# EUR-Lex - 52011DC0636 - EN

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# 52011DC0636

**COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS A COMMON EUROPEAN SALES LAW TO FACILITATE CROSS-BORDER TRANSACTIONS IN THE SINGLE MARKET /* COM/2011/0636 final */**

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1.
Context

One of the European Union’s most
significant achievements is the single market of 500 million consumers. Its
fundamental freedoms entitle businesses and citizens to move and interact
freely in a borderless Union. The steady lowering of barriers between EU Member
States has brought numerous benefits to citizens, such as the freedom to
travel, study and work abroad. Citizens in their capacity as consumers have
enjoyed a number of economic benefits such as lower air fares and mobile
telephone roaming charges and the possibility to access a larger variety of
products. Traders have been able to expand their activity across borders, by
importing or exporting goods, providing services or establishing themselves
abroad. Thus they benefit from the economies of scale and the greater business
opportunities that the single market offers.

Despite these impressive successes,
barriers between the EU Member States still remain. They do not always allow
citizens and businesses to take full advantage of the single market and more
specifically cross-border trade. Many of these barriers result from differences
between national legal systems. Among the main barriers that hinder
cross-border trade are differences between the contract law systems of the EU’s
27 Member States.

All economic transactions are based on
contracts. This is why differences in the rules on how a contract is concluded
or terminated, how the delivery of a faulty product has to be remedied or what
interest has to be paid in the case of a late payment are felt in the daily
life of both traders and consumers. For traders, these differences generate
additional complexity and costs, notably when they want to export their
products and services to several other EU Member States. For consumers, these
differences make it more difficult to shop in countries other than their own, a
situation which is particularly felt in the context of online purchases.

·
Difficulties for traders due to the existence of
different contract laws

The existence of contract law related
barriers may have a negative impact on businesses who are considering trading
cross border and may dissuade them from entering new markets. Once a trader
decides to sell products to consumers or businesses in other Member States, he
becomes exposed to a complex legal environment characterised by the variety of
contract laws that exist in the EU. One of the initial steps is to find out
which law is applicable to the contract. If a foreign law applies, the trader
has to become familiar with its requirements, obtain legal advice and possibly
adapt the contract to that foreign law. When trading online, the trader also
may have to adapt his web-site to reflect mandatory requirements that apply in
the country of destination. Traders rank the difficulty
in finding out the provisions of a foreign contract law first among the
obstacles to business-to-consumer transactions and third for
business-to-business transactions[1].

Overcoming these hurdles means incurring
transaction costs. These have the greatest impact on small and medium-sized enterprises
(SMEs), in particular on micro and small enterprises, because the cost to enter
multiple foreign markets is particularly high when compared to their turnover.
The transaction costs to export to one other Member State could amount up to 7%
of a micro retailer's annual turnover. To export to four Member States this
cost could rise to 26% of its annual turnover.[2]
Traders who are dissuaded from cross-border transactions due to contract law
obstacles forgo at least €26 billion in intra-EU trade every year.[3]

·
Difficulties for consumers due to the existence
of different contract laws

44 % of consumers say
that uncertainty about their rights discourages them from buying from other EU
countries.[4]
While a third of consumers would consider buying online from another EU country
if uniform European rules would apply[5],
only 7 %
currently do.[6]
Their uncertainty is often linked to concerns about what they can do if
something goes wrong and uncertainty about the nature of their rights if they
buy from another country. On the other hand, consumers who are confident and
proactively search for products across the EU, in particular online, are often
refused sales or delivery by the trader. At least 3 million consumers had this
experience over a one year period. In practice, attempts to purchase products
online more often fail than succeed[7]
in a cross-border context and often end-up with a disappointing message such as
“this product is not available for your country of residence.”

