Unlike the actual text for the proposed Common European Sales Law (CESL), which is based on extensive preparatory work by academics, the regime for opting into the instrument, which is set out in the main text of the proposed regulation, is entirely of the European Commission’s own making. The approach adopted by the Commission is innovative and generally convincing. However, probably because of its novelty, the proposal also raises some questions. However, probably because of its novelty, the proposal also raises some questions. These brief comments concentrate on three main issues: 1) the nature of the CESL as a second national regime and its implications; 2) the question what amounts to an agreement to use the CESL; and 3) the duty to draw the consumer’s attention to the intended application of the CESL and its sanction.
Characterising the optional instrument as a 2nd national regime rather than as a 28th regime has the important effect of neutralising the effect of Art 6 Rome I in B2C contracts. This seems acceptable politically and constitutionally (art 114 (3) TFEU) as long as the level of consumer protection within the common sales law remains as high as it is in the current proposal.
In B2B contracts, although an implied choice for the CESL is permitted it is misguided for the regulation to suggest, as it does in the proposal, that a choice for the CESL would imply ipso facto the opting-out of the CISG, since the question what amounts to an exclusion of the CISG is matter of interpretation of the parties’ intentions under the CISG alone.
The duty for sellers in B2C contracts to draw the consumer’s attention to the intended application of the CESL by providing the consumer with a Standard Information Notice is not likely to bring consumer much extra protection while the proposed sanction will bringundue legal uncertainty.
Hesselink, Martijn W., How to Opt into the Common European Sales Law? Brief Comments on the Commission’s Proposal for a Regulation (October 26, 2011). Amsterdam Law School Research Paper No. 2011-43; Centre for the Study of European Contract Law Working Paper Series No. 2011-15.