IDP No. 23 (December, 2016) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
Eloi PuigEloi Puig
Jose R. Agustina
Universitat Oberta de Catalunya
The future of European contract law in the light of the European Commission’s proposals...
Eloi PuigEloi Puig
proposal for a Regulation on a Common European Sales Law
for sales of goods and of digital content (“the CESL”).
Regulation would have inserted into each Member State’s
law a separate set of rules which the parties could choose to
use for cross-border contracts instead of the “pre-existing”
or “domestic” rules. If the parties had chosen the CESL, its
rules would have applied to any issues that fell within the
scope of the CESL in place of the rules of the “domestic” law.
Most importantly, the CESL included rules that, if the CESL
were chosen, would be mandatory. So the CESL contained
its own set of mandatory rules for consumer contracts and,
within the scope of its application, it would have been these
that would have applied, not the mandatory rules of the
“pre-existing” domestic law. The CESL’s mandatory rules
provided a high level of consumer protection, and for a
consumer contract, Article 8(3) of the Regulation provides
that the CESL could only be adopted in its entirety. This
meant that the trade
r would not be able to “cherry-pick”
just those rules of the CESL that were more favourable to
it than the rules that would otherwise apply.
So the CESL would not have replaced “pre-existing” or
“domestic” contract law: that law would remain in force
for domestic contracts and also for cross-border contracts
for which the parties did not choose to use the CESL.
But if the parties chose to use the CESL, its rules would
have displaced the domestic rules that would otherwise
have applied. Thus for most purposes a trade
r who could
persuade a consumer to buy goods using the CESL to
govern the contract needed worry only about one set of
rules - the rules of the CESL. The neatness of the solution
was that Article 6 of the Rome I Regulation ceased to
be a problem. Suppose an English internet seller directed
its website towards consumers in Spain, but asked the
consumers to agree to use the CESL. A consumer habitually
resident in Spain who agreed to buy goods on these terms
would still be entitled to the protection of the law of the
mandatory rules of Spanish law but, because he or she
has agreed to use the CESL, it is the mandatory rules of
the CESL which will apply
and these rules would be the
same in both Spanish and English law.
A second major shift in emphasis was that the proposed
CESL was not aimed only at consumer contracts. It could
be used also for contracts between trade
rs at least if one
party was an SME. Member States were given the option of
rs of any size t
o use the CESL.
The fate of the proposed Common European
The European Commission’s proposal was quite well
received in the European Parliament. The Legal Affairs
Committee (“JURI”) supported the proposal subject to a
number of (mainly very helpful) amendments and its report
was adopted by the European Parliament by a substantial
However, in the European Council the proposal
was much less well received. A great deal of time was spent
discussing the optional instrument approach; I understand
that the Member States’ Representatives had doubts over
both its necessity and how it would work. At the same time
there was great scepticism among consumer organisations,
which feared that in order to get the proposal through,
at the last moment substantial reductions in consumer
protection would be introduced. I have to say that there
was also some fear that this proposal for an optional
instrument was just “the thin end of the wedge” and that the
Commission intended some day to introduce a fully uniform
contract law for the whole of Europe, or even a European
Civil Code. In any event, in December 2014 the Commission
announced that the proposal would be withdrawn and that
the Commission would make “a modified proposal in order
to fully unleash the potential of ecommerce in the Digital
19. Proposal for a Regulation on a Common European Sales Law, 11 October 2011 COM(2011) 635 final.
20. It is true that some commentators questioned whether the consumer’s agreement to use the CESL provisions of the applicable law (in
the example given, the seller is likely to have stipulated for English law) means that the consumer has also agreed to accept the CESL
provisions of the law of the consumer’s habitual residence (in the example, Spanish law): see, e.g., The Law Society (2012, p 3). Even if
there is any real doubt on this, it seemed simple enough to amend the proposed Regulation to make this effect clear.
21. CESL Reg Art 13(b).
22. European Parliament legislative resolution of 26 February 2014 on the proposal for a regulation of the European Parliament and of the
Council on a Common European Sales Law (COM(2011)0635 – C7-0329/2011 – 2011/0284(COD)) (http://www.europarl.europa.eu/sides/
23. European Commission (2015a, p. 12). See also the European Commission (2015b, pp. 4-5) and the questionnaire, Public consultation on contract
rules for online purchases of digital content and tangible goods http://ec.europa.eu/justice/newsroom/contract/opinion/150609_en.htm>.