The Commission's ambition is to remove the
remaining barriers to cross-border trade, helping traders in their transactions
and making cross-border shopping easier for consumers. It has been demonstrated
that bilateral trade between countries which have a legal system based on a
common origin, such as common law or the Nordic legal tradition, is 40% higher
than trade between two countries without this commonality.[8] With this in mind, the European
Commission included a legal instrument on European contract law in its Work
Programme 2011,[9]
as specifically drawn to the attention of the European Parliament in a letter
addressed by President Jose Manuel Barroso to the President of the European
Parliament, Jerzy Buzek.[10]
The need to tackle barriers posed by differences in contract law is
specifically recognised in the Europe 2020 Strategy[11] and a number of other
strategic documents for the EU. They include the Action Plan for
Implementing the Stockholm Programme;[12]
the Digital Agenda for Europe[13]
which provides for an optional contract law instrument as one of its key
actions to promote the digital economy; the Small Business Act Review[14] which aims to tackle the obstacles, including those related to contract law, that
hamper SMEs’ potential to grow; and the Single
Market Act[15]
which advances the idea of a legal instrument that would facilitate
cross-border transactions. In addition the Annual Growth Survey which
opened the first European Semester underlined the potential of a legal
instrument on European contract law for stimulating growth and trade in the
single market.[16]
The Polish Presidency of the Council of Ministers has
made the further work on European contract law a priority for the second half
of 2011[17].

1.1.
The current legal framework

The current legal framework in the EU is
characterised by differences in contract laws between the Member States. EU
legislation contains a number of common rules often tackling specific problems,
but as can be seen from Annex I, these harmonised rules do not touch most areas
of contract law, and where they apply, more often than not they still leave
Member States with substantial flexibility to apply different rules. In
Europe’s single market, there is no single set of uniform and comprehensive
contract law rules which could be used by businesses and consumers in
cross-border trade.

·
Conflict of law rules

In order to improve legal certainty in
cross-border transactions, the EU put in place uniform conflict of law
rules. The Rome I Regulation on the law applicable to contractual obligations
allows contracting parties to choose which law applies to their contract and to
determine which law applies in the absence of such a choice.[18] However, due to their nature,
conflict of law rules cannot remove the differences between substantive
contract law. They only lead to the determination of the substantive national
law which applies to a cross-border transaction when several different national
laws could potentially apply.

Furthermore, in cross-border
business-to-consumer transactions, Article 6(2) of the Rome I Regulation also
requires traders which direct their activity to the consumer's country of
residence – this could happen, for example by opening a website in the language
of this country, by offering to sell in the consumers currency or by using a
top level domain name other than the one in the trader's country – to comply
with the mandatory level of consumer protection in the consumer’s country of
residence. The trader may either apply the consumer's national law in its
entirety or choose another law, in practice most likely its own law. However,
even in the latter case the trader still needs to ensure compliance with the
mandatory consumer protection provisions stemming from the consumer's national
law, whenever they provide a higher level of protection. As a result, the
trader’s standard terms and conditions may have to be amended to the
requirements of different countries.

·
Substantive law rules

The EU has taken some important steps to
reduce the differences between the substantive laws, in particular in relation
to consumer law, through the harmonisation measures that have been adopted.
However, these harmonisation measures fall short of covering the whole
life-cycle of a contract, and thus do not remove the need for a trader to take
account of the contract law systems of his country of destination. In addition,
these harmonisation measures are limited mainly to business-to-consumer
transactions.

For business-to-consumer (B2C) contracts, the EU legal framework has led to a significant increase in
protection to the advantage of consumers. However, notwithstanding the progress
made in the recently adopted Consumer Rights Directive in aligning national
laws, it is clear that in the field of consumer and contract law, there are
political limits as to how far the 'full harmonisation' approach can be taken.
This is reflected in the fact that the Directives relating to unfair contract
terms and sales remedies[19]
which allow Member States to build upon the core harmonised rights to various
degrees have been retained by the European Parliament and the Council.

For business-to-business (B2B)
contracts, the substantive rules the EU has adopted
are even more limited in scope than for B2C contracts, covering a few specific
issues in the area of contract law. For example the Directive on combating late
payments[20]
harmonises the rules on the default interest rate in cases of late payment, but
allows Member States to apply more stringent rules. At the international level,
a set of rules of a broader scope for B2B transactions was introduced by the
1980 UN Convention on the International Sales of Goods (the Vienna Convention).
However, the Vienna Convention was not ratified by all Member States and is not
applicable in the UK, Ireland, Portugal and Malta. It does not cover the whole
life-cycle of a contract comprehensively and (in the absence of a compulsory jurisdiction
within the UN system comparable to the one offered by the European Court of
Justice for the EU’s single market) contains no mechanism ensuring its uniform
application as different national courts may interpret it differently. Only a
relatively small number of traders use the Vienna Convention.[21]

1.2.
The need for action at European Union level

The
EU has been working on European contract law for a
decade. With its 2001 Communication on European
contract law,[22]
the Commission launched a process of extensive public consultation on the
problems arising from differences between Member States' contract laws. As a
follow-up, the Commission issued an Action Plan in 2003,[23] proposing to improve the
quality and coherence of European contract law by establishing a Common Frame
of Reference containing common principles, terminology and model rules to be
used by the Union legislator when making or amending legislation.

