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New European laws are the sort of thing that attract controversy and argument - and the latest proposal on the table is no exception.
In early October the European Commission published proposals for an Optional Common Sales Law (CSL). The law follows about 10 years of discussion, with most of the work being done in the past 18 months since the appointment of Viviane Reding as the EU commissioner for justice.
The CSL is a single European contract law (see column). For the first time ever in EU legal history the law is optional. As a regulation, rather than a directive, EU member states will not have to implement it and users will not be forced to use it.
The proposals are mainly aimed at small and medium enterprises and the customers they are selling goods to. Currently, businesses are most likely to choose their own national law as the governing contract law - but this, according to the Commission, makes it difficult to trade cross-border within the EU. The Commission hopes that a single law would enhance consumer protection, helping reduce costs for businesses and prices for customers.
Larger businesses would be able to use the law in business-to-business transactions with small and medium enterprises.
The Commission’s recent Green Paper was embraced by the European Parliament, which voted by a four-fifths majority in favour of the CSL as an optional instrument.
However, the proposals have not met with universal approval. While the Commission is strongly pushing the consumer protection line, many consumer groups are opposed to the law as they believe businesses will naturally gravitate towards the legal option that provides the least protection for consumers.
Many large law firms are also opposed, as is the Law Society of England and Wales. They point out that the new law would have no case law or jurisprudence to back it up, and enforcing the regulation evenly across the EU’s 27 member states would prove costly and difficult. Although the Commission is suggesting lawyers and judges could be trained, the mixture of civil and common law in the CSL could also prove confusing, some suggest.
The timeline to complete the CSL is aggressive - Reding wants it to be introduced by January 2013. Despite the opposition it is likely that the law will be adopted by the EU. The question then is how popular it will actually prove with businesses, and whether it is possible to try and further harmonise EU legislation in an optional way.