Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on certain aspects concerning contracts for the supply of digital content
Date: 2015-12-09
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: consumer protection, contract, data protection, digital technology, digitisation, electronic commerce, personal data, single market, supplier, supply

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   EUROPEAN COMMISSION  Brussels, 9.12.2015  COM(2015) 634 final 2015/0287 (COD)   Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on certain aspects concerning contracts for the supply of digital content  (Text with EEA relevance) {SWD(2015) 274 final} {SWD(2015) 275 final}  
 
EXPLANATORY MEMORANDUM 
The Digital Single Market Strategy1 adopted by the Commission on 6 May 2015 announced a 
legislative initiative on harmonised rules for the supply of digital content and online sales of 
goods. This initiative is composed of (i) a proposal on certain aspects concerning contracts for 
the  supply  of  digital  content,  and  (ii)  a  proposal  on  certain aspects  concerning  contracts  for 
the online and other distance sales of goods.  

As announced by the Commission in its 2015 Work Programme, these two proposals draw on 
the  experience  acquired  during  the  negotiations  for  a  Regulation  on  a  Common  European 
Sales  Law.  In  particular,  they  no  longer  follow  the  approach  of  an  optional  regime  and  a 
comprehensive set of rules. Instead, the proposals contain a targeted and focused set of fully 
harmonised  rules.  The  proposals  also  build  on  a  number  of  amendments  adopted  by  the 
European  Parliament  in  first  reading  concerning  the  proposal  for  a  Regulation  on  the 
Common  European  Sales  Law,  in  particular  the  restriction  of  the  scope  to  online  and  other 
distance  sales  of  goods  and  the  extension  of  the  scope  to  certain  digital  content  which  is 
provided against another counter-performance than money. 

While  this  explanatory  memorandum  covers  specifically  the  proposal  on  certain  aspects  of 
contracts  for  the  supply  of  digital  content,  the  parts  of  this  explanatory  memorandum  about 
the reasons for the proposal, the collection of expertise and the impact assessments concern 
both proposals as these two proposals are envisaged as a package with common objectives.  

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The general objective of the proposals is to contribute to faster growth of the Digital Single 
Market, to the benefit of both consumers and businesses. By eliminating the key contract law-
related barriers hindering cross-border trade, the rules put forward in the proposals will reduce 
the  uncertainty  faced  by  businesses  and  consumers  due  to  the  complexity  of  the  legal 
framework  and  the  costs  incurred  by  businesses  resulting  from  differences  in  contract  law 
between  Member  States.  The  initiative  will  increase  consumer  trust  by  providing  uniform 
rules with clear consumer rights. 

39 % of businesses selling online but not cross-border quote different national contract laws 
as  one  of  the  main  obstacles  to  cross-border  sales.2  This  applies  particularly  to  remedies  in 
case of a faulty product as mentioned by 49% of EU retailers selling online and 67% of those 
who are currently trying to sell or considering selling online cross-border.3 Different national 
contract  law  rules  have  created  one-off  costs  for  retailers  selling  to  consumers  of 
approximately  €4  billion;  these  costs  mostly  affect  micro  and  small-  and  medium-sized 
enterprises  (SMEs).  The  purpose  of  these  proposals  is  to  create  a  business-friendly 
environment  and  make  it  easier  for  businesses,  especially  SMEs,  to  sell  cross-border. 
Businesses  should  be  given  legal  certainty  and  avoid  unnecessary  costs  caused  by  differing 
national laws when selling goods and digital content outside their domestic market.  

Only 18% of consumers who used the Internet for private purposes in 2014 purchased online 
from another EU country while 55% did so domestically.4 Consumers suffer detriment due to 

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COM (2015) 192 final http://ec.europa.eu/priorities/digital-single-market/ 
Flash Eurobarometer 396 "Retailers' attitudes towards cross-border trade and consumer protection" (2015). 
Flash Eurobarometer 396 "Retailers' attitudes towards cross-border trade and consumer protection" (2015). 
Eurostat survey on ICT usage in households and by individuals (2014). 

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lack of clear contractual rights for faulty digital content. Digital content covers a wide range 
of items, such as music, movies, apps, games, films, cloud storage services or broadcasts of 
sport  events.  The  combined  value  of  the  financial  detriment  resulting  from  the  most  recent 
problem  faced  by  consumers  with  digital  content  and  the  time  spent  trying  to  resolve  these 
problems during the last 12 months is estimated at between €9 and 11 billion. Consumers are 
also  not  confident  when  buying  online  across  borders.  One  of  the  major  reasons  is  their 
uncertainty about their key contractual rights. As a result, they miss opportunities and face a 
narrower range of offers at less competitive prices.  

• 

Consistency with existing policy provisions in the policy area 

This  proposal  aims  at  filling  the  current  legal  gap  in  the  consumer  acquis  at  EU  level 
regarding certain contractual aspects for which there are currently no rules. 

The  proposal  supplements  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 Council5, 
which has already fully harmonised certain rules for the supply of digital content (mainly pre-
contractual  information  requirements  and  the  right  of  withdrawal).  While  some  Member 
States  like  the  United  Kingdom  and  the  Netherlands  have  already  adopted  legislation 
specifically on digital content, there are currently no specific EU rules to protect consumers 
against digital content which is not in conformity with the contract. Therefore there is a need 
to  act  quickly  in  order  to  prevent  possible  further  legal  fragmentation  due  to  the  emerging 
different national rules. 

In addition, the proposal tackles two contractual rights (modification and termination of long 
term  contracts),  which  have  been  identified  as  problematic6  and  which  are  currently  only 
subject to  the  general clause on the unfairness  control  in  Council  Directive 93/13/EEC of  5 
April 1993 on unfair terms in consumer contracts7.  

The proposal also supplements 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  Market8,  which,  among  others,  partially  establishes 
harmonised rules on electronic contracts. 

The proposal  is  compatible with  the existing EU rules  on applicable  law and jurisdiction in 
the Digital Single Market9. Regulation (EU) No 1215/2012 of the European Parliament and of 
the  Council  of  12  December  2012  on  jurisdiction  and  the  recognition  and  enforcement  of 
judgments  in  civil  and  commercial  matters10  and  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)11,  which  provide  rules  to  determine  the  competent  jurisdiction  and 
applicable  law,  apply  also  in  the  digital  environment.  These  instruments  have  been  adopted 
quite  recently  and  the  implications  of  the  internet  were  considered  closely  in  the  legislative 

5 

6 

7 

8 

9 

10 
11 

OJ L 304, 22.11.2011, p.64 
See  in  particular  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.  

OJ L 095, 21.04.1993 p. 29.  

OJ L 178, 17.7.2000, p. 1. 

A detailed explanation of the EU rule on applicable law and jurisdiction in the Digital Single Market can be found in Annex 7 to the Commission Staff Working 

Document  containing  the  Impact  Assessment  accompanying  the  Proposals  for  a  Directive  of  the  European  Parliament  and  of  the  Council  on  certain  aspects 

concerning contracts for the supply of digital content and a Directive of the European Parliament and of the Council on certain aspects concerning contracts for 

the online and other distance sales of  goods, SWD (2015) 275. 

OJ L 351, 20.12.2012, p. 1. 

OJ L 177, 4.07.2008, p. 6.   

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process.  Some  rules  take  specific  account  of  internet  transactions,  in  particular  those  on 
consumer contracts. These rules aim at protecting consumers  inter  alia in  the Digital  Single 
Market by giving them the benefit of the non-derogable rules of the Member State in which 
they are habitually resident. Together with the proposed new contract rules for the purchase of 
digital  content  as  set  out  in  this  proposal,  the  existing  rules  on  private  international  law 
establish a clear legal framework for buying and selling in a European digital market, which 
takes  into  account  both  consumers'  and  businesses'  interests.  Therefore,  this  legislative 
proposal does  not require any  changes  to the current framework of EU  private international 
law, including to the Regulation (EC) No 593/2008 (Rome I). 

• 

Consistency with other Union policies 

The  Digital  Single  Market  Strategy  intends  to  deal  with  all  major  obstacles  to  the 
development  of  cross-border  e-commerce  in  the  Digital  Single  Market  in a  holistic  manner. 
The  proposal  should  be  seen  in  the  context  of  this  holistic  approach.  The  Strategy  covers 
among  others  the  initiatives  related  to  the  cross-border  portability  of  content,  role  of 
platforms, the Free Flow of Data, European Cloud, VAT related burden and parcel delivery. 
Especially, in the context of the cross-border portability of content and European Cloud, the 
Strategy  envisages  decisive  actions  towards  ensuring  portability  and  interoperability  of 
content,  which  is  crucial  for  the  supply  of  digital  content  within  the  EU.  The  Strategy  also 
covers  initiatives  related  to  enforcement/redress,  i.e.  the  entry  into  operation  of  the  Online 
Dispute  Resolution  platform12  and  the  review  of  Regulation  (EC)  No  2006/2004  of  27 
October 2004 on cooperation between national authorities responsible for the enforcement of 
consumer  protection  laws  (the  Regulation  on  consumer  protection  cooperation)13.  In 
particular,  fully  harmonised  contract  law  rules  in  the  EU  will  also  facilitate  coordinated 
enforcement actions undertaken by the Consumer Protection Co-operation authorities14. The 
proposal  will  also  be  consistent  with  the  general  EU  framework  on  copyright  and  will  be 
without prejudice to any rights and obligations according to copyright law. 

Finally,  the  protection  of  individuals  with  regard  to  the  processing  of  personal  data  is 
governed  by  Directive  1995/46/EC  of  the  European  Parliament  and  of  the  Council  of  24 
October 1995 on the protection of individuals with regard to the processing of personal data 
and  on  the  free  movement  of  such  data15  and  Directive  2002/58/EC  of  the  European 
Parliament and of the Council of 12 July 2002 concerning the processing of personal data and 
the protection of privacy in the electronic communications sector16 which are fully applicable 
to supplies of digital content. Those Directives already establish a legal framework in the field 
of personal data in the Union. The application and implementation of this proposal should be 
made in full compliance with that legal framework. 

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Regulation (EU) No 524/2013 of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 

2009/22/EC (Regulation on consumer ODR), OJ L 165, 18.06.2013, p.1. 

OJ L 364, 9.12.2004, p. 1. 

This  Directive  will  amend  the  Regulation  on  consumer  protection  cooperation  to  add  a  reference  of  this Directive  in  the  Annex  of  that  Regulation  enabling 

coordinated enforcement actions by the Consumer Protection authorities in the field covered by this Directive. 

OJ L 281, 23/11/1995, p. 31 - 50) [to be replaced by the General Data Protection Regulation] and Directive 2002/58/EC of the European Parliament and of the 

Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy 

and electronic communications. 

OJ L 201, 31.7.2002, p. 37–47. 

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2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  legal  basis  of  this  proposal  is  Article  114  of  the  Treaty  on  the  Functioning  of  the 
European  Union  and  its  main  objective  is  the  improvement  of  the  establishment  and  the 
functioning of the internal market.  

When  supplying  digital  content  to  consumers  in  other  Member  States,  businesses  are 
confronted with different mandatory consumer contract law rules. Contracts for the supply of 
digital content are categorised differently from one Member State to another. 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  are  sometimes 
categorised differently within the same Member State depending on the type of digital content 
offered.17 As a consequence, for digital content, national rights and obligations as well as the 
remedies for consumers vary between Member States. While some of these national rules are 
non-mandatory  and  can  be  modified  contractually  by  the  parties,  others  are  of  a  mandatory 
character. 

