Directive (EU) 2019/770 (Digital Content Directive)

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Directive (EU) 2019/770

Title: Directive (EU) 2019/770 of the European Parliament and of the Council of May 20, 2019 on certain contractual aspects of the supply of digital content and digital services
Designation:
(not official) 		Digital content directive
Scope: EEA
Legal matter: Commercial law
Basis: TFEU , in particular paragraph 114
Procedure overview: European Commission
European Parliament
IPEX Wiki
To be
implemented in national law by: 		July 1, 2021
Reference: OJ L 136 of May 22, 2019, pp. 1–27
Full text Consolidated version (not official)
basic version
The regulation must currently be implemented in national law.
Please note the information on the current version of legal acts of the European Union !

The Digital Content Directive (unofficial abbreviation : DIRL or DIDLRL; Directive (EU) 2019/770, English digital content and digital services Directive ) creates a legal framework for contracts for digital content and services that is largely uniform in must be implemented in all EU member states and should result in consumer rights being further strengthened in the European Union (Article 1 DIRL).

history

The directive on certain contractual aspects of the provision of digital content and digital services (DIRL) and its counterpart , the directive on certain contractual aspects of the sale of goods (WKRL) both serve to strengthen consumer rights and have their origins in the consumer goods directive 1999/44 / EG. Subsequently, after the adoption of the Consumer Goods Sales Directive, further harmonization steps of the national law of the Union member states were deemed necessary and proposals were made (examples):

  • Action Plan 2003 on a coherent European contract law,
  • Draft Common Frame of Reference (2008),
  • Green Paper Option for the introduction of a European contract law for consumers and entrepreneurs (2010),
  • Proposal for a Common European Sales Law (2011, withdrawn in 2014),
  • two proposed directives on the digital single market (2015), which already carried out preparatory work for the later directives DIRL and WKRL.

Finally, the DIRL and the WKRL were passed in 2019, 20 years after the consumer goods directive was issued.

Objectives and purpose of the guideline

The DIRL aims to support the strategy for a digital single market for Europe, which aims holistically to remove the main obstacles to the development of cross-border e-commerce in the Union in order to unlock this potential . The aim is to improve consumer access to digital content and digital services and to make it easier for businesses to deliver digital content and digital services, thereby supporting the EU digital economy and growth as a whole. The DIRL aims to strike a balance between achieving a high level of consumer protection and promoting the competitiveness of companies while at the same time maintaining the principle of subsidiarity .

In order not to jeopardize the aims and purpose of the DIRL, the Union Member States are not allowed to stipulate any further formal or material requirements within the scope of this directive .

Scope of the Directive

Like the WKRL, the DIRL is only applicable to consumer transactions (Article 3 DIRL or Article 3 WKRL). Both directives are also applicable to goods, i.e. movable physical objects of any kind, whereby live animals can be excluded from the scope of the WKRL, but the DIRL only applies to a limited extent to digital content or services (also individually produced for the consumer in accordance with Article 3 Para. 2 DIRL). The central distinguishing feature between the scope of the DIRL and the WKRL is that the content of the contract must be "digital" when the DIRL is used (the goods or the service). Examples of contract contents that are subject to the DIRL:

  • Databases , cloud services (e.g. file hosting ), platform offers, social media
  • Web applications such as B. Office 365 , e-books
  • Media downloads
  • digital television services,
  • number-independent interpersonal communication services,
  • physical data carriers that serve exclusively as carriers of digital content,
  • Provision of electronic files as part of the 3D printing of goods, insofar as such files fall under the definition of digital content or digital services within the meaning of the DIRL

Examples: The DIRL is applicable when a consumer opens an account on social media and provides the entrepreneur with a name and email address that are not used exclusively for the provision of the digital content or digital services or to meet legal requirements . The DIRL also applies if the consumer gives his consent that material that is to be regarded as personal data, such as B. Photos or text contributions that the consumer uploads to the Internet may be processed by an entrepreneur for marketing purposes .

In contrast, goods with integrated digital content, e.g. B. Software on a CD or USB stick , music CDs, etc. basically the WKRL. Is the electronic transmission only for the purpose, e.g. B. in the case of an expert opinion that is sent by an expert to the client by email, the DIRL does not apply. Likewise, not with online games of chance or with open source software (Article 3 Paragraph 5 DIRL).

