Consumer Rights Directive, Recitals, (19) Consumer Rights Directive, Chapter 1, Article 2, (3) Consumer Rights Directive, Chapter 1, Article 2, (5) Consumer Rights Directive, Chapter 1, Article 2, (11)

Computer software supplied electronically and not on any tangible medium did not amount to "goods" for the purposes of the Commercial Agents (Council Directive) Regulations 1993 reg.2(1).

Computer software supplied electronically and not on any tangible medium did not amount to "goods" for the purposes of the Commercial Agents (Council Directive) Regulations 1993 reg.2(1). Although the Court of Appeal was uncomfortable with a conclusion that the tangible/intangible distinction leads to a definition of “goods” that excluded *777 software, it was not persuaded that it was open to the Court to impute what many might think a common-sense meaning of “goods” to the legislators of the Council Directive 86/653/EEC (“the Commercial Agents Directive”) in 1996 and the Regulations in 1993 when that Directive was implemented. To do so would be contrary to precedent and the Court could not simply ignore the weight of judicial authority that supported maintaining the tangible/intangible distinction. The judge’s conclusion was inconsistent with his acceptance that policy considerations were a matter for the European legislature and the UK Parliament, and not for the Court. Further, his conclusion would have unjust and unanticipated consequences as it could lead to (a) the creation of proprietary rights which might, in the case of the insolvency of an IT company, enable a customer to assert a preferential position to the disadvantage of other creditors or adversely affect lenders, (b) the recognition of information as property (which the law did not appear to have hitherto done), and (c) the creation of a new offence under the law of theft. He had also wrongly ignored European Parliament and Council Directive 2011/83/EU (“the Consumer Rights Directive”), which had not widened the definition of “goods” but had instead created a new category of a legal contract, namely a contract to supply digital content. Consequently, the Regulations did not apply to the Agreement and the judge had been wrong in his conclusion to the contrary.

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