Although Article 114 TFEU leaves considerable room for discretion for the legislator to determine the impact of future legislation on the internal market, it is not certain whether optional harmonisation falls within this wide competence. The discretion of the Union legislature has resulted in consultations and an impact assessment that seem to be geared towards the swift adoption of the CESL. However, the CESL is to be an optional instrument, and its success depends on contract parties’ voluntary adoption. Consequently, identifying the needs and preferences of legal practice is essential. If the drafters would take these needs and preferences into account, this may help them to draft an instrument that provides a clear added value to contract parties, which may induce these parties to opt for the CESL. A better use of consultations and impact assessments could have contributed to identifying the needs and preferences of contract parties and legal practice. In addition, a more functional approach that would take legal practice as a starting point could also contribute to the added value of the CESL. A starting point for a functional approach could be often-used boilerplate clauses. Presently, the interpretation of these clauses in cross-border cases may lead to ‘surprises’ for contract parties. Possibly, the CESL could provide a clear added value by providing a framework for the consistent interpretation of boilerplate clauses throughout the Union. However, a closer look at the CESL reveals that the CESL currently does not provide more clarity. Also, questions on the competence of the CJEU in the interpretation of the CESL arise. Some more general conclusions on the possible future use of optional harmonisation will also be drawn.
van Schagen, Esther, The Proposal for a Common European Sales Law: How its Drafting Process Might Affect the Optional Instrument’s Added Value for Contract Parties and its Success (December 1, 2011). MBM Loos, ALM Keirse (eds), Alternative ways to a ius commune, Intersentia: Antwerp 2012.