The
Commission subsequently financed the work of an international academic network
which carried out the preparatory legal research. This research work was
finalised at the end of 2008 and led to the publication of the Draft Common Frame
of Reference[24]
as an academic text.[25]
In parallel to this, analytical work was also carried out by the Association
Henri Capitant des Amis de la Culture Juridique Française and the Société de
Legislation Comparée drafting the Principes Contractuels Communs.[26]

On 1 July 2010,
the Commission launched, for a period of six months, a public consultation
(Green Paper) on different ways to make contract law more coherent in the EU.
The Green Paper put forward a range of different policy options. They included
a ‘toolbox’ setting out coherent definitions, principles and model rules on
topics related to contract law, a Regulation which would replace all national
contract laws with a single European law, or the idea of an optional instrument
in the EU which would be available as an alternative to existing national laws
for parties to choose. The Commission received 320 replies[27] to this consultation. Several
stakeholders saw value in a ‘toolbox’, while Option 4 (an optional instrument
of European contract law) received support either independently or in
combination with a ‘toolbox’, provided that it fulfilled certain conditions,
namely a high-level of consumer protection and clarity and user-friendliness of
the provisions.

Prior
to this, by Decision of 26 April 2010,[28]
the Commission set up an expert group on European contract law, which comprised
of former judges, legal practitioners, and academics from across Europe. On the
basis of the research done so far, the Group was tasked with developing a
Feasibility Study on a possible future European contract law instrument
covering the main aspects which arise in practice in cross-border transactions.
To ensure close interaction between the work of the Expert Group and the needs
identified by consumers, businesses (notably SMEs) and the legal profession, a
key stakeholder group (so-called ‘Sounding Board’) was set up by the Commission
which gave practical input to the Expert Group on the user-friendliness of the
rules developed for the Feasibility Study. The Feasibility Study was published
on 3 May 2011 – as a ‘toolbox’ to inspire the further work of the EU
institutions – which led to valuable input from stakeholders and legal experts.
Of the 120 contributions received from interested parties, the majority of comments
broadly grouped around three main issues concerning the proposal: its
user-friendliness, the balance between business and consumer interests and
legal certainty. The Commission took on board many of the suggestions which
further improved and strengthened the proposal. The Commission also asked
stakeholders whether digital content ought to be included in the proposal – the
majority of respondents replied positively.

The European Parliament has for many years
strongly supported the work on European contract law.[29] In June 2011, in response to
the Commission’s Green Paper, the Parliament voted with a four-fifths majority
in support of optional EU-wide contract rules that would ease cross-border
transactions (Option 4 of the Green Paper).[30] The European Economic and Social Committee has also adopted an
Opinion in favour of an optional advanced new regime on contract law[31].

2.
An optional Common European Sales Law
2.1.
Functioning of the Common European Sales Law

Following the extensive consultation with
stakeholders, and on the basis of an impact assessment, the Commission has
decided to bring forward a proposal for a Regulation of the European Parliament
and of the Council on a Common European Sales Law. This proposal is meant as a
contribution to enhancing growth and trade in the internal market on the basis
of freedom of contract and a high level of consumer protection, in line with
the principles of subsidiarity and proportionality. The proposal integrates the
‘toolbox’ developed by the Expert Group on European contract law and the
‘Sounding Board’ of stakeholders, taking into account the input received on it
by stakeholders and experts.

The Commission proposal for a Common
European Sales Law foresees a comprehensive set of uniform contract law rules
covering the whole life-cycle of a contract, which would form part of the
national law of each Member State as a 'second regime' of contract law. This
‘second regime’ is carefully targeted to those contracts that are most relevant
to cross-border trade, and where the need for a solution to the barriers that
have been identified is most apparent. It is characterised by the following
features:

A contract law regime common to all
Member States: The Common European Sales Law will
be a 'second regime' of contract law that is identical in every Member State. It
will be common for the whole of the EU.

