El futuro del derecho contractual europeo a la luz de las propuestas de directivas de la Comisión Europea sobre contenidos digitales y compraventa en línea

AutorHugh Beale
IDP No. 23 (December, 2016) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
Universitat Oberta de Catalunya
Submission date: November 2016
Accepted date: November 2016
Published in: December 2016
The future of European contract
law in the light of the European
Commission’s proposals
for Directives on digital
content and online sales
Hugh Beale
Professor at the School of Law
University of Warwick
The European Commission’s proposed Directives, one on the supply of digital content to consumers and
the other on online sales of goods to consumers, have two aims: to give fuller protection to consumers
who buy digital content (in many Member States, consumers’ rights are far from clear) or buy goods
online, and to encourage more traders to supply consumers in other Member States. The Commission
continues to be concerned that because when a trader deals with a consumer in the consumer’s
country of habitual residence or directs its activities towards that country, the consumer is protected
by that country’s law, traders will be deterred by differences between the laws of the Member States.
The Commission’s initial idea was to replace the current minimum harmonisation directives by a broad
full harmonisation directive. When that ran into opposition from Member States, the Commission tried
the “optional Instrument” approach, the proposed Common European Sales Law. After the CESL also
failed, the Commission is now seeking full harmonisation on a limited range of issues. The two proposals
contain useful new provisions but have some serious shortcomings. Both the European Parliament
Committees and the Council Working Group seem to welcome the proposal on digital content, provided
that some of the shortcomings are dealt with. The proposal on online sales is more controversial and
has not yet been considered in detail by the Council. The paper concludes by querying whether limited
full harmonisation of only B2C contracts is the best way to deal with problems caused by differences
between the laws.
Hugh Beale
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digital content, online sale of goods, consumers, full harmonisation, B2C contracts, minimum harmonisation,
European contract law
El futuro del derecho contractual europeo a la luz
de las propuestas de directivas de la Comisión Europea
sobre contenidos digitales y compraventa en línea
Las directivas propuestas por la Comisión Europea, una sobre suministro de contenidos digitales a los
consumidores y la otra sobre la compraventa de artículos en línea a los consumidores, plantean dos
objetivos: ofrecer una protección más completa a los consumidores que adquieren contenidos digitales
(en muchos de los Estados miembros, los derechos de los consumidores distan mucho de quedar claros) o
que adquieren artículos en línea, y fomentar que más empresas suministren productos a los consumidores
de otros Estados miembros. A la Comisión sigue preocupándole que, debido a que si una empresa trata
con un consumidor en el país de residencia habitual de ese consumidor o dirige sus actividades hacia
ese país, el consumidor está protegido por las leyes de su país, a las empresas las disuada el hecho
de encontrar diferencias entre las legislaciones de los distintos Estados miembro. La idea inicial de
la Comisión era sustituir las actuales directivas de armonización mínima por una directiva amplia de
armonización total. Al encontrarse con la oposición de los Estados miembros, la Comisión optó por el
método del “instrumento opcional”, la propuesta de normativa común de compraventa europea. Tras el
fracaso también de esta medida, la Comisión pretende ahora conseguir la plena armonización en una
serie limitada de cuestiones. Las dos propuestas incluyen nuevas y útiles disposiciones, pero adolecen
de algunas carencias graves. Según parece, tanto los Comités del Parlamento Europeo como el Grupo
de Trabajo del Consejo acogen favorablemente la propuesta sobre contenidos digitales siempre que se
corrijan algunas de esas carencias. La propuesta de la compraventa en línea resulta más controvertida
y todavía no ha sido valorada en profundidad por el Consejo. El documento termina preguntándose si
una armonización completa pero limitada que solo incluya los contratos de empresa a consumidor es la
mejor forma de abordar los problemas que provocan las diferencias en las legislaciones.
Palabras clave
contenidos digitales, compraventa de productos en línea, consumidores, armonización completa, contratos
empresa-consumidor, armonización mínima, normativa común de compraventa europea
derecho contractual europeo
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1. “Only 18% of consumers who used the Internet for private purposes in 2014 purchased online from another EU country while 55% did so
domestically”: COM(2015) 634 final, p 2.
2. For a UK study of the problem, see R. Bradgate (2010).
3. Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises.
4. Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance
5. Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts.
6. Directive 1999/44/EC of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees
7. Communication from the Commission to the Council and the European Parliament on European Contract Law, COM(2001) 398 final.
8. See Communication from the Commission to the European Parliament and the Council, A more Coherent European Contract Law, An
Action Plan [2003] OJ C63/1.
9. UNIDROIT, Rome, 2010. A revised version is expected shortly.
In recent years there has been an enormous growth in
online sales but, according to figures used by the European
Commission, the growth in online sales between a trader
in one state and a consumer in another - “cross-border”
sales - has been much lower.
Something needs to be done
to encourage traders and consumers to shop online across
In addition, even within domestic markets the law on the
supply of digital content needs clarification. Few Member
States have specific legislation on contracts for digital
contents, and often the legal position is quite unclear – are
these contracts to be treated as analogous to sales, even
though nothing tangible is supplied and the consumer
does not acquire ownership of anything? Or are they to
be treated like services contracts? Or are they entirely sui
As a result, in many Member States it is very
hard for consumers and traders to know exactly what
the law is.
The European Commission’s strategy
The European Commission has been pursuing a policy
that has two strands: increasing consumer confidence
and encouraging traders to offer to supply goods and
digital content across borders. We will see that sometimes
there is a tension between the two, and that there is some
disagreement about the best means of achieving them.
Increasing consumer confidence
The European Commission began with “active” consumers.
It took the view that if consumers knew that wherever or
from whoever in Europe they bought goods, they would
have certain guaranteed minimum rights, that would give
them confidence to make purchases when they were abroad
and also to search out traders in other countries who might
sell to them. Thus we had the Directives on doorstep
distance sales;
we have the Directive on Unfair Contract
and we have the Consumer Sales Directive.
directives have been minimum harmonisation directives:
in other words, Member States may give their consumers
additional rights.
