In December 2015, the European Commission proposed a Directive on certain aspects concerning contracts for the supply of digital content. The proposal is to be situated in the EU‘s strategy to create a digital single market and aims at stimulating the digital economy. To achieve this goal while ensuring a high level of consumer protection, harmonising part of the law on contracts for the supply of digital content is considered necessary.
As the title of the Proposal suggests, only some aspects of contracts for the supply of digital content are covered. According to its Article 1, the Proposal deals with (1) rules on the conformity of digital content with the contract, (2) remedies in case of lack of conformity and the modalities for the exercise of such remedies, and (3) rules on the modification of digital content and on the termination of long-term contracts. Although not explicitly mentioned in Article 1, the Proposal also determines when and to whom the digital content has to be supplied. At this point it should be mentioned that some other aspects were already fully harmonised by the 2011 Consumer Rights Directive. Examples thereof are the rules on pre-contractual information and the right to withdrawal. The Proposal is therefore said to supplement that Directive.
EU consumer protecting directives can be based on either minimum or maximum (full) harmonisation. In case of minimum harmonisation, Member States retain the ability to adopt national provisions that offer a higher level of protection than the Directive. The only requirement thereof is that these additional protection measures are compatible with the principles of free movement of goods and services. In case of maximum or full harmonisation, Member States can neither introduce nor maintain measures that offer additional protection to consumers. The Directive then does not only determine the minimum of protection consumers are entitled to, but also the maximum of protection that can be offered.
The Proposal clearly pursues full harmonisation. It explicitly determines that Member States cannot maintain or introduce provisions diverging from those laid down in the proposed Directive. This precludes the enactment of both more stringent and more tolerant provisions.