The CESL as a European Brand - Paypalizing European Contract Law
According to the Commission, the main political goal behind the Common European Sales Law (CESL) is advancing cross-border trade between EU member states, thereby helping to further establish and strengthen a common market within the EU. The CESL is chosen and even symbolized by an already legendary blue button that consumers have to push in order to opt into the new European law. However, the blue button is more than a mere technicality: It aims at increasing consumer trust in cross-border trade by using the (expectedly) positive signaling effect of the European brand. Thus, if traders know that consumers are more likely to engage in cross-border trade on the basis of the CESL than by relying on a national contract law, offering to contract on this basis will be attractive to them for precisely this reason. If a CESL offer can be expected to increase consumers’ trust in a prospective transaction, traders will be able to use such an offer as a marketing instrument. A similar branding strategy is known from the US online payment service PayPal who has established its “payment trust button” already a decade ago. The present article deals with the question to what extent PayPal’s success story can be transferred to European contract law and what lessons the European legislator can learn from it. Could the CESL with its blue button potentially become a new, PayPal-like mechanism for consumer protection by creating and strengthening consumer trust in cross-border trade?
The Proposal for a Regulation on a Common European Sales Law: Deficits of the Most Recent Textual Layer of European Contract Law
On 11 October 2011, the European Commission published a Proposal for a Regulation on an optional Common European Sales Law (CESL). This text represents a milestone for the further development of European contract law. Our essay critically examines and evaluates the Commission’s proposal. It outlines the Commission’s draft as well as its background and deals with some of the most pressing doctrinal and policy issues raised by it. We show that the suggested range of application and the technical mode for opting into the CESL are flawed. Further, the CESL incorporates many elements and doctrines of the current acquis communautaire, such as unduly extensive information duties and withdrawal rights as well as a policing of standard contract terms, without reconsidering their proper purposes and uses. With respect to the rules on sales law, it is particularly the mandatory character of most of them that poses grave problems. We also demonstrate that the CESL’s optional character does not eliminate the quality concerns raised in this essay: The CESL might become a ‘success’ despite its shortcomings. Hence, notwithstanding its optional character, the proposed text should not be enacted. What is needed is a broad and thorough debate on the scope, forms and contents of contract law harmonization in Europe rather than the speedy legislative enactment of a flawed product.
Die Vollharmonisierung des Rechts der Allgemeinen Geschäftsbedingungen -- eine Utopie?
II. Vollharmonisierung durch den Vorschlag der Kommission f?r eine Richtlinie ?ber Rechte der Verbraucher?. 797 1. ?Schwarze? und ?graue? Listen. 797 a) Verbindlichkeit des Anhangs. 797 b) Relevanz der Klauselkataloge. 798 2. Ma?st?be f?r die Konkretisierung der Generalklausel. 799 a) Mitgliedstaatliches Recht als notwendiger Ma?stab. 799 b) Vereinbarkeit mit dem Paradigma der Vollharmonisierung? . . . . 801 c) L?sungsans?tze im Vorschlag f?r eine Verbraucherrechte-Richtlinie? 804