Monday, 6 November 2017

Towards a more coherent European contract law (once again)? Major amendments to the sales proposal

Last Tuesday the Commission published an amended proposal for a directive on certain aspects concerning contracts for the (online and other distance) sales of goods, introducing far-reaching changes to the original file. Most importantly, the scope of the proposal was extended to cover face-to-face sales of goods, meaning that the European lawmakers are now looking into a much broader reform of consumer contract law. Like the original proposal, which extended only to distance sales, but unlike the currently applicable Directive 1999/44/EC, the amended proposal is based on a full harmonisation approach. Impact of such a fully harmonised set of rules is discussed in the Staff Working Document accompanying the proposal. Should the newly presented file go through, Directive 1999/44/EC on consumer sales would be repealed completely. 

The idea of having two distinct sets of contract rules for distance and face-to-face sales did not seem to sit well with anyone from the very beginning. A potential extension of the scope was already envisaged in late 2015, when the original proposal was tabled. Concerns with regard to the original file were also voiced by stakeholders and co-legislators. Indeed, up till now reports about the progress made in the European Parliament and the Council with regard to the sales proposal were not very encouraging. Much more attention seemed to be devoted to the second proposal adopted at the same time, concerning contracts for the supply of digital content. Analyses were nevertheless ongoing - for further reading see in particular the results of the Commission's REFIT exercise or the impact assessment carried out the the European Parliamentary Research Service. 

This is not to say that the amended proposal will not be a source of controversy. Past experience with regard to the harmonisation of European contract law shows that this is a very tricky ground. Even if the potential inconsistency between the rules applicable to different sales channels is now removed and material scope of the proposal is largely based on Directive 1999/44/EC, the full harmonisation approach is bound to raise concerns. Suffice it to recall that this was one of the key issues raised by BEUC with regard to the original proposal. Heated discussions concerning the particular solutions provided for in the proposal are thus to be expected.

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