Moreover, several Member States have recently enacted or started preparatory work to adopt 
specific  mandatory  rules  on  contracts  for  the  supply  of  digital  content.  These  national  rules 
differ however in scope and content. It is also to be expected that other Member States will 
follow this trend. If the EU does not act, businesses will thus increasingly be confronted with 
different mandatory consumer contract law rules on the supply of digital content.  

The existing and upcoming fragmentation creates obstacles for businesses to sell cross-border 
because  they  have  to  incur  contract  law-related  costs.  Businesses  are  also  uncertain  about 
their rights and obligations. This has a direct effect on the establishment and functioning of 
the internal market and negatively affects competition. Given the heterogeneity of the online 
market for digital content it would be difficult for the market to overcome this fragmentation.  

• 

Subsidiarity (for non-exclusive competence)  

The proposal complies with the subsidiarity principle as set out in Article 5 of the Treaty on 
European Union. 

The objectives of the proposal cannot be adequately achieved by the Member States. 

The  general  objective  of  the  initiative  is  to  remove  consumer  contract  law  barriers  in  the 
online  world  and  help  to  establish  a  genuine  Digital  Single  Market  for  the  benefit  of 
businesses and consumers. Member States cannot on their own initiative sufficiently be able 
to remove the barriers that exist between national legislations. An initiative at EU level is able 
to better achieve this.  

More  specifically,  the  initiative  aims  to  provide  consumers  with  specific  rights  in  a 
coordinated manner and to create legal certainty for businesses which want to sell their digital 
content in other Member States. When developing specific legislation on the supply of digital 
content, each Member State individually would not be able to ensure an overall coherence of 
its national legislation with other Member States legislations. An initiative at EU level would 
therefore help to ensure the development of specific consumer rights for digital content in a 
coherent manner. 

Action at EU level would be more effective than action at national level.  

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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. 

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Furthermore,  an  initiative  at  EU  level  will  secure  the  application  of  consumer  rights  in  a 
coherent manner while ensuring that all consumers in the EU benefit from the same high level 
of  consumer  protection.  It  will  create  legal  certainty  for  businesses  which  want  to  sell  their 
digital content in other Member States. Such an initiative will provide a consistent legal basis 
for coordinated enforcement actions as the proposed Directive will be included in the Annex 
of Regulation (EC) No 2006/200418 on cooperation of national authorities responsible for the 
enforcement  of  consumer  protection  laws.  Moreover,  enforcement  actions  would  be  largely 
facilitated  by  the  proposed  uniform  fully  harmonised  rules.  Thus,  the  enforcement  of  EU 
legislation  will  be  strengthened  for  the  benefit  of  EU  consumers.  Such  a  result  can  only  be 
achieved by an action at the EU level. 

• 

Proportionality 

The  proposal  complies  with  the  principle  of  proportionality  as  set  out  in  Article  5  of  the 
Treaty on European Union because the proposal will not go beyond what is necessary for the 
achievement of the objectives.  

The  proposal  will  not  harmonise  all  aspects  concerning  contracts  for  the  supply  of  digital 
content;  among  many  other  examples,  rules  on  the  conclusion  of  the  contract  will  not  be 
regulated.  Instead,  it  will  focus  on  harmonising  at  Union  level  only  those  targeted,  key 
mandatory  consumer  EU  contractual  rights,  which  are  essential  in  cross-border  online 
transactions,  and  which  have  been  identified  as  barriers  to  trade  by  stakeholders  and  are 
necessary  to  build  consumer  trust  when  buying  online  abroad.  Moreover,  the  choice  of  the 
legal  form  of  a  Directive  instead  of  a  Regulation  will  have  as  a  result  considerably  less 
interference into national laws (see below under "Choice of the instrument") as it will leave 
Member States freedom to adapt the implementation to their national law. 

• 

Choice of the instrument 

The  Commission  presents  a  set  of  two  full  harmonisation Directives:  a  Directive  on  certain 
aspects  concerning  contracts  for  the  supply  of  digital  content  and  a  Directive  on  certain 
aspects concerning contracts for the online and other distance sales of goods.  

The choice of a Directive leaves Member States freedom to adapt the implementation to their 
national  law.  For  instance,  the  proposal  does  not  determine  whether  the  contract  for  the 
supply  of  digital  content  is  to  be  considered  as  a  sales,  services,  rental  or  a  sui  generis 
contract; it would leave this decision to Member States. A Regulation would require a much 
more detailed and comprehensive regime than a Directive in order to allow its effects to be 
directly  applicable.  As  a  consequence,  this  would  have  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. 

The choice of full  harmonisation  will lead to simple and modern  rules that  remove contract 
law  barriers  and  create  a  favourable  legal  framework  for  businesses  while  at  the  same  time 
ensuring that consumers benefit from the same high level of consumer protection throughout 
the EU. 

A non-binding instrument such as a voluntary model contract would not achieve the objective 
to  improve  the  establishment  and  functioning  of  the  internal  market.  Traders  would  still  be 
obliged  to  comply  with  different  mandatory  national  rules  of  the  consumer's  country  of 

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OJ L 364, 9.12.2004, p. 1 

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residence,  when  the latter  provide  for  a  higher level  of  consumer  protection  than  the model 
contract, and would thus still face contract law-related costs.  

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Stakeholder consultations 

Consultation process 

An  extensive  consultation  strategy  has  been  developed  to  ensure  a  wide  participation 
throughout the policy cycle of this initiative. This strategy was based on a mix of public and 
targeted  consultations.  The  Commission  has  sought  a  wide  and  balanced  range  of  views  on 
this  issue  by  giving  the  opportunity  to  all  relevant  parties  (businesses,  consumers,  national 
authorities, lawyers and academics) to express their opinions.19  

-  Public  Consultation:  An  open  12  weeks  web-based  public  consultation  resulted  in  189 
responses from all categories of stakeholders from across the EU.  

- Targeted consultations: A stakeholder consultation group was composed of 22 organisations 
representing a wide range of interests. The group met 7 times.  

In-depth interviews with businesses were also conducted from June to August 2015 in order 
to gather data on contract law related costs faced by business when selling abroad.  

Within  the  framework  of  the  Digital  Single  Market  Strategy,  two  surveys,  a  consumer 
survey20 and a business survey21, were used in 2015 to collect data identifying the main cross-
border obstacles to the Digital Single Market.  

Finally, as part of an economic study on consumer digital content, consumers and businesses 
were  asked  about  the  type  of  problems  they  have  encountered  when  purchasing  digital 
content.22 

-  Consultation  of  Member  States:  three  workshops  with  Member  States  were  organised 
between  June  and  October  2015.  The  relevant  issues  were  also  discussed  with  national 
enforcement  authorities  at  the  Consumer  Protection  Cooperation  committee  meeting  (April 
2015)  and  the  national  authorities  responsible  for  consumer  policy  at  the  Consumer  Policy 
Network meeting (May 2015). 

Summary of the results 

A majority of general businesses see a need for EU action in the form of full harmonisation; 
the IT industry and legal professions are more divided. Consumer organisations also recognise 
the  need  to  act  and  support  full  harmonisation  provided  that  a  high  level  of  consumer 
protection  is  guaranteed.  A  majority  of  responding  Member  States  also  welcome  action  on 
digital  content  at  EU  level.  Some  of  them  specify  they  would  prefer  full  harmonisation  or 
targeted full harmonisation. Other Member States would  prefer a  better enforcement and an 
assessment  of  existing  rules.  A  number  of  them  express  the  need  to  ensure  consistency 
between rules for goods and digital content.  

The vast majority of respondents support an approach including contracts between businesses 
and  consumers  only.  The  vast  majority  of  consumers,  Member  States  and  legal  professions 

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For more details about the consultations, please see: http://ec.europa.eu/justice/newsroom/contract/opinion/index_en.htm.   

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

2015. 

Flash Eurobarometer 413 "Companies engaged in online activities" (2015) http://ec.europa.eu/public_opinion/flash/fl_413_en.pdf. 

Economic study on consumer digital Content products, ICF International, 2015. 

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are in favour of covering digital content supplied not only for a price but also in exchange for 
(personal and other) data provided by consumers. Businesses are more divided on this issue.  

On the substance of the rules, consumers and legal professions argue that users should be able 
to  terminate  the  contract  as  a  first  remedy.  Businesses  underline  that  suppliers  of  digital 
content  should  have  the  choice  to  bring  the  goods  into  conformity  before  giving  the 
possibility to terminate the contract. For some IT associations, consumers should only have a 
right to terminate the contract and to receive a reimbursement of the price, but not the right to 
request that the content is brought into conformity, as this may be too costly for traders. Other 
IT associations do not consider remedies for non-conformity to be appropriate at all for digital 
content.  Member  States  are  almost  unanimous  in  supporting  the  inclusion  of  all  remedies 
already available for goods. The vast majority of respondents agree that traders should be able 
to  modify  the  features  of  the  supplied  digital  content  under  certain  conditions  (such  as  the 
prior information of the consumer) and that consumers should be able to terminate long term 
contracts.  

• 

Collection and use of expertise 

Mainly  over  2014,  an  Expert  Group  on  Cloud  Computing  Contracts  met  seven  times.  The 
Expert Group was established under the European Cloud Computing Strategy and composed 
of practitioners and organisations representing cloud service providers and customers, as well 
as  representatives  of  legal  professions  or  academics  with  expertise  in  cloud  computing 
contracts and in personal data protection issues relevant to cloud computing contracts. 

Cloud  computing  contracts  played  a  particularly  important  role  in  identifying  contractual 
problems  relevant  for this  Directive.  These  issues,  which  were  extensively  discussed  by  the 
Group, relate to quality, liability or modification of the contracts.23  

The  Commission  also  relied  on  several  economic  and  legal  studies,  which  were  either 
commissioned  for  the  specific  purpose  of  this  initiative  or  as  a  part  of  the  Digital  Single 
Market Strategy.24  

• 

Impact assessment 

The Regulatory Scrutiny Board delivered an initial opinion on the draft impact assessment on 
16 October 2015 which has been modified taking into account comments from the Board and 
resubmitted.  The  second  opinion,  which  approved  the  draft  impact  assessment  subject  to 
comments, was delivered by the Board on 9 November 2015.25  

The  revised  impact  assessment  report  and  an  executive  summary  are  published  with  the 
proposals.26  

Policy alternatives examined 

23 

24

25

26

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

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

See, in particular:  

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

2015 

- Eurostat survey on ICT usage in households and by individuals (2014) 

-  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. 

- Flash Eurobarometer 413 "Companies engaged in online activities" (2015) http://ec.europa.eu/public_opinion/flash/fl_413_en.pdf. 

- Economic study on consumer digital Content products, ICF International, 2015. 

The opinion of the Regulatory Scrutiny Board is available at: http://ec.europa.eu/justice/contract/index_en.htm.  

The impact assessment report and the Executive summary are available at : http://ec.europa.eu/justice/contract/index_en.htm.  

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In  addition  to  examining  the  consequences  of  the  absence  of  policy  change,  the  impact 
assessment examined the following policy alternatives: (i) option 1: targeted fully harmonised 
rules  for  digital  content  and  goods;  (ii)  option  2:  targeted  fully  harmonised  rules  for  digital 
content  and  application  of  the  trader's  law  combined  with  the  existing  harmonised  rules  on 
goods; (iii) option 3: targeted fully harmonised rules for digital content and no policy change 
for  goods;  (iv)  option  4:  minimum  harmonisation  rules  for  digital  content  and  no  policy 
change for goods; (v) option 5: a voluntary European model contract combined with an EU 
trust-mark. 