An optional regime: Choice of the Common European Sales Law will be voluntary. In line
with the principle of freedom of contract, a trader is free to choose to offer
a contract under this regime (opt-in system) or to remain with the existing
national contract law. Neither businesses nor consumers are obliged to conclude
a contract on the basis of the Common European Sales Law.

Focus on 'sales' contracts: The Common European Sales Law will introduce a self-standing and complete
set of rules for sales transactions. This will in particular but not
exclusively be useful for the online supply of goods. It could also be used by
traders selling goods and directly related services offered by the trader, for instance
installation of kitchen equipment. As goods account for the major share of
intra-EU trade,[32]
tackling the obstacles to sales transactions will have a positive impact on the
overall intra-EU trade. In order to take into account the increasing importance
of the digital economy, and to ensure that the new regime is 'future-proof',
digital content contracts will also fall within the scope of the new rules.
This means that the Common European Sales Law could also be used, for example
when buying music, films, software or applications that are downloaded from the
internet. These products would be covered irrespective of whether they are
stored on a tangible medium such as a CD or a DVD.

Limited to cross-border contracts: The scope of the Common European Sales Law is focussed on
cross-border situations where the problems of additional transactions costs and
legal complexity arise. The Common European Sales Law is therefore targeted to
where it is needed and is not available as a general substitute to existing
national contract law. It is left to the discretion of Member States whether to
give the regime a wider application. Member States thus have the choice to make
the Common European Sales Law also available for domestic contracts – which
could further reduce transaction costs for businesses active on the single
market. Focus on B2C contracts and B2B contracts where at least one party is
an SME: The scope of the Common European Sales Law is focussed on aspects
which pose real problems in cross-border transactions, i.e.
business-to-consumer relations and business-to-business relations where at
least one of the parties is an SME. Contracts concluded between private
individuals (C2C) and contracts between traders where neither of the parties is
an SME are not included, as there is at the moment no demonstrable need for
EU-wide action for these types of cross-border contracts. The Common European
Sales Law leaves Member States the option to decide to make the Common European
Sales Law also available for contracts concluded between traders neither of
which is an SME. The Commission will keep the matter under review in the coming
years to see whether additional legislative solutions may be required as
regards C2C and B2B contracts.

Identical set of consumer protection
rules: The Regulation will establish for all the
areas of contract law the same common level of consumer protection. As both a
political and legal imperative, this harmonisation is carried out on the basis
of a high level of consumer protection. It will lead to a harmonised regime
that will ensure that a consumer is protected and safe whenever the Common
European Sales Law is used.

A comprehensive set of contract law
rules: The Common European Sales Law includes rules
that cover issues of contract law that are of practical relevance during the
life-cycle of a cross-border contract. These issues fall within the areas of
the rights and obligations of the parties and the remedies for non-performance,
pre-contractual information duties, the conclusion of a contract (including
formal requirements), the right of withdrawal and its consequences, avoidance resulting
from a mistake, fraud or unfair exploitation, interpretation, the contents and
effects of a contract, the assessment and consequences of unfairness of
contract terms, restitution after avoidance and termination as well as
prescription. It settles the sanctions available in case of the breach of the
obligations and duties arising under its application. On the other hand,
certain topics that are either very important for national laws or less
relevant for cross-border contracts – such as rules on legal capacity,
illegality/immorality or representation and the plurality of debtors and
creditors – will not be addressed by the Common European Sales Law. These
topics continue to be governed by the rules of the national law that is
applicable under the Rome I Regulation.

With an international
dimension: The proposal also has an international vocation in that, in
order to be applicable, it is sufficient that only one party is established in
a Member State of the EU. Traders could use the same set of contract terms when
dealing with other traders from within and from outside the EU. European
consumers could enjoy more product choice with the guaranteed level of high
protection offered by the Common European Sales Law where traders from third
countries are willing to sell their products in the internal market on this
basis. This international vocation enables the Common European Sales Law to
become a standard setter for international transactions in the area of sales
contracts.

