Digital Content and Sales or Service contracts under EU Law and Belgian/French Law

• Author: Hervé Jacquemin
• Position: Professor at the University of Namur, Head of eCommerce Unit, Research Centre on Information, Law and Society (CRIDS), Member of the Brussels Bar
• Pages: 27-38

Digital Content and Sales or Service contracts under EU Law and Belgian/French Law

2017

27

1

Digital Content and Sales or Service contracts

under EU Law and Belgian/French Law

by Hervé Jacquemin, Professor at the University of Namur, Head of eCommerce Unit – Research Centre on

Information, Law and Society (CRIDS), Member of the Brussels Bar

© 2017 Hervé Jacquemin

Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and

conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.

de/urn:nbn:de:0009-dppl-v3-en8.

Recommended citation: Her vé Jacquemin, Digital Content and Sales or Ser vice contracts under EU Law and Belgian/French

Law, 8 (2017) JIPITEC 27 para 1.

Keywords: Digital content; consumer protection; goods; services; sales contract; service contract; articulation

issues between concepts; French and Belgian Civil Law

and other relevant concepts under EU Law and some

national laws (of civil Law countries). First, a compar-

ison between the notion of digital content and other

concepts used at the EU level (and in the correspond-

ing legal framework adopted in the Member States),

in regulations protecting the consumers (the con-

cepts of “goods”, “services”, “sales” or “services con-

tracts”, etc.) will be carried out. The concept will then

be compared with the classical notions used in Bel-

gian (and French) Contract Law, especially in the Civil

Code (“contract of enterprise”, “sales contract”, etc.).

Abstract: The rather novel concept of “dig-

ital content” is defined and regulated both in the

Consumer Rights Directive and in the Proposal for

a Directive on certain aspects concerning contracts

for the supply of digital content (dated 9 Decem-

ber 2015). In this paper, the concept is presented, as

well as the reasons why the European legislator ad-

opted (or is willing to adopt) protection measures to

the benefit of consumers in this context. Relying on

this analysis, the paper will further discuss the artic-

ulation issues between the notion of “digital content”

A. Introduction

1

The concept of “digital content” was introduced into

the EU legal framework by the directive 2011/83/EU

on consumer rights1 (hereafter, “Consumer Rights

Directive”), where it is dened as “data which are

produced and supplied in digital form”.2

2

This denition is broad and, accordingly, the

examples of “digital content” are numerous. Some of

them are provided by the Recital 19 of the Consumer

1 Directive 2011/83/EU of the European Parliament and of the

Council of 25 October 2011 on consumer rights, amending

Council Directive 93/13/EEC and Directive 1999/44/EC of

the European Parliament and of the Council and repealing

Council Directive 85/577/EEC and Directive 97/7/EC of the

European Parliament and of the Council, OJ L 304, 22.11.2011.

2 Art. 2, 11°, of the Consumer Rights Directive.

Rights Directive: “computer programs, applications,

games, music, videos or texts, irrespective of

whether they are accessed through downloading or

streaming, from a tangible medium or through any

other means”. Social networks, archiving services

in the Cloud, or some OTT services (WhatsApp for

instance) could also be added.

3 Consumers are increasingly becoming recipients of

digital content and, considering that the protection

mechanisms already enacted in the sector-specic

regulations or in the horizontal regulations

protecting consumers are no longer sufcient, some

additional legal provisions especially dedicated to

digital content (albeit very few) were introduced in

the Consumer Rights Directive.3 Namely: information

3 On the legal measure (to be) enacted in order to protect

the consumer of digital content, see F. Coppens, M. DeMoulin,