On  a  comparative  analysis  of  the  impacts  of  these  options,  the  Impact  Assessment  Report 
arrived at the conclusion that option 1 would best meet the policy objectives. This option will 
reduce  contract  law-related  costs  for  traders  and  facilitate  cross-border  e-commerce. 
Businesses will be able to rely largely on their own law when selling cross-border as the main 
rules, which are relevant for cross-border trade, will be the same in all Member States. While 
the new rules on digital content may entail certain additional costs for businesses, these costs 
will be limited compared to the existing situation as the new rights will be fully harmonised. 
Therefore  they  will  provide  businesses  with  a  legally  certain  and  business  friendly 
environment.  Consumers  will  have  a  clear  set  of  rights  throughout  the  EU  and  will  thus  be 
more confident in buying goods or acquiring access to digital content cross-border. This will 
create  a  win-win  situation  for  businesses  and  consumers.  Competition  will  be  increased, 
leading  to  an  overall  increase  of  trade  and  consequently  an  increased  and  better  choice  at 
more competitive prices for consumers, with significant macroeconomic gains for the EU. 

Lack of policy change would not contribute to achieving the objectives of the Digital Single 
Market, and would risk having negative economic impacts relative to the current situation.  

Option  2  would  have  the  positive  impact  of  fully  harmonised  rules  for  digital  content.  For 
goods, it would lead to increased incentives for cross-border supply, since traders would be 
able to sell their products cross-border entirely on the basis of their own law. Consumers may 
to  some  extent  benefit  from  increased  choice  and  lower  prices.  However,  under  such  an 
option,  consumers  would  no  longer  benefit  from  a  higher  level  of  consumer  protection  that 
their own national law provide. Vice versa, consumers may benefit from a potentially higher 
level of consumer protection of the trader's law if that goes beyond their own national law on 
specific points.  

Option  3  would  have  the  positive  impact  of  fully  harmonised  rules  for  digital  content  but 
contract law-related obstacles to cross-border trade would remain for goods.  

Option 4 would create minimum rights for consumers concerning the contracts for the supply 
of  digital  content  in  the  EU  and  therefore  increase  consumers'  trust  to  a  certain  extent. 
Member States would be able to adopt more protective rules. However, this option would not 
reduce  costs  for  traders,  who  would  still  need  to  comply  with  different  national  mandatory 
consumer contract law rules that provide a higher level of consumer protection when selling 
in other Member States.  

Option 5 could help businesses sell digital content across the EU and provide consumers with 
a satisfactory level of consumer protection, 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. However, traders would still be obliged 
to  comply  with  mandatory  national  rules  of  the  consumer's  country  of  habitual  residence, 
when  they  provide  for  a  higher  level  of  consumer  protection  than  the  model  contract  rules, 
and may thus still face contract law-related costs.  

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Main impacts of the proposal 

The  impact  assessment  considers  the  impact  of  both  proposals,  the  Directive  on  certain 
aspects  concerning  contracts  for  the  supply  of  digital  content  and  the  Directive  on  certain 
aspects concerning contracts for the online and other distance sales of goods.  

The  two  proposals  will  eliminate  contract  law-related  barriers  to  cross-border  online  trade, 
both  for  consumers  and  traders.  Removing  these  obstacles  is  an  incentive  for  cross-border 
trade:  if  the  barriers  related  to  contract  law  were  lifted,  122,000  more  businesses  would  be 
selling online across borders. Intra-EU exports would increase by around €1 billion. Increased 
online retail competition will lead to retail prices going down in all Member States, averaging 
-0.25% at EU level. As a result of this price decrease and increased consumer trust stemming 
from uniform EU rights, there will be additional consumer demand. Household consumption, 
which mirrors consumers' welfare, would rise in every Member State with an EU average of 
+0.23%,  which  corresponds  to  about  €18  billion.  Between  7.8  and  13  million  additional 
consumers  would  start  buying  online  cross-border.  The  average  amount  spent  annually  by 
each cross-border buyer would also increase by €40. This increase in supply and demand will 
have direct effects on the main macroeconomic variables in each Member State and in the EU 
as a whole. Overall real EU GDP is expected to gain about €4 billion per year.  

Who would be affected and how  

Businesses will face costs to comply with the new Directive but eventually benefit even more 
from fully harmonised rules to export goods and digital content throughout the EU. SMEs will 
not be exempted from the new legislation: exemptions would decrease consumers' trust when 
purchasing  from  them.  There  is  no  justification  for  giving  consumers  less  protection  when 
they  buy  from  SMEs  instead  of  bigger  suppliers.  An  exemption  would  also  undermine  the 
benefits  for  SMEs  of  having  one  single  set  of  rules  applying  throughout  the  EU.  On  the 
contrary, the initiative will be particularly beneficial to SMEs, which are more affected by the 
costs  to  adapt  their  contract  to  mandatory  rules  of  other  Member  States  and  are  more  often 
confined  to  their  home  market  than  their  bigger  competitors.  Cross-border  trade  is  an 
important way for them to benefit from the advantages of economies of scale. SMEs face a 
problem in finding customers. This would be easier to cope with in the online context, since 
the internet enables online sales at reduced costs compared to offline trade. 

• 

Fundamental rights 

The  proposal  for  the  supply  of  digital  content  will  impact  positively  a  number  of  rights 
protected under the EU Charter of Fundamental Rights, in particular Article 38 on consumer 
protection and Article 16 on the freedom to conduct a business.  

A targeted set of fully harmonised rules for digital content will meet the objective of Article 
38  of  the  Charter  of  Fundamental  Rights  by  enhancing  consumer  protection  throughout  the 
EU, since it will provide EU consumers with clear and specific rights when they buy/ acquire 
access to digital content domestically or from other Member States.  

A set of fully harmonised rules for key aspects of the supply of the digital content will also 
contribute to achieving the objective of Article 16 because businesses will be facilitated to sell 
digital  content  in  the  EU,  both  domestically  and  cross-border.  Their  ability  to  expand  their 
business will therefore be reinforced.  

Finally, clear  contract  law rights will help fulfilling the objective of Article  47 (Right  to an 
effective  remedy)  because  it  will  increase  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. 

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4. 

BUDGETARY IMPLICATIONS 

The proposal will not have any budgetary implications. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

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.  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. 

The Commission will launch a monitoring and evaluation exercise to assess how effectively 
the Directive is achieving the objectives. The results of the evaluation will feed into a review 
process,  to  be  carried  out  5  years  after  the  entry  into  force  of  the  Directive,  which  will 
examine the effectiveness of the Directive. 

• 

Explanatory documents 

In  accordance  with  the  Joint  Political  Declaration  of  28  September  2011  of  Member  States 
and  the  Commission  on  explanatory  documents,  Member  States  have  undertaken  to 
accompany,  in  justified  cases,  the  notification  of  their  transposition  measures  with  one  or 
more  documents  explaining  the  relationship  between  the  components  of  a  directive  and  the 
corresponding parts of national transposition instruments. With regard to this Directive, it is 
considered that the transmission of such documents is justified. 

• 

Detailed explanation of the specific provisions of the proposal 

The proposal consists of 20 articles.  

Article 1 sets the subject matter of the Directive, which is to fully harmonise a set of key rules 
concerning contracts for the supply of digital content. It clarifies that the Directive includes 
rules on conformity of the digital content, remedies available to consumers in cases of lack of 
conformity of digital content with the contract, as well as certain aspects concerning the right 
to terminate a long term contract and the modification of the digital content.   

Article 2 contains a list of definitions for terms used in the Directive. Some definitions stem 
from  the  current  acquis,  such  as  the  definition  of  a  consumer  or  from  the  proposal  for  a 
Regulation  on  a  Common  European  Sales  Law.  Other  definitions  reflect  the  specificity  of 
digital content and reflect the rapid technological and commercial evolution. For example, the 
definition of digital content is deliberately broad and encompasses all types of digital content, 
including for example, downloaded or web streamed movies, cloud storage, social media or 
visual modelling files for 3D printing, in order to be future-proof and to avoid distortions of 
competition and to create a level playing field. 

Article 3 sets, based on the subject matter, the personal and material scope of the Directive. 
The Directive covers only business-to-consumer transactions. Contract law related problems 
in B2B relations, especially in relation to specific needs of SMEs, has been recognised in the 
Digital Single Market Strategy and will be analysed in the context of other actions announced 
in the Strategy. The Directive covers the supply of all types of digital content. It also covers 
digital content supplied not only for a monetary payment but also in exchange for (personal 
and other) data provided by consumers, except where the data have been collected for the sole 
purpose of meeting legal requirements. The Directive does not cover services performed with 
a significant element of human intervention or contracts governing specific sectorial services 
such  as  healthcare,  gambling  or  financial  services.  Article  3  also  clarifies  that  in  case  of 

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conflict  between  the  Directive  and  another  EU  act,  the  other  EU  act  takes  precedence.  In 
particular,  it  clarifies  that  the  Directive  is  without  prejudice  to  the  rules  on  data  protection. 
Finally, it clarifies that the Directive does not affect national laws to the extent that they are 
not  regulated  in  this  Directive,  such  as  national  rules  providing  for  obligations  of  the 
consumer towards the supplier of digital content or regulating the qualification, formation or 
validity of contracts. 

Article 4 establishes that the present Directive is a full harmonisation Directive. It precludes 
Member States, within its scope of application, from adopting or maintaining laws remaining 
below  or  going  beyond  the  requirements  of  the  Directive.  The  effect of  Article  4  combined 
with  Article  1  is  also  to  determine  that  in  the  other  areas  not  included  in  the  scope  of 
application of this Directive, Member States are free to provide national solutions. 

Article  5  clarifies  the  modalities  and  time  of  supply  of  digital  content.  The  digital  content 
must  be  supplied  to  the  consumer  or  to  a  third  party  which  operates  a  physical  or  virtual 
facility  allowing  processing  of,  access  to  or  transmission  of  digital  content  to  the  final 
consumer  and  with  which  the  consumer  is  in  a  contractual  relation.  As  a  default  rule,  the 
digital content should be supplied instantly unless the parties agree otherwise. 

Article 6 contains a mixture of contractual and statutory conformity criteria against which the 
quality of the digital content is assessed. The digital content must primarily conform to what 
was promised in the contract. In the absence of such explicit benchmarks, the conformity of 
the digital content must be assessed according to an objective criterion, i.e. it must be fit for 
the purpose for which digital content of the same description would normally be used. Article 
6  also  clarifies  that  when  the  digital  content  is  supplied  over  a  period  of  time,  the  digital 
content must  be in conformity with the contract  throughout the duration of the contract and 
that  the  version  of  digital  content  supplied  to  the  consumer  shall  also  be  the  most  recent 
version available at the time of the conclusion of contract.  

Article 7 explains that a lack of conformity of the digital content resulting from an incorrect 
integration into the consumer's hardware and software should be equal to a lack of conformity 
of the digital content itself if the reasons for the incorrect integration are in the sphere of the 
supplier. 

Article 8 contains an additional conformity requirement according to which the digital content 
must be cleared from any third-party rights, including those based on intellectual property.  

Article 9 imposes the burden of proof for the absence of lack of conformity on the supplier, 
unless  the  consumer's  digital  environment  is  not  compatible  with  the  digital  content.  This 
reversal of the burden of proof is not limited in time as digital content is not subject to wear 
and  tear.  Article  9  specifies  that  the  consumer  shall  cooperate  with  the  supplier  in  order  to 
allow  the  supplier  to  ascertain  the  consumer's  digital  environment.  The  obligation  to 
cooperate shall be limited to the least intrusive means technically available to the supplier.  

Article 10 states the cases of liability of the supplier towards the consumer, namely where the 
digital content is not in conformity with the contract or the supplier failed to supply the digital 
content  altogether.  Given  that  digital  content  may  be  supplied  over  a  period  of  time,  the 
supplier should also be liable for any lack of conformity which occurs during that period. 

