REFLEXIVE CONTRACT GOVERNANCE IN THE EU?: 'CRITIQUE OF THE DRAFT REGULATION FOR A COMMON EUROPEAN SALES LAW' (CWSIL)
REFLEXIVE CONTRACT GOVERNANCE IN THE EU?: 'CRITIQUE OF THE DRAFT REGULATION FOR A COMMON EUROPEAN SALES LAW' (CWSIL)

Summary/Abstract: Contract law has been in a process of rapid development in the EU in the last years. It has started from rather modest common (now internal) market and consumer protection perspectives where David Trubek has been a critical observer from the outset with a strong interest in alternative modes of regulation like 'soft law' and 'open methods of coordination (OMC)' beyond the traditional 'Community method', based on his socio-legal experiences in a federal system like the US. Following this legacy, the paper first makes reference to EU-consumer legislation which has undergone an attempt of review by modifying the original 'minimum' to a 'full harmonisation approach' but which resulted in some sort of 'half harmonisation' in the recent Consumer Rights Directive (CRD) 2011/83/EU of 18.10.2011. Even more ambitious are EU-Commission plans to introduce an 'Optional EU contract law' for businesses and consumers based on prior work of expert commissions consisting mostly of law teachers. This has resulted in a Commission proposal for a 'Regulation on a Common European Sales law' (CESL) of 11.10.2011 which raises a multitude of constitutional, political and legal questions. The author challenges the conceptual basis of the proposal under the 'necessity test' of the proportionality requirement of Art. 5 (4) TFEU. Instead, recourse to the reflections of David Trubek is recommended which would encourage a 'reflexive contract governance' as a combination of 'hard' and 'soft law' methods of regulation, supplemented by the conflicts-of-law method. This approach should meet genuine needs of business for improved market access and guarantee a high level of consumer protection in the EU without creating additional impediments to market integration.

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