Reducing the costs of cross-border sales
to traders
The second strand or aim has been to encourage the internal
market by reducing the costs that traders face in selling
across borders. There is a widespread belief that differences
between the laws of contract in the various Member States,
while not preventing trade between those states, at least
add to t he costs of cross-border contracting. In 2001 the
European Commission published a communication on
contract law
which asked for evidence of these costs. I do
not find the responses they received
to be very convincing
as many of the examples did not relate to general contract
law, but it is intuitive that differences between the laws
do add additional cost to international trade. If they do
not, instruments like the 1980 Vienna Convention on the
International Sale of Goods and the UNIDROIT Principles
of International Commercial Contracts
would b e a waste
of time.
At first, the costs to traders do not seem to have worried
the European Commission, but from about 2003 there was
a change of approach towards reducing the costs for traders
(and as we shall see later, covering also business-to-business
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10. Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual obligations.
11. The case was actually under the Brussels I Regulation, Regulation (EC) 44/2001, which has similar wording. For a critical examination of
this and other cases, see C. Bisping (2014).
12. Communication to the European Parliament and the Council. European Contract Law and the Revision of the acquis: The Way Forward,
COM(2004) 651 final, p. 3. The Directives to be reviewed were 85/577 (Door-step Selling), 90/314 (Package Travel), 93/13 (Unfair Terms),
94/47 (Timeshare), 97/7 (Distance selling), 98/6 (Unit prices); 98/27 (Injunctions) and 99/44 (Consumer sales).
13. The Way Forward, p 4. See also para 4.2.2 of the Action Plan.
14. Directive 85/93 of 25 July 1985.
15. Directive 2005/29/EC of 11 May 2005.
16. Proposal for a Directive of the European Parliament and of the Council on consumer rights, COM(2008) 614.
17. Directive 2011/83/EU of 25 October 2011 on consumer rights.
18. Articles 18-20 of Directive 2011/83/EU deal with delivery of goods and passing of the risk.
In particular the Commission sought to overcome a
problem for consumer contracts posed by Article 6 of
the Rome I Regulation.
Under Article 6, the parties to a
consumer contract, like the parties to any other contract,
may choose what law is to govern it. However, if a consumer
contracts with a business in the consumer’s country of
habitual residence, or if the business has directed its
activity towards the consumer in the consumer’s country
of habitual residence, the consumer is entitled to the
protection of the mandatory rules of the law of the country
of residence. The Court of Justice is quite ready to find that
a trader has directed its activities towards consumers in
another Member State: for example, in Mühlleitner C-190/11
(2012) a website in German and giving an international
dialling code was held to be directed towards consumers
in Austria.
This means that a business advertising its goods across
Europe, for instance via a website “e-shop”, must be
prepared to deal with the consumer protection rules of
at least 28 different jurisdictions. (I say “at least 28”
because, as readers in Catalonia will be well aware, some
Member States have more than one system of contract or
consumer law; for example, Catalonia and also Scotland,
which has a separate legal system from that of the rest
of the UK).
Full harmonisation
The way in which the European Commission first proposed
to reduce the differences between the laws in the different
Member states was by a move from minimum harmonisation
to full harmoni sation. It proposed to revise eight directives ,
and while consumer protection would to some extent be
improved, the big change was that consumers’ rights would
be fully harmonised
so that, within the fields covered by
the directives, the substance of the law would be the same
in each Member State.
This approach met with some success - for example, the
early Product Liability Directive,
and more recently the
Unfair Commercial Practices Directive.
This was also the
approach taken in the proposal for a Consumer Rights
Directive made in 2008.
The new directive would have
replaced four major directives: those on doorstep selling,
on distance selling, on unfair terms and on consumer
sales. There would have been some increase in the degree
of consumer protection but that would have been slight.
The important change was towards full harmonisation.
The result would have been that Member States which had
given consumers more protection than was required by the
Directives (or which had stronger protection before the
relevant directive was adopted and had left it in place) would
have had to remove the extra protection. Not surprisingly,
this approach was a political failure. Member States that
gave their consumers more protection than the minimum
were very reluctant to see it reduced, particularly as the
reduction would apply to all consumer transactions, not just
to cross-border transactions. The only way the European
Commission could get the legislation through was to narrow
down the scope of the directive and its full harmonisation
provisions. That is what happened. The Commission opted
for a new version of the Consumer Rights Directive
for the most part applies only to distance and off-premises
contracts and governs only pre-contractual information and
withdrawal rights.
In effect the Commission decided to cut
its losses on the CRD, because by then it had a new approach.
The Common European Sales Law
The new approach was a proposal for an instrument that
would apply only to cross-border contracts and would be
optional. In 2011 the European Commission introduced a
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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 trader 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 trader 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 traders at least if one
party was an SME. Member States were given the option of
allowing traders of any size to use the CESL.
The fate of the proposed Common European
Sales Law
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
Single Market”.
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 – C7-0329/20112011/0284(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>.
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The DSM proposals
So now we are considering the replacement proposals:
A Directive on certain aspects concerning contracts for the
supply of digital content (which I will refer to as the “Digital
Content Directive” or “DCD”)
A Directive on certain aspects concerning contracts for
the online and other distance sales of goods (“Online Sales
Directive” or “OSD”).
These proposals are very different from the CESL. They
apply only to consumer contracts and they are “targeted”, in
the sense that they cover only a very limited range of issues.
The principal issues covered by the DCD are:
The time in which digital content must be supplied and
remedies for delay;
Conformity and remedies;
The trader’s right to modify digital content that is to be supplied
over a period of time, and the consumers right to terminate the
contract if the consumer is unhappy with the modification;
The consumer’s rights after the contract has been terminated
in relation to data supplied by the consumer and data that the
trader holds for the consumer.
On the other hand, the proposed directive will apply to both
domestic an d cross-border contracts and it will be a full
harmonisation directive.
The Commission’s explanatory
memorandum says that it has learned from the experience of
the CESL.
Insofar as the Commission is once again seeking
full harmonisation measures, it seems to have forgotten its
experience with the Consumer Rights Directive.
In fact it seems that the proposal for a directive on digital
content is quite likely to be adopted even though it requires
full harmonisation. The lack of opposition seems to be due
to two facts. The first is that few Member States have any
legislation on contracts for digital contents and therefore,
as I said earlier, often the legal position is quite unclear
to both consumers and traders. The second fact is that in
the two Member States that do have modern legislation
(the Netherlands and the United Kingdom, which has new
legislation on digital content in its Consumer Rights Act
2015) the proposed DCD would not reduce consumer’s right
by much, if at all - in the UK, the DCD would give consumers
even greater rights than they have under the Consumer
Rights Act 2015. So Member States have little to lose by
agreeing to full harmonisation of the relevant aspects of
the law on digital content.