The DIRL does not apply if the main object of a contract is the provision of professional services such as translation services, services by architects, legal services or other specialist consulting services, which are often provided by the entrepreneur personally, regardless of whether the entrepreneur uses digital means to achieve the To generate the result of the service or to deliver or convey it to the consumer . The DIRL also does not apply to public services such as social security services or public registers (...) where the digital means are only used to convey or notify the consumer of the service . Likewise, the DIRL is not in public documents and other deeds apply regardless of whether they are created by digital means, recorded, reproduced or received were. Contracts for digital content or digital services that represent a financial service are also excluded . Further restrictions apply in the health sector and social law.

According to Article 3 (7) of the DIRL, the provisions of the DIRL are superseded by other Union legal acts that regulate a specific sector or subject.

compensation

If the entrepreneur requests the disclosure of personal ( personal ) data, this is considered a consideration and the DIRL is to be applied (Article 3, Paragraph 1 DIRL). As a result, supposed free offers become a "paid" exchange of services and, unless otherwise agreed, the entrepreneur must provide the service to the consumer immediately (Article 5 DIRL). Likewise, in cases of such free offers that require personal data of the consumer in return, the full warranty right applies . The entrepreneur is also bound by compliance with the General Data Protection Regulation .

There is only a major exception if the personal data only has to be made available to the entrepreneur so that he can comply with his own legal obligations (example: registration of the consumer for security and identification purposes due to mandatory laws applicable to the entrepreneur).

In return, digital values ​​or virtual currencies can also be used, provided they are recognized under national law.

The provision of advertising by the entrepreneur or third parties in connection with the provision of "free" digital content or services and toleration by the consumer is (currently) not yet recorded as a form of consideration by the DIRL. In this regard, the European Commission will still examine whether a change or addition is necessary (Article 25 DIRL).

Send / download

Digital content or services are deemed to have been sent (received) when they have reached the consumer in his sphere of influence. If further actions by the entrepreneur are required so that the consumer can use the digital content or services in accordance with the contract, the service has not yet been received in full and the entrepreneur is still liable for the performance of the contract.

In the case of download offers, however, it is sufficient if the entrepreneur allows access to the download in accordance with the contract (Article 5 Paragraphs 2 and 7 DIRL). This sending, downloading of contained or linked digital content or digital services can also be provided by third parties.

Only in the DIRL, but not in the WKRL, is the consumer requesting the entrepreneur to fulfill his contractual obligation in the event of a delay in performance (however, no deadline required, exceptions possible). Only then, after the request for performance and further failure of the entrepreneur in breach of contract, can the consumer withdraw from the contract in accordance with Article 13 (1) DIRL. The consequences of non-delivery of the service (e.g. damage caused by delay, other compensation, etc.) are based on the respective national law.

The entrepreneur is responsible for the burden of proof for acting in accordance with the contract. As a rule, the entrepreneur is liable for non-conformities for no less than two years from the time the service is provided (Article 11 (2) DIRL).

Conformity of services

With regard to the contractual fulfillment of agreed services from the sales contract, the DIRL is based on subjective and objective requirements that must generally be present at the time the service is provided in order to properly process a legal transaction within the meaning of these guidelines.

A reduction of the objective requirements is only possible under certain, narrowly interpreted conditions, e.g. B. if the buyer has expressly and separately agreed to such a reduction in the objective requirements for a service.

Guarantee

The guarantee is generally based on national law. However, the DIRL stipulates that, depending on the technical characteristics of the digital content or digital service, the trader can decide how to bring the digital content or digital service into conformity, for example by sending updated versions or a new copy of the digital one to the consumer Provides content or digital services . Consumers, on the other hand, have the right to have the digital content or digital services brought into conformity with the contract free of charge, to a proportionate price reduction or to the termination of the contract within a reasonable period; in the case of paid contracts, there must also be a material defect.

The consumer has no obligation to pay for a period of use of the program if it has a relevant defect. Not even if he can use part of the digital content or digital services without any problems, but not others (Article 16 f DIRL). The entrepreneur may make changes to the digital content that are beneficial for the consumer during the service period, whereby this must be done free of charge for the consumer (Article 19 DIRL).

The warranty period is generally at least two years (Article 11 DIRL) after the provision of a one-time service. In the case of continuous provision of services, the entrepreneur is liable for the entire duration of the service provision. If this period is shorter than two years, the warranty period cannot go beyond this period of provision.

The warranty remedies are primarily the establishment of the contractual condition (consumer must inform the entrepreneur in advance of a defect) and secondarily a price reduction or conversion if there is more than a minor lack of conformity (Article 14 DIRL). In the event of a price reduction or conversion (secondary warranty remedies), the consumer must provide the entrepreneur with a declaration on this.

