Online sales law: out with the old, in with the ... ?

We're sorry to announce that the ‘Common European Sales Law’ has been cancelled due to an unexpected derailment. We apologise for any inconvenience this may cause ...

In October, during hearings at the European Parliament, the European Commissioner for Justice, Consumers and Gender Equality, Věra Jourová, said that the proposed new pan-European sales law deserved ‘our support’.

Well, not any more.

The proposed harmonised sales law has run off its rails and nobody seems keen to put the vehicle back. In its current form anyway.

On 19 January 2015, before the European Parliament's Legal Affairs (JURI) Committee, the Czech Commissioner announced,

As the proposal for the Common European Sales Law has not found sufficient support in Council we want to withdraw it and put forward a modified proposal this year.

Adding:

We need to find the appropriate policy mix addressing legal fragmentation in the Digital Single Market and ensuring consumers are adequately protected.

Last week, the Commission announced its proposed ‘policy mix’ on the Digital Single Market which touched upon—of particular interest to lawyers advising on e-commerce—the need for better contractual rules for online sales (check out our blog post:#DigitalSingleMarket: does online business get your vote?).

https://twitter.com/EU_Consumer/status/593850818496868352

In the UK, this development didn’t get much coverage in the papers and online, due in no small part to the general election, the unprecedented hat-trick of resignations from various party leaders, and the subsequent cabinet reshuffle. Where it did pique the interest of the press, the reports often missed the bigger picture and concentrated on the minutiae such as whether you’ll be able to watch iPlayer programmes across the EU).

So what can commercial lawyers expect?

At the moment, there isn’t much to go on.

That said, the press release from the European Commission does offer up some tit-bits of information:

The Commission will put forward clear contractual rules for online sales of both physical goods like shoes or furniture and digital content, like e-books or apps. It will fill in the existing legislative gap at EU level regarding digital content and will harmonise a key set of rules for physical goods. This will create a level-playing field for businesses, allow them to take full advantage of the Digital Single Market and sell with confidence across borders. At the same time, it will boost consumer trust in online purchases. Consumers will have even more solid and effective rights. For example, if the e-book you just bought is defective, it will be easier for you to obtain a remedy against the trader. Europeans will be able to shop in other EU countries as easily as in their home countries and get the best products at the best price.

Unlike the previous proposals, this does not strike me as being an optional regime.

And what about its legal form? Will it be by way of a directive? Or perhaps, if the Commission is feeling brave, it’ll be a regulation and the law will be the same all across Europe?

We simply don’t know.

Even so, businesses still be alive to the fact that a proposed new (obligatory?) sales law may be proposed at some point between now and late 2016.

It is said that one of Věra Jourová’s favourite phrases is ‘freedom for the enterprising, security for the vulnerable’. Producing non-bureaucratic, yet business-friendly, rules which protect consumers will certainly test this phrase and the new Commissioner’s mettle to the full (all within the backdrop of a threatened UK withdrawal from the EU).

Watch this space.

So what do you think? Yet more rules? Or are they a great way of encouraging e-commerce across Europe? Do let us know below.

PS Here's what the Council of Bars and Law Societies of Europe had to say about the CESL (just before the Digital Single Market was launched):

https://twitter.com/CCBEinfo/status/595156274502881280