Article  11  gives  the  right  to  the  consumer  to  terminate  the  contract  immediately  when  the 
supplier failed to supply the digital content altogether as set out in Article 5. 

Article 12 lists the remedies available to the consumer in case of any failure to supply or lack 
of conformity of the digital content. In a first step, the consumer shall be entitled to have the 
digital  content  brought  to  conformity  within  a  reasonable  time,  without  significant 
inconvenience  and  without  incurring  any  costs.  In  a  second  step,  the  consumer  shall  be 

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entitled to have the price reduced or the contract terminated if the lack of conformity relates to 
main performance features. 

Article 13 details the consequences of termination of the contract for lack of conformity of the 
digital  content.  For  example,  it  provides  that the  supplier  shall  reimburse  the  price or  if  the 
counter-performance consisted of data refrain from using these data and any other information 
which the consumer has provided in exchange for the digital content. It also clarifies that the 
consumer shall also refrain from using further the digital content after termination. 

Article 14 establishes a right to damages restricted to cases where damage has been done to 
the  digital  content and hardware  of the consumer. However, it provides that Member States 
should lay down the detailed conditions for the exercise of the right to damages. 

Article 15 lists the conditions, such as prior agreement and prior information of the consumer 
or the right for the consumer to terminate the contract, under which the supplier can modify 
the contract for the supply of digital content as regards main performance features. 

Article  16  establishes  the  conditions  under  which  the  consumer  has  a  right  to  terminate 
contracts  concluded  for  an  indeterminate  duration  or  for  duration  exceeding  12  months  and 
thereby is able to switch provider. For example, the consumer shall notify the supplier 14 days 
before  the  termination  becomes  effective.  Article  16  also  details  the  consequences  of 
termination of the long term contract. It also provides that the supplier shall refrain from using 
data and any other information which the consumer has provided in exchange for the digital 
content. 

Article  17  provides  the  supplier  with  a  right  to  redress  in  case  of  an  act  or  omission  by  a 
person in earlier links of the chain of transactions which triggered the supplier's liability for 
lack of conformity or a failure to supply towards the consumer. The modalities for exercising 
this right are to be regulated by the national laws of Member States. 

Article 18 obliges Member States to ensure that adequate and effective means exist to ensure 
compliance with this Directive. 

Article 19 contains the clause about the mandatory nature of consumer contract law rules, i.e. 
it states that any derogation from the requirements contained in the Directive to the detriment 
of the consumer is not binding on the consumer. 

Article 20 provides for amendments to other EU legislation. It amends Directive 1999/44/EC 
in  order  to  avoid  overlaps  between  the  two  instruments.  Article  20  also  adds  a  reference  to 
this Directive in the Annex of Regulation (EC) No 2006/2004 so as to facilitate cross-border 
cooperation  on  enforcement  of  this  Directive.  It  also  adds  a  reference  to  this  Directive  in 
Annex I of Directive 2009/22/EC of the European Parliament and of the Council  27 so as to 
ensure that the consumers’ collective interests laid down in this Directive are protected.  

Article 21 establishes the deadline for transposition by Member States.  

Article  22  establishes  an  obligation  for  the  Commission  to  review  the  application  of  this 
Directive no later than 5 years after its entering into force. 

Article 23 sets the date of entry into force of the Directive. 

Article 24 specifies the addressees of the Directive. 

27 

OJ L110, 1.05.2009, p.30.  

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2015/0287 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on certain aspects concerning contracts for the supply of digital content  

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 114 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee28,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

The  growth  potential  of  e-commerce  has  not  yet  been  fully  exploited.  The  Digital 
Single Market Strategy for Europe29 tackles in a holistic manner the major obstacles to 
the  development  of  cross-border  e-commerce  in  the  Union  in  order  to  unleash  this 
potential.  Ensuring  better  access  for  consumers  to  digital  content  and  facilitating 
businesses to supply digital content is necessary to boost the Union’s digital economy 
and stimulate overall growth. 

For  the  achievement  of  a  genuine  digital  single  market,  the  harmonisation  of  certain 
aspects concerning contracts for supply of digital content, taking as a base a high level 
of consumer protection, is necessary.  

Differences  in  national  mandatory  consumer  contract  law  rules  and  a  lack  of  clear 
contract law rules  are among the key obstacles which hinder the  development of the 
supply  of  digital  content,  as  very  few  tailor-made  rules  exist  at  Union  level. 
Businesses  face  additional  costs  stemming  from  differences  in  national  mandatory 
consumer contract law rules and legal uncertainty when selling digital content across 
borders.  Businesses  also  face  costs  when  adapting  their  contracts  to  specific 
mandatory  rules  for  the  supply  of  digital  content  are  already  emerging  in  several 
Member  States,  creating  differences  in  scope  and  content  between  specific  national 
rules  governing  these  contracts.  In  those  Member  States  where  there  are  not  yet 
specific rules for the supply of digital content, traders willing to sell cross-border face 
uncertainty,  as  they  will  often  not  know  which  rules  apply  to  digital  content  in  the 
Member State they want to export to, nor the content of those rules and whether they 
are mandatory.  

28 
29

OJ C , , p. . 
COM (2015) 192 final. 

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(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

Consumers are not confident when buying cross border and especially online. One of 
the major factors for this lack of confidence is uncertainty about their key contractual 
rights  and  the  lack  of  a  clear  contractual  framework  for  digital  content.  Many 
consumers  of digital  content  experience problems related to the quality of, or  access 
to,  digital  content.  For  instance, they receive wrong or faulty  digital  content,  or they 
are  not  able  to  access  the  digital  content  in  question.  As  a  result,  consumers  suffer 
financial and non-financial detriment. 

In order to remedy these problems, both businesses and consumers should be able to 
rely on fully harmonised rules for the supply of digital content setting out Union-wide 
contractual rights which are essential for this type of transactions. 

Fully harmonised consumer contract law rules in all Member States will make it easier 
for  businesses  to  offer  digital  content  cross-border.  They  will  have  a  stable  contract 
law  environment  when  selling  online  and  otherwise  at  a  distance  to  other  Member 
States.  Fully  harmonised  rules  specific  for  digital  content  throughout  the  EU  will 
remove  the  complexity  caused  by  the  different  national  rules  that  currently  apply  to 
contracts for the supply of digital content. They will also prevent legal fragmentation 
that  otherwise  would  arise  from  new  national  legislations  regulating  specifically 
digital content.  

Consumers will benefit from fully harmonised rights for digital content at a high level 
of protection. They will have clear rights when they receive or access digital content 
from anywhere in the EU. This will increase their confidence in buying digital content. 
This  will  also  contribute  to  reducing  the  detriment  consumers  currently  suffer,  since 
there will be a set of clear rights that will enable them to address problems they face 
with digital content. 

This Directive should fully harmonise a set of key rules that are so far not regulated at 
Union  level.  It  should  include  therefore  rules  on  conformity  of  the  digital  content, 
remedies available to consumers in cases of lack of conformity of digital content with 
the contract and certain modalities for the exercise of those remedies. This Directive 
should  also  harmonise  certain  aspects  concerning  the  right  to  terminate  a  long  term 
contract, as well as certain aspects concerning the modification of the digital content.  

By fully harmonising all requirements related to the topics regulated by this Directive, 
it precludes Member States, within its scope of application, from providing any further 
formal  or  substantive  requirements,  such  as  a  period  during  which  the  lack  of 
conformity  has  to  become  apparent,  an  obligation  for  the  consumer  to  notify  the 
supplier  of  a  lack  of  conformity  within  a  specific  period  or  an  obligation  for  the 
consumer  to  pay  for  the  use  of  the  digital  content  until  the  moment  of  termination 
because of a lack of conformity with the contract. 

(10)  This Directive should not affect national laws to the extent that the topics concerned 
are not regulated by this Directive, such as national rules providing for obligations of 
the  consumer  towards  the  supplier  of  digital  content  or  regulating  the  qualification, 
formation  and  validity  of  contracts  or  the  legality  of  the  content.  Member  States 
should also remain free to provide rules for the detailed conditions for the exercise of 
rights, such as the right to damages to the extent not covered by the Directive, or rules 
which  provide  for  the  consequences  of  termination  of  the  contract  which  apply  in 
addition to restitution rules regulated by this Directive. 

(11)  The  Directive  should  address  problems  across  different  categories  of  digital  content 
and  its supply.  In  order to  cater  for fast  technological  developments  and  to  maintain 

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the  future-proof  nature  of  the  notion  of  digital  content,  this  notion  as  used  in  this 
Directive should be broader than in Directive 2011/83/EU of the European Parliament 
and  of  the Council.30  In  particular it should  cover  services  which  allow the  creation, 
processing or storage of data. While there are numerous ways for digital content to be 
supplied,  such  as  transmission  on  a  durable  medium,  downloading  by  consumers  on 
their devices, web-streaming, allowing access to storage capabilities of digital content 
or access to the use of social media, this Directive should apply to all digital content 
independently  of  the  medium  used  for  its  transmission.  Differentiating  between 
different  categories  in  this  technologically  fast  changing  market  is  not  desirable 
because  it  would  hardly  be  possible  to  avoid  discriminations  between  suppliers.  A 
level-playing field between suppliers of different categories of digital content should 
be  ensured.  However  this  Directive  should  not  apply  to  digital  content  which  is 
embedded in goods in such a way that it operates as an integral part of the goods and 
its functions are subordinate to the main functionalities of the goods. 

In order to meet the expectations of consumers and ensure a clear-cut and simple legal 
framework for suppliers of digital content offered on a durable medium, in relation to 
conformity requirements and remedies available to consumers for non-conformity, this 
Directive should apply to goods such as DVDs and CDs, incorporating digital content 
in  such  a  way  that  the  goods  function  only  as  a  carrier  of  the  digital  content.  The 
Directive  should  apply  to  the  digital  content  supplied  on  a  durable  medium, 
independently  whether  it  is  sold  at  a  distance  or  in  face-to-face  situations,  so  as  to 
avoid  fragmentation  between  the  different  distribution  channels.  The  Directive 
2011/83  should  continue  to  apply  to  those  goods,  including  to  obligations  related  to 
the delivery of goods, remedies in case of the failure to deliver and the nature of the 
contract under which those goods are supplied. The Directive is also without prejudice 
to the distribution right applicable to these goods under copyright law. 

In the digital economy, information about individuals is often and increasingly seen by 
market  participants  as  having  a  value  comparable  to  money.  Digital  content  is  often 
supplied not in exchange for a price but against counter-performance other than money 
i.e.  by  giving  access  to  personal  data  or  other  data.  Those  specific  business  models 
apply  in  different  forms  in  a  considerable  part  of  the  market.  Introducing  a 
differentiation depending on the nature of the counter-performance would discriminate 
between  different  business  models;  it  would  provide  an  unjustified  incentive  for 
businesses to move towards offering digital content against data. A level playing field 
should  be  ensured.  In  addition,  defects  of  the  performance  features  of  the  digital 
content  supplied  against  counter-performance  other  than  money  may  have  an  impact 
on the economic interests of consumers. Therefore the applicability of the rules of this 
Directive should not depend on whether a price is paid for the specific digital content 
in question.  

(12) 

(13) 

(14)  As  regards  digital  content  supplied  not  in  exchange  for  a  price  but  against  counter-
performance other than money, this Directive should apply only to contracts where the 
supplier  requests  and  the  consumer  actively  provides  data,  such  as  name  and  e-mail 
address or photos, directly or indirectly to the supplier for example through individual 
registration  or  on  the  basis  of  a  contract  which  allows  access  to  consumers'  photos. 
This Directive should not apply to situations where the supplier collects data necessary 
for  the  digital  content  to  function  in  conformity  with  the  contract,  for  example 
geographical  location  where  necessary  for  a  mobile  application  to  function  properly, 

30 

OJ L 304, 22.11.2011, p.64. 

