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

• Author: Kåre Lilleholt
• Pages: 3-8

3

JURIDICA INTERNATIONAL 28/2019

Kåre Lilleholt

Professor

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which will be repealed by the SGD – is a minimum harmonisation directive; member states are free to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 fi 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, specifi 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 fi 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 .

https://doi.org/10.12697/JI.2019.28.01