2.2.
Effectiveness of the Common European Sales Law

The Commission’s approach tackles the
problems that differences in contract law pose for consumers and traders in the
manner most respectful of the principles of proportionality and subsidiarity,
when compared to other possible solutions analysed. An optional Common European
Sales Law will be more effective than soft law solutions, such as a simple
‘toolbox’ (which, as a non-binding instrument, would not be able to give
traders or consumers legal certainty for their transactions), because it will
create a single and uniform set of contract law rules that will be directly
available for businesses and consumers. At the same time, the combination of the
characteristics outlined above, in particular, the fact that the Common
European Sales Law represents an optional but identical set of rules applying
only in cross-border cases means that it can lower barriers to cross-border
trade without interfering with deeply embedded national approaches and
traditions. For instance, it will allow Member States to maintain different
consumer protection levels in their already existing domestic contract law in
accordance with the EU acquis. The Common European Sales Law will be an
optional addition to existing contract law rules without replacing them. Thus
the legislative measure will only go as far as necessary to create further
opportunities for traders and consumers in the single market. In addition,
there is greater scope to agree on a set of identical rules based on a high
level of protection as included in the Common European Sales Law, precisely
because of the voluntary nature of the regime. A business can opt for the
system, because it wishes to be associated with the high level of protection
provided, but there is no obligation for it to do so.

·
Advantages for business

When a trader chooses the Common European
Sales Law, it would be the only contract law rules that would apply in the area
covered by its scope. Therefore, the trader would have to consider only one set
of rules – those of the Common European Sales Law. It would no longer be
necessary to consider other national mandatory provisions as they would
normally have to when concluding a contract with a consumer from another Member
State. It would be sellers who would in practice take the initiative in opting
to use the Common European Sales Law. Buyers would then have to give explicit
consent before this type of contract could be used.

The Common European Sales Law will ensure
that businesses can substantially cut their transaction costs. In practice, a
business seeking to expand into new markets would need to familiarise itself
with just one contract law system in addition to the one with which it is already
familiar. Once chosen, it represents a saving compared to the 26 national
contract laws they would otherwise have to research to trade throughout the EU.
Traders can therefore benefit from this simpler common legal environment and
have more confidence to expand into new markets. When selling to consumers in
other countries, traders can use their adherence to the Common European Sales
Law as a mark of quality.

For B2B contracts, use of the Common
European Sales Law would add value by easing negotiations of the applicable law
for SMEs. It could be easier to agree on a neutral law that is equally
accessible for both parties in their own language. Having familiarised
themselves with the Common European Sales Law once, traders would no longer
incur costs whenever it applies. As the problem of costs particularly affects
SMEs, the Common European Sales Law is thus targeted at those B2B contracts
where at least one of the parties is an SME. To ensure that maximum benefit can
be reaped by SMEs the Commission would encourage Member States, via appropriate
channels, to inform traders about the Common European Sales Law and its
benefits. In addition, every Member State is given the choice to make the
Common European Sales Law also available for B2B contracts where neither of the
parties is an SME, where a Member State considers this to be appropriate.

·
Advantages for consumers

The Common European Sales Law has been
designed to provide consumers with a high level of protection, and is the same
in all Member States so that it can be seen as a mark of quality that can be
trusted by consumers when buying across borders. One of the best examples of
this is the fact that the Common European Sales Law will offer consumers a free
choice of remedies if a faulty product is delivered. It therefore provides
consumers with the possibility to terminate the contract immediately. Currently
such a free choice does not exist for the large majority of consumers across
the EU[33].
This high level of consumer protection will give consumers the confidence and
incentive to buy products in other EU countries.

In the interests of transparency, the
proposal will guarantee that a consumer is always informed, and consents to the
fact that the contract is concluded on the basis of the Common European Sales
Law. This information must be provided by the trader to a consumer alongside a
summary of the core rights protected by way of a standardised information
notice. This notice will help consumers understand their core rights and
thereby tackle the uncertainty that dissuades many consumers from shopping
cross-border. As the information notice will be presented in a clear and
concise format, as well as being provided in all official languages of the EU,
it will help consumers who do not read the terms and conditions of their
contracts, because of their length and complexity.

The greater availability of cross-border
offers will benefit consumers in markets which are presently by-passed by
traders because of contract law complexities or because, for businesses, the
small size of the market does not justify incurring high transaction costs for
entry. These consumers will benefit as more competition in the internal market
will provide more choice of products and the prospect of lower prices.

