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Common European Sales Law proposals to be replaced as new consultation is opened on online sales barriers

The European Commission is abandoning existing proposals for a new Common European Sales Law (CESL) in the EU and will instead outline new measures to remove contractual barriers to cross-border sales.17 Jun 2015

The Commission has opened a new consultation into the contract law barriers to the sale of goods and digital content across the EU.

The consultation comes after the Commission committed to publishing "an amended proposal" to the CESL plans before the end of 2015 as part of its digital single market strategy, published last month. The new proposals will set "harmonised EU rules for online purchases of digital content" and allow businesses "to rely on their national laws based on a focused set of key mandatory EU contractual rights for domestic and cross-border online sales of tangible goods", the strategy said.

Disagreements between national governments in the EU over the CESL proposals meant those legislative reforms stalled when they were scrutinised by the Council of Ministers, a spokesperson for the European Parliament told Out-Law.com. The CESL plans had been endorsed by MEPs last year. The UK government and a committee of MPs had opposed the CESL regime.

In its digital strategy, the Commission said that the fact there are 28 different contract laws governing the sale of goods to consumers "discourages companies from cross-border trading and prevents consumers from benefitting from the most competitive offers and from the full range of online offers". It said "in a single market, companies should be able to manage their sales under a common set of rules".

According to a questionnaire it has asked stakeholders to complete as part of its new consultation exercise, the Commission suggested that alternatives to legislative action could also help resolve contractual issues relevant to online sales in the EU. It said that said that "the development of a voluntary stakeholders' model contract that consumers and businesses could use for their cross-border e-commerce transactions" is another option and has asked for businesses' views on the approach it has said it will take in its digital strategy.

The Commission opened its new consultation after it found that fewer than one in five consumers (18%) in the EU made an online purchase with a retailer based in another EU country last year. The figure contrasts with the number of consumers that made an online purchase from a business in the same country (55%).

"The purpose of this public consultation is to collect interested parties' views on the possible ways forward to remove contract law obstacles related to the online purchases of digital content and tangible goods," the Commission said. "It does not aim at addressing copyrights related issues as this will be subject to a separate course of action."

The Commission's questionnaire has asked businesses to explain whether they "see a need to act for business-to-consumers transactions only" or whether measures to remove contractual barriers should also apply to "business-to-business transactions".

Technology law expert Luke Scanlon of Pinsent Masons, the law firm behind Out-Law.com, said: "This is an opportunity for businesses to discuss barriers to digital more generally than just in relation to digital content and tangible rules as a lot of the barriers will cross over to the provision of services both in a business-to-business and business-to-consumer context."