European Parliament Policy Department; study on Private Law and the Digital Market in the EU; harmonisation could boost the Digital Single Market

European Parliament Policy Department; study on Private Law and the Digital Market in the EU; harmonisation could boost the Digital Single Market

Private Law and the Digital Market-The Interface between Harmonised and National Private Law

Policy Department for Justice, Civil Liberties and Institutional Affairs Author: Hans SCHULTE-NÖLKE, Mary-Rose McGUIRE, Christoph BUSCH, Sören SEGGER-PIENING, Fryderyk ZOLL Directorate-General for Citizens’ Rights, Justice and Institutional Affairs PE 790.625 – September 2026 STUDY Requested by the JURI Committee EN

Private Law and the Digital Market The Interface between Harmonised and National Private Law

Abstract This study, commissioned by the European Parliament’s Policy Department for Justice, Civil Liberties and Institutional Affairs at the request of the Committee on Legal Affairs, examines whether, and to what extent, the fragmentation of national private laws constitutes an obstacle to the Digital Single Market. It identifies the main functions of private law in the creation of the Digital Single Market, and the main sources of malfunction. Arising from this systemic approach, the study presents examples, including data sharing agreements, general terms and conditions as well as limitation periods, where further harmonisation of European private law would substantially enhance the Digital Single Market. On this basis, it discusses possible courses of action and suggests specific measures for future development.

Private Law and the Digital Market The Interface between Harmonised and National Private Law

This document was requested by the European Parliament’s Committee on Legal Affairs.

AUTHORS Hans SCHULTE-NÖLKE, European Legal Studies Institute, University of Osnabrück/Germany Mary-Rose McGUIRE, European Legal Studies Institute, University of Osnabrück/Germany Christoph BUSCH, European Legal Studies Institute, University of Osnabrück/Germany Sören SEGGER-PIENING, European Legal Studies Institute, University of Osnabrück/Germany Fryderyk ZOLL, European Legal Studies Institute, University of Osnabrück/Germany

ADMINISTRATOR RESPONSIBLE Mariusz MACIEJEWSKI

EDITORIAL ASSISTANT Safae LEND SAHNINE

LINGUISTIC VERSIONS Original: EN

ABOUT THE EDITOR Policy departments provide in-house and external expertise to support EP committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU internal policies.

To contact the Policy Department or to subscribe for updates, please write to: Policy Department for Justice, Civil Liberties and Institutional Affairs European Parliament B-1047 Brussels Email: poldep-iust-b@europarl.europa.eu

Manuscript completed in September 2026 © European Union, 2026

This document is available on the internet at: http://www.europarl.europa.eu/supporting-analyses

DISCLAIMER AND COPYRIGHT The opinions expressed in this document are the sole responsibility of the authors and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the European Parliament is given prior notice and sent a copy. © Cover image used under licence from Adobe Stock.com

Private Law and the Digital Market

PE 790.625 3 CONTENTS LIST OF ABBREVIATIONS 4 LIST OF TABLES 6 EXECUTIVE SUMMARY 7

INTRODUCTION 12

READING GUIDE TO THE SPECIFIC REQUESTS AND TERMINOLOGY 15 2.1. Reading guide 15 2.1. The meaning of ‘private law’ and ‘civil law’ for the purposes of this study 16

BACKGROUND: EU AND MEMBER STATE PRIVATE LAW 17 3.1. The Main Private Law Regimes across the EU Member States 17 3.1.1. Overview of the Private Law Systems in the EU 17 3.1.2. Different kinds of transposition of directives in Member States 21 3.2. Previous and ongoing efforts to harmonise private law in the EU 24 3.3. Experiences of harmonisation beyond the EU as a model? 31 3.3.1. Composition of working groups: representativeness instead of exclusiveness 32 3.3.2. Role of case-law from other states 33 3.3.3. Scope and function of restatements or ‘best rules’ 35 3.4. Impact of EU legal fragmentation compared to common law 36

EU PRIVATE LAW AND THE DIGITAL MARKET 38 4.1. The state of EU private law in the Digital Single Market 39 4.2. Costs and other impacts of fragmented private law regimes on the digital single market 44 4.3. Examples of effects of the fragmentation of private law regimes on the digital single market 48 4.3.1. Data sharing agreements 48 4.3.2. Europe-wide rules for general terms and conditions 57 4.3.3. Contracts for the provision of digital content 64 4.3.4. Contract law of digital subscriptions 66 4.3.5. Limitation periods for rights and claims under EU law 70

CONCLUSIONS AND RECOMMENDATIONS 80 5.1. Reasons for the success and failure in harmonising the fragmented national private laws 81 5.2. Achievable and desirable level of harmonisation 82 5.3. Way forward: ‘Quality units’ for a better Digital Single Market and better interaction with national private laws 83 5.4. Possible models and legislative acts to be derived from the analysis 85 REFERENCES 88

