Common European sales law (CESL)

In “Legal Affairs - JURI”

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Applying the principle of discontinuity, the Juncker Commission has listed, in its 2015 annual work programme, a series of legislative proposals that it intends to withdraw or modify after consulting the Parliament and the Council, amongst which is the draft regulation on a common European sales law (CESL), submitted in October 2011.

The objective of the proposal on a CESL was to establish an optional EU-wide sales law that consumers and small and medium-sized enterprises (SMEs) would be able to use when buying digital products such as music or software by downloading them from the cloud. The CESL was due to stimulate trade by encouraging cross-border sales and to enhance consumer trust in the purchasing of goods abroad. Consumers were to benefit from increased choice, and business, in particular SMEs, would have found it easier to extend their market.

The proposed CESL was intended to be an 'optional instrument', meaning it would contain, in its annex, a single set of pan-EU rules which would exist in parallel to Member States' contract law. Those rules would have the legal force of an EU regulation, and therefore would be directly and uniformly applicable across the EU (Article 288(2) TFEU). However, their applicability to a concrete contractual relationship would not be automatic, but would depend on the parties' decision. The proposal was based on Article 114 TFEU, which allows the EU to legislate in order to harmonise legal rules applicable in the internal market. However, this legal basis gave rise to controversies, since creating a set of rules parallel to national law (optional instrument) does not 'harmonise' the national rules nor replace them.

In September 2013, the Legal Affairs Committee (JURI) adopted its report backing the proposal, and in particular the optional character of the instrument and the legal form of a regulation. Importantly, the Parliament opted for limiting the scope of CESL to distance contracts only. The JURI Committee relied on the feedback from two other committees, associated for opinion. The Committee on the Internal Market and Consumer Protection (IMCO), which acted as associated committee, suggested changing the legal form of CESL into a directive, which would harmonise certain aspects of the seller's liability towards consumers, thereby supplementing the existing Consumer Rights Directive.

The IMCO Committee had 'fundamental doubts concerning the suitability of the Commission proposal' and warned that creating an optional instrument would lead to complicating the legal situation and would be disadvantageous to consumers. Furthermore, it would lead to legal uncertainty.

A more favourable view was taken by the Committee on Economic and Monetary Affairs (ECON), which stressed the political difficulties entailed by total harmonisation, and therefore supported the optional instrument.

In February 2014, the Parliament adopted its legislative resolution on the CESL, proposing to limit its scope to cross-border business-to-consumer transactions only.

The fate of the CESL proposal was decided on 16 December 2014, when the Commission officially placed it on the list of proposals to be modified or withdrawn, indicating that the proposal will be '[m]odified (...) in order to fully unleash the potential of e-commerce in the Digital Single Market'. However, during the five years that have passed since, the CESL proposal formally was not withdrawn, but the Council was not discussing it and the European Parliament did not appoint a rapporteur in the 2014-2019 term. Finally, on 21 October 2019, the Conference of Presidents ruled that the Parliament should request the Commission formally to withdraw the CESL proposal.


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Author: Rafał Mańko, Members' Research Service,

As of 20/11/2019.