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The Commission Proposal for a "Regulation on a Common European Sales Law (CESL)": Too broad or not broad enough?
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LAW_2012_04_ERPL_03.pdf (540.76 KB)
2012/04 ERPL-03
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1725-6739
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EUI LAW; 2012/04; European Regulatory Private Law Project (ERPL-03)
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MICKLITZ, Hans-Wolfgang, REICH, Norbert, The Commission Proposal for a ‘Regulation on a Common European Sales Law (CESL)’: Too broad or not broad enough?, EUI LAW, 2012/04, European Regulatory Private Law Project (ERPL-03) - https://hdl.handle.net/1814/20485
Abstract
The paper which was commissioned by the Austrian Ministry of Consumer Affairs but written under the exclusive responsibility of the authors consists of three parts: The first part written jointly by the authors gives an analysis of the so-called “chapeau” of the Commission proposal on a Regulation (EU) for a “Common European Sales Law” (CESL), published as COM (2011) 635 final of 11.10.2011. The chapeau, that is the legal instrument putting into effect the eventual CESL, concerns such fundamental questions as legal basis, namely Art. 114 TFEU on the internal market, importance of the subsidiarity and proportionality principles, personal, territorial and substantive scope of the proposal, the mechanism of “opting-in” in cross-border B2C (business to consumer) transactions, its relation to the “acquis”, in particular the recently adopted “Consumer Rights Directive” (CRD) 2011/83/EU of 25.10.2011, to existing Member State law under conflict-oflaw provisions of Art. 6 on consumer protection of Regulation (EU) 593/2008, and to options left to them. The second part, written by Hans Micklitz, analyses the substantive provisions of the so-called Annex I, namely the text of the CESL itself which with some modifications took over over the results of the EU expert group on a “feasibility study on an optional instrument” of 3.5.2011. It is concerned with B2C provisions on so-called “off-premises” and distance contracts with respect to information obligations of traders and withdrawal rights of consumers which are particularly relevant in ecommerce. Also the new proposals on unfair terms are discussed which go beyond the existing acquis of Dir. 93/13/EEC. The third part, written by Norbert Reich, is concerned with provisions on consumer sales and related service transactions, also based on the feasibility study with an extension to “digital content”. Some of them go beyond the existing acquis of Dir. 99/44/EC, while the concept of “related service contracts” remains rather obscure and controversial.
Table of Contents
Part I The Commission Proposal for a "Regulation on a Common European Sales Law (CESL)"– Too Broad or Not Broad Enough? (Hans-W. Micklitz/Norbert Reich) - 1-38
Part II An Optional Law on Off-premises, Distance Sales and Unfair Terms for European Business and Consumers? (Hans-W. Micklitz) - 39-66
Part III An Optional Sales Law Instrument for European Businesses and Consumers? (Norbert Reich) - 67-93
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European Commission, 269722
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The research leading to these results has received funding from the European Research Council under the European Union’s Seventh Framework Programme (FP/2007–2013) / ERC Grant Agreement n. [269722].