trader's law if that goes on specific points beyond their own national 
law.  In  addition,  such  a  change  might  entail  the  removal  of  protection  offered  by  mandatory 
consumer contract law rules in transactions of consumers with traders from third States.  

o Fully harmonised rules for the supply of digital content and the removal of contract law related costs 
for businesses selling goods online would lead to an increased cross-border supply and would thus 
increase  the  choice  of  products  offered  to  consumers  and  put  competitive  pressure  on  prices.  The 
average  decrease  in  consumer  prices  across  the  EU  can  be  expected  to  be  -0.06%,  ranging  from  -
0.10% in Spain to -0.01% in Lithuania. Household consumption, which mirrors consumers' welfare, 
would rise by an average of +0.07 for the EU28, ranging from +0.01 in Lithuania to +0.11 in Spain. 
However,  the  positive  effect  on  household  consumption  may  be  to  a  certain  extent  offset  by  a 
decrease of consumer confidence, as consumer concerns regarding cross-border trade would not be 

32 

 
addressed and consumers may not benefit from the more protective rules of their own country. 
Macroeconomic environment 
o Full harmonisation of rules on digital content will increase consumer confidence which should lead 

to an increase of domestic and cross-border trade of digital content.  

o This  option  would  eliminate  contract  law-related  costs  and  remove  the  supply-side  obstacles  for 
businesses  selling  goods  to  consumers  in  other  Member  States.  It  would  therefore  facilitate  cross-
border  trade  of  goods,  but  would  still  not  address  the  demand-side  obstacles  relating  to  consumer 
confidence  when  buying  online  cross-border.  EU  GDP  can  be  expected  to  permanently  increase  in 
real terms by 0.01% or about €1.4 bn, from +0.02% in Slovenia and +0.01% in 13 Member States to 
0%  in  the  remaining  14  Member  States.145  Discounting  this  back  to  today’s  prices,  the  net  present 
value of the additional output over a period from 2020-2029 would be about €9 bn.  
Social impacts  
Employment and labour markets  
o Higher  levels  of  economic  activity  are  expected  to  have  a  positive  net  effect  on  the  levels  of 
employment in the EU. The possible effects of this option on employment can be assumed to be in 
the  order  of  magnitude  of  approximately  20,000  jobs,  resulting  from  the  projected  increase  of  EU 
GDP by 1.4 bn.146  

o However, in the context of this impact assessment it is not possible to further allocate these estimated 
employment effects among different sectors of the economy, as this would require rather speculative 
assumptions about future business models. 
Environmental Impacts  
Transport and the use of energy  
o See analysis under Option 1 
Impacts on Fundamental Rights (Charter of fundamental Rights) 
Consumer Protection (Article 38)  
o A set of fully harmonised rules for digital content will enhance consumer protection throughout the 
EU,  since  it  will  provide  EU  consumers  with  clear  and  specific  rights  when  they  access  digital 
content, both in their country of residence and in other Member States. 

o For goods, European consumers would no longer benefit from a higher level of consumer protection 
that their own national law going in its implementation beyond the Consumer Sales and Guarantees 
Directive  may  provide  on  top  of  the  trader's  law.  Vice  versa,  consumers  may  benefit  from  a 
potentially higher level of the trader's law if that goes on specific points beyond their own national 
law.  Such  a  change  might  also  entail  the  removal  of  protection  offered  by  mandatory  consumer 
contract rules in transactions between EU consumers with traders from third countries. 
Personal data protection (Articles 7 and 8) 
See analysis under Option 1 
Freedom to conduct a business (Article 16) 
o Businesses would have to comply with new rules on digital content. However these rules would be 
fully harmonised and thus would lift any barrier to trade due to differences in consumer mandatory 
contract law. 

o The  elimination  of  the    traders'  obligation  to  comply  with  more  protective  mandatory  rules  of  the 
consumer's law when selling goods in other Member States would facilitate the expansion of traders' 
business  activities  across  the  EU.  The  positive  effect  could  be  counterbalanced  by  the  fact  that 
demand-side  obstacles  (consumers'  lack  of  confidence  when  buying  cross-border)  would  not  be 
lifted. 
Right to an effective remedy (Article 47) 
o A set of fully harmonised rules for digital content will enhance the ability to exercise one's right to 
an effective remedy before the courts. The new rules should clarify the remedies available in case of 
disputes.  

o However,  the  derogation  to  article  6(2)  of  the  Rome  I  Regulation  could  make  it  more  difficult  for 
consumers who bought a  good to exercise their right to an effective remedy, since consumers will 
not be able to make use of the more protective rules of their own law in cross-border sales contracts. 

145   See Annex 4 
146   According to Eurostat, EU GDP is currently at about €14 trillion and employment at about 220 million, and thus the output per worker is about €60,000 to €65,000. If EU GDP 
increases by about €1.4 billion following the removal of supply-side barriers to cross-border trade, and assuming that other variables remain the same, this could be expected to lead 
to a net increase in employment in the order of magnitude of approximately 20,000 jobs. 

33 

 
                                                 
5.4 Option 3: Setting up targeted, fully harmonised rules for the supply of digital 
content – No policy change for goods  
Economic impacts 
Operating costs and conduct of business  
o For the impact of fully harmonised rules specific for digital content, see analysis under Option 1. 
o At €212 bn, the value of the market for  goods, together with services ordered online but consumed 
offline,  represents  more  than  90%  of  the  total  value  of  the  Digital  Single  Market.  The  respective 
contract law-related barriers that hinder cross-border trade of goods will remain. Businesses will have 
additional costs when selling cross-border, as described in the baseline scenario in Section 1.3.  
Administrative burdens on businesses 
o There  will  be  no  change  in  the  information  obligations  imposed  on  businesses  supplying  digital 

content or goods.  
Trade flows 
o The existence of fully harmonised EU rules on digital content will eliminate the current complexity. 
Businesses  will  have  to  apply  new  EU  rules  on  digital  content.  However  these  rules  will  be  fully 
harmonised, thus minimising the additional costs for businesses. In addition, businesses would avoid 
additional costs that would arise from legal fragmentation due to divergent new national legislations. 
o There  will  be  no  discrimination  or  any  kind  of  obstacle  to  the  activity  of  businesses  active  in  the 
digital content market from third countries; when selling to EU consumers, the latter will be subject 
to the same rules as EU businesses. 

o As regards goods, online cross-border trade and investment flows will remain at the same level as in 
the  baseline  scenario,  since  differences  of  consumer  mandatory  contract  law  rules  will  continue  to 
hinder many businesses from exporting to other Member States. 
Competitiveness of businesses 
o For  digital  content,  removing  contract  law-related  barriers  will  lead  to  an  increase  in  cross-border 
trade. This will put pressure on competition in domestic markets. Higher competition will encourage 
businesses to become more innovative and improve the quality of their products or to reduce prices in 
order to stay competitive. 

o Without  EU  action  to  reduce  contract  law  barriers  for  goods,  businesses  would  be  deprived  of  the 
opportunity to better achieve economies of scale, through access to a larger market. They will not be 
able  to  save  on  production  costs  and  become  more  competitive,  either  by  reducing  their  prices  or 
improving the quality and variety of their products. 
Position of SMEs 
o For the impact of the fully harmonised rules for digital content on SMEs, see analysis under Policy 

Option 1.  

o SMEs,  in  particular  micro  and  small  businesses,  would  continue  to  face  disproportionate  contract 
law-related  costs  when  selling  goods  online  cross-border.  SMEs  will  not  have  the  opportunity  to 
expand  their  activities  and  reach  a  much  larger  market.  By  remaining  restricted  to  their  national 
markets, SMEs will continue to face the major problem of finding customers. 
Functioning of the internal market and competition 
o Competition in the digital content market -both domestic and cross-border- would be strengthened, 
since the overall volume of trade would increase as consumers would be more confident in buying 
digital content. 

o However competition for goods in the EU would not increase, since the current contract law-related 
obstacles  for  new  entrants  in  domestic  markets  will  be  maintained.  Less  competition  will  in  turn 
result in less consumer choice and higher prices. 
Innovation and research 
o The  overall  growth  and  the  increased  competition  in  the  digital  content  market  would  drive 

innovation and research.  

o However,  a  limited  development  of  economies  of  scale  due  to  less  access  to  bigger  markets  when 

selling goods will reduce the resources available to businesses for research and development. 
Public authorities 
o A  full  harmonisation  Directive  on  digital  content  will  entail  implementation  costs  for  Member 

States. However, it will be possible for them to adapt the EU rules to their own legal system. 

