The future of European contract law in the light of the European Commission’s proposals for Directives on digital content and online sales

The European Commission’s proposed Directives, one on the supply of digital content to consumers and the other on online sales of goods to consumers, have two aims: to give fuller protection to consumers who buy digital content (in many Member States, consumers’ rights are far from clear) or buy goods online, and to encourage more traders to supply consumers in other Member States. The Commission continues to be concerned that because when a trader deals with a consumer in the consumer’s country of habitual residence or directs its activities towards that country, the consumer is protected by that country’s law, traders will be deterred by differences between the laws of the Member States. The Commission’s initial idea was to replace the current minimum harmonisation directives by a broad full harmonisation directive. When that ran into opposition from Member States, the Commission tried the “optional Instrument” approach, the proposed Common European Sales Law. After the CESL also failed, the Commission is now seeking full harmonisation on a limited range of issues. The two proposals contain useful new provisions but have some serious shortcomings. Both the European Parliament Committees and the Council Working Group seem to welcome the proposal on digital content, provided that some of the shortcomings are dealt with. The proposal on online sales is more controversial and has not yet been considered in detail by the Council. The paper concludes by querying whether limited full harmonisation of only B2C contracts is the best way to deal with problems caused by differences between the laws.