Scope of application of the DCD
This will become evident if we look at the provisions of
the DCD. The DCD has a broad scope of application. First,
Article 2 provides:
‘digital content’ means
(a) data wh ich is produced and supplied in digital form, for
example video, audio, applications, digital games and any other
(b) a service allowing the creation, processing or storage of data
in digital form, where such data is provided by the consumer; and
(c) a service allowing sharing of and any other interaction with
data in digital form provided by other users of the service.
So it applies both to one-off downloads and to the supply
of digital content over a period of time.
24. COM(2015) 634 final of 9 December 2015.
25. COM(2015) 635 final of 9 December 2015.
26. DCD Arts 5 and 11.
27. DCD Arts 6-13.
28. DCD Art 15.
29. DCD Arts 13 and 16.
30. DCD Art 4.
31. COM(2015) 634 final, p 2.
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Secondly, the DCD applies not only when the consumer
pays cash but also when the digital content is supplied in
exchange for personal data, as is now frequently the case.
Article 3 provides:
(1) This Directive shall apply to any contract where the supplier
supplies digital content to the consumer or undertakes to do so
and, in exchange, a price is to be paid or the consumer actively
provides counter-performance other than money in the form
of personal data or any other data.
The DCD applies both when the digital content is downloaded
and when it is supplied on a physical carrier like a DVD.
Conformity of the digital content
As to conformity, the digital content must comply with the
express requirements of the contract
and also meet any
particular purpose for which the consumer requires the
digital content and which the trader has accepted.
digital content must meet certain minimum standards
it must be the latest version.
When the digital content is
to be supplied over a period of time it must conform to the
contract throughout the period.
Remedies for non-conformity
If the digital content does not meet the conformity
requirements, a “hierarchy of remedies” applies. The trader
must bring the digital content into conformity unless that
would b e impossible, unlawful o r disproport ionate.
If the
digital content cannot be brought into conformity, or if the
trader fails to do so within a reasonable time or without
undue inconvenience to the consumer,
the consumer may
claim a reduction in price (if a price was paid) or terminate the
However the right to terminate exists only if the
nonconformity impairs the functionality, interoperability or
the main performance features.
If the trader fails to supply the
digital content on time (and unless otherwise agreed, it must
be supplied immediately after the contract is concluded),
the consumer may terminate the contract immediately.
The consumer’s data after termination
Article 13 usefully sets out rules on termination for non-
conformity or failure to supply and what is to happen to
the consumer’s data after the contract is terminated. The
consumer may terminate by giving notice to the trader,
who must then refund any price paid within 14 days
must take all reasonable steps to prevent the use of any
personal data supplied by the consumer, except for content
which has been generated jointly by the consumer and
others who continue to make use of the content.
The trader
must allow the consumer to retrieve any content supplied
by the consumer or generated by the consumer using the
digital content in a commonly used format.47 The consumer
must not make further use of the digital content; it should be
deleted or rendered unintelligible, and, if it was supplied on
a physical medium, the consumer should return the medium
if the supplier so requests.
The consumer need not pay
anything for use of the digital content before the contract
was terminated.
32. DCD Art 3(3).
33. See DCD Art 6(1)(a), (c) and (d).
34. DCD Art 6(1)(b).
35. DCD Art 6(2).
36. DCD Art 6(4).
37. DCD Art 6(3).
38. DCD Art 12(1).
39. See DCD Art 12(2).
40. DCD Art 12(3).
41. DCD Art 12(5).
42. DCD Art 5(2).
43. DCD Art 11.
44. DCD Art 13(1).
45. DCD Art 13(2)(a).
46. DCD Art 13(2)(b).
47. DCD Art 13(2)(c).
48. DCD Art 13(2)(d) and (e).
49. DCD Art 13(4).
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The trader’s right to modify digital content
Article 15 deals with the trader’s right to modify digital
content that is to be supplied over a period of time stipulated
in the contract. The supplier may alter its functionality,
interoperability and other main performance features in
such a way as to adversely affect access to or use of the
digital content by the consumer only if the right was provided
in the contract; the consumer is notified in advance; the
consumer is allowed to terminate the contract free of charge
within not less than 30 days from the receipt of the notice;
and the consumer is allowed to retrieve any digital content,
as under Article 13.
The consumer’s right to terminate a long-term
Article 16 gives the consumer the right to terminate a contract
for the supply of the digital content for an indeterminate
period, or for a fixed period if either the initial contract
or that plus any renewal period has exceeded 12 months.
The consumer may terminate by giving 14 days’ notice to
the supplier, and the Article sets out the consequences of
Public enforcement
Article 18 provides for “public enforcement” of the
consumer’s rights. It provides:
Member States shall ensure that adequate and effective
means exist to ensure compliance with this Directive.
2. The means referred to in paragraph 1 shall include
provisions whereby one or more of the following
bodies, as determined by national law, may take action
under national law before the courts or before the
competent administrative bodies to ensure that the
national provisions transposing this Directive are
(a) public bodies or their representatives;
(b) consume r organi sations h aving a legi timate
interest in protecting consumers;
(c) professional organisations having a legitimate
interest in acting.
Such me asures for “publ ic enforcement” are important.
The similar provision in the Directive on Unfair Terms in
Consumer Contracts
has had a very significant impact, at
least in the UK. When the Directive was implemented, the
task of enforcement was given to the Director-General of
Fair Trading.
The Director-General (and after 2002, the
Office of Fair Trading
) was very active and achieved a great
deal in terms of encouraging traders, and on occasions
sectors of industry such as mobile phone providers, to
improve the terms that they offer to consumers.
T he
OFT’s role has now been taken over by the Competition
and Markets Authority,
which also publishes some very
useful guidance to traders.
I believe that Article 18 of the DCD could have an equally
significant impact, particularly if the relevant public bodies
or consumer associations use big data to monitor complaints
and employ a non-confrontational approach to their dealings
with traders.
50. DCD Art 15(1). Art 15(2) deals with reimbursement of a proportionate part of the price and with further use of the consumer’s data by the
51. DCD Art 16(2)-(5).
52. Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, Art 7.