EN 

16 

   EN 

                                                 
or  for  the  sole  purpose  of  meeting  legal  requirements,  for  instance  where  the 
registration  of  the  consumer  is  required  for  security  and  identification  purposes  by 
applicable laws. This Directive should also not apply to situations where the supplier 
collects  information,  including  personal  data,  such  as  the  IP  address,  or  other 
automatically generated information such as information collected and transmitted by 
a cookie, without the consumer actively supplying it, even if the consumer accepts the 
cookie.  It  should  also  not  apply  to  situations  where  the  consumer  is  exposed  to 
advertisements exclusively in order to gain access to digital content. 

(15)  Content  generated  by  consumers  should  be  treated  on  the  same  basis  as  any  other 
digital content that the consumer provides or stores throughout the period of duration 
of the contract such as music and video files, pictures, games or applications. Content 
generated by consumers comprises a wide range of examples including digital images, 
video  and  audio  files,  blogs,  discussion  forums,  text-based  collaboration  formats, 
posts,  chats,  tweets,  logs,  podcasting,  content  created  on  mobile  devices,  content 
created in the context of online virtual environments, ratings and collections of links 
referring to online content.  

(16) 

In order to ensure a common set of rights for consumers and a level playing field for 
business, consumers should have the same remedies for digital content which is not in 
conformity with the contract irrespective of the way the content has been developed. 
Consequently  the  Directive  should  apply  to  contracts  for  the  development  of  digital 
content tailor made to the specific requirements of the consumer including tailor made 
software.  This  Directive  should  also  apply  to  the  supply  of  visual  modelling  files 
required  in  the  context  of  3D  printing.  However  this  Directive  should  not  regulate 
goods produced with the use of 3D printing technology or the damage caused to them.  

(17)  Digital content is highly relevant in the context of the Internet of Things. However it is 
opportune  to  address  specific  issues  of  liability  related  to  the  Internet  of  Things, 
including the liability for data and machine-to-machine contracts, in a separate way. 

(18)  Contracts  may  include  general  terms  and  conditions  of  the  supplier  that  need  to  be 
accepted  by  the  consumer.  For  some  digital  content,  suppliers  often  describe  the 
service  and  measurable  service  targets  in  a  service  level  agreement.  These  service 
level agreements are generally appended to the main contract and form an important 
component  of  the  contractual  relationship  between  the  supplier  and  the  consumer. 
They should be covered by the definition of a contract under this Directive, and should 
thus comply with the rules laid down therein. 

(19)  This  Directive  should  apply  only  to  those  services  whose  main  subject  matter  is 
providing digital content. Therefore, the Directive should not apply to services, which 
are performed personally  by the supplier and where the digital means are only used 
for  access  or  delivery  purposes,  such  as  a  translation  offered  by  a  person  or  other 
professional  advice  services  where  only  the  output  of  the  service  is  delivered  to  the 
consumer by digital means.  

(20)  Where, under a contract or a bundle of contracts, the supplier offers digital content in 
combination with other services such as telecommunication services or goods, which 
do  not  function  merely  as  a  carrier  of  the  digital  content,  this  Directive  should  only 
apply to the digital content component of such a bundle. The other elements should be 
governed by the applicable law. 

EN 

17 

   EN 

(21)  This  Directive  should  not  deal  with  copyright  and  other  intellectual  property  related 
aspects of the supply of digital content. Therefore it should be without prejudice to any 
rights and obligations according to copyright law and other intellectual property laws. 

(22)  The  protection  of  individuals  with  regard  to  the  processing  of  personal  data  is 
governed by Directive 95/46/EC of the European Parliament and of the Council31 and 
by Directive 2002/58/EC of the European Parliament and of the Council32 which are 
fully  applicable  in  the  context  of  contracts  for  the  supply  of  digital  content.  Those 
Directives  already  establish  a  legal  framework  in  the  field  of  personal  data  in  the 
Union.  The  implementation  and  application  of  this  Directive  should  be  made  in  full 
compliance with that legal framework. 

(23)  There  are  various  ways  for  digital  content  to  reach  consumers.  It  is  opportune to  set 
simple and clear rules as to the  modalities and the time for performing the supplier's 
main contractual obligation to supply digital content to the consumer. Considering that 
the supplier is not in principle responsible for acts or omissions of an internet provider 
or an electronic platform which the consumer selected for receiving the digital content, 
it should be sufficient for the supplier to supply the digital content to this third party. 
With  regard  to  the  time  of  supply,  in  line  with  market  practices  and  technical 
possibilities,  the  digital  content  should  be  supplied  immediately,  unless  the  parties 
decide to agree otherwise in order to cater for other supply models.  

(24) 

(25) 

In order to promote innovation in the Digital Single Market and cater for technological 
developments  reflected  in  the  fast  changing  characteristics  of  digital  content,  it  is 
justified for the digital content to be, above all, in conformity with what was agreed in 
the contract.  

In  cases  where  the  contract  does  not  stipulate  sufficiently  clear  and  comprehensive 
benchmarks  to  ascertain  the  conformity  of  the  digital  content  with  the  contract,  it  is 
necessary  to  set  objective  conformity  criteria  to  ensure  that  consumers  are  not 
deprived  of  their  rights.  In  such  cases  the  conformity  with  the  contract  should  be 
assessed  considering  the  purpose  for  which  digital  content  of  the  same  description 
would normally be used.  

(26)  Due  to  its  nature  digital  content  needs  to  interact  with  other  digital  equipment  to 
function  properly;  interoperability  should  therefore  form  a  part  of  the  conformity 
criteria. In particular it needs to interact with hardware including processor speed and 
graphics  card  features  and  software  including  a  specific  version  of  the  operating 
system or specific multi-media player. The notion of functionality should refer to the 
ways  in  which  digital  content  can  be  used;  it  should  also  refer  to  the  absence  or 
presence  of  any  technical  restrictions  such  as  protection  via  Digital  Rights 
Management or regional coding. 

(27)  While data-driven services and technologies bring significant benefits, they also create 
some vulnerabilities. As recognised by the Digital Single Market Strategy a high level 
of network and information security is essential across the European Union to ensure 
respect of fundamental rights such as the right to privacy and personal data, to increase 
user confidence and strengthen their trust in the digital economy. As software becomes 
pervasive, qualities such as reliability, security and adaptability to evolving needs are 
also becoming a prime concern. It is therefore increasingly important that those data-
driven  services  and  technologies  ensure  that  those  qualities  are  guaranteed,  to  the 

31 
32

OJ L 281, 23/11/1995, p. 31 - 50) [to be replaced by the General Data Protection Regulation, once adopted].  
OJ L 201, 31.7.2002, p. 37–47. 

EN 

18 

   EN 

                                                 
 
extent  that  is  proportionate  to  the  role  and  function  those  technologies  play.  In 
particular, quality in terms of security and reliability is becoming an important concern 
for innovative, composite services that have to rely on the interconnection of diverse 
systems in different domains. 

(28)  When  applying  the  rules  of  this  Directive,  suppliers  should  make  use  of  standards, 
open  technical  specifications,  good  practices  and  codes  of  conduct,  including  in 
relation to the commonly used data format for retrieving the content generated by the 
user  or  any  other  content  provided  by  the  consumer,  whether  established  at  the 
international level, the European level or at the level of a specific industry sector. In 
this  context,  the  Commission  may  consider  the  promotion  of  the  development  of 
international and European standards and the drawing up of a code of conduct by trade 
associations  and  other  representative  organisations  that  could  support  the  uniform 
implementation of the Directive. 

(29)  Many  types  of  digital  content  are  supplied  over  a  period  of  time.  For  instance, 
consumers  access  cloud  services  over  a  period  of  time.  It  is  therefore  important  to 
ensure  that  the  digital  content  is  in  conformity  with  the  contract  throughout  the 
duration of the contract. Moreover, given the frequent improvement of digital content, 
notably by updates, the version of digital content supplied to the consumer should be 
the most recent one available at the time of the conclusion of the contract. 

(30) 

In  order  to  work  properly,  digital  content  needs  to  be  correctly  integrated  into  the 
consumer's hardware and software environment. Where a lack of conformity with the 
contract  of  the  digital  content  results  from  an  incorrect  integration,  it  should  be 
regarded as a lack of conformity with the contract of the digital content itself, where it 
was  integrated  by  the  supplier  or  under  its  control,  or  by  the  consumer  following 
supplier's  instructions  for  integration  and  the  incorrect  integration  was  due  to 
shortcomings  in  the  required  integration  instructions.  In  such  scenarios  the  origin  of 
the lack of conformity stems from the sphere of the supplier. 

(31)  Conformity  should  cover  material  as  well  as  legal  defects.  Third  party  rights  might 
effectively bar the consumer from enjoying the digital content or some of its features 
in accordance with the contract if those third party rights are infringed, and if when the 
third  party  rightfully  compels  the  supplier  to  stop  infringing  those  rights  and  to 
discontinue  offering  the  digital  content  in  question.  Legal  defects  are  particularly 
important  for  digital  content,  which,  by  its  nature,  is  subject  to  intellectual  property 
rights.  Therefore  the  supplier  should  be  obliged  to  ensure  that  the  digital  content  is 
free from any right of a third party, for example a copyright claim related to the digital 
content, which precludes the consumer from enjoying the digital content in accordance 
with the contract. 

(32)  Due  to  the  specific  nature  of  digital  content  with  its  high  complexity  as  well  as  the 
supplier's better knowledge and access to know how, technical information and high-
tech assistance, it is the supplier who is in a better position than the consumer to know 
the  reasons  for  the  digital  content  not  being  in  conformity  with  the  contract.  The 
supplier is also in a better position to assess whether the lack of conformity with the 
contract  is  due  to  incompatibility  of  the  consumer's  digital  environment  with  the 
technical requirements for the digital content. Therefore in case of a dispute it should 
be for the supplier to prove that the digital content is in conformity with the contract, 
unless  the  supplier  proves  that  the  consumer's  digital  environment  is  not  compatible 
with  the  digital  content.  Only  where  the  supplier  proves  that  the  consumer's  digital 
environment  is  not  compatible  with  the  interoperability  and  other  technical 

EN 

19 

   EN 

requirements, it should be for the consumer to prove that the digital content is not in 
conformity with the contract. 

(33)  Without prejudice to the fundamental rights to the protection of private life, including 
confidentiality  of  communications,  and  the  protection  of  personal  data  of  the 
consumer,  the  consumer  should  cooperate  with  the  supplier  in  order  to  allow  the 
supplier  to  ascertain  the  consumer's  digital  environment  with  the  use  of  the  least 
intrusive  means  which  are  at  the  disposal  of  both  parties  in  the  circumstances.  This 
may often be done for instance by providing the supplier with automatically generated 
incident reports or details of the consumer's internet connection. Only in exceptional 
and duly justified circumstances where with the best use of all other means there is no 
other way possible, this may also be done by allowing virtual access to the consumer's 
digital  environment.  However,  where  the  consumer  does  not  cooperate  with  the 
supplier,  it  should  be  for  the  consumer  to  prove  that  the  digital  content  is  not  in 
conformity with the contract. 

(34)  The  supplier  should  be  liable  to  the  consumer  for  the  lack  of  conformity  with  the 
contract and for any failure to supply the digital content. Moreover, given that digital 
content may be supplied over a period of time, it is justified that the supplier should be 
liable for any lack of conformity which occurs during that period. 

