Maastricht Journal of European and Comparative Law, Vol. 1, 2012
16 Pages Posted: 25 Jan 2012 Last revised: 1 May 2012
Date Written: January 24, 2012
Despite the fact that it is an optional instrument, the proposed Common European Sales Law (CESL) is based on Art 114 TFEU. This article considers whether the measure approximates the contract laws of Member States, such that the continued use of Art 114 TFEU is justifiable. One possibility, using the lens of regulatory competition, is to suggest that CESL is an intermediate step towards harmonisation. However, it is questionable whether regulatory competition will lead to the required degree of harmonisation, and whether CESL’s features demonstrate that is contributes within a wider context to that process of harmonisation. Another possibility is to distinguish CESL from other optional instruments on the basis that it is a second national regime. This is to say that since the regulation makes all second national contractual regimes the same, the contract laws of Member States are harmonised. The problem with this argument is that CESL leaves purely national contract laws unmolested.
Clearly, either justification for the use of Art 114 TFEU is plausible, just as they are open to debate. This is precisely the dilemma that must face the Commission if it is to defend its current choice of legal basis. If the issue is brought before the CJEU, CESL might end up as the Commission’s Tobacco Advertising III, forcing it to re-experience tremors of competence anxiety. On the other hand, if it risks litigation and obtains a favourable judgment, one can surmise the future of positive integration to be one of unitas via diversitas.
Keywords: European contract law, optional instrument, legal basis, harmonization
JEL Classification: D03, K12, K20
Suggested Citation: Suggested Citation
Low, Gary, Unitas via Diversitas: Can the Common European Sales Law Harmonize Through Diversity? (January 24, 2012). Maastricht Journal of European and Comparative Law, Vol. 1, 2012; Maastricht Faculty of Law Working Paper No. 2012/2. Available at SSRN: https://ssrn.com/abstract=1991070 or http://dx.doi.org/10.2139/ssrn.1991070