Video Games Europe observations: EU Commission proposal for a Directive for empowering consumers in the green transition
Executive Summary
Amendment to the Unfair Commercial Practices Directive (Directive 2005/29/EC)
On the definition of durability (Article 1(1))
Video Games Europe welcomes the reference to the Directive (EU) 2019/771 to define the notion of “durability”. In particular, the reference to “normal use” is key, as it excludes from the scope any voluntary mishandling of the product, such as piracy attempts. Video Games Europe also welcomes the clarification embedded in Recital 23 on the length of such durability, and is pleased to see that the European Commission favoured such approach rather than using broader and undefined concepts such as “lifespan”, which would ultimately prove difficult to enforce both from a consumer and producer point of view.
On the definition of environmental and social impact (Article 1(2a))
Video Games Europe regrets that the proposal lacks clear definition of an “environmental or social impact”. Video Games Europe suggests for the deletion of “social impact” from the proposal as it is barely even mentioned elsewhere in the proposal, thus impacting the ability of producers to ensure their product will comply with the proposal if adopted as such. On environmental impact, Video Games Europe would like to avoid that environmental performance assessment of a product can be performed only through a specific methodology (e.g. the PEF method) and would encourage regulators to use wording embedded in the recently published UCPD guidance from the European Commission, which provides more flexibility in chosen science-based approaches.
On omitting to inform the consumer that a software update will negatively impact the use of goods with digital elements or certain features of those goods (Annex I, Paragraph 4, Point 23d)
Video Games Europe agrees that consumers must be adequately informed on the impacts a software update will have on their goods with digital elements, and therefore welcomes the wording suggested by the European Commission. However, Video Games Europe would be concerned should the regulators be inclined to ban the mere practice of software update that have a negative impact on the use of the good with digital elements or of certain of its features, as this would prevent producers’ ability from terminating the providing of such features after a certain period of time (e.g. online features of a console years after its launch).
On omitting to inform that a good is designed to limit its functionality when using consumables, spare parts or accessories that are not provided by the original producer (Annex I, Paragraph 4, Point 23i)
Video Games Europe welcomes the wording from the European Commission and of the inclusion of the word “designed”, as it implies that producers should have voluntarily intended to produce their good in a way that it limits its functionalities when used in conjunction with third-party accessories or consumables. Accessories or consumables produced by the original producer may sometimes have more features than those from third-party producers thanks to intense R&D activities, but this does not mean that this is the result of a specific intent from the original producer to limit third-party products. This is why Video Games Europe encourages regulators to preserve the original wording suggested by the European Commission in its proposal.
Amendment to the Consumer Rights Directive (Directive 2011/83/EC)
On disclosing information related to the existence of a commercial guarantee of durability for distance contracts (Article 2(3) and Article 2(4))
Video Games Europe is concerned that providing detailed information about the existence or non-existence of a commercial guarantee of durability in such a prominent manner at the point of sale, compared to other information, could potentially distract consumers from other important information, such as their cancellation rights. Video Games Europe believes it would be more appropriate for this type of information to be provided as a pre-contract disclosure on the product details page rather than right at the point of sale. Therefore, Video Games Europe would suggest the deletion of “and directly before the consumer places his order” from Article 2(4) in the proposal.