53. See Unfair Terms in Consumer Contracts Regulations 1994, SI 1994/3159, reg 8.
54. The office of DGFT was abolished by the Enterprise Act 2002.
55. See S, Bright (2000, p. 331).
56. The legislation that now implements the Directive as a whole is the Consumer Rights Act 2015, Part 2 and, as regards Art 7, Sch 3. On
public enforcement generally see H. Beale (2015), paras 38-323 ff., under the 1999 Regulations; and paras 38-387 ff, under the 2015 Act.
(S Whittaker).
57. E.g. CMA37, Unfair contract terms guidance, available at www.gov.uk/government/publications/unfair-contract-terms-cma37>.
58. See H Beale (forthcoming).
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As I have said, the DCD proposal seems to be welcomed
by the Council working groups, but both the Council
the Parliament
seem to have a number of reservations,
and quite rightly so. While in general terms I welcome the
provisions of the proposed DCD, there are a number of issues
that need to be “fixed” if the proposal is to be acceptable.
Some points may only need clarifying, while others will
require revisions. I will explain an example of each.
An example of a clarification that is needed is in Article
14. This provides that the consumer will have the right to
damages for any harm caused by the digital content to the
consumer’s digital environment, that is, the consumer’s
data or hardware. Because this is a full harmonisation
directive, the implication is that consumers may not have
any right to damages for other kinds of loss. The Explanatory
Memorandum appears to confirm that Member States may
not permit compensation for other kinds of loss caused by
non-conformity or failure to supply. It states:
Article 14 establishes a right to damages restricted to cases
where damage has been done to the digital content and
hardware of the consumer. However, it provides that Member
States should lay down the detailed conditions for the exercise
of the right to damages.
If it is really intended to remove the consumer’s right to
compensation - a right that must already exist in one form
or another in almost every Member State, if only as a matter
of general contract law - that would be very worrying.
There may be cases in which the consumer suffers serious
loss quite apart from any damage to hardware or digital
content. I could understand a provision to restrict claims
by consumers for loss of enjoyment, as was the case under
the Common European Sales Law’s defintion of “loss”,
though I would not support such a restriction. However, I
think it is quite wrong to exclude liability for all other losses.
Faulty software or a failure to provide digital services may
force the consumer to incur other expenditure in order fulfil
urgent needs, and if the digital content is designed to enable
the consumer to control his or her physical environment, it
may even cause injury or damage to the consumer’s other
property. (In the latter case, the producer of the software
might be liable under the Product Liability Directive, but the
application of that Directive to software is widely regarded
as at least problematic).63 Faulty goods may cause the same
types of loss but it is not suggested that the trader’s liability
for damage caused by faulty goods should be limited, and
with good reason. There is no need to protect suppliers
of digital content in this blanket way. If they consider that
it is essential to limit their liability, then they should have
to do so in the same way as sellers of goods - that is, by
including terms limiting their liability in their contract with
the consumer. These terms will be enforceable if, and only
if, they meet the test of fairness imposed by the Directive on
Unfair Terms, which is only right and proper. There is no need
to give the digital content industry blanket immunity for loss
other than to the consumer’s digital environment. I am glad
to be able to report that informally Commission officials
have said that it did not intend to exclude consumers being
given compensation for these kinds of loss. If that is correct
it is very welcome, but the Directive must be clarified.
An example of the revisions that are needed is that the
minimum standard which digital content must meet is not
sufficiently demanding. Many Member States have applied
their sale of goods law to digital content at least when it
was supplied on a tangible medium, and this means that, in
accordance with the Consumer Sales Directive, the digital
content must be fit for all the purposes for which goods of
the same type would ordinarily be used.
However Article
6(2) of the DCD introduces an additional qualification: the
normal requirement applies only “to the extent that the
contract does not stipulate, where relevant, in a clear and
59. See Note from the Presidency to the Council, Brussels 2 June 2016, doc/document/ST-9768-2016-INIT/
60. See Committee on the Internal Market and Consumer Protection Committee on Legal Affairs, Working Document of 23 June 2016,
61. COM(2015) 634 final, p 13.
62. CESL Reg Article 2(c).
63. See S Whittaker (1989); K Alheit, (2001, pp. 188-209) and further references cited there.
64. CSD Art 2(2)(c).
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comprehensive manner”. This is again unnecessary - in
the past, digital content has been treated in the same way
as goods without a problem - and it is very risky for the
consumer. In effect the trader would be able to use the
terms of t he contract to set its own minimum standards.
Very few consumers will ever read the terms of the contract
before they agree to it. The trader should ensure that the
general description of the digital content makes it clear to
the consumer what the digital content will or will not do.
Other examples of revisions needed
Other revisions that are needed include:
extending Article 3 so that the DCD applies if the trader
collects the consumer’s personal data, rather than only
if the consumer provides it actively;
 extending the scope of application of the DCD to
embedded software, which is currently excluded
but which, with the developing Internet of Things,
might well need to meet simi lar requirements of
“interoperability”, etc. as other digital content;
the minimum conformity requirements should include
privacy by design and by default;
 digital content should be supported (including by the
continued provision of “digital services”) for as long as
the consumer will reasonably expect, even if no time
period is stated in the contract;
 where digital content is to be supplied over a period
of time, but the supply fails, the suggested remedy
of “partial termination”
should be replaced by price
reduction and the right to terminate if the interruption
(or cumulative interruptions) are sufficiently serious;
 there should be the right to withhold performance
when the supply of digital services is interrupted;
there should be provision for the termination of linked
contracts; and
 there should be a minimum period of prescription.
The Online Sales Directive
The OSD may be summarised as “CSD +”, in that it covers the
topics covered by the Consumer Sales Directive - conformity
obligations, the consumer’s remedies for non-conformity
and commercial guarantees - and adds some new provisions.
New provisions
Examples of new provisions include:
 the consumer will have the right to terminate even for
minor non-conformity;
 termination may be exercised by the consumer giving
notice to the trader;
 when goods do not conform to the contract, the
period of the presumption that the goods were non-
conforming from the outset is extended from six
months to two years;
 the consequences of termination are spelled out,
including a requirement that the trader reimburse the
price paid within a maximum of 14 days from the date
of the notice of termination
and a provision that the
trader may make a deduction for any decrease in the
value of the goods only to the extent that the decrease
in value exceeds depreciation through regular use;
65. The European Law Institute has published a Statement on the European Commission’s proposed Directive on the supply of digital content
to consumers ( http://www.europeanlawinstitute.eu/fileadmin/user_upload/p_eli/Publications/ELI_Statement_on_DCD.pdf>). This contains
a large number of proposed amendments.