34 

 
 
o A  Regulation  will  be  directly  applicable  in  all  Member  States,  and  could  thus  incur  minimal 
implementation costs. However, it will become integral part of a national law which is not adapted to 
the Regulation. Therefore, it will either lead to adaptation of related national legal areas which will 
cause implementation costs or will cause frictions/overlaps with related national legal areas. 

o Fully  harmonised  rules  for  digital  content  would  facilitate  enforcement  in  cross-border  cases  and 

information campaigns all over the EU. 

o For goods, there will be no additional administrative burden for government authorities. Courts will 
decide  on  cross-border  cases  on  the  basis  of  foreign  law  which  will,  to  the  extent  online  trade 
increases, increase the necessary workload, i.e. costs and duration of disputes. While a major part of 
these  costs  will  be  borne  ultimately  by  the  parties,  the  added  workload  will  to  a  certain  extent 
decrease the overall efficiency of justice.  
Consumers and households 
o For the impact of fully harmonised rules specific for digital content, see analysis under Option 1. 
o In  the  goods  market,  due  to  the  remaining  legal  differences  and  contract  law-related  costs,  some 
businesses will continue to be discouraged from selling cross-border and competition will remain at 
suboptimal  levels,  failing  to  drive  down  prices.  As  a  consequence,  businesses  will  not  be  driven 
towards  innovation  and  offering  a  large  choice  of  goods  to  consumers.  Consumers'  choice  will 
therefore remain in some cases limited. 

o When  buying  goods,  consumers  will  continue  to  benefit  from  the  sales  remedies  provided  by  the 
Consumer Sales and Guarantees Directive and the protection against unfair contract terms provided 
by the Unfair Contract Terms Directive. 

o Enforcement of the existing consumer protection legislation is expected to be strengthened due to the 
revision  of  the  Consumer  Protection  Cooperation  Regulation  and  redress  improved  thanks  to  the 
operation of the Online Dispute Resolution platform. 
Macroeconomic environment 
o By promoting consumer confidence, the new rules on digital content could contribute to increasing 
the demand for digital content and thus have some positive effects on macroeconomic variables such 
as  household  consumption  and  GDP.  However,  these  effects  will  be  somewhat  limited  since  there 
will be no contribution from the further development of cross-border trade of goods, which accounts 
for  more  than  90%  of  the  total  value  of  the  Digital  Single  Market,  together  with  services  ordered 
online but consumed offline. 
Social impacts 
Employment and labour markets  
o There will be a positive effect as regards employment in the EU, through an increase in household 

consumption and GDP resulting from an increase in the volume of trade for digital content.  
Environmental Impacts 
Transport and the use of energy  
o An  increase  of  trade  of  digital  content  supplied  online  will  not  have  significant  environmental 
impacts,  since  no  transport  for  delivery  is  required.  An  increase  in  cross-border  trade  of  digital 
content  on a  medium could entail  a certain increase of transport for delivery. Such increase is not 
expected  to  be  significant,  given  the  weight  of  the    mediums  concerned  and  that  the  trend  of  the 
digital content market is rapidly shifting towards the in formats. 
Impacts on Fundamental Rights (Charter of fundamental rights) 
Consumer Protection (Article38) 
o A set of fully harmonised rules for digital content will enhance consumer protection throughout the 
EU, since it will provide EU consumers with clear and specific rights when they buy/access digital 
content, both in their country and in other Member States. 

o When buying goods, consumers will continue to benefit from the protection against unfair contract 
terms  provided  by  the  Unfair  Contract  Terms  Directive  and  the  sales  remedies  provided  by  the 
Consumer  Sales  and  Guarantees  Directive.  Public  authorities  will  not  be  competent  to  enforce  EU 
rules towards third country businesses that do not have subsidiaries in Europe. However consumers 
will  be  able  according  to  the  Brussels  I  Regulation  to  take  court  action  in  their  own  countries  and 
request  the  application,  in  the  cases  foreseen  by  the  Rome  I  Regulation,  of  the  more  protective 
measures of their own law. 
Personal data protection (Articles 7 and 8) 
o See analysis under Option 1 

35 

 
Freedom  to conduct a business (Article 16) 
o A fully harmonised set of rules for consumer digital content will enable businesses to expand their 

business activities more easily within the EU as consumers will be more confident. 

o However  differences  in  national  consumer  contract  law  rules  will  still  hinder  online  cross-border 

trade of goods. 
Right to an effective remedy (Article 47) 
o A set of fully harmonised rules for digital content will enhance the ability to exercise one's right to 
an effective remedy before the courts. The new rules should clarify the remedies available in case of 
disputes.  

o Lack  of  clarity  as  to  the  applicable  law  to  online  contracts  concerning  goods  can  have  a  negative 

impact on the ability to exercise one's right to an effective remedy before the courts. 

5.5 Option  4:  A  minimum  harmonisation  Directive  setting  up  rules  for  the  supply  of 
digital content – No change for goods 
Economic impacts  
Operating costs and conduct of business  
o A minimum harmonisation Directive will establish EU wide minimum rights for consumer contracts 
for  the  supply  of  digital  content.  Businesses  will  have  to  comply  with  these  new  rules.  All 
businesses  supplying  digital  content  to  consumers  both  domestically  and  cross-border,  i.e.  around 
228,500147 EU companies, will incur one-off costs of approximately €6,800 to adapt to the new rules 
on digital content. The overall one-off adjustment costs for all EU businesses could thus be estimated 
at about €1.55 bn. Member States will be able, as for goods, to go beyond the minimum standards 
and  raise  the  level  of  consumer  protection.  Traders  will  therefore  have  to  comply  with  different 
mandatory  consumer  protection  rules  when  targeting  a  country  with  a  higher  level  of  consumer 
protection that their own.  

o Traders selling goods and digital content cross-border will therefore incur additional costs for each 

Member State they target, amounting to about €9,000 per Member State. 
Administrative burdens on businesses 
o The EU rules will not impose further information obligations on businesses. 
Trade flows 
o  Introducing specific rules on digital content will to some extent lead to an increase of cross-border 
trade of digital content, mainly due to the increase of consumers' confidence. However, as for goods, 
there  will  be  legal  fragmentation.  Businesses  will  still  face  additional  costs  due  to  differences  in 
mandatory consumer contract law rules. 
Competitiveness of business 
o Traders will  still be confronted  with a fragmented legal framework across EU Member States both 
for  goods  and  digital  content.  They  will  therefore  not  be  able  to  have  full  access  to  an  EU-wide 
market  and  fully  benefit  from  economies  of  scale.  By  continuing  to  face  additional  contract  law-
related costs when selling to other Member States, they will not be able to significantly reduce their 
production and development costs and therefore their ability to become more competitive will remain 
limited.  
Position of SMEs 
o Micro and small businesses will have to comply with the new rules on digital content. Since SMEs 
constitute the vast majority (around 99%)148 of all EU businesses supplying digital content, almost all 
the  overall  one-off  adaptation  costs  for  businesses,  i.e.  €1.5  bn,  will  be  incurred  by  SMEs.  In 
addition, they may still have to incur additional contract law-related costs when they wish to sell to 
other  Member  States,  since  differences  in  consumer  contract  law  rules  will  arise  due  to  minimum 
harmonisation.  Therefore,  SMEs  selling  cross-border  will  have  to  incur  the  additional  contract  law 
related costs of approximately 9,000 per Member State that they wish to sell to. 

o SMEs,  in  particular  micro  and  small  businesses,  would  continue  to  face  disproportionate  contract 
law-related  costs  when  selling  goods  online  cross-border.  SMEs  are  assumed  not  having  the  same 
opportunity  as  bigger  companies  to  expand  their  activities  and  reach  a  much  larger  market.  By 
remaining  restricted  to  their  national  markets,  SMEs  will  continue  to  face  the  major  problem  of 

147   See Policy Option 1 
148   Estimate based on the share of respondents to the Digital Single Market firms survey (EB413). Among companies selling digital content to consumers online, 99% are SMEs. 

36 

 
 
                                                 
finding customers. 
Functioning of the internal market and competition 
o  Due to the existing differences between national legislations on the sale of goods as well as the ones 
for the supply of digital content that could arise due to minimum harmonisation, businesses will still 
be faced with contract law-related barriers to entry into the markets of other Member States. 
Innovation and research 
o Since  businesses  will  continue  to  bear  additional  contract  law-related  costs  when  selling  to  other 

Member States, they will not be encouraged to allocate resources to research and development.  
Public authorities/Courts 
o Member  States  will  bear  the  costs  of  implementation  of  the  minimum  harmonisation  Directive  on 

digital content in their national laws.  

o The  existence  of  national  rules  going  beyond  the  minimum  harmonisation  Directive  would  require 
national  judges  dealing  with  cases  with  a  foreign  element  to  familiarise  themselves  with  the 
substantive rules applicable in the relevant Member State. This will increase the necessary workload, 
i.e. costs and duration of disputes. While a major part of these costs will be borne ultimately by the 
parties, the added workload could to a certain extent decrease the overall efficiency of justice. 
Consumers and households 
o Consumers will have specific rights when buying/accessing digital content. Consumers will be more 
confident when buying digital content domestically and cross-border. The Directive could contribute 
to reducing the financial and non-financial detriment currently suffered by consumers with respect to 
digital  content,  since  there  will  be  a  set  of  clear  rights  that  will  enable  consumers  to  address  the 
problems faced with digital content. 

o Both  for  digital  content  and  for  goods,  due  to  the  remaining  contract  law-related  costs,  some 
businesses will continue to be discouraged from selling cross-border and competition will remain at 
suboptimal  levels,  failing  to  drive  down  prices.  As  a  consequence,  businesses  will  not  be  driven 
towards  innovation  and  offering  a  larger  choice  of  goods  to  consumers.  Consumers'  choice  will 
therefore remain in some cases limited.  
Macroeconomic environment 
o By increasing consumer confidence, digital content trade could increase to some extent, with some 
positive  effects  on  macroeconomic  variables  such  as  household  consumption  and  GDP.  However, 
these  effects  will  remain  limited  as  competition  will  not  be  enhanced  due  to  contract  law-related 
barriers that hinder businesses from selling goods and digital content online cross-border.  
Social impacts  
Employment and labour markets  
o There could be a positive effect as regards job creation in the EU, through an increase in household 
consumption and GDP resulting from an increase in the volume of trade for  digital content due to 
more  consumer  confidence.  However  this  positive  effect  will  be  limited  as  contract  law-related 
barriers that hinder businesses to sell both goods and digital content online cross-border remain and 
therefore competition will also remain limited.  
Environmental Impacts 
Transport and the use of energy  
o See analysis under Option 3 
Impacts on Fundamental Rights (Charter of fundamental rights) 
Consumer Protection (Article 38) 
o Minimum harmonisation is likely to result in higher consumer protection, as Member States will be 

able to go beyond the Directive's minimum standards.  

o Public authorities will not be competent to enforce EU rules towards third country businesses that do 
not  have  subsidiaries  in  Europe.  However  consumers  will  be  able  according  to  the  Brussels  I 
Regulation  to  take  court  action  in  their  own  countries  and  request  the  application,  in  the  cases 
foreseen by the Rome I Regulation, of the most protective measures of its own law. 
Personal data protection (Articles 7 and 8) 
o See analysis under Option 1 
Freedom to conduct a business (Article 16) 
o A  minimum  harmonisation  Directive  is  likely  to  create  legal  barriers,  through  differences  arising 
between national  legislations going beyond the minimum standards. It will therefore not contribute 

37 

 
significantly to enabling businesses to expand their activities within the EU. 
Right to an effective remedy (Article 47) 
o A minimum harmonisation Directive could have a positive impact on the right to an effective remedy 
by clarifying minimum rules governing remedies before the courts. The new rules should clarify the 
remedies available in case of disputes. 

