After years of negotiations, the "Directive on certain aspects concerning contracts for the supply of digital content and digital services" (2019/770/EU) and the "Directive on certain aspects concerning contracts for the sale of goods" (2019/771/EU) entered into force on 11 June 2019.
In order to provide for a high level of consumer protection, these directives lay out common rules on the conformity of digital services and goods with contracts as well as liability issues in the event of a lack of such conformity or a failure to supply.
The scope of Directive 2019/770/EU shall include contracts of digital services where the consumer pays not just money but data in exchange for the supply of content or services, e.g. social media and email accounts, cloud services or streaming services.
In order to conform with the contract, the digital services must meet objective requirements; more specifically, they shall have the qualities and performance features, including in relation to functionality, compatibility and security, which are usual for services and goods of the same type and which the consumer may reasonably expect. Further, according to Article 8 para 2 of Directive 2019/770/EU the trader is obligated to inform about and supply updates, including security updates, in order to keep the digital service in conformity. In the case of a lack of conformity, the consumer shall be entitled to the general remedies of legal warranty (entitlement to have the digital service brought into conformity, an appropriate reduction made in the price or termination of the contract).
The provisions of Directive 2019/771/EU explicitly include "goods with digital elements" (digital content or digital services), e.g. smartphones, smart TVs, fitness trackers.
As far as goods are concerned, Article 11 para 1 of Directive 2019/771/EU rules that in the future the seller will have to prove freedom of defects of goods within twelve months of the time when the goods were delivered instead of six months, as is the current legal situation in Austria.
Further, the seller of goods with digital elements shall not only be liable for defects which exist at the time of delivery of the goods, but also for any lack of conformity of the digital elements that occurs within two years upon delivery of these goods. According to Article 7 para 3 of Directive 2019/771/EU the seller of goods is also subject to the obligation to inform and supply the consumer with updates for the digital elements. In the case of non-conformity with the contract, the consumer again is entitled to the general remedies of legal warranty.
By 1 July 2021, Member States shall adopt necessary regulations into national laws to comply with these directives. However, the detailed regulations leave little room for Member States to implement rules diverging from the directives.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.