66. DCD Recital 11 states “[…] this Directive should not apply to digital content which is embedded in goods in such a way that it operates as
an integral part of the goods and its functions are subordinate to the main functionalities of the goods”.
67. Compare DCD Art 6(3), which applies only if the contract stipulates that the digital content is to be supplied over a period of time.
68. DCD Art 13(5).
69. Cf DCD Recital 43, which leaves prescription to Member States’ law.
70. OSD Recital 29; and see the Explanatory Memorandum, p 15; compare CSD Art 3(4).
71. OSD Art 13(1). In some Member States termination (or its functional equivalent) must be ordered by a court. Even if judicial proceedings
in the Member State are relatively cheap and quick, having to go to court renders the remedy of termination of little use to consumers,
so this change will be valuable to consumers.
72. OSD Art 8(3); cf CSD Art 5(3).
73. OSD Art 13(3).
74. OSD Art 13(3)(a).
75. OSD Art 13(3)(d).
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 Member States may no longer require the consumer
to notify the trader of any non-conformity within two
months of detecting the non-conformity;
 there is a provision for “public enforcement”
to Article 18 of the DCD, which was discussed above.
There are also some useful clarifications of points on which
the CSD was unclear, or where the new legislation could
usefully incorporate interpretations of the CSD by the Court
of Justice. For example, under the OSD:
conformity includes conforming to the express terms of
the contract,78 so that the remedies for non-conformity
also apply;
the consumer may withhold payment of any outstanding
part of the price until the seller has brought the goods
into conformity with the contract;
 where the seller replaces non-conforming goods, the
original goods must be taken back by the seller at its
own expense;
 that includes removing any goods that have been
installed before the lack of conformity became
apparent, and the installation of replacement goods,
or bearing the costs of having this done;
 the consumer need not pay for any use made of the
goods before the replacement;
 a formula is provided for calcluating price reduction.
Revisions needed
There are a number of points at which the OSD needs to
be improved. For example, where goods rely on embedded
software, the requirements of the DCD as to both
interoperability and continuing supply or support should
and there should be a provision for termination of
the whole contract when only some of the goods are not
in conformity with the contract but this renders the goods
as a whole useless or much less valuable - for example, if
half the plates in a dinner service arrive broken and it is
not possible to replace them because plates of the relevant
pattern are no longer made.
Effects of full harmonisation
However, the principal problem with the OSD is that it also
would require full harmonisation, and that will result in a
loss of consumer protection in some Member States. The
principal losses for consumers in the UK would be two.
First, the UK’s Consumer Rights Act 2015 provides that if the
goods delivered are not in conformity with the contract, the
consumer has an immediate “short-term right to reject” the
goods and terminate the contract, without first having to
seek repair or replacement and with no deduction for use
or decrease in value of the goods.
This right existed under
earlier legislation, but the limits on its exercise, in particular
the length of time after delivery in which the consumer could
reject, were very unclear. Empirical research by the Law
Commission showed that consumers valued this right, which
is simple and easy to understand and inspires consumer
confidence, making them more prepared to try unknown
brands or new retailers as well as providing consumers with
an effective remedy when they have lost confidence in a
product or retailer.
The immediate right to terminate was
therefore retained in the 2015 Act, but clarified: the consumer
now has a fixed period - in most cases, 30 days from receiving
the goods - in which to exercise the right, which will be lost
only if the consumer asks for repair or replacement. (If the
76. OSD Recital (25); cf CSD Art 5(2).
77. OSD Art 17.
78. OSD Art 4; cf CSD Art 2(1), which might be read as applying only to the requirements of the remainder of Art 2.
79. OSD Art 9(4). This is only likely to be useful when the goods are to be supplied in instalments over a period of time; with other online
sales, the consumer is normally required to pay immediately or at least before delivery.
80. OSD Art 10(1).
81. OSD Art 10(2), which reflects the decision of the CJEU in C-65/09 Weber and C-87/09 Putz [2011] ECR I-5257.
82. This reflects the decision in the ECJ case C-404/6 Quelle, [2008] ECR I-2685-2730.
83. OSD Art 12.
84. See above.
85. Cf OSD Art 13(2), which only permits termination in respect of the broken plates.
86. Consumer Rights Act 2015, ss 19 and 20.
87. See Consumer Remedies for Faulty Goods, Consultation Paper (Law Com CP 188; Scot Law Com DP 139), esp. paras 4.1-4.13; Report (Law
Com No 317, Scot Law Com no 216, 2009), paras 3.1 – 3.35 and 6.9 – 6.12.
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trader fails to repair or replace the goods, the consumer
will then have the right to reduce the price or to exercise
what is termed “the final right to reject” and terminate
the contract. In this case the consumer will not necessarily
recover the whole price.) If the OSD were to be adopted,
UK consumers would lose a right that they value highly,
at least when they were shopping online or at a distance.
There is no reason to think that the immediate right to
terminate is of less value in distance sales than in other sales.
Secondly, under Article 14 of the OSD the consumer is
only entitled to a remedy for a lack of conformity which
becomes apparent with two years. Even though damages are
not otherwise regulated by the OSD, in the light of Recital
32, which refers to “the period during which the seller is
held liable [...]”, it seems that this would prevent Member
States from allowing consumers a right to claim damages
for non-conformities that arise after this period. In the UK
there is no time limit on claims for damages other than
the limitation (prescription) period, which will normally be
six years from the date the goods were delivered.
Article 14 would be a very serious restriction of consumer
protection, as many goods will be used for much longer
than two years and defects in design (such as the safety of
a car in an accident or the side-effects of drugs or “natural”
remedies) may well not become apparent within two years.
It is true that in some cases the consumer may still have
a remedy against the producer or importer of the goods
under the Product Liability Directive,89 but this will not apply
to property damage of less than 500 nor to damage to
the goods themselves. In any event, I do not see why the
consumer should be deprived of a right to sue the retailer
with whom the consumer dealt, who will normally be more
readily accessible than the producer or importer.
I suspect that consumers in many Member States would also
lose consumer protection in one respect or another were
the OSD to be adopted. So it comes as no surprise that the
proposal for the OSD seems to be meeting opposition in the
European Council. Moreover, it is asked why it is necessary
to have separate regimes for online sales and other sales,
which would be the result in many Member States. As a
result, at least during the Dutch Presidency
the Council
has deferred consideration of the online sales directive.