5.6 Option 5: A voluntary model contract, combined with an EU trust mark 
Economic impacts  
Operating costs and conduct of businesses 
o Businesses  selling  goods  online  or  supplying  digital  content  that  choose  to  adopt  the  trust  mark 
scheme will have to incur the costs of complying with the standards set out in the model contract (to 
the extent that they do not already meet them) and undergoing the procedures for obtaining the trust 
mark.  

o Consultations  with  EU  umbrella  business  associations149  suggests  that  the  take-up  of  an  EU  trust 
mark  could  be  in  the  region  of  10,000  businesses,  based  on  the  amount  of  current  members  of 
affiliated national associations that have signed up to national trust mark schemes; this represents less 
than 1% of businesses selling goods online. Assuming that there will be an additional impetus from 
the  Commission  in  promoting  the  trust  mark,  the  take-up  of  a  voluntary  model  contract  could  be 
estimated  for  the  purposes  of  this  Impact  Assessment  to  reach  5%  of  businesses.  Based  on  this 
assumption, the overall costs for businesses selling goods online to adapt to the model contract would 
amount to approximately €374 million.150 

o Based  on  the  same  assumption,  the  overall  costs  for  businesses  supplying  digital  content  to 

consumers to adapt to the model contract would amount to approximately €78 million.151 

o Businesses will still have to comply with the mandatory consumer protection rules of the consumer's 
country of residence, in case those provide for a higher level of consumer protection than the ones 
included in the model contract. They will thus still incur the costs to find out about such potentially 
more protective national rules of the countries they sell to. 
Administrative burdens on businesses 
o Businesses  wishing  to  adopt  the  trust  mark  will  face  significant  additional  costs  to  go  through 
certification  procedures  and  periodic  audits  in  order  to  obtain  and  keep  the  trust  mark.  Based  on 
currently existing trust-marks in the EU, only the annual fees range from €200 to €4,500.152 

o Administrative  costs  will  also  be  incurred  by  the  industry  association/body  responsible  for 
monitoring compliance with the model contract terms, performing audits/controls and awarding the 
trust mark. 
Trade flows 
o The use of a model contract for domestic and cross-border sales of goods and digital content could 
facilitate cross-border online trade in the EU, but contract law differences will remain. The degree of 
usage  and  acceptance  by  business  and  consumer  will  greatly  depend  on  the  level  of  consumer 
protection that will be reflected in the model contract. 
Competitiveness of businesses 
o The  European  model  contract  would  have  a  limited  effect  on  competition,  as  contract  law-related 
barriers would remain. The acceptance of the trust mark by EU consumers will depend on the level of 
consumer protection proposed in the model contracts.  

o Depending  on  the  acceptance  by  consumers,  businesses  using  the  model  contract  may  have  a 

competitive advantage compared to those not using it. 
Position of SMEs 
o SMEs will have a readily available tool for their cross-border transactions with consumers, both for 

goods and for digital content.  

o SMEs will have to incur the costs of obtaining the trust mark as well as the costs of periodic audits 

and certifications. 

149   ICF in the context of the "Economic Study on Consumer Digital Content Products" 
150   The average estimate of the number of EU businesses currently selling online cross-border is 1.1 million. Assuming that 5% (55,000) of those businesses would incur a cost of   

approximately €6,800 to adapt their contract terms and conditions, the overall costs would amount to about €374 million. 

151   The average estimate of the number of EU businesses currently selling online cross-border is around 228,500. Assuming that 5% (11,425) of those businesses would incur a cost of  

approximately €6,800 to adapt their contract terms and conditions, the overall costs would amount to about €77.7 million. 
2013, 

trust  mark?”, 

Consumer 

European 

Network, 

Centres’ 

”Can 

trust 

the 

I 

152   The 

available 

at 

http://ec.europa.eu/dgs/health_food-

safety/information_sources/docs/trust_mark_report_2013_en.pdf 

38 

 
 
                                                 
o SMEs  will  still  have  to  comply  with  the  mandatory  consumer  protection  rules  of  the  consumer's 
country, in case those provide for a higher level of consumer protection than the clauses included in 
the  model  contract.  They  will  thus  still  incur  the  costs  to  find  out  about  such  potentially  more 
protective national rules of the countries they sell to. 
Functioning of the internal market and competition 
o Businesses  would  still  have  to  comply  with  the  mandatory  consumer  protection  rules  of  the 
consumer's county of residence, in case those provide for a higher level of consumer protection than 
the ones included in the model contract. They would thus still incur the costs to find out about such 
potentially more protective national rules of the countries they sell to. 
Innovation and research 
o To  the  extent  that  contract  law-related  costs  will  be  reduced,  businesses  may  to  some  extent  be 

encouraged to allocate resources to research and development.  
Consumers and households 
o Consumers will be able to rely on the trust mark to ensure that the minimum standards agreed upon 
in the model contract are respected by traders. This could to a certain extent increase their confidence 
when buying online cross-border.  

o However  the  extent  to  which  consumers'  confidence  and  subsequently  cross-border  purchases  will 
increase  will  depend  on  the  level  of  consumer  protection  to  be  agreed  upon  in  the  model  contract. 
Since it will by far not be feasible to compile the most protective rules from all Member States' laws, 
in a number of cases consumers are likely to be faced with a model contract that does not include all 
the rights that they may currently enjoy in their country. This could affect their confidence and create 
confusion. 

o Any positive effects of this option will greatly depend on the degree of usage and acceptance of the 

trust mark by EU businesses.  
Macroeconomic environment 
o To the extent that cross-border trade will increase, there will be positive effects on macroeconomic 
variables such as household consumption and GDP. However, the positive effects will greatly depend 
on the degree of usage and acceptance of the trust mark by EU businesses and consumers. As it may 
be impossible to agree upon a level of consumer protection that combines the most protective rules 
from all Member States or difficult to agree even on a very high level, the level of acceptance by EU 
consumers may be limited.  
Social impacts  
Employment and labour markets  
o Any positive effect on household consumption and GDP will greatly depend on the degree of usage 

and acceptance of the trust mark by EU businesses and consumers.  
Environmental Impacts  
Transport and the use of energy  
o See analysis under Option 1. 
Impacts on Fundamental Rights 
Consumer Protection (Article 38) 
o Consumers will continue to benefit from the potentially more protective national consumer protection 
rules of their country of residence. However, their perception of the level of protection when buying 
cross-border will largely depend on the content of the model contract rules to be agreed upon by the 
industry and on the degree of usage and acceptance of the trust mark by EU businesses. 
Personal data (Articles 7 and 8) 
o The rules provided in the European model contract will be in full conformity with Articles 7 and 8 of 
the  Charter  and  EU  legislation  on  data  protection.  The  model  contract  will  clarify  the  contractual 
obligations of the trader when  digital content is supplied against a counter performance other than 
money (for example personal data) 
Freedom to conduct a business (Article 16) 
o The adoption of model contract rules and an EU trust mark could facilitate the exercise of businesses' 

right to conduct and expand their business within the EU. 
Right to an effective remedy (Article 47) 
o This option would have a limited impact on the right to an effective remedy in view of the voluntary 

nature of the model contract.  

39 

 
6  HOW DO THE OPTIONS COMPARE? 

6.1 Comparison of Policy Options 

The  policy options  are compared  in  terms  of  their  contribution  to  the  policy  objectives  set 
out in Section 3 as well as their main impacts as analysed in Section 5.  

Policy  Objective:  Reduce  costs  for  businesses  resulting  from  differences  in  national 
consumer contract laws 

 The  'No  policy  change/Baseline  Scenario'  will  not  achieve  the  objective.  Differences 
between  national  consumer  contract  laws  for  the  online  sale  of  goods  would  remain  and 
businesses would continue to incur the current contract law-related costs. For digital content, 
further legal fragmentation due to the likely enactment of mandatory specific rules on digital 
content contracts in more Member States (in addition to those which have already legislated 
or are preparing such legislation) will impose further contract law related costs on businesses 
supplying digital content to consumers in other Member States. 

 Policy  Option  1  will  to  a  great  extent  achieve  the  objective.  Consumer  contract  law  rules 
relevant for cross-border trade of goods would be the same in all Member States. Businesses 
would  thus  be  able  to  rely  largely  on  their  own  law  when  selling  cross-border,  and  would 
avoid additional costs. New rules on digital content and to a lesser extent on the online sales 
of  goods  will  entail  additional  one-off  adaptation  costs  for  businesses,  but  these  would  be 
counterbalanced  by  the  positive  effects  of  a  fully  harmonised  regime  across  the  EU  that 
would prevent legal fragmentation, facilitate cross-border trade and increase consumer trust 
in and therefore demand for cross-border purchasing. 

