The Proposed ‘Common European Sales Law’: Legal Framework and the Agreement of the Parties
| Date | 01 July 2012 |
| Author | Simon Whittaker |
| Published date | 01 July 2012 |
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00915.x |
LEGISLATION
The Proposed ‘Common European Sales Law’:
Legal Framework and the Agreement of the Parties
Simon Whittaker*
The European Commission’s Proposal for a Regulation on a Common European Sales Law
(‘CESL’) seeks to create a European scheme of contract law available for parties to choose to
govern cross-border contracts for the sale of goods,supply of ‘digital content,’and for the supply
of related services.This article explains the background to the Proposal, sketches out the purposes
and scope of the CESL, and considers and criticises its legal framework (and in particular its
relationship with private international law) and the key requirement of the parties’ag reement.In
the author’s view, the CESL scheme remains an unconvincing basis for the achievement of its
economic purposes and, as regards consumer contracts,puts too much reliance on the agreement
of the consumer as a justification for the loss of their existing protection under EU private
international law rules.
‘Contracts are the indispensable legal tool for every economic transaction.’1
INTRODUCTION
Economic integration remains at the heart of the European Union, and it is
not surprising, therefore, that contract law has increasingly formed the object
of European legislative initiatives. The latest of these is a proposed regulation
(the Proposal) setting out a ‘Common European Sales Law’ (CESL) available
for parties to choose to govern cross-border contracts for the sale of goods, the
supply of ‘digital content,’ and the supply of related services.2The Proposed
CESL is a long and complex instrument, containing provisions governing
*Professor of European Comparative Law, University of Oxford and Fellow of St. John’s College,
Oxford.
1 Proposal for a Regulation of the European Parliament and of the Council on a Common
European Sales Law Com(2011) 635 final,recital 2.This Proposal is prefaced with an Explanatory
Memorandum (Explanatory Memorandum) from the Commission and contains two annexes:
Annex 1 containing the CESL and Annex II containing the ‘Standard Information Notice’.The
provisions of the Proposal itself (sometimes termed ‘le chapeau’) and of the CESL are numbered
separately and for this reason, I shall refer to CESL distinctly from the Proposal, even though the
CESL forms part of the Proposal.The Law Commission and the Scottish Law Commission have
published an Advice to the UK Government on the Proposal, An Optional Common European Sales
Law:Advantages and Problems (10 November 2011) at http://lawcommission.justice.gov.uk/docs/
Common_European_Sales_Law_Advice.pdf (last visited 10 April 2012).
2ibid.
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© 2012The Author.The Modern Law Review © 2012 The Modern Law ReviewLimited. (2012) 75(4) MLR 578–605
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
much of general contract law as well as specific provisions for the three types
of contracts for which it would be available. In this ar ticle, I shall explain the
background to the Proposal, sketch out the purposes and scope of the CESL
and then consider in more detail its legal framework (and in particular its
relationship with private international law) and the key requirement of the
parties’ agreement.3
THE BACKGROUND
During the 1980s and 1990s, European legislation governing contracts was
particular in its scope, targeted in its aims, and its main technique was the
harmonisation by directive of aspects of the national contract laws of Member
States. As a result, legislation governed certain aspects of all consumer con-
tracts (notably, unfair contract terms), particular ways in which consumer
contracts are concluded (eg ‘door-step selling’) and aspects of par ticular types
of contracts (eg. consumer guarantees in sale of goods).4While consumer
contracts were an obvious focus of attention, impor tant legislation was also
introduced governing public procurement contracts,5employment contracts6
and (to a much more limited extent) commercial contracts.7While one of
the purposes of these legislative instruments has been the development of the
internal market (and in particular the encouragement of cross-border tran-
sactions), they have required Member States to change their laws also for
purely domestic transactions: national contract laws have to this extent been
‘harmonised’.
Towards the end of the 1990s,however,increasing dissatisfaction was expressed
with the results of this particular – some would say, piecemeal – approach and in
2001 the Commission initiated a debate as to how the EU should develop its
3 The proposal rests the competence of the European legislator on art 114 TFEU.This competence
is controversial,it being argued that the Proposal does not seek to approximate the lawsof Member
States: see K. Riesenhuber,‘The Proposal for a Regulation on a Common European Sales Law –
Competence, Subsidiarity, Proportionality – a Report to the Committee on Legal Affairs of the
German Bundestag’ (in German) at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1998134
(last visited 10 April 2012).
4 Directive 85/577/EEC to protect the consumer in respect of contracts negotiated away from
business premises [1985] OJ L372/31; Directive 93/13/EEC on unfair terms in consumer
contracts [1993] OJ L95/29 (1993 Directive); Directive 99/44/EC on certain aspects of the sale
of consumer goods and associated guarantees [1999] OJ L171/7.
5 Directive 92/50/EEC relating to the coordination of procedures for the award of public service
contracts [1992] OJ L209/1; Directive 93/36/EEC coordinating procedures for the award of
public supply contracts [1993] OJ L199/1; Directive 93/37/EEC concerning the coordination of
procedures for the award of public works contracts [1993] OJ L199/54.
6 eg Directive 80/987/EEC relating to the protection of employees in the event of the insolvency
of their employer [1980] OJ L283/23;Directive 2000/78/EC establishing a general frameworkfor
equal treatment in employment and occupation [2000] OJ L203/16.
7 Notably, Directive 86/653/EEC on the coordination of the laws of the Member States relating to
self-employed commercial agents [1986] OJ L382/17;Directive 2000/35/EC on combating late
payment in commercial transactions [2000] OJ L200/35.
Simon Whittaker
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited. 579
(2012) 75(4) MLR 578–605
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