Issues still to be tackled
Even were both Directives to be adopted with the amendments
suggested above, there would still be important issues left
for the European legislator to tackle.
One would be to ensure that consumers who buy digital
content obtain certain minimum rights, such as to install the
digital content on more than one machine or to resell digital
content, either on its own or with the machine on which it is
installed, if the consumer no longer wants to use the digital
content. These rights would not have to be mandatory, but I
think there is a case for providing that they apply by default,
so that the trader would have to indicate when the consumer
will get only more restricted rights
and the relevant term
of the contract would be subject to the provisions of the
Directive on Unfair Terms. That would mean that the term
would either have to meet the requirements for a “core
term” under Article 4(2) of the Directive, which means it
must be in plain and intelligible language, or it would have
to meet the test of fairness under Article 3(1).
A second topic is that of language. To impose any general
requirement that contracts be written, or information be
given, in any particular language seems to be too politically
sensitive to be tackled: it was certainly considered “off
limits” to the Expert Group that helped to draft the CESL.
But something more modest could be achieved. Consumers
who are contracting online should at least have the right
to insist that all exchanges relating to a transaction are in
the language of the website that the consumer used in the
first place.
88. Limitation Act 1980, s 5.
89. Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member
States concerning liability for defective products.
90. January - June 2016.
91. See Note from the Presidency to the Council, Brussels 2 June 2016 doc/document/ST-9768-2016-INIT/
92. See Statement of the European Law Institute on the Proposal for a Regulation on a Common European Sales Law, COM(2011) 635 final:
1st Supplement: Response to the EP Legislative Resolution of 26 February 2014, pp 23-24.
93. See ibid, pp 11-12.
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More general legislation?
More broadly, however, I think there is reason to doubt
how much the European Commission’s current approach
will solve the problems of cross-border trade. I think more
general legislation is needed. By that I mean two things.
First, the legislation on B2C contracts should tackle issues
of general contract law. Secondly, the legislation should
extend to B2B contracts.
Reducing legal differences in B2C contracts94
The European Commission’s current proposals, like the
CESL before them, have two goals. One is to give consumers
the confidence to make full use of the internal market by
ensuring that wherever the trader with whom the consumer
contracts is based, the consumer will enjoy a high level
of consumer protection. The other is to make it easier for
traders to sell across borders. We need to consider the
extent to which the new proposals meet the apparent aims
of the exercise.
Both the proposed directives are quite limited in their scope
of coverage. They are targeted at the topics which the
Commission thinks are most likely to give rise to disputes.
In this respect there is a major difference between the
current proposals and the CESL. The CESL sought to provide
provisions on all the issues that were likely to arise in the
making and performance of a contract. Recital 6 stated:
Differences in national contract laws therefore constitute
barriers which prevent consumers and traders from reaping
the benefits of the internal market. Those contract-law-related
barriers would be significantly reduced if contracts could be
based on a single uniform set of contract law rules irrespective
of where parties are established. Such a uniform set of contract
law rules should cover the full life cycle of a contract and
thus comprise the areas which are the most important when
concluding contracts. It should also include fully harmonised
provisions to protect consumers.
The range of issues that will be fully harmonised by the
proposed directives is much narrower than would have been
covered by the CESL. So the number of differences between
the laws of the Member States that may continue to worry
traders will be greater under the current proposals than
they would have been had the CESL been adopted.
In terms of substance, it is true that the two proposals do
address the issues that are most likely to arise in the context
of cross-border contracts for online sales and the supply of
digital content. Moreover, I certainly do not suggest that the
instruments should cover as many topics as the CESL, which
in effect would have provided an almost complete “law of
contract”, if only because for the transactions with which the
directives are dealing, some of the issues that were covered
in the CESL seem unlikely to arise. One is threats; I simply
cannot imagine traders exercising duress over consumers
via the Internet. Another is mistake. There is almost no scope
for mistakes as to the nature of what is being bought to arise
when the buyer is a consumer because the consumer has to
be given so much information by the trader. I also wonder
whether we need provisions on unfair exploitation – the
internet is one place where price comparison is relatively
easy. But before deciding, we would need to find out
whether problems of exploitation have occurred in practice.
However, there are some areas of law in which possible
differences between the trader’s law and the mandatory
rules of the consumer’s state of habitual residence might still
worry traders. Thus the laws on damages and on limitation
vary substantially between one Member State and another;
some laws allow the price for the goods or digital content to be
challenged; and even the law on when a contract is formed and
the effect of a mistake over the price or other terms, whether
by the consumer or the trader, is not the same everywhere.
Which is more likely to solve the problems faced by traders
interested in selling to consumers across borders: the current
approach of “targeted full harmonisation” or the “optional
instrument” approach of the CESL, which dealt with so many
more issues? It is arguable that an optional instrument,
coupled with a minimum harmonisation directive on the
supply of digital content in order to ensure that consumers
purchasing digital content are protected by rules that are
accessible and appropriate, would be a better way forward.
Even more importantly, the hindrance to cross-border
contracts caused by differences between the laws of contract
is probably as much psychological as it is real. It seems likely
94. This section of my paper draws heavily on a Briefing Paper on scope of application and general approach of the new rules for contracts
in the digital environment, which I prepared for the Legal Affairs Committee of the European Parliament in February 2016.
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that traders, and in particular SMEs who cannot afford to
take legal advice, are put off by “the fear of the unknown
as much as by actual differences between the various laws.
The wider t he coverage of t he instrume nt, the greater
the reassurance to the trader that it will not meet some
unexpected legal rule, and so the greater the encouragement
to try selling to consumers in other Member States. One of
the virtues of the CESL was the number of issues it resolved.
B2B contracts
Even more importantly, the DCD and the OSD are limited to
B2C contracts. This is understandable, as at least some of
the opposition to the proposed CESL seems to have been
generated by the proposed inclusion of B2B contracts.
Moreover, those consulted reported fewer problems with
transactions between traders. It can also be said that the
differences between the laws of contract in the various
Member States are less problematic for B2B transactions
because there are fewer mandatory rules. However, the
number of mandatory rules and the controls over B2B
contracts vary enormously between Member States.
