The European Commission wants to facilitate cross-border shopping. The tool shall be a Common European Sales Law (CESL). The Commission intends to add CESL next to the 28 different national sales law regimes of the member states. It would only apply if the trader offers its application to the consumer. Consequently, it would constitute a 29th sales law regime with an optional character. I as Rapporteur for the Opinion on CESL in the Committee of Internal Market and Consumer Protection (IMCO) as well as spokesperson for the social democrats in IMCO oppose this plan. The result will be that consumers do not know which law applies and which conditions apply in a cross-border contract.
As the main reasons for the introduction of an optional instrument in the field of sales law the Commission states firstly the reduction of transaction costs for businesses. These costs obviously arise from divergent national legislation on sales law as well as from different languages. Secondly, there is the aim of lowering prices for products in order to stimulate cross-border commerce. These objectives are everything but irrelevant. The common aim of the European Parliament, European Commission and the Member States is to complete and exhaust the full potential of the internal market by strengthening consumers' rights and by promoting more innovation and competition between businesses. But would CESL really fulfil the expectations mentioned?
A health check on the impact assessment of the European Commission, conducted by the European Parliament, revealed that there are no scientifically established calculations which could prove the reduction of transaction costs for businesses. Furthermore, the expected decrease of product prices would add up to the marginal amount of -0.04 to -0.07 per cent. The main arguments for CESL put forward by the Commission are therefore evidently obsolete.
Already in 2011, the Consumer Rights Directive (2011/83/EU) was adopted. This Directive covers long-distance and doorstep transactions, cross-border transactions included and provides a high level of consumer protection. To name just a few achievements of the Consumer Rights Directive: An EU-wide right of withdrawal, pre-contractual information obligations and the "button-solution" will be enforced. The latter stipulates a general overview of the prices for a purchase in the internet before the order will be transmitted to the trader.
The Consumer Rights Directive was successfully negotiated and established minimum harmonisation. This means that there is a minimum legal standard applicable in all EU Member States and that higher standards can be set on the national level. This Directive will be implemented by December 2013.
With CESL the Commission proposed a new way of legislation: an optional instrument that applies for cross-border transactions and only if businesses want to offer it. The conservatives and liberals want to limit the scope of its applicability even further. CESL would then only cover cross-border long-distance transactions, e.g. contracts made via internet or telephone in another EU country.
The optional instrument on sales law affects areas which are already covered by the Consumer Rights Directive but also fields for which European legislation does not yet exist, such as for instance the digital content. It would also allow Member States to convert CESL provisions into national law. Confusion about which law would apply as well as extreme legal uncertainty for both consumers and businesses are to be expected!
As if these shortfalls were not enough, CESL as proposed by the Commission de facto eliminates the ROME I provisions which guarantee consumers always the highest level of consumer protection in their national law (if there is a legal procedure).
Some amendments which were tabled in the Committee of Internal Market and Consumer Protection on this political dossier clearly aim at lowering down the level of consumer protection. And it is obvious: A CESL with a high level of consumer protection would hardly be in the interest of the trader and would therefore not be offered. Is this the way of enhancing cross-border trade? – An optional sales law instrument that lowers down the level of consumer protection and leads to confusion and legal uncertainty? Definitely not!
The optional instrument is not only fiercely criticized by BEUC, Europe's largest umbrella organisation for consumer protection, of which Altroconsumo is a member, but also by representatives of the e-commerce sector to which CESL would mainly apply.
So, where is the added value in having a legislation which is overlapping with the currently implemented Consumer Rights Directive and which is only applicable in cross-border long-distance purchases and only if the traders offer it?
My goal and alternative is to achieve a high-standard consumer law to the equal benefit of all European citizens. An optional instrument that is only offered by some traders and only if they want is neither creating equality nor legal certainty for both, the consumer and businesses. That is why I propose an alternative consumer-friendly approach that converts the Commission's proposal of a Regulation with the optional instrument into a minimum harmonisation Directive. My approach effectively constitutes a consistent continuation of the Consumer Rights Directive and the Directive on certain aspects of the sale of consumer goods and associated guarantees (1999/44/EC). Provisions which are already harmonized by the Consumer Rights Directive should not be doubled. This, of course, implies major changes of the structure of the present legislative proposal. My approach aims at modernising the consumer sales law by extending the scope of the legislation to legal guarantees, related services and digital content.
I am highly motivated and convinced that an optional instrument has no added value for both consumers and businesses. We have to fight against attempts aimed at lowering the consumer protection level. There is no path to optionality. We need secure and equal provisions for all EU citizens and businesses.
The Committee for the Internal Market and Consumer Protection clearly opposed the proposal by the Commission and the optional instrument in the vote on 9 July 2013 (23 votes in favour, 17 against). My alternative of a Directive under minimum harmonization was notably adopted.
A high and modernized level of consumer protection, which duly takes into account technological developments and consumer behavior in the Internal Market, has great potential to strengthen consumer confidence in cross-border shopping. By leaving the path of 'optionality' and instead aiming to provide the same high level of protection to all consumers, I want European consumers and businesses to effectively benefit from improved legal certainty and of a high quality and standard of consumer protection.