Is the CESL a really proper solution for reducing difficulties in cross-border trade within the European Single Market caused by differences between national contract laws?

Abstract: The European Single Market is built on a patchwork of contract laws and according to the European Commission’s findings differences between contract laws of the respective Member States substantially complicate cross-border trade. More specifically, the fragmentation of contract laws contributes to increasing legal complexity and costs for businesses while lowering consumers’ confidence in shopping across border as they feel unsure about their rights and level of protection. In addition, when businesses refuse sales to consumers in others Member States (e.g. because of costs related to compliance with consumer mandatory provisions of each national law), consumers are deterred from accessing better offers often found in another EU country which leads to missing out on opportunities of the Single Market. As the current EU contract law framework has shown to be an insufficient solution for the approximation of national laws, a number of Member States and stakeholders have acknowledged that an EU contract law instrument was needed to remedy those legal impediments faced by sellers and buyers. So, the European Commission issued a proposal for a Regulation that would establish an optional “Common European Sales Law” (CESL). The present study scrutinized the extent to which this future legislation would really succeed in reducing legal complexity and transaction costs for businesses in both B2B and B2C cross-border transactions within the EU as well as whether it would increase confidence and provide better opportunities for consumers in shopping abroad. Although the European Commission’s efforts for tackling those problems deserve merits, the analysis carried out herein has demonstrated that the optional CESL, as it currently stands, is presenting serious drawbacks which undermine its goals. In particular will be approached its limited personal and substantive scopes, its unclear interplay with Article 6 of Rome I Regulation as well as its complex opt-in process in B2C contracts. Thus, this proposed regime still needs some improvements in order to be considered a real useful option for businesses and consumers in their across border commercial relations within the Single Market.