(35)  A failure  of the supplier  to  supply the digital content  to the consumer  in  accordance 
with the contract is a serious breach of the main contractual obligation of the supplier, 
which  should  allow  the  consumer  to  immediately  terminate  the  contract.  Where  the 
supplier has initially not failed to supply the digital content, interruptions of the supply 
making  the  digital  content  not  available  or  accessible  to  the  consumer  over  a  short 
period of time should be treated as non-conformity with the contract, and not a failure 
to  supply.  In  particular,  the  requirement  of  proper  continuity  of  the  digital  content 
should also cover more than negligible short term interruptions of the supply. 

(36) 

In  the  case  of  non-conformity  with  the  contract,  consumers  should  as  a  first  step  be 
entitled to have the digital content brought to conformity with the contract. Depending 
on  technical  characteristics  of  the  digital  content,  the  supplier  may  select  a  specific 
way  of  bringing  the  digital  content  to  conformity  with  the  contract,  for  example  by 
issuing updates or requiring the consumer to access a new copy of the digital content. 
Given the diversity of digital content, it is not appropriate to set fixed deadlines for the 
exercise  of  rights  or  the  fulfilling  of  obligations  related  to  that  digital  content.  Such 
deadlines may not capture this diversity and be either too short or too long, depending 
on  the  case.  It  is  therefore  more  appropriate  to  refer  to  reasonable  deadlines.  The 
digital content should be brought into conformity with the contract within a reasonable 
time  and  free  of  any  costs;  in  particular  the  consumer  should  not  incur  any  costs 
associated with the development of an update for the digital content. 

(37)  As  a  second  step,  the  consumer  should  be  entitled  to  have  the  price  reduced  or  the 
contract terminated. The right of a consumer to have the contract terminated should be 
limited to those cases where for instance bringing the digital content to conformity is 
not  possible  and  the  non-conformity  impairs  the  main  performance  features  of  the 
digital  content.  Where  the  consumer  terminates  the  contract,  the  supplier  should 
reimburse the price paid by the consumer or, where the digital content is supplied not 
in  exchange  for  a  price  but  against  access  to  data  provided  by  the  consumer,  the 
supplier  should  refrain  from  using  it,  from  transferring  that  data  to  third  parties  or 
allowing  third  parties  to  access  it  after  termination  of  the  contract.  Fulfilling  the 
obligation  to  refrain  from  using  data  should  mean  in  the  case  when  the  counter-

EN 

20 

   EN 

performance  consists  of  personal  data,  that  the  supplier  should  take  all  measures  in 
order to comply with data protection rules by deleting it or rendering it anonymous in 
such a way that the consumer cannot be identified by any means likely reasonably to 
be used either by the supplier or by any other person. Without prejudice to obligations 
of  a  controller  under  Directive  95/46/EC  the  supplier  should  not  be  obliged  to 
undertake any further steps in relation to data which the supplier has lawfully provided 
to third parties in the course of the duration of the contract for the supply of the digital 
content.  

(38)  Upon termination the supplier should also refrain from using the content generated by 
the  consumer.  However,  in  those  cases  where  more  than  one  consumer  generated 
particular content, the supplier is entitled to continue to use the content generated by 
the consumer where those other consumers make use of it. 

(39) 

In  order  to  ensure  that  the  consumer  benefits  from  effective  protection  in  relation  to 
the right to terminate the contract, the supplier should allow the consumer to retrieve 
all  data  uploaded  by  the  consumer,  produced  by  the  consumer  with  the  use  of  the 
digital  content  or  generated  through  the  consumer's  use  of  the  digital  content.  This 
obligation  should  extend  to  data  which  the  supplier  is  obliged  to  retain  under  the 
contract for the supply of the digital content as well as to data which the supplier has 
effectively retained in relation to the contract. 

(40)  Where, following the termination of the contract because of a lack of conformity with 
the contract, the supplier provides the consumer with the technical means to retrieve 
the  data,  the  consumer  should  be  entitled  to  retrieve  the  data  free  of  any  costs,  for 
example  the  cost  of  employing  a  commonly  used  data  format  with  the  exception  of  
costs  generated  by  the  consumer's  own  digital  environment  including  the  costs  of  a 
network connection as they are not specifically linked with the retrieval of the data. 

(41)  Where the contract is terminated, the consumer should not be required to pay for the 
use of digital content which is not in conformity with the contract because that would 
deprive the consumer of effective protection. 

(42)  Considering the need to balance legitimate interests of consumers and suppliers, where 
the digital content provided over a period of time in exchange for a payment of a price, 
gives rise to the right to terminate, the consumer should be entitled to terminate only 
the part of the contract which corresponds to the time when the digital content was not 
in conformity with the contract. However where the digital content is provided against 
a counter-performance other than money partial termination is not feasible because it 
is impossible to proportionally apportion a counter-performance other than money.  

(43)  Due to its nature the digital content is not subject to wear and tear while being used 
and  it  is  often  supplied  over  a  period  of  time  rather  than  as  a  one-off  supply.  It  is, 
therefore,  justified  not  to  provide  a  period  during  which  the  supplier  should  be  held 
liable for any lack of conformity which exists at the time of the supply of the digital 
content. Consequently Member States should refrain from maintaining or introducing 
such a period. Member States should remain free to rely on national prescription rules 
in order to ensure legal certainty in relation to claims based on the lack of conformity 
of digital content. 

(44)  The  principle  of  the  supplier's  liability  for  damages  is  an  essential  element  of  the 
contracts for supply of digital content. In order to increase consumers' trust in digital 
content this principle should thus be regulated at Union level to ensure that consumers 
do not suffer a detriment if their hardware or software is damaged by digital content 

EN 

21 

   EN 

which is not in conformity with the contract. Therefore, consumers should be entitled 
to a compensation for damages caused to the consumer's digital environment by a lack 
of conformity with the contract or a failure to supply the digital content. However, it 
should be for Member States to lay down the detailed conditions for the exercise of the 
right to damages while taking into account that discounts on prices for future supplies 
of  the  digital  content,  especially  when  offered  by  suppliers  as  an  exclusive 
compensation for losses, do not necessarily put the consumer as nearly as possible into 
the  position  in  which  the  consumer  would  have  been  if  the  digital  content  had  been 
duly supplied and been in conformity with the contract. 

(45)  Due  to  technological  or  other  reasons  the  supplier  might  be  compelled  to  change 
features of the digital content supplied over a period of time. These changes are often 
to  the  advantage  of  the consumer  as  they improve  the  digital  content.  Consequently, 
the parties to the contract may include respective clauses in the contract which allow 
the  supplier  to  undertake  modifications.  However,  where  such  modifications 
negatively affect the way the consumer benefits from main performance features of the 
digital  content,  they  may  disturb  the  balance  of  the  contract  or  the  nature  of  the 
performance  due  under  the  contract  to  an  extent  that  the  consumer  may  not  have 
concluded  such  a  contract.  Therefore,  in  such  cases  these  modifications  should  be 
subject to certain conditions. 

(46)  Competition  is  an  important  element  for  a  well-functioning  digital  single  market.  In 
order  to  stimulate  such  a  competition,  consumers  should  be  enabled  to  respond  to 
competitive  offers  and  to  switch  between  suppliers.  In  order  to  make  this  work  in 
practice,  they  should  be  able  to  do  so  without  being  hindered  by  legal,  technical  or 
practical obstacles, including contractual conditions or lack of means for retrieving all 
data uploaded by the consumer, produced by the consumer with the use of the digital 
content or generated through the consumer's use of the digital content. However, it is 
also  important  to  protect  existing  investments  and  the  trust  in  concluded  contracts. 
Therefore consumers should be given the right to terminate long-term contracts under 
certain  balanced  conditions.  This  does  not  preclude  that  consumer  contracts  may  be 
concluded for longer contractual periods. However, the consumer should be entitled to 
terminate  any  contractual  relation  that  altogether  lasts  for  a  period  longer  than  12 
months.  In  order  to  prevent  any  circumvention  of  this  right  it  should  cover  any 
contract which results in the consumer being bound by the contract for more than 12 
months, irrespective of whether the contract is of indeterminate duration or is extended 
automatically or following a subsequent agreement by the parties. 

(47)  The lack of conformity with the contract of the final digital content as supplied to the 
consumer is often due to one of the transactions in a chain, from the original designer 
to the final supplier. While the final supplier should be liable towards the consumer in 
case of lack of conformity with the contract between these two parties, it is important 
to  ensure  that  the  supplier  has  appropriate  rights  vis-a-vis  different  members  of  the 
chain  of  transactions  in  order  to  be  able  to  cover  his  liability  towards  the  consumer. 
However, it should be for the applicable national law to identify the members of the 
chains of transactions against which the final supplier can turn and the modalities and 
conditions of such actions. 

(48)  Persons or organisations regarded under national law as having a legitimate interest in 
protecting  consumer  contractual  rights  should  be  afforded  the  right  to  initiate 
proceedings,  either  before  a  court  or  before  an  administrative  authority  which  is 
competent to decide upon complaints or to initiate appropriate legal proceedings. 

EN 

22 

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(49)  Nothing  in  this  Directive  should  prejudice  the  application  of  the  rules  of  private 
international  law,  in  particular  Regulation  (EC)  No  593/2008  of  the  European 
Parliament and of the Council33 and Regulation (EC) No 1215/2012 of the European 
Parliament and the Council.34 

(50)  Directive  1999/44/EC  of  the  European  Parliament  and  of  the  Council35

  should  be 
amended  to  reflect  the  scope  of  this  Directive  in  relation  to  a  durable  medium 
incorporating digital content where it has been used exclusively as carrier of the digital 
content to the consumer.  

(51)  Regulation  (EC)  No 2006/2004  of  the  European  Parliament  and  of  the  Council36 
should  be  amended  to  include  a  reference  to  this  Directive  in  its  Annex  so  as  to 
facilitate cross-border cooperation on enforcement of this Directive. 

(52)  Directive  2009/22/EC  of  the  European  Parliament  and  of  the  Council37  should  be 
amended to include a reference to this Directive in its Annex so as to ensure that the 
consumers’ collective interests laid down in this Directive are protected. 

(53) 

In  accordance  with  the Joint  Political  Declaration  of  28  September  2011  of  Member 
States  and  the  Commission  on  explanatory  documents38,  Member  States  have 
undertaken  to  accompany,  in  justified  cases,  the  notification  of  their  transposition 
measures  with  one  or  more  documents  explaining  the  relationship  between  the 
components  of  a  directive  and  the  corresponding  parts  of  national  transposition 
instruments. With regard to this Directive, the legislator considers the transmission of 
such documents to be justified. 

(54)  Since  the  objectives  of  this  Directive,  namely  to  contribute  to  the  functioning  of  the 
internal  market  by  tackling  in  a  consistent  manner  contract  law-related  obstacles  for 
the  supply  of  digital  content  while  preventing  legal  fragmentation  cannot  be 
sufficiently achieved by the Member States but can rather, by reasons of ensuring the 
overall  coherence  of  the  national  legislations  through  harmonised  contract  law  rules 
which  would  also  facilitate  coordinated  enforcement  actions,  be  better  achieved  at 
Union  level,  the  Union  may  adopt  measures,  in  accordance  with  the  principle  of 
subsidiarity  as  set  out  in  Article  5  of  the  Treaty  on  European  Union.  In  accordance 
with the principle of proportionality, as set out in that Article, this Directive does not 
go beyond what is necessary in order to achieve those objectives. 

