No, HMG. The distinction that's making the judge rule that software is not goods is one issued by the UK government, not from the EU. The law that is being sued over is EU-wide and specific to goods.
Either the UK can amend their local version of it to fit their local issue of Software being defined as not goods because they've got a separate definition of it. Or the EU can pre-empt them and rewrite the original law to include Software specifically. The question is, is this an issue in any other EU countries?
We've already got rulings here in the Netherlands holding that a perpetual software license is treated as a good in all ways applicable to it, including right of sale and transference. AFAIK Germany and France have similar rulings.