Harmonization of Private Law and the destiny of overriding mandatory provisions: The Example of Consumer Protection under The Common European Sales Law

The CESL is not quite as “complete” a sales law as its name suggests. It cannot, in the opinion of this author, be considered “hard core” contract law as it has substantial gaps, which need to be filled by the national laws of the member states.5 As the objectives of the CESL are consumer protection and also the removing of obstacles in the internal market, it is needless to say that a balance had to be struck. Therefore, the CESL does not contain the highest degree of consumer protection possible, albeit the allegations of the European Commission that it does achieve a level of protection that is on average higher than that which the member states’ laws have to offer.6 Member states have on top of that lost the power to impose their own mandatory provisions, which protect the consumer, as the CESL imposes its own mandatory rules, when chosen by the parties. The relationship of the CESL and the Regulation on the law applicable to contractual obligations will be the subject of this paper. Special attention will be paid to the application mechanism, which, as the drafters argue will make Article 6 Rome I superfluous where parties have chosen the CESL to govern their contract, which will however not make the application of all other PIL rules applicable to the contract