Vers un droit commun européen de la vente ? Caractère novateur de la méthode d’instrument optionnel
Towards a common european sales law? Innovative character of the method of optional instrument

Summary/Abstract: In the context of reticence determined by the use of maximal harmonisation through the proposal for a Consumer Rights directive of 8 October 2008, as well as through the partial success gained by the recently adopted Directive 2011/83/UE, the legislative initiative of the Commission of 11 October 2011 may be characterized as extremely ambitious. The pragmatic approach of a sectorial type, in terms of elaborating a set of general and special rules composing a complete and autonomous sales regime, should mitigate the critics formulated by the detractors of the codification project of the European Contract Law. Although there are voices stating that this technique would in fact represent the dissimulated introduction of the complete harmonisation through an instrument that would not authentically be optional for consumers, the proposed instrument does not substitute the national juridical regime, but it joins it offering the possibility of making a choice. Limiting the territorial application scope to the transfrontal contracts is probably the reaction to most answers received from the Green Paper of 1 July 2010. However, we anticipate that the relatively new element introduced regarding the business to business contracts, on condition that at least one should be IMM, shall create controversies, as it is a known that there is no protection rule against abusive clauses for professionals. Consequently, an optional instrument must be regarded with a moderate optimism, as presently it is rather difficult to anticipate its potential in surpassing the stage of a theoretical construction and becoming an authentic “esperanto” of the Contract Sales Law.

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