The entrepreneur is not liable if the necessary technical requirements for the use of the service are not met by the consumer (e.g. unsuitable PC for a certain software). The entrepreneur is also entitled with appropriate means, e.g. For example, before installing software, it can be ascertained online whether the technical prerequisites are even met by the consumer to be able to use the digital content or services. The consumer is obliged to cooperate.

Limitation periods

The limitation periods in connection with the DIRL will continue to be regulated by the Union member states according to national law. However, the EU member states must ensure that such limitation periods:

  • do not prevent consumers from exercising their rights during the entire period in which the entrepreneur is liable for a lack of conformity , and
  • that such time limits enable consumers to take their remedies for a lack of conformity which becomes apparent at least during the period in which the trader is liable for a lack of conformity .

Limitation of the Policy

The DIRL leaves the EU member states the freedom to regulate certain aspects that may be related to the content of the DIRL. The national regulations continue to regulate differently in each EU member state (examples):

  • the formation, validity, nullity or effects of contracts,
  • the legality of the digital content or digital service,
  • the legal nature of contracts for the provision of digital content or digital services,
  • the classification as to whether such contracts constitute, for example, a purchase, service or rental contract or a sui generis contract,
  • the consequences of failure to provide the digital content or digital service or lack of conformity,
  • the rights of parties to withhold performance of their obligations or parts thereof until the other party fulfills their obligations,
  • the rights of a consumer in the event of a lack of conformity to withhold payment of the price or part thereof until the trader has brought the digital content or digital service into conformity,
  • the entrepreneur's rights to withhold a reimbursement due to the consumer upon termination of the contract until the consumer has fulfilled his obligation under this directive to return the physical data carrier to the supplier.

The Member States of the Union are also free to extend the application of the DIRL rules to contracts that are excluded from the scope of this Directive or to regulate such contracts in another way .

Delimitation of the DIRL and WKRL

The DIRL and the WKRL complement each other. In contrast to the WKRL, the DIRL also applies to:

  • digital content that is provided on physical media such as DVDs, CDs, USB sticks and memory cards, as well as
  • for the physical data carrier itself (...), provided that the physical data carrier serves exclusively as a carrier for the digital content . In addition to the provisions of the DIRL, provisions of the Consumer Rights Directive apply to these physical data carriers and the digital content provided on them .
  • If there is any doubt as to whether the supply of digital content or digital service is part of the sales contract, Directive (EU) 2019/771 should apply in order to avoid uncertainty among both traders and consumers .

Scope of the Directive

Spatial scope

The scope of Directive (EU) 2019/770 for certain contractual aspects of the provision of digital content and digital services extends to the EU member states and the other member states of the EEA .

Temporal scope

The DIRL applies from the entry into force of the national implementation measures (no later than January 1, 2022). For contracts (with an indefinite or limited term) still running at this point in time of the national implementation, the DIRL applies to all services that have been received after the national implementation measures came into force.

Legal protection

No deterioration

According to Article 4 of the DIRL, the member states of the Union may not maintain or reintroduce any provisions in national law that deviate from the provisions of this Directive. This also expressly applies to stricter or less stringent regulations to ensure a different level of consumer protection .

Appropriate and effective sanctions

The Member States of the Union must ensure that adequate and effective means are in place to ensure compliance with this Directive (Article 21 DIRL).

Association right of action

The DIRL grants persons or organizations that have a legitimate interest under national law in protecting the contractual rights and the data protection rights of consumers (e.g. consumer associations or similar) the right to appeal to a court or an administrative authority that decide on complaints or take appropriate legal action to ensure that the national provisions transposing this Directive are applied .

Legal basis

The adoption of Directive (EU) 2019/770 was based in particular on Article 114 TFEU (measures to approximate legal and administrative provisions of the Union member states, which have the establishment and functioning of the internal market as their object).

The directive was adopted by the Council and the European Parliament as part of the ordinary legislative procedure .

Structure of Directive (EU) 2019/770

The Directive (EU) 2019/770 has the following structure:

  • Article 1 (subject matter and purpose)
  • Article 2 (definitions)
  • Article 3 (scope)
  • Article 4 (degree of harmonization)
  • Article 5 (supply of the digital content or digital service)
  • Article 6 (conformity of the digital content or digital service)
  • Article 7 (subjective requirements for conformity with the contract)
  • Article 8 (objective requirements for conformity with the contract)
  • Article 9 (Improper integration of the digital content or digital service)
  • Article 10 (third party rights)
  • Article 11 (entrepreneur's liability)
  • Article 12 (burden of proof)
  • Article 13 (remedial action in the event of non-availability)
  • Article 14 (remedies for lack of conformity)
  • Article 15 (exercise of the right to terminate the contract)
  • Article 16 (obligations of the entrepreneur in the event of termination of the contract)
  • Article 17 (obligations of the consumer in the event of termination of the contract)
  • Article 18 (time limits and means of payment for reimbursement by the entrepreneur)
  • Article 19 (modification of digital content or digital service)
  • Article 20 (right of recourse)
  • Article 21 (law enforcement)
  • Article 22 (mandatory character)
  • Article 23 (amendments to Regulation (EU) 2017/2394 and Directive 2009/22 / EC)
  • Article 24 (implementation)
  • Article 25 (review)
  • Article 26 (entry into force)
  • Article 27 (addressees)