 Policy Option 2 will fully achieve the objective for businesses selling goods online, as they 
would no longer have to apply the possibly more protective consumer contract law rules of 
the  Member  States in  which they  wish  to  sell, but  will  rely  entirely  on their  own  law.  For 
digital content it will achieve the objective in the same way as Policy Option 1. 

 Policy  Option  3  will  achieve  the  objective  for  digital  content  in  the  same  way  as  Policy 
Options 1 and 2. For goods, it will not achieve the objective, as the situation will be the same 
as in the No policy change/Baseline scenario.  

 Policy  Option  4  will  not  achieve  the  objective.  As  a  result  of  minimum  harmonisation  for 
both  digital  content  and  goods  traders  would  still  need  to  comply  with  different  national 
mandatory  consumer  contract  law  rules  providing  a  higher  level  of  consumer  protection 
when selling in other Member States, and thus would incur the current contract law-related 
costs. For goods, it will not achieve the objective, as the situation will be the same as in the 
No policy change/Baseline scenario. 

 Policy Option 5 will not achieve the objective, as companies selling goods cross-border will 
still  be  obliged  to  comply  with  mandatory  national  rules  of  the  consumer's  country  of 
residence,  when  they  provide  for  a  higher  level  of  protection  than  the  model  contract,  and 
may  thus  still  face  the  current  contract  law-related  costs.  For  businesses  supplying  digital 
content to consumers, this option would also not eliminate the risk of further fragmentation 
and therefore may impose additional costs. 

Policy Objective: Reduce legal uncertainty for businesses  

 No  policy  change/Baseline  Scenario  will  not  achieve  the  objective.  Differences  between 
national  consumer  contract  laws  for  the  online  sale  of  goods  would  remain.  Further  legal 
fragmentation  on  rules  for  the  supply  of  digital  content  due  to  the  likely  enactment  of 
national mandatory specific  rules on digital content will entail further legal  uncertainty  for 
businesses supplying digital content to consumers in other Member States. 

40 

 
 Policy Option 1 will fully achieve the objective, since businesses will be able to sell goods 
online  or  supply  digital content to  consumers  throughout  the  EU  based  on  the  same  set  of 
consumer contract law rules. This will increase legal certainty and contribute to a business 
friendly legal environment. 

 Policy Option 2 will fully achieve the objective. For the online sale of goods businesses will 
be able to rely on their own law when selling abroad, and therefore there would be no need 
for  them  to  investigate  foreign  laws.  Moreover,  full  harmonisation  of  the  rules  on  digital 
content will increase legal certainty for businesses and prevent future legal fragmentation. 

 Policy  Option  3  will  achieve  the  objective  for  digital  content  in  the  same  way  as  Policy 
Options 1 and 2. For goods, it will not achieve the objective, as the situation will be the same 
as in the No policy change/Baseline scenario.  

 Policy  Option  4  will  not  achieve  the  objective,  since  minimum  harmonisation  for  digital 
content would create a fragmented legal environment for traders wishing to sell cross-border. 
For  goods,  it  will  not  achieve  the  objective,  as  the  situation  will  be the same  as  in  the  No 
policy change/Baseline scenario. 

 Policy Option 5 will not achieve the objective, as differences between national laws for the 
sale of goods will remain and businesses will be obliged to comply with mandatory national 
rules  of  the  consumer's  country  of  residence,  when  they  provide  for  a  higher  level  of 
consumer  protection  than  the  model  contract.  For  businesses  supplying  digital  content  to 
consumers,  this  option  would  also  not  eliminate  the  risk  of  further  fragmentation  and 
therefore may increase legal uncertainty. 

Policy Objective: Contribute to building consumers' trust in online cross-border shopping 
in the EU 

 No  policy  change/Baseline  Scenario  will  not  achieve  the  objective.  Although  consumers 
would enjoy a high level of protection due to minimum harmonisation rules in combination 
with the Rome I Regulation, differences between national laws would remain and consumers 
would  still  be  uncertain  as  to  their  rights  and  the  level  of  protection  they  will  enjoy  when 
buying cross-border. 

 Policy  Option  1  will  fully  achieve  the  objective.  Consumers  will  have  a  clear  set  of  rights 
throughout  the  EU  and  will  thus  be  more  confident  in  buying  goods  or  accessing  digital 
content  cross-border.  Although  Member  States  will  not  be  able  to  adopt  or  maintain  more 
protective consumer protection rules, the overall level of consumer protection in the EU will 
rise. While the level of consumer protection in a few Member States on one or a few points 
will decrease, the impact of this on the overall positive effects on cross border trade is likely 
to be minor. Recent data show that among the reasons for the lack of consumer confidence 
when buying cross-border, the fear that other laws protect consumers less than their own is 
only  a  minor  factor.  Uncertainty  about  consumers'  key  contractual  rights  is  a  considerably 
more important factor creating their lack of confidence to shop online cross-border.153 Policy 
Option 1 would remedy this uncertainty. 

 Policy  Option  2  will  fully  achieve  the  objectives  in  the  same  way  as  Policy  Option  1  for 
digital content. For goods, this option will not achieve the objective; on the contrary it would 
deteriorate the current lack of consumer confidence. The application of the trader's law for 
the online sale  of goods and the respective derogation  from the Rome I  Regulation will  in 
practice mean that EU consumers would no longer benefit from the potentially higher level 
of consumer protection that their own national law going in its implementation beyond the 
Consumer Sales and Guarantees Directive may provide on top of the trader's law. In some 

153   See Section 1.2.3 

41 

 
                                                 
cases they may benefit from a potentially higher level of protection if the trader's law goes 
on  specific  points  beyond  their  own  national  law.  However,  the  fact  that  they  will  be 
potentially  deprived  from  the  level  of  protection  they  currently  enjoy  under  their  national 
law  would  fail  to  increase  consumers'  confidence  in  cross-border  purchases.  In  addition, 
such  a  change  might  entail  the  removal  of  protection  offered  by  mandatory  consumer 
contract law rules in transactions with traders from third countries.  

 Policy  Option  3  will  fully  achieve  the  objective  as  far  as  the  rules  on  digital  content  are 
concerned,  in  the  same  way  as  Policy  Options  1  and  2.  For  goods,  it  will  not  achieve  the 
objective, as the situation will be the same as in the No policy change/Baseline scenario.  

 Policy  Option  4  will  to  some  extent  achieve  the  objective  as  far  as  the  rules  on  digital 
content  are  concerned.  Minimum  harmonisation  for  digital  content  rules  would  create 
minimum  rights  for  consumers  of  digital  content  in  the  EU,  and  Member  States  would  be 
able  to  adopt  more  protective  rules.  Consumers'  confidence  when  buying/accessing  digital 
content  could  be  increased  to  some  extent.  However,  the  possible  differences  between 
national  laws  that  would  emerge  as  a  result  of  minimum  harmonisation  would  create  a 
legally  fragmented  environment  and  undermine  consumers'  confidence  in  cross-border 
transactions. For goods, the option will not achieve the objective, as the situation will be the 
same as in the No policy change/Baseline scenario. 

 Policy Option 5 will to some extent achieve the objective. It would provide consumers with 
a satisfactory level of consumer protection, however very much depending on the content of 
the model contract rules to be agreed upon by the industry and on the degree of usage and 
acceptance  of  the  trust  mark  by  EU  businesses.  Consumers  may  be  more  confident  to  buy 
from foreign traders to whom the EU trust mark has been awarded.  

Policy Objective: Reduce consumer detriment with non-conforming digital content 

 No policy change/Baseline Scenario will not achieve the objective. In the absence of specific 
and clear rights on digital content, consumers would continue to suffer detriment caused by 
unresolved problems with digital content that is not in conformity with the contract. 

 Policy Option 1 will fully achieve the objective, since consumers will have clear and specific 
rights when facing problems with digital content. This will enable them to seek remedies for 
their problems and thus reduce the financial and non-financial detriment currently suffered in 
the event of non-conforming digital content.  

 Policy Options 2 and 3 will fully achieve the objective, in the same way as Policy Option 1  

 Policy  Option  4  will to  a  great  extent  achieve the  objective.  Minimum  harmonisation  for 
digital  content  would  create  minimum  rights  for  consumers  of  digital  content  in  the  EU, 
and Member States would be able to adopt more protective rules. This will enable them to 
seek remedies for their problems and thus reduce the financial and non-financial detriment 
currently suffered in the event of non-conforming digital content. 

 Policy Option 5 will to some extent achieve the objective. It would provide consumers with 
a satisfactory level of rights that they can invoke in the event of problems faced with non-
conforming digital content. The extent to which this option could reduce consumer detriment 
is  highly  dependent  on  the  content  of  the  model  contract  rules  to  be  agreed  upon  by  the 
industry and on the degree of usage and acceptance of the trust mark. 

Main impacts   

 Policy  Option  1  will  entail  overall  one-off  adaptation  costs  of  about  €1.55  bn  for  all  EU 
businesses supplying digital content online and about €7.5 bn for all EU businesses selling  
goods online. Under this option, EU GDP is projected to permanently increase in real terms 
by  about  €4  billion,  and  the  net  present  value  of  this  additional  output  over  a  period  from 

42 

 
2020-2029  would  be  about  €28  bn.  The  number  of  consumers  buying  online  cross-border 
could increase by about 7 percentage points, raising the total number of consumers shopping 
online  cross-border  to  between  64  and  70  million.  The  average  annual  cross-border  online 
spending would also increase by an additional €40 per consumer buying online cross-border. 
The average decrease in consumer prices across the EU is estimated at  -0.25%. Household 
consumption,  which  mirrors  consumers'  welfare,  would  rise  in  every  Member  State  at  an 
average  of  +0.23  for  the  EU28  (which  corresponds  to  about  €18  billion).  The  level  of 
consumer protection across the EU will be significantly improved. 

