The Omission of Personal Property Law from the Proposed Common European Sales Law: The Hamlet Syndrome ... Without the Prince?

摘要

On October 11, 2011 the European Commission published a proposal for an "optional instrument" on a European sales law: the proposed Common European Sales Law (CESL). At the time this proposal was published, Commissioner Viviane Reding presented the advantages of the proposed instrument for both consumers and business in glowing terms: praising the instrument for, inter alia, not simply sweeping national law aside, but for taking "an innovative approach based on free choice, subsidiarity and competition". This proposal generated, in turn, a huge amount of debate, but on February 26, 2014 the European Parliament endorsed the proposal, albeit in a revised form, limiting the CESL to distance contracts, particularly to online contracts. Significantly, for the purposes of this article, this revised proposal, in keeping with the original proposal, excluded personal property law from its ambit. This article critically reflects on the exclusion of property law from the ambit of the CESL and is divided into two parts: in the first part we consider the background to, and the context of, the emergence of the CESL; and in the second part we analyse the implications of the exclusion of property law from any CESL. In so doing the article offers critical reflections on the omission of personal property law from the CESL initiative. In particular, we will argue that such an exclusion, while perhaps politically inevitable, creates fragmentation and knock-on problems in relation to interpretation/application. Moreover, we will argue that, in contrast to Commissioner Reding's more optimistic view, such a proposal risks missing an important opportunity in relation to consumer protection, as well as consumer confidence, and disclosed a more fundamental weakness in the Commission's one-dimensional approach to "solving" complex problems in European contract law.