The UK Government has responded to the EU Commission’s proposal for a common European sales law in a joint publication produced by the Ministry of Justice, the Department for Business, Innovation & Skills, Scottish Government and the Department for Finance & Personnel Northern Ireland. The response indicates that, while the responses to the original Call for Evidence have demonstrated that there is broad support for the objective of increasing cross-border trade, most UK ‘stakeholders’ do not see the creation of an optional contract law, as a viable way of achieving that aim.
The Government acknowledges the importance of e-commerce but also points out the relative success of UK-based e-commerce and refers to its plans to reform consumer law and goes on to state:
‘there is insufficient evidence to demonstrate that a new, optional, highly complex legal instrument focussed on contract law for cross-border sales can provide benefits to consumers or business. Nor is it clear that it will achieve the benefits to cross border trade and growth it presumes.
The Government is clear that we must provide practical and effective solutions to existing problems and that these solutions must be of real value to businesses, consumers and the Single Market. If we are to break down barriers to cross-border trade we must do so in a way that facilitates businesses to grow and develop. We must not add further layers of legal complexity but provide solutions that enable consumers to purchase and businesses to trade more freely across European borders with confidence.’
The full document can be accessed here.
There will be few tears shed among UK lawyers at this response and scarcely a raised eyebrow, let alone a ‘Zut alors’, across the wider e-commerce community. Whether the option of non-acceptance is as simple as it as first seems in the longer term, in light of court and Commission pressure for uniformity in the Single Market, remains to be seen.
The Executive Summary is quite scathing in its view of the document on offer and somewhat less conciliatory than the introduction (from which the first quote is taken):
‘6. The Government has carefully considered the evidence provided in the responses to the Call for Evidence. In drawing conclusions from this evidence, we are concerned that there are fundamental flaws in both the principle and practical operation of CESL. Evidence indicates that it is most unlikely to produce the results the Commission claim. It is also clear that the proposal will be both time consuming and cumbersome to negotiate and implement, rather than providing a simple and practical solution to the immediate challenges presented to businesses, consumers and the growth of the Single Market.
7. The Government concludes that there are elements of CESL which do not provide sufficient clarity or legal certainty. The instrument is:
· too complex,
· incomplete in parts (some significant aspects of a contractual relationship are not covered),
· unworkable for certain types of contract,
· uncertain, both as to whether a contract is valid and as to the certainty of its terms; and
· unclear on its applicability, in particular how its provisions interact with other EU law.
8. The Government therefore concludes that it does not feel able to support the CESL proposal. The UK has, in the past, supported an ambitious approach to the harmonisation of consumer law to support the retail single market. We continue to think that this is more likely to deliver the Commission’s aims than a new, voluntary contract law. We would therefore encourage the Commission to carry out a careful and specific review of the barriers to cross-border trade, considering the most appropriate solutions to them, before proceeding any further with negotiation of this proposal. The Government would be content to support the Commission in doing so.’
