Towards a Sharp Distinction between B2B and B2C? On Consumer, Commercial and General Contract Law after the Consumer Rights Directive
European Review of Private Law, Vol. 18, No. 18, pp. 57-102, 2010
41 Pages Posted: 9 Jun 2009 Last revised: 20 Sep 2011
Date Written: June 8, 2009
The proposed directive fits very well with a sharp distinction between b2c and b2b contracts and comprises several features that - especially as a combination - provide an optimal basis for a future European consumer (contract) code. The same characteristics that make the directive a good preliminary step toward a European consumer law code progressively complicate implementation of consumer contract law in the Civil Code by the national legislator. Still, nothing in the directive renders further distinction between b2c and b2b compulsory. National legislators may extend the scope to other parties (e.g. sole traders and small businesses), when it is of the opinion that they merit the same protection, and even to all parties, by including the directive in general private law. Nor is the European legislator bound to further deepen the distinction between b2c and b2b at the European level: EC Treaty Article 95, the intended legal basis of the directive, does not demand such a measure.
Both the directive and its implementation are thus matters of political choice. This raises the question as to whether a rigid, categorical distinction between rules governing b2c and those governing b2b contracts is desirable. No substantive ground justifies such a categorical distinction. Non-consumers, especially small businesses, often encounter situations identical to those usually invoked to justify consumer protection. In such cases the equality principle requires that the legislator extend the protection prescribed for consumers to include this group. The European legislator is unlikely to elect this option. The Commission, the Council and the Parliament have already expressed support (without substantiating this position) for distinguishing between b2c and b2b contracts. On the other hand, certain Member States probably still favour preserving the unity of private law, their layered system with various levels of abstraction and the associated lex specialis idea.
In this respect greater transparency may be expected from the European Commission. How does the Commission view the future: does a European Code of Consumer Law lie ahead? The Council of the European Union and the European Parliament should ask the Commission for guidance here and should adopt a clear position themselves. This is important for two reasons. The first is that prior to transposition of this directive, Member States should know what to expect. The second is that if a European Code of Consumer Law ever materializes, it will need to be the outcome of a deliberate decision to this effect.
Keywords: European law, consumer law, commercial law, contract law, review, acquis, harmonization, full harmonization, minimum harmonization, exhaustive harmonization, transposition, b2b, b2c, sme, small businesses, social justice
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