The proposal for a common European sales law : a step ahead?

Abstract

Contract law is incisive on the daily lives of citizens and forms part of the core societal order of the Member States of the European Union (EU). In this context, the evolution of EU contract law has been rather slow and pragmatic, whilst characterised by opposing views and at times resistance by Member States; the latter being at the gate to prevent any illicit intrusion from Brussels on their national laws and traditions. In October 2011 the European Commission proposed the first hard-law proposal on EU sales law, beyond the case-specific rules present in the consumer acquis. The proposal is an optional instrument that applies to cross-border sales of goods and digital content and the provision of related services between traders where one of the parties is a small or medium sized enterprise (SME), or between traders and consumers. This dissertation assesses whether the proposed regulation for an optional Common European Sales Law (CESL) is the right way forward: will it help to break down the barriers in the internal market, facilitate trade, enhance contract law harmonisation, provide a practical and feasible choice and offer a higher level of protection? This work briefly analyses the un/development of EU law in the ambit of private international law and more specifically contract law, for the purpose of putting the proposed CESL into context. Thereafter, it deals with the major contentious issues in relation to the proposal by reference to the context in which it was proposed and by analysis of its provisions in contrast with the present acquis. A comparison between the proposed CESL and current Maltese law is also presented to determine whether a consumer will be better off under the proposed CESL or otherwise. Finally, a prediction on the fatality or success of the proposed CESL is undertaken.