Appraisal of the digital content directive in light of the evolution of EU consumer protection law

Abstract

The aim of this thesis is to identify the major issues relating to the evolution of the consumer protection area of law, which eventually led the EU and its institutions to adopt the Digital Single Market Strategy (DSMS). In turn, under the DSMS, the EU has recently adopted the DCD (Directive on the supply of digital goods and digital services), whilst also pursuing the adoption of further directives. Suppliers of most products with a digital element or component have so far faced several issues relating to whether the digital component should be considered as part of the good or service itself, or as a totally independent and separate good. Such distinctions could potentially make the product and/or services in question fall under one set of rules and not another. This is a very relevant factor for concerns pertaining to the DSMS, such as; the cross-border portability of content, the free flow of data across Internal Market borders, VAT, parcel delivery, and divergent contract laws, to name a few. This thesis delves into some of these crucial distinctions, how they came about, and how the European Community, and later the EU, followed up on these crucial steps. Moreover, this thesis will also investigate how the EU introduced legislation to solve issues in relation to consumer protection and later the supply of digital goods and services within the Internal Market. It should also be noted that many legal aspects regarding the digital market inevitably overlap with several other areas of law, such as copyright and intellectual property. Such matters arise as previous consumer protection efforts did not clearly identify the position of digital goods and digital services. Most of these aspects have been unforeseen, and at times the Member States themselves failed to properly identify other aspects in relation to digital products on the national level. In time, this market environment led to an ever-growing level of uncertainty for consumers and traders alike. This uncertainty also hindered the growth of the Internal Market in relation to digital goods and services. Other similar barriers include divergent contractual rights, varying contractual obligations and vastly different regional commercial customs, while other difficulties relate to the integration of the digital products and services themselves. After that, the focus shifts towards the DCD, where the text and spirit thereof is analysed, along with the legal concerns the legislative process encountered. This thesis attempts to analyse the various methods of harmonisation and the different options available to bring about the desired digital market environment. This is in regard to the general consumer protection and to the supply of digital goods, and later digital services, within the Internal Market.