Conference – Towards a Common European Sales Law

29 February 2012, Amsterdam.

Hot on the heels of ERA’s event in Trier, and our own in Brussels, the Centre for the Study of European Contract Law held its conference on the proposed Common European Sales Law (or CESL) in the plush surroundings of the Bethanien Klooster in Amsterdam. The conference proceedings were in Dutch, and aimed at stakeholders in the Dutch community. A glance at the participants list revealed who these stakeholders included: the usual suspects (i.e. academics), law firms and legal counsel, business interests and  consumer organisations. The judiciary sent representatives, as did the ministries of justice as well as economic affairs. An MP for VVD (the Dutch Liberals, a member of the ruling coalition) and the Netherlands Permanent Representation in Brussels also sent observers. Importantly, a member of DG Justice was also in the audience.

The list of speakers, all drawn from academia, were no less varied in terms of their affiliation and topics for presentation. I will focus on a number of topics, and refrain from discussing the entire panoply of papers. One may find the programme here (though the proceedings were rearranged somewhat on the actual day).

Martijn Hesselink (UvA), who was involved in the DCFR and the lead up to CESL, spoke on certain key aspects of the instrument. He emphasised the problem faced by firms in having to comply with multiple regimes of consumer protection rules in b2c transactions. In his words, the cleverness of the solution is to have CESL imbedded as a 2nd national legal system, which thereby avoids the triggering of Art 6(1) of the Rome Regulation. This is crucial in making CESL attractive for firms. A related question he addressed is the standard of consumer protection – for Hesselink, there is no doubt that the standard has to be high in order to avoid a race-to-the-bottom scenario. Time, perhaps, did not permit him to express his view on what this standard ought to be – but taking into account BEUC’s opposition to CESL, it is clear that this is a matter which remains unsettled. On a separate note, he observed the limited scope of CESL’s application (i.e. only to sales contracts and related services, and only to cross-border trade), and expressed his hope that the instrument’s ambit will be extended in the future. It is interesting to note that this is a view shared also by Eric Clive, a fellow drafter of the DCFR and member of the Expert Group.

Mark Wissink (RUG) invited a thought-provoking discussion on how CESL might operate within the Dutch legal order. This, he intimated, depended on whether one thought of CESL as an instrument of uniform law, European law, or of national law. The classification is not a mere academic exercise. For one, his concern is that a lack of clarity on this matter will lead to legal uncertainty, and this may prompt legal counsel to advise against choosing CESL as governing law. For another, it may determine how a court will interpret the application of CESL’s provisions. On this latter point, one is reminded of the ‘homeward trend’ in interpreting provisions of the CISG, and Pierre Legrand’s unbearable localness of the law. Will CESL suffer the same fate? If this is a question of legal cultures, I look forward to the finding some answers from a just concluded HiiL-CSECL conference, whose proceedings are to be published in an upcoming issue of the European Review of Contract Law.

Jacobien Rutgers (VU) presented her views on CESL’s legal basis. As regards the use of Art 114 TFEU, one has naturally to consider the Tobacco Advertising (Case C-376/98) requirements of inter alia finding appreciable obstacles to trade or distortions of competition. She noted Weatherill’s views and Craig’s (in the context of subsidiarity) that all that is procedurally required is to pay lip service to these requirements in the preamble and explanatory memoranda of the instrument, and have them backed up in the impact assessment report. These have more or less been attended to in the documents supporting CESL. Another issue is whether CESL approximates the laws of the Member States within the meaning of Art 114(1) TFEU – for otherwise Art 352 TFEU has to be used (cf Case C-436/03 European Cooperative Society). She pointed out, to which I agree, that the choice of legal basis is a political one. This is especially since post-Lisbon, the UK and German governments have to seek the approval of their respective parliaments before voting for any proposal based on Art 352 TFEU. This is a ‘live’ issue, since the House of Commons and the Bundestag have issued reasoned opinions in the recently concluded yellow-card subsidiarity check on CESL. When asked by the Chair on which of the two bases were appropriate, her tentative answer was Art 352 TFEU. I can see why – especially if one is persuaded by the logic of European Cooperative Society that CESL is an optional instrument that exists side-by-side with national contract laws. My own view, found here, is that Art 114 TFEU is a defensible choice.

I should also say that in the discussion that ensued from Rutger’s talk, one possibility mentioned by a member of the audience was the use of dual legal bases (though it was not specifically discussed which, I presume this to mean Arts 114 and 352 TFEU). There has been academic discussion on its use in European contract law, and the authority on which this proposition rests is the International Fund for Ireland case (Case C-166/07). Ms Wolffram-van Doorn, the Commission representative, poignantly resisted this suggestion partly on the basis that the two treaty provisions are mutually exclusive. I can see why either position is more political than legal – since any admittance of the applicability of Art 352 TFEU threatens CESL’s legislative survival prospects if it has to be voted on in Council and/or assented to by the Commons and the Bundestag.

The other presentations were equally interesting, though I can do no better than to point the reader to their written papers where available – see Marco Loos and Chantal Mak (both of UvA) on digital content, and Anna Keirse (Utrecht) on mitigation rules. As an aside, I chuckled on the constant use of the Dutch acronym for CESL (‘GEKR’), which sounds to me like the Dutch word for ‘crazy’. Rather ominous. Finally, I would commend a very dapper Chris Jansen (VU) for the effective use of photographs from the renovation of his own house (from laying the floor to the upholstery of chairs to the installation of a dormer) to illustrate whether one or the other is a contract of sale or of related services. Crucially, the classifications differ depending on whether one uses CESL’s definition or those of the DCFR – and there are risk allocation consequences. I just have to say it is a beautiful house!