 Policy Option 2 will entail one-off adaptation costs of about €1.55 bn for all EU businesses 
supplying  digital  content  online.  EU  GDP  can  be  expected  to  permanently  increase in  real 
terms by about €1.4 billion. The net present value of the additional output over a period from 
2020-2029 would  be  about  €9  billion.  The  average  decrease  in  consumer  prices  across  the 
EU can be expected to be at -0.06%, while household consumption could rise by an average 
of  +0.07  for  the  EU28.  The  level  of  consumer  protection  in  the  EU  for  the  purchase  of  
goods will be lowered, since consumers will be deprived of the protection currently ensured 
by the Rome I Regulation. 

 Policy Option 3 will entail one-off adaptation costs of about €1.55 bn for all EU businesses 
supplying  digital  content  online.  No  macroeconomic  benefits  can  be  estimated  for  this 
option, since the supply and demand-side barriers will continue to exist in the online market 
of goods, which  represents  more than 90%  of the total value of the Digital  Single Market, 
together  with  services  ordered  online  and  consumed  offline.  The  level  of  consumer 
protection will improve for consumers of digital content in the EU. 

 Policy Option 4 will entail one-off adaptation costs of about €1.55 bn for all EU businesses 
supplying  digital  content  online.  No  macroeconomic  benefits  can  be  estimated  for  this 
option, since the supply and demand-side barriers will continue to exist in the online market 
of goods, which  represents  more than 90%  of the total value of the Digital  Single Market, 
together  with  services  ordered  online  and  consumed  offline.  The  level  of  consumer 
protection will improve for consumers of digital content in the EU. 

 Policy Option 5 would entail one-off adaptation costs of about €374 million for businesses 
selling goods online and about €78 million for businesses supplying digital content online. 
The  benefits  of  this  option  depend  on  the  extent  of  usage  and  acceptance  of  the  model 
contract  and  the  trust  mark  by  EU  consumers  and  businesses.  It  can  be  assumed  that  the 
benefits  will  be  significantly  limited,  based  on  the  estimate  that  only  about  5%  of  EU 
trust  mark. 
the  model 
businesses 

contract 

would 

take 

and 

up 

43 

 
Summary table 1 – Achievement of objectives 

Objectives 

Baseline scenario 
Digital 
Goods 
content 

Option 1 

Option 2 

Option 3 

Option 4 

Option 5 

Goods 

Digital 
content  

Goods 

Digital 
content 

Goods 

Digital 
content 

Goods 

Digital 
content 

Goods 

Digital 
content 

0 

0 

0 

+ 

+ 

++ 

Reduce costs resulting from 
differences in contract law 
Reduce the uncertainty faced by 
businesses due to the complex legal 
framework 
Contribute to building consumers' 
trust in online cross-border shopping 
in the EU 
Reduce consumer detriment with 
respect to non-conforming digital 
content or certain unbalanced 
contract terms 
Key: (-) means that the option deteriorates the current situation; (0) means that the option does not meet the objective; (+) means that the option meets the objective to some or to a great extent; (++) means that the option fully meets the objective. 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

++ 

++ 

++ 

++ 

++ 

++ 

++ 

++ 

++ 

++ 

++ 

++ 

++ 

+ 

+ 

+ 

+ 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

0 

- 

0 

0 

+ 

+ 

Summary table 2 – Assessment of impacts  

Impacts  

Economic Impacts 
Social Impacts 
Environmental Impacts 

Baseline scenario 
Goods 

Digital 
content 

Option 1 

Option 2 

Option 3 

Option 4 

Option 5 

Goods 

Digital 
content 

Goods 

Digital 
content 

Goods 

Digital 
content 

Goods 

Digital 
content  

Goods 

Digital 
content 

0 
0 
0 

0 
0 
0 

++ 
++ 
0 

++ 
++ 
0 

+ 
+ 
0 

- 

++ 
++ 
0 

++ 

0 
0 
0 

0 

++ 
++ 
0 

++ 

0 
0 
0 

0 

0 
++ 
0 

++ 

0 
0 
0 

+ 

0 
0 
0 

+ 

++ 
Impacts on Fundamental Rights 
Key: A negative impact is marked as "-"; no impact as "0", a positive impact as "+" and a highly positive impact as "++".

+ 

0 

0 

 
 
 
 
 
 
6.2  Preferred Policy Option 

Fully harmonised contract law rules for online trade will lead to a permanent increase in 
EU  GDP  of  €4  billion.  The  harmonisation  will  target  rules  related  to  non-conforming 
products  for  both  goods  and  digital  content,  which  have  been  identified  as  obstacles  to 
trade. 

The option which contributes most to the achievement of the policy objectives and has the 
most positive overall impact is Option 1.154 For digital content, both consumer organisations 
and  business  associations  in  the  context  of  the  public  consultation  support  a  full 
harmonisation  approach,  to  ensure  consumer  confidence  and  prevent  legal  fragmentation. 
For  goods,  a  majority  of  stakeholders  and  Member  States  warn  about  the  possible 
fragmentation  between  online  and  offline  sales  of  goods.  While  this  concern  is  considered 
with the greatest care, fragmentation is unlikely to arise in practice and the benefits of acting 
now outweigh this limited risk.155 Consumer organisations would support full harmonisation 
as  long  as  a  high  level  of  consumer  protection  is  ensured.  On  the  industry  side,  although 
some  business  associations  would  prefer  the  application  of  the  trader's  law  in  consumer 
sales156, the majority of them support the full harmonisation approach to avoid legal barriers.  

Businesses will benefit from a single set of contract law rules throughout the EU. They will 
no  longer  have  to  incur  costs  of  adapting  their  contracts  to  different  Member  States'  laws 
when selling in other EU countries. The benefits from the increase of cross-border trade will 
spill  over 
increased  competition.  The  overall 
through 
macroeconomic impacts on GDP, consumer prices and consumer welfare will be positive.  

into  domestic  economies 

The impact of the preferred option should be seen in the context of the holistic approach of 
the  Digital  Single  Market  Strategy157,  together  with  the  other  initiatives  announced  there. 
Altogether, these initiatives aim to tackle all main obstacles to the functioning of the Digital 
Single Market. This covers among others the initiatives related to the role of platforms, the 
European Cloud initiative, VAT related burden and parcel delivery. It also covers initiatives 
related to enforcement/redress, i.e. the entry into operation of the Online Dispute Resolution 
platform158  and  the  review  of  the  Consumer  Protection  Co-operation  Regulation159  on 
cooperation  between  national  authorities  responsible  for  the  enforcement  of  consumer 
protection  laws.  Together  with  the  recent  adoption  of  the  revised  online-friendly  Small 
Claims  Regulation,  these  initiatives  cover  online  dispute  resolution,  some  coordination  of 
public enforcement and facilitation of enforcement of judgments, and will therefore be able 
to optimise the effects of the fully harmonised substantive rules put forward in this initiative. 

Nature of the instrument and legal basis 

The  initiative  would  consist  of  a  coherent  legislative  package  of  two  full  harmonisation 
Directives:  one  Directive  on  certain  aspects  concerning  contracts  for  the  supply  of  digital 
content  and  a  Directive  on  certain  aspects  concerning  the  online  sales  of  goods.  The  legal 
basis  could  be  article  114  TFEU.  The  choice  of  Directives  leaves  Member  States  more 
freedom  to  adapt  the  implementation  to  their national  law  than  Regulations  would  do.  For 
instance,  the  Directive  on  the  supply  of  digital  content  would  not  determine  whether  the 
contract for the supply of digital content is to be considered for example as a sales, services, 
rental or a sui generis contract; it would leave this decision to Member States. A Regulation, 
however, would require a much more detailed and comprehensive regime than a directive in 
order  to  allow  its  effects  to  be  directly  applicable.  This  would  have  as  a  consequence 

154   Annex 8 provides a detailed presentation of the substantive content and reasoning on the rules that should be fully harmonised, including a comparison with Member States' laws 

where possible. Annex 3 provides an analysis on who will be affected by the retained option and how. 

155   See Introduction, Section 5.2 and summary table in the end of this Section 
156   See Section 6.1 for the reasons for not following the the trader's law approach. 
157 See Section 1.2.3 
158 See Section 1.2.3 
159 See Section 1.2.3 

 
 
                                                 
considerably  more  interference  into  national  laws.  It  may  also  jeopardise  the  future-proof 
character of the instrument, since, contrary to a Directive, it would have to go to a level of 
details that would not allow the margin to adapt the implementation of the fully harmonised 
rules  to  a  technologically  and  commercially  fast-moving  market  like  the  one  for  digital 
content.  

Digital content 

Types of digital content covered 

The instrument should have a comprehensive scope and cover all types of digital content (for 
example,  music,  games,  films,  software  or  cloud  storage).  This  would  address  problems 
across  the  different  categories  of  digital  content  and  avoid  unjustified  discriminations  by 
creating a level-playing field between product categories, the borders of which are extremely 
vague  and  subject  to  fast  technological  development.  Stakeholders  consider  that  frequent 
interplay  exists  between  different  categories  of  digital  content.  In  the  public  consultation, 
such  an  approach  is  supported  by  both  consumer  organisations  and  a  vast  majority  of 
business  associations,  although  businesses  involved  in  the  trading  of  digital  content  would 
prefer  to  make  some  distinction  between  different  categories  of  digital  content.  The  vast 
majority of Member States which responded to the public consultation would be in favour of 
a  broad  definition  of  digital  content,  given  the  fast  technological  and  commercial 
development of digital content.  