(55)  This Directive respects the fundamental rights and observes the principles recognised 
in  particular  by  the  Charter  of  Fundamental  Rights  of  the  European  Union  and 
specifically Article 16, 38 and 47 thereof. 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Subject matter 

This Directive lays down certain requirements concerning contracts for the supply of digital 
content  to  consumers,  in  particular  rules  on  conformity  of  digital  content  with  the  contract, 

33 
34
35 
36
37 
38

OJ L 177, 4.7.2008, p. 6–16. 

OJ L 351, 20.12.2012, p.1. 
OJ L 171,7.7.1999, p.12. 
OJ L 364, 9.12.2004, p. 1. 
OJ L110, 1.05.2009 , p.30.   
OJ C 369, 17.12.2011, p. 14. 

EN 

23 

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remedies in case of the lack of such conformity and the modalities for the exercise of those 
remedies as well as on modification and termination of such contracts. 

Article 2 

Definitions 

For the purposes of this Directive, the following definitions shall apply: 

1. 

'digital content' means  

(a)  data which is produced and supplied in digital form, for example video, audio, 

applications, digital games and any other software,   

(b) 

(c) 

a  service  allowing  the  creation,  processing  or  storage  of  data  in  digital  form, 
where such data is provided by the consumer, and  

a service allowing sharing of and any other interaction with data in digital form 
provided by other users of the service;  

'integration' means linking together different components of a digital environment to 
act as a coordinated whole in conformity with its intended purpose; 

'supplier'  means  any  natural  or  legal  person,  irrespective  of  whether  privately  or 
publicly owned, who is acting, including through any other person acting in his name 
or  on  his  behalf,  for  purposes  relating  to  that  person’s  trade,  business,  craft,  or 
profession; 

'consumer'  means any  natural person who in  contracts covered by this Directive, is 
acting  for  purposes  which  are  outside  that  person's  trade,  business,  craft,  or 
profession; 

'damages'  means  a  sum  of  money  to  which  consumers  may  be  entitled  as 
compensation for economic damage to their digital environment; 

'price' means money that is due in exchange for digital content supplied; 

'contract'  means  an  agreement  intended  to  give  rise  to  obligations  or  other  legal 
effects;  

'digital environment' means hardware, digital content and any network connection to 
the extent that they are within the control of the user;  

'interoperability' means the ability of digital content to perform all its functionalities 
in interaction with a concrete digital environment;  

'supply'  means  providing  access  to  digital  content  or  making  digital  content 
available; 

‘durable medium’ means any instrument which enables the consumer or the supplier 
to store information addressed personally to that person in a way accessible for future 
reference for a period of time adequate for the purposes of the information and which 
allows the unchanged reproduction of the information stored. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

9. 

10. 

11. 

Article 3 

Scope 

1. 

This Directive shall apply to any contract where the supplier supplies digital content 
to the consumer or undertakes to do so and, in exchange, a price is to be paid or the 

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24 

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2. 

3. 

4. 

consumer  actively  provides  counter-performance  other  than  money  in  the  form  of 
personal data or any other data.  

This Directive shall apply to any contract for the supply of digital product developed 
according to consumer's specifications. 

With  the  exception  of  Articles  5  and  11,  this  Directive  shall  apply  to  any  durable 
medium  incorporating  digital  content  where  the  durable  medium  has  been  used 
exclusively as carrier of digital content.  

This  Directive  shall  not  apply  to  digital  content  provided  against  counter-
performance  other  than  money  to  the  extent  the  supplier  requests  the  consumer  to 
provide  personal  data  the  processing  of  which  is  strictly  necessary  for  the 
performance of the contract or for meeting legal requirements and the supplier does 
not further process them in a way incompatible with this purpose. It shall equally not 
apply to any other data the supplier requests the consumer to provide for the purpose 
of ensuring that the digital content is in conformity with the contract or of meeting 
legal requirements, and the supplier does not use that data for commercial purposes. 

5. 

This Directive shall not apply to contracts regarding: 

(a) 

services performed with a predominant element of human intervention by the 
supplier where the digital format is used mainly as a carrier;  

(b) 

electronic communication services as defined in Directive 2002/21/EC;  

(c)  healthcare as defined in point (a) of Article 3 of Directive 2011/24/EU; 

(d)  gambling  services  meaning  services  which  involve  wagering  a  stake  with 
monetary value in games of chance, including  those  with an element of skill, 
such  as  lotteries,  casino  games,  poker  games  and  betting  transactions,  by 
electronic means and at the individual request of a recipient of a service; 

(e) 

financial services. 

6. 

7. 

8. 

9. 

Where a contract includes elements in addition to the supply of digital content, this 
Directive shall only apply to the obligations and remedies of the parties as supplier 
and consumer of the digital content. 

If  any  provision  of  this  Directive  conflicts  with  a  provision  of  another  Union  act 
governing  a  specific  sector  or  subject  matter,  the  provision  of  that  other  Union  act 
shall take precedence over this Directive. 

This Directive is without prejudice to the protection of individuals with regard to the 
processing of personal data.  

In  so  far  as  not  regulated  in  this  Directive,  this  Directive  shall  not  affect  national 
general contract laws such as rules on formation, the validity or effects of contracts, 
including the consequences of the termination of a contract. 

Article 4  

Level of harmonisation 

Member States shall not maintain or introduce provisions diverging from those laid down in 
this  Directive,  including  more  or  less  stringent  provisions  to  ensure  a  different  level  of 
consumer protection. 

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Article 5 

Supply of the digital content 

1. 

When  performing  the  contract  for  the  supply  of  digital  content,  the  supplier  shall 
supply the digital content to 

(a) 

(b) 

the consumer; or  

a  third  party  which  operates  a  physical  or  virtual  facility  making  the  digital 
content  available  to  the  consumer  or  allowing  the  consumer  to  access  it  and 
which has been chosen by the consumer for receiving the digital content.  

2. 

The supplier shall supply the digital content immediately after the conclusion of the 
contract,  unless  the  parties  have  agreed  otherwise.  The  supply  shall  be  deemed  to 
take place when the digital content is supplied to the consumer or, where point (b) of 
paragraph  1  applies,  to  the  third  party  chosen  by  the  consumer,  whichever  is  the 
earlier. 

Article 6 

Conformity of the digital content with the contract 

1. 

In order to conform with the contract, the digital content shall, where relevant: 

(a)  be of the quantity, quality, duration and version and shall possess functionality, 
interoperability and other performance features such as accessibility, continuity  
and  security,  as  required  by  the  contract  including  in  any  pre-contractual 
information which forms integral part of the contract;  

(b)  be fit for any particular purpose for which the consumer requires it and which 
the consumer made known to the supplier at the time of the conclusion of the 
contract and which the supplier accepted; 

(c)  be  supplied  along  with  any  instructions  and  customer  assistance  as  stipulated 

by the contract; and 

(d)  be updated as stipulated by the contract.  

2. 

To  the  extent  that  the  contract  does  not  stipulate,  where  relevant,  in  a  clear  and 
comprehensive  manner,  the  requirements  for  the  digital  content  under  paragraph  1, 
the digital content shall be fit for the purposes for which digital content of the same 
description  would  normally  be  used  including  its  functionality,  interoperability  and 
other performance features such as accessibility, continuity and security, taking into 
account: 

(a)  whether the digital content is supplied in exchange for a price or other counter-

performance than money; 

(b)  where relevant, any existing international technical standards or, in the absence 
of  such  technical  standards,  applicable  industry  codes  of  conduct  and  good 
practices; and 

(c) 

any public statement made by or on behalf of the supplier or other persons in 
earlier links of the chain of transactions unless the supplier shows that  

(i) 

he was not, and could not reasonably have been, aware of the statement 
in question;  

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(ii)  by  the  time  of  conclusion  of  the  contract  the  statement  had  been 

corrected;  

(iii) 

the decision to acquire the digital content could not have been influenced 
by the statement.  

3. 

4. 

5. 

Where the contract stipulates that the digital content shall be supplied over a period 
of  time,  the  digital  content  shall  be  in  conformity  with  the  contract  throughout  the 
duration of that period.  

Unless  otherwise  agreed,  digital  content  shall  be  supplied  in  conformity  with  the 
most  recent  version  of  the  digital  content  which  was  available  at  the  time  of  the 
conclusion of the contract. 

In  order  to  conform  with  the  contract  the  digital  content  must  also  meet  the 
requirements of Articles 7 and 8. 

Article 7 

Integration of the digital content 

Where  the  digital  content  is  incorrectly  integrated  into  the  consumer's  digital  environment, 
any  lack  of  conformity  resulting  from  the  incorrect  integration  shall  be  regarded  as  lack  of 
conformity of the digital content if:  

(a) 

(b) 

the  digital  content  was  integrated  by  the  supplier  or  under  the  supplier’s 
responsibility; or  

the  digital  content  was  intended  to  be  integrated  by  the  consumer  and  the 
incorrect  integration  was  due  to  shortcomings  in  the  integration  instructions 
where those instructions were supplied in accordance with point (c) of Article 
6(1) or should have been supplied in accordance with Article 6(2). 

1. 

2. 

1. 

2. 

Article 8 

Third party rights 

At the time the digital content is supplied to the consumer, the digital content shall be 
free of any right of a third party, including based on intellectual property, so that the 
digital content can be used in accordance with the contract.  

Where the digital content is supplied over a period of time, the supplier shall, for the 
duration of that period, keep the digital content supplied to the consumer free of any 
right of a third party, including that based on intellectual property, so that the digital 
content can be used in accordance with the contract.  

Article 9 

Burden of proof 

The  burden  of  proof  with  respect  to  the  conformity  with  the  contract  at  the  time 
indicated in Article 10 shall be on the supplier. 

Paragraph 1 shall not apply where the supplier shows that the digital environment of 
the  consumer 
technical 
requirements of the digital content and where the supplier informed the consumer of 
such requirements before the conclusion of the contract. 

interoperability  and  other 

is  not  compatible  with 

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3. 

The consumer shall cooperate with the supplier to the extent possible and necessary 
to determine the consumer's digital environment. The obligation to cooperate shall be 
limited  to  the  technically  available  means  which  are  the  least  intrusive  for  the 
consumer. Where the consumer fails to cooperate, the burden of proof with respect to 
the non-conformity with the contract shall be on the consumer. 

Article 10 

Liability of the supplier 

The supplier shall be liable to the consumer for: 

(a) 

(b) 

any failure to supply the digital content;   

any lack of conformity which exists at the time the digital content is supplied;  
and  

(c)  where  the  contract  provides  that  the  digital  content  shall  be  supplied  over  a 
period of time, any lack of conformity which occurs during the duration of that 
period.  

Article 11 

Remedy for the failure to supply 

Where  the  supplier  has  failed  to  supply  the  digital  content  in  accordance  with  Article  5  the 
consumer shall be entitled to terminate the contract immediately under Article 13. 

Article 12 

Remedies for the lack of conformity with the contract 

1. 

In the case of a lack of conformity with the contract, the consumer shall be entitled to 
have  the  digital  content  brought  into  conformity  with  the  contract  free  of  charge, 
unless this is impossible, disproportionate or unlawful. 

Bringing the digital content into conformity with the contract shall be deemed to be 
disproportionate  where  the  costs  it  imposes  on  the  supplier  are  unreasonable.  The 
following  shall  be  taken  into  account  when  deciding  whether  the  costs  are 
unreasonable:  

(a) 

(b) 

the  value  the  digital  content  would  have  if  it  were  in    conformity  with  the 
contract; and  

the  significance  of  the  lack  of  conformity  with  the  contract  for  attaining  the 
purpose for which the digital content of the same description would normally 
be used.  

The supplier shall bring the digital content in conformity with the contract pursuant 
to paragraph 1 within a reasonable time from the time the supplier has been informed 
by  the  consumer  about  the  lack  of  conformity  with  the  contract  and  without  any 
significant  inconvenience  to  the  consumer,  taking  account  of  the  nature  of  digital 
content and the purpose for which the consumer required this digital content. 

