12 Oct, 2011
Law Society’s concerns about EU proposals
The European Commission this week announced proposals for an optional Common European Sales Law. The Law Society is concerned that this initiative could lead to uncertainty for businesses and consumers in England and Wales.
The Law Society is supportive of efforts to improve the functioning of the internal market and increase cross-border trade, however, like many European stakeholders, the Society is concerned that this initiative may raise difficulties for businesses and consumers in England and Wales.
Law Society President John Wotton (pictured) prepared the following briefing ahead of the proposal by the European Commission;
“The Law Society of England and Wales (the Society) will consider the European Commission’s proposal for a Common Sales Law for the European Union carefully and in-depth. The Society is supportive of efforts to improve the functioning of the internal market and to increase cross-border trade and has provided input at every stage of the consultation process; however, like many stakeholders, practitioners have concerns regarding this initiative and are not convinced that it will increase cross-border trade.
“From a practical perspective, an “optional instrument” (OI) of contract law would have no underlying jurisprudence and practitioners are concerned that this would lead to uncertainty for businesses and consumers as to how it would be interpreted and applied. Even once such a body of case-law had been developed (requiring much litigation on the part of private parties), it would be difficult to ensure the uniform application of the new system across the 27 EU Member States with their different legal cultures.
“The Society supports freedom of contract, but notes that on a practical level there is a lack of clarity as to how parties would opt for the optional Common European Sales Law and this would require resolution.
“In cross-border dealings, whilst there will be an agreement between the parties, the laws in relation to a range of issues, such as advertising, packaging requirements, product liability and non-contractual representations, as well as tort law and property law, may be equally relevant and important. It is also unlikely that the instrument itself would be self-standing from a contract law perspective. Businesses would therefore still need to consider national laws when entering into cross-border contracts.
“The Society will continue actively to provide input from solicitors in the current debate as it has done throughout this process.”