New EU legislative instruments concerning contracts for the sale of goods and supply of digital content

Abstract

On the 20th of May 2019, the European legislator adopted new Directives on the sale of goods and supply of digital content, which determine the vector of future contract law development in the European Union. 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 are the first steps in adapting European private law to the requirements of the digital economy. The article discusses the reasons and preconditions for the adoption of new Directives. The authors, making a historical excursion of the harmonization of European contract law, demonstrate the continuity of the new Directives’ norms of European tradition on the basis of Principles of European Contract Law, Acquis Principles, Draft Common Frame of Reference, Common European Sales Law and Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees. The advantages and disadvantages of the selected full harmonization in new Directives are examined. The legislative freedom granted to European Union Member States on certain issues related to contractual relations for the sale of goods and the supply of digital content are analyzed. The authors pay considerable attention to the disclosure of major legislative novelties related to contractual relations for the sale of goods and the supply of digital content, in particular the conformity of goods (digital content), and requirements for conformity; the seller’s (trader’s) duty to ensure that the consumer is informed of and supplied with updates that are necessary to keep those goods (digital content) in conformity; the burden of proof; data monetization; remedies for lack of conformity of goods (digital content). The problem of the hierarchy of remedies for lack of conformity of goods in a circular economy, such as repair and replacement, is also touched upon. The authors draw attention to the fact that taking into account the peculiarities of the circular economy and in order to determine the disproportion of the chosen method of legal protection, it is necessary to enshrine in legislation on the sale of goods the requirement to take into account its impact on the environment.