This  instrument  would  cover  digital  content  supplied  not  only  for  a  price  but  also  in 
exchange  for  (personal  and  other)  data  provided  by  consumers,  as  these  data  have  an 
economic value for digital content suppliers. While consumer organisations are in favour of 
such an approach, businesses are more divided. Some businesses fear a risk of overlap with 
data protection rules. Of the Member States which responded to the public consultation, four 
would  not  be  in  favour.  All  the  others  support  this  approach  or  are  at  least  open  for 
discussion. 

Substantive content – areas of law covered  

The key substantive provisions of the initiative should include those key consumer contract 
law rights on digital content that consumers should be able to use when faced with the most 
common  problems.160  These  provisions  should  cover  notably  remedies,  the  reversal  of  the 
burden of proof, damages, and termination of contracts. In particular, the instrument should 
include a mixture of contractual and statutory conformity criteria against which the quality 
of  the  digital  content  is  assessed.  This  is  favoured  by  both  business  and  consumer 
stakeholders. Member States almost unanimously support this approach. 

For goods, EU law already foresees a shift of the burden of proof from consumer to supplier. 
That means that the supplier must prove that the goods were in conformity with the contract 
when  they  were  delivered  to  the  consumer;  the  consumer  does  not  have  to  prove  that  the 
goods were already defective. Due to the technical nature of digital content and the difficulty 
for consumers to ascertain the cause of a problem, the reasoning for the shift of the burden of 
proof applies all the more to digital content. Therefore the burden to prove non-conformity 
should  be  reversed  and  the  supplier  should  prove  conformity.  This  reversal  should  not  be 
limited  in  time  as  (unlike  goods)  digital content  is  not  subject to  wear-and-tear.  Consumer 
organisations pointed to the difficulties which consumers may face with the burden of proof 
especially in circumstances when the parties involved in the supply would blame each other 
in case of a problem. Accordingly, they unanimously considered that the trader should have 
the burden of proof. For the majority of businesses non-conformity should be proven by the 

160   See Section 1.2.3 

46 

 
 
                                                 
consumer. For some of them there should be a reversal of the burden of proof for a period 
that varies from two to six months. 

In  addition,  the  consumer  would  benefit  from  a  range  of  remedies  (bringing  the  digital 
content back to conformity, reduction of the price or termination of the contract) addressing 
both  the  failure  to  supply  and  lack  of  conformity  of  the  digital  content.  A  limited 
harmonisation of the right to damages restricted to cases where damage has been done to the 
digital content and hardware of the consumer would complete other remedies the consumer 
has vis-à-vis the supplier. While consumer organisations are supportive of this approach, a 
majority  of  the  main  EU  businesses  associations  are  reluctant  about  harmonisation  of 
damages. Member States are divided: a number of them would be in favour of including a 
right to damages or they are open for discussion while for the others this issue should be left 
to national legislations. 

A few other rights which respond to existing contractual practices in the market should also 
be  established.  The  consumer’s  right  to  terminate  a  contract  if  the  supplier  modifies  it 
safeguards  on  the  one  hand  the  possibility  for  suppliers  to  adapt  their  digital  content  or 
services; in such a fast-moving market this would be very often positive for the consumer. 
On  the  other  hand  it  also  allows  consumers  to  get  out  of  a  contract  if  the  modified  digital 
content no longer matches what the consumer wanted to acquire at the time of conclusion of 
the contract. The inclusion of such a rule is broadly supported by all stakeholders, with the 
exception of an digital technology industry association that seems reluctant towards the right 
to terminate a contract where discounts were provided to the consumer for a certain period of 
time. Business associations argue that this right should be granted under the condition that 
the  termination  is  notified  to  the  trader  in  advance,  while  the  main  European  consumer 
organisation links the exercise of this right to the possibility to retrieve data (see below).  

The right to terminate long term contracts prevents lock-in situations for the consumer and 
allows switching between providers, thereby contributing to higher competitive pressure on 
prices  and  innovation  and  to  a  healthy  market  with  lower  entry  barriers.  Consumer 
organisations  argue  that  users  should  be  able  to  terminate  a  long-term  contract  by  prior 
notice, provided that this is not subject to formal requirements that would limit the exercise 
of the right to terminate. When creating this right, they also want to make it possible for the 
consumer to retrieve his data. According to the majority of businesses users could have the 
right to terminate long term contracts and termination should be exercised in advance and by 
notice.  Representatives  of  the  digital  technology  industry  and  other  business  associations/ 
companies seem reluctant towards the right to terminate a contract where benefits (such as 
discounts or additional features) were provided to the consumer for a certain period of time. 
Many  business  associations  would  support  a  general  consumer  right  to  retrieve  their  data. 
However,  some  of  them  raise  the  issue  of  possible  overlaps  with  data  protection  rules  or 
copyright rules. Other businesses, especially IT companies, would not be in favour of a right 
to retrieve or transfer user-generated content. 

The  consequences  of  termination  would  include  not  only  the  return  of  the  price 
corresponding to the unconsumed content, but also the possibility for consumers to retrieve 
data  without  inconvenience.  This  is  an  important  feature  of  the  termination  right  because 
otherwise  lock-in  effects  could  be  created:  this  could  make  it  disadvantageous  for  the 
consumer to exercise the right of termination and thereby reduce its effectiveness. Consumer 
organisations support such a right, arguing further that consumers should be able to retrieve 
their data in a commonly usable format to avoid lock-in effects caused by possible lack of 
interoperability between different suppliers’ platforms. Although many business associations 
would support a general consumer right to retrieve data, the majority of them raise the issue 
of possible overlaps with data protection rules, while one association argues that such a right 

47 

 
 
should  be  restricted  to  user  generated  content  provided  by  the  consumer  in  social  media 
services/platforms.  

Unlike  goods,  a  legal  guarantee  period  during  which  the  supplier  is  liable  for  a  lack  of 
conformity  does  not  need  to  be  envisaged;  consumer  rights  would  be  limited  by  national 
prescription  periods.  Such  a  guarantee  period  starting  from  the  time  of  supply  does  not  fit 
with  the  nature  of  digital  content,  which  is  often  supplied  in  a  continuous  manner  over  a 
period of time. Moreover, differently from goods, digital content is not subject to wear-and-
tear  and  a  defect  in  one  copy  usually  means  that  all  copies  of  the  digital  content  have  a 
similar problem. Consumer and business organisations have different views on this issue: the 
former plead for a long (or infinite) period of guarantee, the latter for a short one.  

Goods 

Substantive content – areas of law covered  

The key substantive provisions of the initiative should cover the main differences of national 
consumer mandatory rules which affect traders’ decision whether or to which extent to sell 
goods cross-border.  

The  instrument  should  maintain  a  mixture  of  contractual  and  statutory  conformity  criteria 
against which the quality of the  good is assessed, while clarifying the relationship between 
the  two  so  that  the  consumer  has  clear  expectations.  Using  contractual  and  statutory 
conformity criteria is based on the model of the Consumer Sales and Guarantees Directive. 
In  the  context  of  the  public  consultation,  all  main  consumer  and  business  stakeholders 
argued in favour of maintaining the approach of the current Consumer Sales and Guarantees 
Directive  as  to  the  criteria  establishing  conformity  of  goods.  The  vast  majority  of 
respondents  to  the  public  consultation  believe  the  current  combination  of  subjective  and 
objective conformity criteria provided for in the Consumer Sales and Guarantees Directive is 
appropriate. 

The  order  in  which  remedies  can  be  exercised  as  foreseen  in  the  Consumer  Sales  and 
Guarantees Directive should be maintained (repair or replacement of the goods, reduction of 
the price or termination of the contract). This is supported by business associations while the 
vast majority of consumers associations support a free choice of remedies. This approach has 
been implemented by the large majority of Member States and proven its value in practice 
by  providing  a  balanced  distribution  of  rights  between  seller  and  consumer.  According  to 
recent consumer data161, 77% of EU28 consumers agree that it is reasonable for a seller to 
offer a repair or replacement –and not a refund- when a problem with a product occurs for 
the  first  time.  This  will  maintain  the  current  level  of  consumer  protection  in  20  Member 
States162  and  decrease  it  for  the  6  Member  States  that  currently  have  no  hierarchy  of 
remedies163  and  the  2  Member  States  where  beside  the  hierarchy  of  remedies  a  short-term 
right  to  reject  is  currently  in  place164.  A  free  choice  of  remedies  had  been  proposed  in  the 
Proposal  for  a  Common  European  Sales  Law,  based  on  the  optional  character  of  this 
instrument. It turned out to be one of the most controversial points of this proposal. Learning 
from  this  experience  was  another  reason  why  the  model  of  the  Consumer  Sales  and 
Guarantees Directive was retained. Certain features of the current Directive are clarified to 
the benefit of the consumer, such as the fact the consumer would be entitled to termination 
or price reduction if the seller does not repair or replace the goods within a reasonable time.  