2.3.
Relationship with the acquis

The proposal represents a complementary
approach to that found in the existing acquis in the field of consumer
protection. In the first instance, it incorporates and is consistent with those
measures, albeit that it is not limited by minimum levels of protection that
have been set. Secondly, given its limitation to cross-border contracts, it is
not a replacement for the generally applicable acquis. There will therefore be
a continuing need to develop consumer protection standards using the traditional
harmonisation approach used in this area. In this respect, it can be expected
that over time the two approaches will develop in tandem, and inspire one
another.

The proposal is in line with other EU
policies. For example it envisages that traders consider using alternative dispute
resolution as an efficient, quick and inexpensive way of resolving disputes
without going to court. Furthermore, those who do wish to go to court for
amounts not exceeding €2000, are able to access the European Small Claims
Procedure which has been established to facilitate cross-border recovery of
debts.

The proposal also provides support for
future initiatives which aim at reducing barriers to trade in the single
market, whether through harmonisation Directives or by other appropriate
measures. It contains some specific, sales-related rules for contracts for the
supply of digital content which could in the future provide a basis for a more
comprehensive policy and measures on consumer protection in the digital market.
By 2018, the provisions of the Regulation itself will be reviewed taking into
account, amongst others, the need to further extend the scope in relation to
B2B contracts, market and technological developments in respect of digital
content and future developments of Union acquis.

The Commission will also continue to
examine broader aspects of consumer law, such as whether to update or extend
consumer-related rules, for instance when revising the Unfair Commercial
Practices Directive and the Misleading Advertising Directive. In addition, the
Commission will also continue reflecting on B2B commercial practices, including
in their contractual dimension.

2.4.
Flanking measures

In order to ensure the effective
application and the uniform interpretation of the Common European Sales Law,
the proposal envisages future supporting measures.

Following suggestions made by the European
Parliament, businesses, legal practitioners and consumer organisations, the
Commission will work closely with all relevant stakeholders to help develop
‘European model contract terms’ for specialist areas of trade or sectors of
activity. A model contract which has standard terms and conditions and is
available in all official languages of the European Union could be helpful for traders
wishing to conclude cross-border contracts for which the Common European Sales
Law is chosen. The Commission will, within 3 months of the entry into force of
the Common European Sales Law, start this process by setting up a Group of
Experts which represents in particular, the interests of the users of the Common
European Sales Law. Stakeholders could contribute the necessary knowledge and
expertise about commercial practices and draw up standard terms and conditions
in their sector while applying lessons from their first hand practical
experiences with the use of the Common European Sales Law.

In order to ensure the uniform
interpretation and application of the Common European Sales Law, the proposal
also envisages the establishment of a publicly accessible database of European
and national judicial decisions which have a bearing on the interpretation of
the provisions of this instrument. Member States will be asked to notify such
judgments to the Commission without delay.

In order to facilitate a common
understanding of the provisions of the Common European Sales Law, the
Commission will organise training sessions for legal practitioners who use the Common
European Sales Law[34].

3.
Conclusion

The Common European Sales Law is a concrete
solution for a tangible problem for businesses and consumers: costs and legal
uncertainty when buying or selling cross-border in Europe’s internal market. It
is also an innovative approach because, in line with the principle of
proportionality, it preserves Member States’ legal traditions and cultures
whilst giving the choice to businesses to use it. Consumers benefit, not only
because of the confidence it provides through its high level of protection, but
also because its use will lead to lower prices and more product choice. For
traders, it cuts red tape and transaction costs, thus contributing to more
cross-border trade and growth of the European economy.

The Commission will work closely with the
European Parliament and the Council and with national Parliaments to ensure a
swift agreement on the Common European Sales Law in time for the 20th
anniversary of the Single Market. The Commission will also continue to work closely
with stakeholders, and notably with the users of the Common European Sales Law
(in particular SMEs and consumers) as well as with the legal profession to
achieve a broad acceptance of the Common European Sales Law across the European
Union because, in view of its optional nature, the success of the Common
European Sales Law will in the end depend on whether and to which extent it
will be chosen for transactions in the internal market.

