Albana Karapanco, ‘A Critical Investigation of the Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law

The paper examines the CESL proposal as an act constituting an optional CL regime with the objective to improve the establishment and the functioning of the internal market by facilitating the expansion of cross-border trade for business and cross-border purchase for consumers. The paper is carried out on legal research and different opinions and reports on the CESL from a range of sources. Thus, it highlights the advantages and disadvantages of the act and if such attempt is really worth it.

The main characteristic of CESL proposal is its optional nature. CESL may not apply autonomously, but only if chosen by the contractual parties. CESL proposal does not replace the national CL in the MSs; however, it intends to be a second CL regime for each MS. Principally, contracts will be still governed by the applicable national law, unless the parties have explicitly agreed to use the CESL. Despite its aim, CESL does not fit to any of EU legal acts as foreseen by art 288 of the TFEU.

This paper consists of five chapters. The subject of the first chapter is a brief description of the CESL objectives and the crucial factors to this proposal. The second chapter analyses the legal nature of the CESL in accordance with the TFEU provisions. Differently from the EU legal acts, CESL does not aim the approximation of MSs laws. In the third chapter, there are given the differences between the choice of B2B contracts and B2C contracts. The fourth chapter gives a comparison between the CESL and the CISG, as well as between the CESL and other international acts regulating the field of CL.

Consequently, the fifth chapter is focused on recognising the need or non-need for an optional regime of sales law within the EU. Although the positive characteristics of CESL, this chapter intends to find out the gaps related to the parties’ interest.

The interpretation is mainly based on the proposal text and EU primary and secondary law. The conclusion summarizes the legal and economic concerns about CESL; it is a short review of positive effects proposed by CESL and the contradictions it may raise if entered in force.

Karapanco, Albana, A Critical Investigation of the ‘Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law’ (December 25, 2012).

First posted 2015-01-26 07:32:13

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