Consumers  would  also  have  the  right  to  terminate  also  in  case  of  minor  defects.  This  will 
increase the level of protection in 24 Member States where such right is currently not given 

161   "Consumer market study on the functioning of Legal and Commercial Guarantees for consumers in the EU" (2015, to be published) 
162   AT, BE, BG, CZ, DE, DK, EE, ES, FI, FR, HU, IT, LV, LU, MT, NL, PL, RO, SK, SE 
163   EL, CY, HR, LT PT, SI 
164   UK, IE 

48 

 
 
                                                 
to consumers, while maintaining the current level of protection in the remaining 4 Member 
States.165  

Consumers would not need to notify a defect within a certain period of time, as the existing 
optional possibility for Member States to create such an obligation has adverse effects for the 
internal  market.  Differences  in  requiring  compliance  with  notification  periods  can  lead  to 
consumers losing their rights in cross-border transactions due to their lack of awareness of 
this notification obligation and is therefore counterproductive to harmonising remedies. This 
is supported by consumer organisations, which argue that a notification obligation would be 
disproportionately  burdensome  for  consumers  and  that  the  latter  are  anyway  always 
interested in notifying the trader of any defect as early as possible. This is indeed supported 
by  data  which  shows  that  consumers  are  in  general  rather  active  and  react  in  due  time. 
Depending  on  the  type  of  product,  between  37%  and  58%  of  problems  were  followed  up 
immediately  when  the  problem  occurred  and  between  25%  and  32%  of  problems  were 
followed up within one week.166 On the other hand, most business associations argue that a 
lack  of  notification  could  impair  the  ability  of  the  trader  to  adequately  repair  or  replace  a 
defective  product.  Such  an  absence  of  notification  will  increase  consumer  protection  in  17 
Member States167  and maintain the current level of protection in  the remaining  11 Member 
States. 

The period of time during which the burden of proof is reversed in favour of the consumer 
should  also  be  fully  harmonised  to  increase  legal  certainty;  its  length  (two  years)  will  be 
aligned with the legal guarantee period. While business associations plead for maintaining a 
period  of  6  months  corresponding  to  the  current  minimum  harmonisation  rules  of  the 
Consumer  and  Sales  Directive,  this  extension  is  very  largely  supported  by  consumer 
organisations. Such an extension will simplify the remedies regime and allow consumers to 
exercise  their  right  effectively  for  the  entire  length  of  the  guarantee  period.  Extending  the 
period  of  reversal of the  burden of proof would facilitate the exercise of consumers' rights 
and is in line with the European Commission's goal to promote a circular economy and the 
durability of products.168 The same length for both the legal guarantee period and reversal of 
the burden of proof period will provide more legal certainty, and result in higher awareness 
and  easier  enforcement  of  the  EU  rules  on  the  legal  guarantee.  Moreover,  recent  survey 
data169 suggests that both traders and consumers are largely unaware of the existing burden of 
proof rules and that a longer period for the shift of the burden of proof to the seller does not 
make a significant difference in practice, as it often operates de facto throughout the entire 2-
year legal guarantee period.170 Thus, the extension of the period of reversal of the burden of 
proof is not likely to make a large difference in practice for traders. Extending the period of 
reversal of the burden of proof will increase the level of consumer protection in 26 Member 
States, and maintain the current level of consumer protection in the two remaining Member 
States.171  

The length of the legal guarantee period should be fully harmonised and maintained at the 
level  of  two  years  currently  provided  for  in  the  Consumer  Sales  and  Guarantees  Directive 
and  its  implementation  in  the  very  large  majority  of  Member  States.  In  its  Proposal  for  a 
Common  European  Sales  Law,  the  Commission  had  chosen  another  approach;  it  had 
dropped  the  guarantee  period  and  introduced  a  model  based  only  on  uniform  rules  on 
prescription  periods.  This  approach  was  discussed  with  stakeholders  and  Member  States 

165   LV, PT, SK, UK 
166   See footnote 163 
167   BE, CY, EE, ES, FI, HR, HU, IT, LV, MT, PT, RO, SI, DK, NL, SE, SK 
168   Circular Economy Package, to be adopted on 2nd of December 2015 
169   "Consumer market study on the functioning of Legal and Commercial Guarantees for consumers in the EU" (2015) 
170  "Consumer market study on the functioning of Legal and Commercial Guarantees for consumers in the EU" (2015) : Indeed, only a minority of businesses insist on consumers 
proving the trader's liability within the entire 2 years legal guarantee period, and there is very limited change in traders’ behaviour before or after the 6 months on this point. See 
more details in Annex 8. 

171   FR, PT 

49 

 
 
                                                 
during  the  preparation  of  the  present  instrument  but  did  not  find  support.  Therefore  the 
Commission considers it more appropriate to go back to the approach in the Consumer Sales 
and  Guarantees  Directive.  The  existing  length  of  the  legal  guarantee  period  is  widely 
favoured  by  the  vast  majority  of  business  associations,  since  it  has  worked  very  well  in 
practice.  Moreover, according to  recent  consumer data,  roughly equal shares  of consumers 
who experienced problems with a product for which they felt they had a genuine cause for 
complaint reported that this problem had occurred within the first six months, between 6 and 
12 months or between one and two years after purchasing the product172. This means that a 2-
year  period  is  sufficient  to  cover  the  majority  of  problems  reported  by  consumers.  In 
addition,  recent  data  show  that  the  relative  majority  of  consumers  (between  34%-43%)173 
consider  that  a  2-year  legal  guarantee  period  is  reasonable  for  white,  brown  and  grey 
goods174. Consumer organisations, on the other hand, support a longer legal guarantee period 
of 6 years, especially for durable goods. A 2-year legal guarantee period  will maintain the 
current level of consumer protection in 23 Member States175 and decrease it in the remaining 
5 Member States176.  

The  same  period  of  two  years  should  be  applicable  to  second  hand  goods  (whereas  the 
current Directive foresees a possibility to reduce to one year). While this choice is supported 
by consumer organisations, most business associations would prefer a shorter legal guarantee 
period for second hand goods. This will increase consumer protection in 13 Member States177  
which have currently reduced the legal guarantee period for second hand goods to one year, 
while  maintaining  the  current  level  of  consumer  protection  in  the  remaining  15  Member 
States.  

Unlike  digital  content,  the  instrument  should  not  include  a  right  to  damages,  as  Member 
States' contract laws already have such a right in case of non-conforming goods; interference 
in such established well-functioning regimes is not necessary. This position is shared by all 
stakeholders,  including  the  main  European  consumer  organisation  and  all  main  business 
associations. 

Similarly,  the  instrument  should  not  fully  harmonise  the  rules  on  unfair  terms.  There  is 
currently  no  sufficient  evidence  showing  that  different  rules  on  (and  lists  of)  unfair  terms 
constitute  an  obstacle  for  traders.  Consumer  associations  strongly  opposed  any  full 
harmonisation approach on unfair terms. On the industry side, one main business association 
advocated  for  a  fully  harmonised  black  list  of unfair  terms,  while  the majority  of  business 
associations just pointed out that the current unfair terms regime is sufficient. Moreover, the 
Unfair  Contract  Terms  Directive  will  be  evaluated  in  a  comprehensive  manner  during  the 
REFIT Fitness check process which will take place in 2016. 

The table below summarises the main differences between the current implementation laws 
of the Consumer Sales and Guarantees Directive in each Member State and the main fully 
harmonised rules on the online sale of goods under the proposed instrument. 

Notification duty 

Hierarchy of remedies 

Legal guarantee period 

Reversal of burden of proof period 

Implementation 
law 

Proposal 

Implementation 
law 

Proposal  Implementation 

Proposal 

law 

Implementation 
law 

Proposal 

AT 

NO 

NO 

YES 

YES 

2 years 

2 years 

6 months 

2 years 

172   "Consumer market study on the functioning of Legal and Commercial Guarantees for consumers in the EU" (2015, to be published) 
173   See footnote 171. 
174   White goods: Electrical goods used domestically such as refrigerators and washing machines. Brown goods: Light electronic consumer durables such as TVs, radios, cameras. Grey 

goods: Computing equipment, laptop, smartphones etc.  

175   AT, BE, BG CZ, CY, DE, DK, EE, EL, ES, FR, HR, HU, IT, LV, LT, LU, MT, PL, PT, RO, SI, SK 
176   FI, IE, NL, SE, UK 
177   AT, BE, HR, CY, CZ, DE, IT, LU, PL, PT, RO, SK, SI 

50 

 
 
 
 
                                                 
BE 

YES 

BG 

NO 

CY 

YES 

CZ 

NO 

DE 

NO 

DK 

YES 

EE 

YES 

EL 

NO 

ES 

YES 

FI 

YES 

FR 

NO 

HR 

YES 

HU 

YES 

IE 

NO 

IT 

YES 

LV 

YES 

LT 

NO 

LU 

NO 

MT 

YES 

NL 

YES 

PL 

NO 

PT 

YES 

RO 

YES 

SK 

YES 

SI 

YES 

SE 

YES 

UK 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

NO 

YES 

YES 

2 years 

2 years 

6 months 

2 years 

YES 

YES 

2 years 

2 years 

6 months 

2 years 

NO 

YES 

2 years 

2 years 

6 months 

2 years 

YES 

YES 

2 years 

2 years 

6 months 

2 years 

YES 

YES 

2 years 

2 years 

6 months 

2 years 

YES 

YES 

2 years 

2 years 

6 months 

2 years 

YES 

YES 

2 years 

2 years 

6 months 

2 years 

NO 

YES 

2 years 

2 years 

6 months 

2 years 

YES 

YES 

2 years 

2 years 

6 months 

2 years 

YES 

YES 

unlimited* 

2 years 

6 months 

2 years 

YES 

YES 

2 years 

2 years 

2 years 

2 years 

NO 

YES 

2 years 

2 years 

6 months 

2 years 

YES 

YES 

2 years 

2 years 

6 months 

2 years 

YES 

YES 

n/a 
(prescription 
rules apply) 