The consumer shall be entitled to either a proportionate reduction of the price in the 
manner set out in paragraph 4 where the digital content is supplied in exchange for a 
payment of a price, or terminate the contract under paragraph 5 and Article 13, where 

2. 

3. 

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28 

   EN 

4. 

5. 

1. 

2. 

(a) 

(b) 

(c) 

(d) 

the  remedy  to  bring  the  digital  content  in  conformity  is  impossible, 
disproportionate or unlawful;  

the  supplier  has  not  completed  the  remedy  within  the  time  specified  in 
paragraph 2;  

the  remedy  to  bring the  digital  content  in  conformity  would  cause  significant 
inconvenience to the consumer; or 

the supplier has declared, or it is equally clear from the circumstances, that the 
supplier will not bring the digital content in conformity with the contract. 

The  reduction  in  price  shall  be  proportionate  to  the  decrease  in  the  value  of  the 
digital  content  which  was  received  by  the  consumer  compared  to  the  value  of  the 
digital content that is in conformity with the contract.  

The  consumer  may  terminate  the  contract  only  if  the  lack  of  conformity  with  the 
contract impairs functionality, interoperability and other  main performance features 
of the digital content such as its accessibility, continuity and security where required 
by Article 6 paragraphs (1) and (2). The burden of proof that the lack of conformity 
with  the  contract  does  not  impair  functionality,  interoperability  and  other  main 
performance features of the digital content shall be on the supplier. 

Article 13 

Termination 

The  consumer  shall  exercise  the  right  to  terminate  the  contract  by  notice  to  the 
supplier given by any means. 

Where the consumer terminates the contract: 

(a) 

(b) 

(c) 

the supplier shall reimburse to the consumer the price paid without undue delay 
and in any event not later than 14 days from receipt of the notice; 

the supplier shall take all measures which could be expected in order to refrain 
from the use of the counter-performance other than money which the consumer 
has provided in exchange for the digital content and any other data collected by 
the  supplier  in  relation  to  the  supply  of  the  digital  content  including  any 
content provided by the consumer with the exception of the content which has 
been generated jointly by the consumer and others who continue to make use 
of the content; 

the  supplier  shall  provide  the  consumer  with  technical  means  to  retrieve  all 
content  provided  by  the  consumer  and  any  other  data  produced  or  generated 
through  the  consumer's  use  of  the  digital  content  to  the  extent  that  data  has 
been  retained  by  the  supplier.  The  consumer  shall  be  entitled  to  retrieve  the 
content  free  of  charge,  without  significant  inconvenience,  in  reasonable  time 
and in a commonly used data format; 

(d)  where the digital content was not supplied on a durable medium, the consumer 
shall  refrain  from  using  the  digital  content  or  making  it  available  to  third 
parties,  in  particular  by  deleting  the  digital  content  or  rendering  it  otherwise 
unintelligible; 

(e)  where  the  digital  content  was  supplied  on  a  durable  medium,  the  consumer 

shall: 

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29 

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3. 

4. 

5. 

6. 

1. 

2. 

1. 

(i) 

upon  the  request  of  the  supplier,  return,  at  the  supplier's  expense,  the 
durable medium to the supplier without undue delay, and in any event not 
later than 14 days from the receipt of the supplier's request; and 

(ii)  delete  any  usable  copy  of  the  digital  content,  render  it  unintelligible  or 
otherwise refrain from using it or making it available to third parties. 

Upon termination, the supplier may prevent any further use of the digital content by 
the  consumer,  in  particular  by  making  the  digital  content  not  accessible  to  the 
consumer or disabling the user account of the consumer, without prejudice to point 
(c) of paragraph 2. 

The consumer shall not be liable to pay for any use made of the digital content in the 
period prior to the termination of the contract. 

Where the digital content has been supplied in exchange for a payment of a price and 
over  the  period  of  time  stipulated  in  the  contract,  the  consumer  may  terminate  the 
contract only in relation to that part of the period of time  where  the  digital content 
has not been in conformity with the contract.  

Where the consumer terminates a part of the contract in accordance with paragraph 5, 
paragraph  2  shall  apply,  with  the  exception  of  point  (b)  in  regards  to  the  period 
during  which  the  digital  content  was  in  conformity  with  the  contract.  The  supplier 
shall reimburse to the consumer the part of the price paid corresponding to the period 
of time when the digital content was not in conformity with the contract. 

Article 14 

Right to damages 

The supplier shall be liable to the consumer for any economic damage to the digital 
environment of the consumer caused by a lack of conformity with the contract or a 
failure  to  supply  the  digital  content.  Damages  shall  put  the  consumer  as  nearly  as 
possible  into  the  position  in  which  the  consumer  would  have  been  if  the  digital 
content had been duly supplied and been in conformity with the contract. 

The  Member  States  shall  lay  down  detailed  rules  for  the  exercise  of  the  right  to 
damages.  

Article 15 

Modification of the digital content 

Where the contract provides that the digital content shall be supplied over the period 
of time stipulated in the contract, the supplier may alter functionality, interoperability 
and other main  performance features of the digital content such as its accessibility, 
continuity and security, to the extent those alternations adversely affect access to or 
use of the digital content by the consumer, only if: 

(a) 

(b) 

(c) 

the contract so stipulates; 

the  consumer  is  notified  reasonably  in  advance  of  the  modification  by  an 
explicit notice on a durable medium;  

the consumer is allowed to terminate the contract free of any charges within no 
less than 30 days from the receipt of the notice; and 

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   EN 

(d)  upon termination of the contract in accordance with point (c), the consumer is 
provided  with  technical  means  to  retrieve  all  content  provided  in  accordance 
with Article 13(2)(c). 

2. 

Where the consumer terminates the contract in accordance with paragraph 1, where 
relevant, 

(a) 

(b) 

the  supplier  shall  reimburse  to  the  consumer  the  part  of  the  price  paid 
corresponding to the period of time after modification of the digital content;  

the  supplier  shall  refrain  from  the  use  of  the  counter-performance  other  than 
money  which  the  consumer  has  provided  in  exchange  for  the  digital  content 
and  any  other  data  collected  by  the  supplier  in  relation  to  the  supply  of  the 
digital content including any content provided by the consumer. 

Article 16 

Right to terminate long term contracts 

1. 

2. 

3. 

Where the contract provides for the supply of the digital content for an indeterminate 
period or where the initial contract duration or any combination of renewal periods 
exceed 12 months, the consumer shall be entitled to terminate the contract any time 
after the expiration of the first 12 months period. 

The  consumer  shall  exercise  the  right  to  terminate  the  contract  by  notice  to  the 
supplier  given  by  any means.  The  termination shall  become  effective 14  days  after 
the receipt of the notice. 

Where  the  digital  content  is  supplied  in  exchange  for  a  payment  of  a  price,  the 
consumer remains liable to pay the part of the price for the digital content supplied 
corresponding to the period of time before the termination becomes effective.  

4. 

Where the consumer terminates the contract in accordance with this Article: 

(a) 

(b) 

the supplier shall take all measures which could be expected in order to refrain 
from the use of other counter-performance than money which the consumer has 
provided in exchange for the digital content and any other data collected by the 
supplier  in  relation  to  the  supply  of  the  digital  content  including  any  content 
provided by the consumer;  

the supplier shall provide the consumer with technical means to retrieve all any 
content  provided  by  the  consumer  and  any  other  data  produced  or  generated 
through  the  consumer's  use  of  the  digital  content  to  the  extent  this  data  has 
been  retained  by  the  supplier.  The  consumer  shall  be  entitled  to  retrieve  the 
content  without  significant  inconvenience,  in  reasonable  time  and  in  a 
commonly used data format; and 

(c)  where  applicable,  the  consumer  shall  delete  any  usable  copy  of  the  digital 
content, render it unintelligible or otherwise refrain from using it including by 
making it available to a third party. 

5. 

Upon termination, the supplier may prevent any further use of the digital content by 
the  consumer,  in  particular  by  making  the  digital  content  not  accessible  to  the 
consumer  or  disabling  the  user  account  of  the  consumer,  without  prejudice  to 
paragraph (4) point (b). 

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Article 17  

Right of redress 

Where  the  supplier  is  liable  to  the  consumer  because  of  any  failure  to  supply  the  digital 
content or a lack of conformity with the contract resulting from an act or omission by a person 
in earlier links of the chain of transactions, the supplier shall be entitled to pursue remedies 
against the person or persons liable in the chain of transactions. The person against whom the 
supplier  may  pursue  remedies  and  the  relevant  actions  and  conditions  of  exercise,  shall  be 
determined by national law. 

Article 18 

Enforcement 

1. 

2. 

Member  States  shall  ensure  that  adequate  and  effective  means  exist  to  ensure 
compliance with this Directive. 

The means referred to in paragraph 1 shall include provisions whereby one or more 
of  the  following  bodies,  as  determined  by  national  law,  may  take  action  under 
national  law  before  the  courts  or  before  the  competent  administrative  bodies  to 
ensure that the national provisions transposing this Directive are applied: 

(a)  public bodies or their representatives; 

(b) 

consumer organisations having a legitimate interest in protecting consumers; 

(c)  professional organisations having a legitimate interest in acting. 

Article 19  

Mandatory nature 

Unless otherwise provided for in this Directive, any contractual term which, to the detriment 
of the consumer, excludes the application of the national measures transposing this Directive, 
derogates from them or varies their effects before the lack of conformity with the contract is 
brought to the supplier's attention by the consumer, shall not be binding on the consumer. 

Article 20  

Amendments to Directive 1999/44/EC, Regulation (EC) No 2006/2004, Directive 
2009/22/EC  

1. 

In Article 1 (2) of Directive 1999/44/EC, point (b) is replaced by the following: 

"(b) consumer goods: shall mean any tangible movable item, with the exception of: 

– 

– 

– 

– 

2. 

39

goods sold by way of execution or otherwise by authority of law, 

water and gas where they are not put up for sale in a limited volume or set quantity, 

electricity, 

a  durable  medium  incorporating  digital  content where  it  has  been  used  exclusively 
as  carrier  of  the  digital  content  to  the  consumer  as  referred  to  in  Directive  (EU) 
N/XXX39." 

 In the Annex to Regulation (EC) No 2006/2004, the following point is added: 

Directive (EU) N/XXX of the European Parliament and of the Council of …. on contracts for the supply of digital content (OJ …)  

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"21. Directive (EU) N/XXX of the European Parliament and of the Council of XX/XX/201X on 
contracts for the supply of digital content (OJ…)" 

3. 

In Annex I to Directive 2009/22/EC the following point is added: 

"16.  Directive (EU) N/XXX of the European Parliament and of the Council of XX/XX/201X 
on contracts for the supply of digital content (OJ…)" 

Article 21  

Transposition 

1. 

2. 

3. 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions necessary to comply with this Directive by [the date of two years after the 
entry into force] at the latest.  

When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

Member  States  shall  communicate  to  the  Commission  the  text  of  the  provisions  of 
national law which they adopt in the field covered by this Directive. 

Article 22 

Review 

The Commission shall, not later than on [the date of five years after entry into force] review 
the  application  of  this  Directive  and  submit  a  report  to  the  European  Parliament  and  the 
Council. The report shall examine, inter alia, the case for harmonisation of rules applicable to 
contracts for the supply of digital content against counter-performance other than that covered 
by this Directive, in particular supplied against advertisement or indirect collection of data. 

Article 23 

Entering into force  

This Directive shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 24  

Addressees 

This Directive is addressed to the Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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