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LIST OF ABBREVIATIONS ABGB ACQP AI ALI B2B B2C BGB BW CEPS CESL Cf. CISG CJEU CPI CoPECL CRD DA DCD DGA DMA DSA DSM ECJ EEC EECC e.g. EIG EP EU FENEX FRAND Allgemeines Bürgerliches Gesetzbuch ([Austrian] Civil Code) Acquis Principles Artificial Intelligence American Law Institute Business to business Business to consumer Bürgerliches Gesetzbuch ([German] Civil Code) Burgerlijk Wetboek ([Dutch] Civil Code) Centre for European Policy Studies Common European Sales Law Confer Convention on Contracts for the International Sale of Goods Court of Justice of the European Union Code de la propriété intellectuelle Joint Network on European Private Law Consumer Rights Directive Data Act Digital Content Directive Data Governance Act Digital Market Act Digital Service Act Directive on copyright in the digital single market European Court of Justice European Economic Community European Electronic Communications Code exempli gratia European Impact Group European Parliament European Union Federatie van Nederlandse Expediteurs Fair reasonable and non-discriminatory GDPR General Data Protection Regulation

Private Law and the Digital Market

PE 790.625 5 HGB i.e. IPL InsO IoT JURI KC MCT PatG PECL PEL SGD TFEU UCTD UPCA ULC UrhG UPC US U.S.C. UPR UWG VAT VGG Handelsgesetzbuch ([German] Commercial Code) id est (Polish) Industrial Property Law Insolvenzordnung Internet of Things European Parliament’s Committee on Legal Afffairs Kodeks cywilny Model Contract Term Patentgesetz Principles of European Contract Law Principles of European Law Sale of Goods Directive Treaty on the Functioning of the European Union Unfair Contract Terms Directive Agreement on a Unified Patent Court Uniform Law Commission Urheberrechtsgesetz Unified Patent Court United States United States Code Regulation (EU) No 1257/2012 Gesetz gegen unlauteren Wettbewerb ([German] Act against Unfair Competition Value added tax Verbrauchergewährleistungsgesetz

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LIST OF TABLES Table 1: Main areas of functions of private law and the main sources of malfunction 8 Table 2: Specific objectives 15 Table 3: Civil and Contract Codes of the EU Member States 20 Table 4: Examples of major digital initiatives of the EEC/EU 39 Table 5: Different causes of malfunctioning 42

Private Law and the Digital Market

PE 790.625 7 EXECUTIVE SUMMARY This study examines whether, and to what extent, the fragmentation of national private law constitutes an obstacle to the Digital Single Market. It provides examples of this fragmentation and proposes tailored solutions in this regard. – A systemic approach to identifying gaps and selecting areas for action A key finding of the analysis in this study is that, with regard to the specific objective of creating the Digital Single Market, the role of (national and European) private law can be presented as a system comprising three main areas of function and three main sources of malfunction. This systemic approach, developed for the purposes of this study, helps identify shortcomings and gaps in the Digital Single Market, as well as areas for action and possible corrective measures. Arising from this systemic approach, the study presents some examples of areas where action could be taken and some possible courses of action. The three main areas of private law relevant to the creation of the Digital Single Market can be characterised by the keywords ‘Creating and Defining Digital Assets’, ‘Contractual Arrangements for Digital Assets and Remedies for their Breach’ and ‘Protecting Digital Assets through Extra-Contractual Rights’: • Creating and Defining Digital Assets: The creation of new legal objects and specially protected rights in the digital space, such as rights in personal data, machine-generated data and trade secrets. • Contractual Arrangements for Digital Assets and Remedies for Breach of Contract: The creation of possibilities for contractual arrangements regarding digital assets for participants in the Digital Single Market and the provision of contractual remedies in the event of breaches, such as consent under data protection law or remedies where data use exceeds the scope of an agreement under the Data Act. • Protecting Digital Assets by Extra-contractual Rights: The protection of digital assets through tortious rights and quasi-in rem claims against third parties (erga omnes), such as injunctions and the right to damages. The EU has made significant progress in all three of these areas. The fact that this progress does not fully tap into the potential of the Digital Single Market appears to be due, in particular, to three main sources of malfunction • Incompleteness or inconsistency of EU law • Missing or dysfunctional interfaces with national private law • Fragmentation and heterogeneity of national private law While the first cause is a typical phase in the development of new areas of law, albeit one where early intervention can prevent further fragmentation, the latter two causes are clearly closely linked to the fact that private law, in particular contract law and the law of non-contractual obligations, are, for the most part, not harmonised, but rather governed by national laws with many differences. Fragmentation, therefore, lies at the heart of all three causes. This framework of three main areas of functions and three main sources of malfunction can be simplified and presented in a nine-field matrix that maps European and national law in relation to the Digital Single Market. This makes it possible to clearly identify possible measures to improve EU law. Notably, this

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classification means that some examples can be assigned to multiple categories. This highlights that there are different options for addressing these measures. That said, the five examples this study analyses have been chosen first and foremost because of their practical importance and the need for their resolution, but also to highlight the different sources of malfunction within the Digital Single Market. The five examples are: • Data sharing agreements (e.g. integration of new types of contracts into EU and national private law) • Contracts for digital content or services (e.g. clarification as to whether machine-generated data qualifies as counter-performance) • Gen