Creating a Consumer Law for Professionals: Radical Innovation or Consolidation of National Practices?

Abstract

In October 2011, the European Commission published its Draft Regulation for a Common European Sales Law. The idea behind the Draft Regulation is simple. At present, 28 different sales systems are applied throughout the European Union. These differences deter both traders and consumers from engaging in cross-border trade within the internal market. Sometimes unconscious of and suspicious about the rules applicable in other Member States, and always fearing the application of different rules in every Member State, traders are dissuaded from entering into cross-border trade, while consumers are hindered from accessing products offered by traders in other Member States. Particular attention is being paid to the role of small and medium-sized companies (hereinafter SMEs). It is the Commission’s view that especially SMEs experience difficulties when offering their goods and services abroad. “The costs resulting from dealings with various national laws are burdensome particularly for SMEs. In their relations with larger companies, SMEs generally have to agree to apply the law of their business partner and bear the costs of finding out about the content of the foreign law applicable to the contract and of complying with it. In contracts between SME, the need to negotiate the applicable law is a significant obstacle to cross-border trade. […], these additional transaction costs may even be disproportionate to the value of the transaction.” Many have stated that the European Commission is hereby willing to create a ‘consumer law for professionals’. A first question arises, i.e. whether this assumption is correct. A first glance at the explanatory memorandum, as well as the preamble to the Draft Regulation, suggests that such is not the case: it looks as if the position of SMEs only receives particular attention for internal market purposes. Whereas article 1 of the Draft Regulation proclaims that “in relation to contracts between traders and consumers, this Regulation comprises a comprehensive set of consumer protection rules to ensure a high level of consumer protection, to enhance consumer confidence in the internal market and encourage consumers to shop across borders”, a comparable provision for SMEs has not been provided for. It is true that the assumption that the realization of the internal market and the protection of the consumer coincide with one another, has often dominated underlying the European discourse in the past. However, it seems doubtful that one can create a consumer law protecting professionals by merely ensuring the full realization of the internal market. It is one thing to provide for common rules; it is another to protect specific contract parties. A comparison of the relevant articles of the P.CESL with the approach currently taken by the Member States towards the issue of inequality of bargaining power in B2B-transactions, however shows that the P.CESL is at least indirectly capable of offering some sort of protection to the weaker company in a contractual relationship. The contribution hence focuses on the question whether protective commercial law currently exists at either the national or supranational level, or whether the idea is completely new, and if so, how these national rules exactly look like. The national examples will show that the creation of an extensive body of rules which aims at covering the entire life cycle of a contract, and which is to a large extent based upon a comparison of these national rules, as the P.CESL sets out to do, almost inevitably entails some form of protection for the weaker party in a B2B-contract.