IDP2016 (I). Hugh Beale: The future of European Contract Law in the light of the European Commission’s proposals for Directives on digital content and on-line sales

Notes from the 12th Internet, Law and Politics Congress: Building a European digital space, organized by the Open University of Catalonia, School of Law and Political Science, and held in Barcelona, Spain, on 7-8 July 2016. More notes on this event: idp2016.

Keynote speech. Chairs: Miquel Peguera.

Prof. Hugh Beale. QC FBA, Professor of Law, University of Warwick; Visiting Professor and Senior Research Fellow at Harris Manchester College, Oxford.
The future of European Contract Law in the light of the European Commission’s proposals for Directives on digital content and on-line sales

The main goal of the European directive was to increase consumer confidence, that consumers were given a minimum of rights wherever they did their purchases.

But it was also about reducing traders’ costs, as differences in contract law creates costs. After 2003, the European Commission has been working to remove barriers to trade, and not only in B2C contracts, but also in B2B contracts.

In general, Rome I art 6(2) says that consumers are entitled to mandatory rules of Law of State of habitual residence. Which is a major problem for sellers who have to know the applicable law for every consumer. A full harmonization seems highly desirable. But this may cause withdrawal of rights to consumers in some given states, which most will just not accept.

The Digital Content Directive applies to the trade of digital content: stream, download, etc. digital content. But is this like buying something that you then own? Or is it more like hiring someone’s services? The directive applies to both, as a one time delivery or as something that stands for a period of time. And it includes exchanges of digital goods or services for a price or in exchange of personal data. Last, rights apply to whether you are buying a physical support (e.g. DVD) or not (e.g. downloads).

DCD Art 18 implies that any individual can initiate an action against terms that they may find abusive. And, accordingly, the EC and/or the Member State has to enforce the regarding of the law. This can have a potential huge impact on the compliance with the directive.

What will the impact of the directive be? Probably small, because:

  • It only includes a very narrow set of goods and services.
  • It leaves out everything related to B2B, and SMEs would benefit much from it.

Discussion

Blanca Torrubia: how are differences between property rights dealt with in the directive? Beale: it seems that the big differences in how to understand property rights are between the EU and the US, more than within member states.

12th Internet, Law and Politics Conference (2016)

If you need to cite this article in a formal way (i.e. for bibliographical purposes) I dare suggest:

Peña-López, I. (2016) “IDP2016 (I). Hugh Beale: The future of European Contract Law in the light of the European Commission’s proposals for Directives on digital content and on-line sales” In ICTlogy, #154, July 2016. Barcelona: ICTlogy.
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