Implementation of the directive

According to Article 19 of Directive (EU) 2019/770, the directive is to be implemented by the EU member states into national law by July 1, 2021.

Trivia

The directive is characterized by very extensive recitals (87), which take up around 70% of the total in the text of the directive (including the footnotes). The text of the directive to be implemented by the member states of the Union therefore only comprises around 30% of the total scope of the directive. In the directive text itself to be implemented, Article 3 on the scope is the most extensive (15% of the directive text).

Web links

Individual evidence

  1. ↑ Directive (EU) 2019/770 of the European Parliament and of the Council of May 20, 2019 on certain contractual aspects of the provision of digital content and digital services (OJ EU No. L 136, 1 to 27).
  2. ↑ a b See also recitals 2 and 3 of the DIRL.
  3. ↑ See recital 13 WKRL and recital 20 of the DIRL.
  4. ↑ OJ L 305, p. 66 ff.
  5. ↑ Directive 1999/44 / EC will be repealed from January 1, 2022 by Directive (EU) 2019/771 (online trade in goods) .
  6. ↑ See also Recital 9 of the DIRL.
  7. ↑ Recital 1 of the DIRL.
  8. ↑ See also Article 1 and Recitals 4 to 8 of the DIRL.
  9. ↑ See recitals 10 and 11 of the DIRL.
  10. ↑ According to Recital 31, however, the DIRL does not apply to digital content or digital services that are presented to an audience as part of an artistic performance or other event, such as A digital film showing or an audiovisual theatrical performance .
  11. ↑ See Recital 28 of the DIRL.
  12. ↑ Article 3 Paragraph 3 DIRL.
  13. ↑ See Recital 26 of the DIRL. However, rights and obligations in relation to goods manufactured using 3D printing technology should not be covered by this policy .
  14. ↑ See Recital 24 of the DIRL.
  15. ↑ See also Recital 32 of the DIRL.
  16. ↑ For the term personal data, see Article 4 number 1 of the General Data Protection Regulation (Regulation (EU) 2016/679).
  17. ↑ According to recital 24 of the DIRL, however, these personal data provided are not considered goods, but the DIRL is intended to ensure that consumers are entitled to contractual remedies in connection with such business models.
  18. ↑ Recital 69 of the DIRL.
  19. ↑ Recital 25 of the DIRL.
  20. ↑ Recital 23 of the DIRL.
  21. ↑ See also Recital 41 of the DIRL.
  22. ↑ See Recital 41 of the DIRL.
  23. ↑ Recital 21 of the DIRL.
  24. ↑ See also Recital 61 of the DIRL.
  25. ↑ Articles 11 to 14 and Recital 59 of the DIRL.
  26. ↑ Article 11 paras. 2 and 3 DIRL.
  27. ↑ See Articles 7 and 8 DIRL or Articles 6 and 7 WKRL.
  28. ↑ See Article 8 Paragraph 5 DIRL or Article 7 Paragraph 5 WKRL.
  29. ↑ Recital 63 of the DIRL.
  30. ↑ Recital 62, 65 to 67 of the DIRL.
  31. ↑ Price reduction is of course not applicable in the case of a consideration through disclosure of personal data.
  32. ↑ See Recital 58 of the DIRL.
  33. ↑ Taken from recitals 12 to 16 of the DIRL.
  34. ↑ Recital 16 of the DIRL.
  35. ↑ See Recital 20 of the DIRL.
  36. ↑ Directive 2011/83 / EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Directive 93/13 / EEC of the Council and Directive 1999/44 / EC of the European Parliament and of the Council as well repealing Directive 85/577 / EEC of the Council and Directive 97/7 / EC of the European Parliament and of the Council, ABl. L 304, p. 64.
  37. ↑ Recital 21 of the DIRL.
  38. ↑ See long title of the guideline.
  39. ↑ Article 24 DIRL.
  40. ↑ See recital 83 DIRL.
  41. ↑ Article 21 and Recital 79 of the DIRL.