ANNEX I

EU Legal Framework in the area of the
proposal on a Common European Sales Law

Business-to-consumer contracts || Business-to-business contracts

Contract law area || Consumer rights Directive || Other relevant EU consumer legislation || E-commerce Directive || E-commerce Directive || Directive on combating late payments || Vienna Convention on the international sale of goods

Pre-contractual information and negotiation || YES || YES || YES || YES || NO || NO with a few exceptions

Conclusion of contract || NO || NO || YES partially || NO || NO || YES

Rights to withdraw || YES || YES || NO || NO || NO || NO

Defects in consent || NO || NO || NO || NO || NO || NO

Interpretation || NO || NO (with one exception) || NO || NO || NO || YES

Contents and effects || NO || NO || NO || NO || NO || NO with a few exceptions

Unfair contract terms || NO || YES || NO || NO || YES partially || NO

Obligations and remedies of the parties to a sales contract || NO || YES || NO || NO || NO || YES

Delivery and Passing of Risk || YES || NO || NO || NO || NO || YES

Obligations and remedies of the parties to a related service contract || NO || NO || NO || NO || NO || NO

Damages, Stipulated payments for non-performance and interest || NO || NO || NO || NO || YES || YES

Restitution || NO || NO || NO || NO || NO || YES

Prescription || NO || NO || NO || NO || NO || NO

[1]               Eurobarometer
321 on European contract law in business-to-consumer transactions, p. 23 and
Eurobarometer 320 on European contract law in business-to-business transactions,
p. 15. This situation is different in the United States of America. In spite of
the existence of different contract law systems in the 50 States a trader
established in Maryland, for example, can sell his products easily to a
consumer based in Alaska, as under US law in such a situation the trader only
needs to take account of the contract law rules applicable in Maryland and does
not need to worry about the contract law of Alaska. In addition, the US Uniform
Commercial Code has brought about strong convergence between the contract law
systems of the different States. For US traders, the economic area of the 50
States is thus much more an internal market in contract law terms than the 27
Member States of the European Union are for EU traders.

[2]               Estimate based on business
responses to the SME Panel Survey on the Impacts of European contract law,
available at: http://ec.europa.eu/justice/contract/files/report_sme_panel_survey_en.pdf
and Eurostat structural business statistics.

[3]               Eurobarometer 320, European
contract law in business-to-business transactions, pp. 24 and 25.

[4]               Eurobarometer 299a, Attitudes
towards cross-border trade and consumer protection, p. 10.

[5]               Eurobarometer 299a, p. 14.

[6]               Eurobarometer 299, Consumer
attitudes towards cross-border trade and consumer protection, p. 13.

[7]               SEC(2010)385, Third edition
of the Consumer Markets Scoreboard, p. 9. A study where mystery shoppers tried
to perform almost 11,000 test transactions showed that 61 % of the attempts to
purchase cross-border products would have failed. In 50 % of the cases traders
refused to serve the consumer's country.

[8]               A.Turrini
and T. Van Ypersele, Traders, courts and the border effect puzzle,
Regional Science and Urban Economics, 40, 2010, p. 82.

[9]               COM(2010) 623 final, 31.3.2010,
p. 7.

[10]             See http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/10/393&format=HTML&aged=0&language=EN&guiLanguage=en.

[11]             Communication from the
Commission, Europe 2020, A strategy for smart, sustainable and inclusive
growth, COM(2010) 2020 final, 3.3.2010, p. 21. See also Annual Growth Survey,
Annex I, progress report on Europe 2020, COM(2011) 11 - A1/2, p. 5.

[12]             Communication from the
Commission to the European Parliament, the Council, the European Economic and
Social Committee and the Committee of the Regions, Delivering an area of
freedom, security and justice for Europe's citizens, Action Plan Implementing
the Stockholm Programme, COM(2010) 171 final, 20.4.2010, p. 5 and p. 24.

[13]             Communication from the
Commission to the European Parliament, the Council, the European Economic and
Social Committee and the Committee of the Regions, A Digital Agenda for Europe,
COM(2010) 245 final, 26.8.2010, p. 13 and p. 37.

[14]             Communication from the
Commission to the European Parliament, the Council, the European Economic and
Social Committee and the Committee of the Regions, Review of the 'Small
Business Act' for Europe, COM(2011) 78 final, 23.2.2011, p. 11 and p. 13.

[15]             Communication from the
Commission to the European Parliament, the Council, the Economic and Social
Committee and the Committee of the Regions, Single Market Act, Twelve levers to
boost growth and strengthen confidence, Working together to create new growth, COM(2011)
206 final, 13.4.2011, p. 14 and p. 19.