The main concern is for smaller businesses (SMEs), as it was
with the CESL.
Larger businesses may actually not sell
across borders: they may open a subsidiary in the buyers’
country. Secondly, larger businesses are more likely to have
the expertise to deal with foreign laws. Thirdly, they are likely
to be entering larger transactions with higher values, when
the cost of obtaining legal advice about foreign law will be
relatively much lower than with a small transaction. SMEs
are often not so sophisticated and they will not think the
cost of taking expert advice can be justified. So if they were
to make cross-border contracts they would have to take the
legal risk. And that brings us to another difference. I strongly
suspect that smaller businesses are generally more risk
averse than larger ones. Putting it simply, they cannot afford
to take the same risks. I suspect many are simply put off from
trying cross-border selling. It is SMEs that we need to target.
Moreover, the problems faced by SMEs are not just ones of
understanding foreign laws. They are also about the terms
of the contract or, indeed, the way in which the contract is
made or the way in which the other party might behave
during the course of the contract. When a party is relatively
inexperienced or unsophisticated in negotiating contracts
and cannot afford legal advice, there are serious dangers.
An SME, for example, may not know what is in the standard
contract terms supplied by the other party, or it may not
understand the implications of the terms. During the course
of negotiations, it may not think to ask for information which
would affect its decision about whether or not to enter the
contract – it may assume the other party will disclose such
information. And it may not anticipate the other party behaving
opportunistically during the course of performance, and so
not seek to insert appropriate safeguards into the contract.
Online B2B sales
I believe that to leave B2B contracts entirely to one side
would be to miss a real opportunity to provide a simple
system by which traders may make simple online purchases
without having to worry about withdrawal rights, inadequate
information or unfair terms. This would make it significantly
easier for traders, particularly SMEs, to do business with
each other across borders, and thus would contribute to
the development of the Internal Market.
A preliminary point is that in practice it will be very hard
for a trader who is running a website to know whether the
customer is a consumer or an SME, particularly if the SME
is not a corporation. Many businesses are run from home
rather than from an obviously business address, and there is
no guarantee that the means of payment (such as a debit or
credit card) will enable the trader to detect that the customer
is a business. In practice, I suspect, most traders who operate
a website that is open to consumers do not differentiate
between consumers and business buyers except that the
terms and conditions offered may be different.
I am not suggesting that even in a set of rules designed for
SMEs we should assume that business buyers should be given
exactly the same protection as consumers. For example, I
think that a trader selling to another trader should be entitled
to limit its liability for losses caused by nonconformity of
the goods or delay in delivery, provided that this is done in
a transparent manner. However, I believe that some of the
differences between business-to-consumer and business-
to-business sales - even in the CESL - were inappropriate.
Some rules about website trading in the CESL applied to
any trader using a website (the rules derived from the
95. See H. Beale (2013, p. 65).
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E-Commerce Directive).
However the rules derived from
the Consumer Rights Directive naturally were applied
exclusively to business-to-consumer contracts. With
hindsight I believe that this was unjustified. In particular I
now think that a business buyer, buying over the Internet,
should have a right to withdraw from the contract (at least
as a default rule) and should be provided with the same
pre-contractual information as a consumer.
The rationale for allowing a consumer to withdraw from
a distance contract, or to withdraw an offer to buy, is that
the consumer will not have had the chance to examine the
goods before buying them. This will often also be the case
with a business buyer. In addition, if I am correct that traders
find it very difficult to distinguish between consumers and
business buyers, then in practice many web traders must
allow the buyer to cancel the order whether or not the buyer
is a consumer. However, I do not think that a business buyer
over the Internet should have to check the trader’s terms to
see whether the trader extends this right to business buyers,
nor rely on the trader’s goodwill. I think that it would actively
encourage business-to-business sales over the Internet if
there were normally a right of cancellation.
It is true that a right of cancellation is not needed on every
occasion, because the buyer may be buying goods which
they have bought before. This is particularly likely when the
buyer is a business as they are more likely to have bought
the same goods on a previous occasion. Nonetheless, I would
give trader buyers a right of cancellation, at least as the
default rule. First, if buyers do not need the right to cancel,
they will seldom exercise it and therefore it will cost the
trader very little. Secondly, it would be possible to allow the
business buyer to waive their right of cancellation, perhaps
in exchange for a small discount in order to encourage them
to do so. The magic of the Internet can easily be used to
ensure that a business buyer can waive the right to cancel
by having to click on a separate pop-up acknowledgement,
perhaps at the time that they choose the delivery method.
The pop-up box might also require the buyer to “self-certify”
that they are a trader, with a warning that trying to obtain
a discount when you are not a trader amounts to fraud.
Similarly, it seems sensible to require a trader who offers
to sell to both consumers and business buyers over the
Internet to provide the same information for both types of
buyer. Whatever is required, the seller is likely to emphasise
the positive aspects of the product as a way of encouraging
sales. It is the negative aspects - for example, whether digital
content is compatible with the buyer’s hardware or other
software – which is less likely to be revealed and which
therefore should have to be disclosed. It is of course true
that a business buyer is likely to be better informed and
more sophisticated than a consumer and therefore might
ask more questions. However, it seems to me that it would
encourage business-to-business Internet sales if business
buyers could have the same confidence that they have been
given the information they need, and that the information
is correct, as would be the case with a consumer buyer.
Moreover, in practice the trader will be providing the required
information anyway for consumer buyers, so there would
be no extra cost in providing it for business buyers also.
B2B digital content
A large business buying digital content – such as a university
negotiating a site licence to use a software program – can
perhaps be expected to ensure that the terms of the contract
set out clearly the supplier’s obligations as to conformity
and possibly even the remedies that the buyer will have
for non-conformity. But many business buyers of digital
content will be SMEs, who do not have the sophistication
to do this. Moreover, if a business is buying a small quantity
of software, it is in no one’s interest to spend time and effort
negotiating over such matters. Businesses in all Member
States (including the UK) need a clear and up-to-date set
of rules to govern the supply of digital content. This might
be left to each Member State, but given the importance of
cross-border contracts for the supply of digital content, it
would make much more sense to have European legislation
that applied to B2B contracts as well as consumers. This
could be a directive, but an optional instrument would fulfil
much the same aims while not limiting the parties’ choice.
