Reflections on Remedies for Lack of Conformity in Light of the Proposals of the EU Commission on Supply of Digital Content and Online and Other Distance Sales of Goods

The EU has been seeking to reform its sales law for some time. It has not been concerned so much to amend the basic principles of the law, but rather feels the minimum harmonisation nature of the Consumer Sales Directive impedes cross-border trade. Its attempts to include reform of sales law within the Consumer Rights Directive were rebuffed, because it was seeking to impose maximum harmonisation at a level that several Member States could not accept. This was principally due to its Proposal seeking to require consumers to accept cure (i.e. repair or replacement) as the first option before rejection and termination were possible. Its second attempt to promote a cross-border regime for consumer sales of goods by way of an optional Common European Sale Law was also withdrawn due to opposition based on the only option in practice being given to the trader, who would decide whether to trade on the basis of CESL. Also the scheme would have removed the consumer protection afforded by the Rome I Regulation rules which ensures consumers retain the protection afforded by national mandatory rules. The Commission is trying for a third time by introducing a proposal for a maximal harmonisation directive limited to online and other distance contracts. At the same time the EU is seeking to engage with the digital agenda. As part of that process it has proposed a directive on sales of consumer goods online and other distance sales of goods and a directive regulating conformity in the context of digital products.

The basic core principles of conformity have been well settled for sale of goods. The real battle ground has been over the appropriate remedies regime. This will therefore be the focus of this chapter. There might be more to discuss about the conformity concept in relation to digital goods, but our concentration will still be on the remedies regime. The punchlines of this chapter are that the EU should accept that Member States prefer to retain their national diversity as regards remedies for non-conformity in consumer sales contracts and withdraw the online and distance sales proposal. By contrast their work to create an appropriate regime for digital contracts is to be welcomed. Few states have clear rules on the law that applies to digital products and clarification is to be welcomed.