[16]             Communication from the
Commission to the European Parliament, the Council, the Economic and Social
Committee and the Committee of the Regions, Annual Growth Survey: advancing the
EU's comprehensive response to the crisis, COM(2011)11 final, 12.1.2010.

[17]             See http://pl2011.eu/sites/default/files/users/shared/o_prezydencja/programme_of_the_polish_presidency_of_the_council_of_the_eu.pdf.

[18]             Regulation (EC) of the European
Parliament and of the Council No 593/2008 of 17 June 2008 on the law applicable
to contractual obligations, OJ L 177/6 4.7.2008.

[19]             Directive 1999/44/EC
of the European Parliament and of the Council of 25 May 1999 on certain aspects
of the sale of consumer goods and associated guarantees, O J L 171/12, 7.7.1999.

[20]             Directive 2011/7/EU of the
European Parliament and of the Council of 16 February 2011 on combating late
payment in commercial transactions (recast), O J L 48/1, 23.2.2011.

[21]             Eurobarometer No 320 on
European contract law in business-to-business transactions, p.57: only 9% of
respondents said they frequently applied international instruments, including
the Vienna Convention and the UNIDROIT Principles.

[22]             Communication from the
Commission to the Council and the European Parliament on European Contract Law,
COM(2001) 398,

11.7.2001.

[23]             Communication from the
Commission to the European Parliament and the Council, A more coherent European
Contract Law: an Action Plan, COM(2003) 68, 12.2.2003.

[24]             Von Bar, C., Clive, E. and
Schulte-Nölke, H. (eds.), Principles, Definitions and Model Rules of
European Private Law. Draft Common Frame of Reference, Munich, Sellier,
2009.

[25]             The research work was financed
by the Commission’s 6th Research Framework Programme, but is not an official
Commission document.

[26]             Fauvarque-Cosson, B. and Mazeaud, D.
(eds.), European Contract Law, Materials for a Common Frame of Reference:
Terminology, Guiding Principles, Model Rules, Munich, Sellier, 2008.

[27]             The replies were submitted by
most Member States, a large number of business organisations, several consumer
organisations, many associations of legal practitioners and a considerable
number of academics.

[28]             O J L 105/109, 27.4.2010.

[29]             Resolution of 26 May 1989 on
action to bring into line the private law of the Member States, OJ C 158, 26.6.1989,
p. 400; resolution of 6 May 1994 on the harmonisation of certain sectors on the private law of the Member States, OJ C 205,
25.7.1994, p. 518; resolution of 15 November 2001 on the approximation of the
civil and commercial law of the Member States, OJ C 140 E, 13.6.2002, p. 538;
resolution of 2 September 2003 on the Communication from the Commission to the
European Parliament and the Council – A more coherent European contract law -
An action plan, OJ C 76 E, 25.3.2004, p. 95; resolution of 23 March 2006 on
European contract law and the revision of the acquis: the way forward, OJ C 292
E, 1.12.2006, p. 109-112; resolution of 7 September 2006 on European contract
law, OJ C 305 E, 14.12.2006, p. 247-248; resolution of 12 December 2007 on
European contract law, OJ C323E, 18.12.2008, p. 364 -365 and the resolution of
3 September 2008 on the common frame of reference for European contract law, OJ
C 295E, 4.12.2009, p. 31-32.

[30]             Resolution of June 2011 on
policy options for progress towards a European contract law for consumers and
businesses, Procedure 2011/2013 (INI).

[31]             OJ C
84/1, 17.3.2011.

[32]             According to Eurostat
Statistics in Focus 37/2010 and the Eurostat External and Intra-EU Trade
Yearbook of 2009, the intra-EU trade volume in goods was 4 times the volume of
trade in services in 2008.

[33]             A free
choice of remedies, as included in the Common Sales Law, does not exist in Austria, Belgium, Bulgaria, Cyprus, Czech
Republic, Denmark, Estonia, Finland, Germany, Hungary, Italy, Malta, the
Netherlands, Poland, Romania, Slovakia, Spain and Sweden. In fact, only five
Member States offer the same result as in the Common Sales Law (France, Greece,
Lithuania, Luxembourg, Portugal) whilst a few others adopted an intermediate
approach (Ireland, Latvia, Slovenia, U.K).

[34]             Commission
Communication on Building Trust in EU–wide Justice: a New Dimension to European
Judicial Training, COM (2011) 551 final.