A Question of Coherence
| Author | Matthias Lehmann |
| DOI | 10.1177/1023263X1602300502 |
| Published date | 01 October 2016 |
| Date | 01 October 2016 |
752 23 MJ 5 (2016)
ARTICLES
A QUESTION OF COHERENCE
e Proposals on EU Contract Rules on Digital
Content and Online Sales
M L*
ABSTRACT
Digitalization is revolutionizing our life. In response to its ever growing impact, the
European Commission has tabled two proposals for new directives, one pertaining to
contracts for the supply of digital content, the other regarding online and other distance
sales of goods. is contribution analyses both proposals critically. It questions the need
for having a separate regime encompassing contracts for sale of digital content in light of
the possibility of adapting the exi sting legal framework to re ect the particul arities of such
agreements. It also warns again st adopting more speci c rul es on online sales, which would
further widen the gap in their treatment when compared to face-to-face agreements. e
author bemoans the confusion and contradictions the new proposals would introduce to
EU consumer law. e choice of a max imum harmonization approach extends this lack of
coherence into Member State law. Even worse, the EU legislator inter feres with areas that
have so far been the exclusive domain of national c ivil law, such as determining ade quate
levels of damages or the consequences of termination. Despite the need for compromise,
the author suggests that the Commission should not seek them at any cost, but stick to
principles of good law-making in multi-le vel governance systems.
Keywords: consumer law; Digital Internal Market; digital content; EU contract law;
online sa les
*Director of the In stitute of Private Internat ional and Comparative L aw, University of Bonn, Germany.
A German version of this paper was presented at the conference ‘Verbraucherrecht und digitaler
Binnenmarkt’ in Berlin on 4July 2016. I wish to thank the participants for helpful comments, in
particular Markus Artz, Wolfgang Ernst, Florian Faust, Michael Grünberger, Beate Gsell, omas
Pfei er, and Gerh ard Wagner. I am also indebted to Ni hal Dsouza and Ju lian Titze, who have rev iewed
the manuscript .
A Question of Coherence
23 MJ 5 (2016) 753
§1. INTRODUCTION
e European Union (EU) is searching for its place in private law. Not much has
remained from its rst communication on European contract law published in 2001,1
nor from its ambitious plan for more coherent rules on contract law suggested in the
‘action plan’ of 2003,2 or the quasi-European Civil Code euphemistically called the
‘Dra Common Frame of Reference (DCFR)’,3 and not even from the much sca led down
‘Common European Sa les Law (CESL)’.4 A good deal of time and money has been spent
already. is inevitably raises questions about tangible results. e Commission seems
to be seeking, w ith a certai n degree of impatience, for at least some area of contract law
to reform. What is le on the table are two proposed directives, one on ‘certai n aspects
concerning contracts for t he supply of digital content’5 and the other on ‘certain aspec ts
concerning contracts for t he online and other distance sa les of goods’.6
As the titles of the dra s suggest, these two proposed Directives only cover some
aspects of the agreements they deal with. ey fail to encompass many points, such as
the formation and the validity of the contract.7 ey are insofar anything but fully-
edged set s of contractual rules that cou ld be used by operators, as was the case wit h the
CESL. e EU refuses to become a traditional civil law legislator. Instead, it goes back
to what it knows best – regulating certain issues, but not all aspects of complex private
relationships.
At the same time, one ca nnot fail to see that the EU proposals p enetrate more deeply
into the traditional territory of national private law than ever before. ough they
are not exhaustive with regard to all topics relating to these two contract types, their
rules a ect areas that have hitherto been thought to be within the exclusive domain
of civil law codi cations. Questions addressed by the proposals include, inter alia, the
notion of supply,8 the passing of risk,9 the consequences of termination,10 the adequacy
1 Communication from the Commission to the Council and the European Parliament on European
contract law, COM(2001) 398 nal.
2 Communication f rom the Commission to t he European Parl iament and the Counci l – A more coherent
European cont ract law – An action pla n, COM(2003) 68 nal.
3 C. von Bar and E. C live (ed.), Principles, De nitions and Model Rules of Europ ean Private Law (Sel lier,
2009).
4 Proposal for a regu lation of the Europea n Parliament and of the C ouncil on a Common Europ ean Sales
Law, COM(2011) 635 nal.
5 Commission Propo sal for a Directive of t he European Parli ament and of the Counci l on certain a spects
concerning cont racts for the supply of dig ital content, COM(2015) 364 nal (Digita l Content Directive
Proposal).
6 Commission Propo sal for a Directive of t he European Parli ament and of the Counci l on certain a spects
concerning cont racts for the online and other d istance sales of goods, COM(2015) 365 nal (Online
Sales Direct ive Proposal).
7 See Recital 10 of the D igital Content Direct ive Proposal.
8 Article5 of the D igital Content Direct ive Proposal.
9 Article8(1) of the Online S ales Directive Propo sal.
10 Article13(3) of the Digita l Content Directive Propos al.
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