On 11 October 2011, the European Commission published a proposal
for a Regulation on a Common European Sales Law ("CESL")
which envisages creating an optional set of uniform European
contract law rules which would operate in parallel with each EU
Member States' national contract law.
The main thrust behind the proposal is to help increase the
cross-border sale of goods and services related thereto while at
the same time allowing Member States the option to permit the use
of the CESL in domestic business-to-consumer and
business-to-business transactions.
It is the European Commission's position that differences in
contract law between Member States are a major obstacle to further
integration of the EU Single Market as such differences make it
more complicated and costly for parties wishing to enter into
cross-border contracts for goods, particularly small
businesses.
The European Commission advances the argument that by removing
this impediment cross-border trade would substantially increase and
such increase would help drive down consumer prices by creating
greater competition between traders.
Proponents of the CESL appear reluctant to acknowledge the fact
that uniform contract codes are already available to EU traders and
non-EU traders (eg, the United Nations Convention on Contracts for
the International Sale of Goods) and there is nothing to suggest
that having an option to use a uniform contract code will
automatically result in either frequent or extensive use of such
code.
Many commentators argue that the CESL as a new system without
established jurisprudence would create a great deal of uncertainty
regarding the application of its provisions. In terms of expanding
upon and harmonising the level of protection afforded to consumers
across the EU the common sense approach would indicate that a tried
and tested method is the best way to move forward namely the
enactment of legislation that is specific in terms of the concerns
that it wishes to address (eg, the implementation of the EU
Directive on Distance Selling (Directive 97/7/ EC) which sets out
minimum levels of protection for consumers).
Currently the European Parliament supports the idea of the CESL
but the Council of Ministers has not yet given its view. There
appears to be little appetite among Member States for introducing a
"second regime" of contract law and therefore, it will be
interesting to see whether the Council of Ministers will give its
full backing to the CESL.
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