The Withdrawal of the Common European Sales Law Proposal and the European Commission Proposal on Certain Aspects Concerning Contracts for the Online and Other Distance Sales of Goods

Abstract

The chapter examines the reasons why the 2011 European Commission Proposal on Common European Sales Law (CESL) was so important for the formation of the contract at European level, and the reasons why it was withdrawn by the European Commission. It then focuses on the 2015 Online Sales of Goods (OSG) Proposal and demonstrates its drawbacks and its innovations in comparison with the CESL proposal and the existing European Union (EU) consumer legislation. In both cases, the reactions of the Member States and EU Institutions are discussed in order to show that the time has not come for a comprehensive body of an EU contract law, covering the full cycle of a contract. The chapter explains the importance of the Digital Single Market and the holistic approach taken by the European Commission in order to attain it. It presents the legal mosaic that may be created in comparison e.g. with the Consumer Sales Directive 1999/44/EC (CSD) and the Consumer Rights Directive 2011/83/EU (CRD), the legal fragmentation of the markets and the role of the EU principle of subsidiarity. It analyses the innovative provisions of the draft OSG proposal and demonstrates their advantages and disadvantages. The author believes that flexibility is necessary during the final negotiation of the OSG text, so that the “play of 20 questions” stop and that this Directive of total harmonisation in most aspects of the formation of the consumer contract finally be adopted. Minimum harmonisation in one or two fundamental issues that otherwise would lower the level of consumer protection in many Member States, may be used in combination with a data basis in the e-justice portal of the European Commission as a less harmful measure. The author concludes that certain “compensating to the consumer” provisions of the proposal must be amended to strike a fair balance between the interests of the seller and the consumer, since the US experience has shown that the motivation of the seller is also very important for the growth in e-commerce. Last but not least, the author criticizes the attempted fragmentation of the contract types in several categories according to the method of sale. The reactions of the stakeholders and the EU institutions were so strong that the European Commission amended its OSG proposal on 31st October 2017, and extended the provisions of the initial OSG proposal to all types of consumer contracts, face-to-face and online ones, repealing Directive 1999/44/EC and establishing a true “CSD+” (word used by Professor H. Beale) which covers the majority of B2C transactions for the sale of goods.