2 years 

6 months 

2 years 

YES 

YES 

2 years 

2 years 

6 months 

2 years 

YES 

YES 

2 years 

2 years 

6 months 

2 years 

NO 

YES 

2 years 

2 years 

6 months 

2 years 

YES 

YES 

2 years 

2 years 

6 months 

2 years 

YES 

YES 

2 years 

2 years 

6 months 

2 years 

YES 

YES 

unlimited* 

2 years 

6 months 

2 years 

YES 

YES 

2 years 

2 years 

1 year 

2 years 

NO 

YES 

2 years 

2 years 

2 years 

2 years 

YES 

YES 

2 years 

2 years 

6 months 

2 years 

YES 

YES 

2 years 

2 years 

6 months 

2 years 

NO 

YES 

2 years 

2 years 

6 months 

2 years 

YES 

YES 

3 years 

2 years 

6 months 

2 years 

YES 

YES 

n/a 
(prescription 
rules apply) 

2 years 

6 months 

2 years 

* The legal guarantee period in these Member States is only limited by the prescription period 

Managing potential temporary differences between rules for offline and online sales 

51 

 
 
The  possibility  that  for  a  transitional  period  the  rules  on  online  and  offline  sales  of  goods 
may differ,would in practice be rather limited. The Commission will take the necessary steps 
to  ensure  coherence  with  the  Regulatory  Fitness  and  Performance  (REFIT)  Programme, 
which will determine any possible need for an initiative on the offline sales of  goods. If such 
differences were to actually occur for a short transitional period, they could affect businesses 
selling both online and offline, since the latter would have to comply with two different sets 
of rules according to their sales channel, as summarised in the table. Businesses also selling 
cross-border  would  not  be  negatively  affected,  since  any  additional  costs  arising  from  a 
potential  divergence of regimes  in  their domestic market would be counterbalanced by the 
significant cost savings resulting from not having to adapt to other Member States' national 
consumer contract  laws when selling online cross-border. Therefore, any possible negative 
effects  would  only  concern  those  businesses  that  currently  sell  and  will  continue  to  both 
online and offline but only domestically.  

However, in practice the impact of such a differentiation in certain key rules for online and 
offline domestic sales to consumers would overall not be very important and could be dealt 
with through adapted business practices. For example, in the 26 Member States where there 
might be a transitional divergence on the burden of proof rules for online and offline sales, 
this  would  not  make  a  significant  difference  in  practice:  recent  data  show  that  only  a 
minority of businesses  insist  on consumers proving the trader's liability within the entire 2 
years legal guarantee period, and there is very limited change in traders’ behaviour before or 
after the 6 months on this point. Therefore, the shift of the burden of proof often operates de 
facto  throughout  the  entire  2-year  legal  guarantee  period,  and  thus  the  practical  impact  on 
businesses of possibly temporarily divergent rules on this point would not be significant.178  

Given the limited practical impacts of such temporary divergences, omni-channel businesses 
could cope with possible, transitional differences between the regimes for online and offline 
sales of  goods by applying the respective higher standards, which would enable them to use 
a single business model and thus save any potential additional costs. 

On the consumers' side, a possible differentiation for a transitional period between the key 
rules on offline and online purchases would overall not have a very important impact either: 
on the contrary, the more protective rules on the burden of proof (in 26 Member States) and 
the notification duty (in 17 Member States) would boost online purchases, both domestically 
but  most  importantly  cross-border  and  would  thus  contribute  to  increasing  consumer 
confidence  and  welfare.  There  might  however  be  a  negative  impact  in  6  Member  States 
resulting  from the possible  temporary  co-existence  of a free  choice  of remedies  for offline 
purchases and a hierarchy of remedies for online purchases, since such a situation would not 
contribute  to  increasing  consumers'  confidence  in  buying  online.  However,  this  may  be  to 
some extent counterbalanced by another element of the proposal which facilitates the right of 
consumers to terminate the contract compared to the existing situation in 5 of those Member 
States179 where the right to termination is excluded for minor defects. 

Learning from the past 

While  similar  attempts  to  approximate  contract  law  rules  on  the  sales  of  goods  in  the  past 
were not or only partially successful, the current preferred policy option may overcome the 
problems faced in the past. This option is part of the broader Digital Single Market strategy, 
whose  objectives  have  largely  been  supported  by  stakeholders  and  Member  States.  This 
option  also  specifically  takes  into  account  the  lessons  learnt  from  the  proposal  for  a 
Regulation  on  a  Common  European  Sales  Law  and  the  Consumers  Rights  Directive.  The 

178   See Annex 3 for more details 
179 CY, EL, HR, LT, SI 

52 

 
 
                                                 
ideas  of  an  optional  instrument  and  a  comprehensive  set  of  rules  regulating  practically  all 
relevant  issues,  as  put  forward  in  the  Common  European  Sales  Law,  has  been  abandoned. 
The  approach  put  forward  by  the  preferred  option  will  be  focused  on  targeted  consumer 
mandatory rights that remedy concrete key obstacles to cross-border trade. It will also only 
replace one single Directive for a specific sector. Finally, on substance, the preferred policy 
option offers a new dynamic as it strikes an appropriate balance between a very high level of 
consumer  protection  where  necessary  and  a  significantly  increased  legal  certainty  for 
businesses  through  full  harmonisation.  Concretely,  the  level  of  consumer  protection  set  in 
the  instrument  is  likely  to  be  more  successful  than  the  level  set  in  previous  attempts:  it 
adopts a practical approach consisting in maintaining substantive solutions that have proven 
their  value  in  practice  (e.g.  duration  of  the  legal  guarantee  period,  hierarchy  of  remedies), 
while at the same time putting forward new solutions in comparison to past attempts where 
necessary and  supported by recent data (e.g., reversal of the burden of proof).  Even in  the 
few  Member  States  where  the  current  national  level  of  consumer  protection  would  be 
decreased on individual points, the likelihood of a decreasing effect on consumer confidence 
would  be  largely  outbalanced  by  the  increase  of  consumer  protection  on  other  points, 
stemming  from  the  overall  increase  of  the  EU  level  of  consumer  protection.  More 
importantly,  fully  harmonised  rules  would  address  the  main  concern  that  consumers  have 
when buying online cross-border: the uncertainty about their key contractual rights.180 

7  HOW WOULD ACTUAL IMPACTS BE MONITORED AND EVALUATED? 

Section 3 above identified four specific objectives to respond to the problems identified in 
this  impact assessment.  The  analysis  in  Section  1  showed  that  the  problems  faced  by  both 
businesses and consumers were largely driven by an absence of clear rules for digital content 
products,  and  differences  in  some  key  provisions  of  national  contract  law  rules  governing 
(online) sales of  goods. This leads to the definition of two operational objectives that will 
contribute towards achieving the specific objectives: 

 

 

to provide businesses and consumers with a set of uniform, targeted rules for sales of 
digital content; 
to eliminate contract law-related barriers to cross-border online trade in  goods. 

Member States will be required to send to the Commission the measures implementing the 
Directive  on  certain  aspects  concerning  contracts  for  the  supply  of  digital  content  and  the 
Directive on certain aspects concerning the online sales of  goods. These measures will set 
out the text of the adopted legislation by the Member States. The Commission will monitor 
these measures to ensure that they comply with the Directive. 

Comprehensive statistics on online trade in the EU and more precisely retail online trade are 
available  in  the  Eurostat  database.  These  could  be  used  as  primary  sources  of  data  for  the 
evaluation. This will be completed by the Consumer scoreboard181 that is published yearly. In 
addition,  suitable  data  collection  tools  could  be  used  such  as  a  specifics  survey,  a 
behavioural economics study, or a mystery shopping exercise. Such targeted exercises would 
aim  to  identify  more  precisely  the  extent  to  which  changes  in  the  indicators  could  be 
ascribed to the proposals. For example, while giving consumers the same rights throughout 
the EU should  be expected to  make  them more confident in  asserting their rights in cross-
border transactions and thus help to reduce consumer detriment, the share of consumers who 
receive effective remedies will also be influenced by other factors, such as the effectiveness 
of the Consumer Protection Co-operation network.  

180   See Section 1.2.3 
181   http://ec.europa.eu/consumers/consumer_evidence/consumer_scoreboards/index_en.htm 

53 

 
 
 
                                                 
The Commission will launch a monitoring and evaluation exercise to assess how effectively 
the two Directives will achieve the objectives. This exercise will take place no sooner than 5 
years  after  the  entry  into  application  of  the  Directives,  to  ensure  that  enough  data  are 
available to enable a comprehensive evaluation of their impacts. This exercise will feed into 
a review process which will examine the effectiveness of the provisions of the Directives. 

SPECIFIC 
OBJECTIVES 

OPERATIONAL 
OBJECTIVES 

INDICATORS 

 Reduce costs resulting 
from differences in 
contracts 

 Reduce uncertainty faced 
by business due to the 
complex legal framework 

 Building consumer trust 
in online cross-border 
shopping  

 Provide businesses and 
consumers with a set of 
uniform, targeted rules 
for sales of digital 
content 

 Eliminate contract law-
related barriers to cross-
border online trade in  
goods 

 Reduce detriment faced 
by consumers when 
buying non-conforming 
digital content or faced 
with certain unbalanced 
contract terms 

 Variation in number of businesses trading online 
cross-border; Source: retailer survey informing 
Consumer Conditions Scoreboard, frequency: 
biennial  

 Variation in average number of EU Member States 

businesses export to; Source: retailer survey 
informing Consumer Conditions Scoreboard, 
frequency: biennial 

 Variation in business confidence in cross-border 
online selling; Source: retailer survey informing 
Consumer Conditions Scoreboard, frequency: 
biennial 

 Variation of % of consumers shopping online cross-
border; Source: Eurostat Community Survey on ICT 
usage in households and by individuals, frequency: 
annual 

 Variation in consumer confidence in cross-border 

online shopping; Source: consumer survey 
informing Consumer Conditions Scoreboard, 
frequency: biennial 

 % of consumers getting remedies in case of 

problems 

54