More general B2B legislation
The CESL proposal contained substantial protection for
SMEs (in particular, controls over unfair terms that were not
individually negotiated). Of course, this made it appear more
threatening to Member States that have few controls (even
though their domestic law would have remain untouched).
96. Directive 2000/31/EC of 8 June 2000.
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But I think there is still a case for providing a general optional
instrument for cross-border contracts, at least when one
party is an SME.
It is true that in many countries, parties to a cross-border
sales contract can use the CISG. The CISG offers many of
the same advantages as did the CESL. It provides a neutral,
internationally-accepted law that is translated into many
languages. But elements that are crucial for SMEs – validity
and the control of unfair terms – are not covered by the CISG.
They are to be determined by the otherwise-applicable law
of the contract. And that brings us back to the problem of
knowledge. Unless it is familiar with the otherwise-applicable
law of the contract, an SME which is offered a contract to
which the CISG will apply but which is on standard terms will
not know whether it would be able to challenge one of those
terms if it is unfair; it will not know whether the other party
has a duty of disclosure; it will not know whether it might
have a remedy if it finds that it has made a fundamental
mistake; it may have enormous difficulty in knowing to what
extent it will have protection if the other party behaves
badly. All that will depend on what the law that governs
these issues provides. And the position is made even more
complex by the fact that in some laws, the protections that
apply to domestic contracts do not apply to “international”,
i.e. cross-border, contracts.
I believe that SMEs would benefit significantly from a
uniform law for cross-border contracts that contains the
kind of protective rules that SMEs want. Clearly any such
law would have to be optional.
The lessons of the CESL
I do not believe that the lesson to be learned from the failure
of the proposal for a CESL is that future proposals must be
narrow in scope. I think the main lessons to be learned are
about the way a proposal of this type should be presented.
First, I think it is essential to get consensus on the general
aims and approach before any draft is presented. Experience
at the Law Commission in England has taught me that it is
important to set out and agree the policy, in detail, before
starting to draft, because if there is no consensus on the
policy, stakeholders may interpret the draft very differently
according to what they think the policy is or should be.
Secondly, I think that the rules on application – for example,
rules on the kind of contracts for which the instrument can
be used and what steps must be taken by the parties in order
for the instrument to be used – should be agreed at least
in outline before all the details of the proposed law are set
out, as the detail can be very distracting.
Thirdly, there needs to be much better presentation of the
proposals – they should be more carefully drafted and more
fully explained, for example by accompanying comments.
Fourthly and perhaps most importantly, we should not try
to do too much too quickly. Good legislation takes time. This
point is a difficult one. To get legislation through usually
requires a political heavyweight to act as a champion for it.
Within the EU institutions, the obvious political champion
will be the Commissioner responsible. But Commissioners
have limited tenure, and naturally they are most concerned
to push through projects that can be completed while they
are still in office so that they get the c redit for it, rather
than their s uccessors. I think we have to find a way of
persuading Commissioners to think beyond the lifetime of
one commission.
But there is also important work to be done by academics,
judges and practising lawyers. If we genuinely believe that an
optional instrument is the right way forward, then we should
do the groundwork even if there is no immediate prospect of
the instrument being taken up by the political institutions.
In other words, we need to make sure that the policy
documents and preferably draft texts and comments are
prepared now, so that they are ready when they are needed.
So I very much hope that the apparent failure of the
proposal for a Common European Sales Law will not deter
my colleagues either in Europe or elsewhere in the world
from working on possible optional instruments on general
contract law. I believe that they are the way forward.
97. E.g. the UK’s Unfair Contract Terms Act 1977 does not apply to international supply contracts (s.26) nor to contracts to which English law
applies only because the parties have chosen English law to govern the contract and which otherwise would be governed by some other
law (s.27).
IDP No. 23 (December, 2016) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
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Hugh Beale
ALHEIT, K. (2001). “The applicability of the EU Product Liability Directive to software”. Comparative and
International Law Journal of Southern Africa. Vol. 34, no. 2, pp. 188-209.
BEALE. H. (2013). “A Common European Sales Law (CESL) for Business-to-Business Contracts”. In: L.
MOCCIA (ed.). The Making of European Private Law: Why, How, What, Who. Munich: Sellier.
BEALE. H. (2015). Chitty on Contracts 32
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London: Sweet and Maxwell.
BEALE, H. (forthcoming). “Conclusion and Execution of Contracts: Overview”. In: S. LOHSSE, R. SCHULZE
and D. STAUDENMAYER (eds.). Contracts for the Supply of Digital Content: Regulatory Challenges
and Gaps. Baden-Baden: Nomos.
BISPING, C. (2014). “Mandatorily Protected: The Consumer in the European Conflict of Laws”. ERPL,
no. 22, pp. 513, 525.
BRADGATE, R. (2010). Consumer Rights in Digital Products, a research report prepared for the UK
Department for Business, Innovation and Skills. Sheffield, September, 2010. https://www.gov.uk/
BRIGHT, S. (2000). “Winning the Battle against Unfair Contract Terms”. Legal Studies. Vol. 20, no. 3. p.
331. doi.org/10.1111/j.1748-121X.2000.tb00147.x>
COMPETITION AND MARKETS AUTHORITY (2015), Unfair contract terms guidance.
EUROPEAN COMMISSION (2015a). Annex 2 to the Commission Work Programme, 2015 Com(2014) 910
final, p. 12.
EUROPEAN COMISSION (2015b). Commission staff working document. A Digital Single Market Strategy
for Europe - Analysis and Evidence Communication from the Commission, 2015 COM(2015) 192 final,
pp. 4-5.
THE EUROPEAN LAW INSTITUTE (2015). Statement on the European Commission’s proposed Directive
on the supply of digital content to consumers. http://www.europeanlawinstitute.eu/fileadmin/
THE LAW SOCIETY (2012). European Brief, November 2012, p 3.
WHITTAKER, S. (1989). “European product liability and intellectual products”. Law Quarterly Review,
no. 105, p. 823.
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...
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Hugh Beale
Recommended citation
BEALE, Hugh (2015). “The future of European contract law in the light of the European Commission’s
proposals for Directives on digital content and online sales”. IDP. Revista de Internet, Derecho y Política.
No. 23, pp. 3-20. UOC [Accessed: dd/mm/yy]
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About the author
Hugh Beale
Professor at the School of Law
University of Warwick
School of Law
University of Warwick
Coventry CV4 7AL
United Kingdom

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