20 JURIDICA INTERNATIONAL XX/2013
University of Warwick
The CESL Proposal:
The European Commission has prepared a proposal for a Common European Sales Law (CESL) for B2C and
B2B contracts.*2 This would be an ‘optional instrument’: a set of rules that would form part of each Member
State’s law and which the parties could choose to use instead of the ‘pre-existing’ or ‘domestic’ rules. For
issues that fall within the scope of the CESL, it would be the rules of the CESL (most importantly, the man-
datory rules of the CESL) that would apply. The CESL is not intended to replace domestic contract law in the
way that, for example, the Rome I Regulation*3 has replaced the earlier law of each Member State (MS), but
if the parties choose to use the CESL, its rules would displace the domestic rules that would otherwise apply.
How have we arrived at this proposal? What is its purpose? How would it work? Is it needed? These are
the questions I hope to answer in this paper.
In 2001, the European Commission issued a consultation paper titled ‘Communication on European Con-
tract Law’.*5 From the responses, the Commission concluded that, while differences between the laws of
contract in the various Member States do not prevent trade, they represent an obstacle that increases the
cost and therefore the attractiveness of cross-border contracting. Indeed, it seems self-evident that having
to deal with a variety of legal systems must add to the cost, or the risk, of all but the simplest of cross-border
transactions. Each business will want to know what difference it will make if the other party is a consumer
who has rights under the law of his own country of residence that may not be taken away under that law, or
if the other party is a business that insists on the contract being governed by its own country’s law or even
1 An earlier version of this paper was presented at a conference at the Centro di eccellenza Altiero Spinelli per l’Europa dei
Popoli e la Pace nel Mondo, Rome III, in May 2012 and has been published in L. Moccia (ed.). The Making of European
Private Law: Why, How, What, Who?. Munich: Sellier, 2013, pp. 65–76.
2 Proposal for a Regulation on a Common European Sales Law, 11 October 2011, COM(2011) 635 ﬁ nal. The proposal contains
a draft regulation, dealing primarily with the scope of application of the CESL, and an Annex containing the substantive
rules. In this paper, Articles of the proposed Regulation are referred to as ‘Regulation Article 00’ and Articles of the Annex
as ‘CESL Article 00’.
3 Regulation (EC) No 593/2008 of 17 June 2008 on the law applicable to contractual obligations.
4 A more detailed account of the background to the CESL can be found in H. Beale. European contract law: The Common
Frame of Reference and beyond. – C. Twigg-Flesner (ed.). The Cambridge Companion to European Union Private Law.
CUP 2010, pp. 116–130.
5 Communication from the Commission to the Council and the European Parliament on European Contract Law, COM(2001)
398 ﬁ nal.