Adopting a smart approach to eu legislation: Why has it proven so difficult to introduce a directive on contracts for the supply of digital content?

Abstract

In December 2015, the European Commission put forward a proposal for a directive providing a single set of rules covering contracts for the sale and rental of digital content and digital services: the Directive on contracts for the Supply of Digital Content (pDCD). At face value, this was a proposal that had much to commend it. It is a key part of the Commission's Digital Single Market Strategy that aims to reduce barriers to trade and offer more opportunities for consumers and businesses to contract across European Union (EU) borders in a legal, safe, secure and affordable way, and deals with an area of law in which few Member States have to date legislated. It builds on earlier directives (notably the Consumer Sales Directive 1999/44/EC) and seeks to provide for the particular needs of the digital marketplace. This chapter will examine why, then, it has proven so difficult to introduce. Suggestions for change and amendments have come from academics, consumer and business groups, and practitioners and we have seen strong differences of opinion between the European Parliament and Council of the EU. The saga of the pDCD is one that takes us into EU consumer and private law policy and highlights the real difficulties of legislating in the digital age. Although Directive 2019/770/EU on Contracts for the Supply of Digital Content and Digital Services (DCSD) was finally brought into force in June 2019, this chapter seeks to identify lessons that may be learnt from the troubled journey of the pDCD towards legislative approval.