Characteristics of modern European contract law

Abstract

European contract law has recently entered a new phase in its development as a result of the introduction of new legislation responding to the challenges posed by digitalization and, in particular, the supply of digital content and digital services. Whereas the new legislation contains several characteristics which reflect a continuity of concepts already well-established in European contract law, several innovations have been necessary in order to take account of the specific features of these digital products and the manner in which they are supplied. The legislative responses will play a pivotal role not only in consumer protection but for European contract law. This article will focus in particular on two new “twin” directives: Directive 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services and Directive 2019/771 on certain aspects concerning contracts for the sale of goods. In examining the core features of these two Directives, this article will consider how their new and innovative characteristics which respond to the challenges of digitalization can contribute towards a modern European contract law. These new approaches in European legislation clearly show that the further development of contract law is facing challenges that go beyond this area of law. The modernization of contract law therefore raises questions that must ultimately be directed at clarifying the overarching features of European private law as a whole. Finally, the relationship between the law of obligations, on the one hand, and property law or intellectual property law, on the other, and possibly a new definition of the boundaries and interaction between these areas, can be considered if contract law recognizes data as an asset, but it will not be able to guarantee sufficient protection of these assets with its instruments alone. Embedding the new concepts, principles and rules in the field of contract law in the development of private law as a whole, in line with the changes in the “digital age”, will therefore remain a major task for legislation and legal doctrine in the EU and beyond.