From a law-and-economics perspective, the European Commission’s proposal for the introduction of an optional Common European Sales Law (CESL) has been criticized for over-regulating consumer sales law in Europe and for being likely to yield more costs than benefits. In defense of CESL, it is submitted here that its optional nature may mitigate the risk of over-regulation and provide an opportunity for firms to tailor their activities to consumer preferences in different markets. Furthermore, although the introduction of an optional instrument may increase transaction costs, it does not seem to be excluded that the benefits of increased cross-border trade may (on a long-term basis) outweigh these costs. Finally, in order to evaluate the institutional choices underlying the proposed rules of CESL, and other instruments of European contract law, it is suggested that the further analysis of these rules should take into account the legal-political as well as the legal-economic backdrop to this field of law.
Mak, Chantal, Unweaving the CESL: Legal-Economic Reason and Institutional Imagination in European Contract Law (June 15, 2012). Amsterdam Law School Research Paper No. 2012-73; Centre for the Study of European Contract Law Working Paper Series No. 2012-10.