A Half-built House? The New Consumer Sales Directive Assessed as Contract Law

Author:Kåre Lilleholt
Kåre Lilleholt
University of Oslo
A Half-built House? The New
Consumer Sales Directive
Assessed as Contract Law
1. Introduction
The article discusses some aspects of the total harmonisation objective of the new consumer sales directive
(hereinafter SGD).*1 The purpose of the directive is to ‘contribute to the functioning of the internal market’
(Article 1). As cross-border consumer contracts are usually governed by the law of the country where the
consumer has his or her habitual residence,
*2 sellers o ering goods to consumers in other countries than
their own must be prepared to deal under di erent contract law regimes. This may lead to additional costs,
something that may make cross-border contracting less attractive.*3 The SGD is therefore a total harmoni-
sation directive, meaning that, as a rule, consumers may not be given either stronger or weaker protection
under national law regarding the issues regulated by the directive.*4 The 1999 consumer sales directive –
which will be repealed by the SGD – is a minimum harmonisation directive; member states are free to
maintain or introduce more consumer-friendly rules but not less protective rules.*5 The total harmonisation
principle of the new directive can necessarily not give the consumers stronger protection than a minimum
harmonisation directive would have done. The e ect of the total harmonisation principle must therefore be
measured by the extent to which more legal certainty for sellers has been achieved.
Not surprisingly, the new directive bears the mark of many compromises, several of them resulting
from the legislative process in the Parliament. On some issues, member states today have more stringent
rules on consumer protection than the ones proposed by the Commission, and reduction of consumer pro-
tection will naturally lead to political discussions. The nal text of the SGD allows for national laws varying
the rules of the directive (for example, the time limit for the seller’s liability), as well as national laws deviat-
ing from the rules of the directive (for example, speci c remedies for certain hidden e ects and a remedy in
the form of rejecting the goods). In addition, the directive explicitly allows for national rules on issues not
covered or only partly covered by the directive (for example, formation and invalidity of contracts, e ects
of termination). Not explicitly mentioned is the obvious gap that must be lled by national laws because
Directive (EU) / of the European Parliament and of the Council on certain aspects concerning contracts for the sale
of goods.
Regulation (EC) / of the European Parliament and of the Council of  June  on the law applicable to contrac-
tual obligations (Rome I); see, in particular, Article .
SGD, Recital .
Directive //EC of the European Parliament and of the Council of  May  on certain aspects of the sale of con-
sumer goods and associated guarantees, Article , para .
SGD, Article .

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