Las primeras sentencias El asunto Solange

According to the Commission’s Impact Assessment93

the CESL presents the following objectives: a) Overall objective

• Facilitate cross-border purchase by consumers in the internal market.

Indicator

• Variation in percentage of consumers shopping cross-border.

b) Specific objectives

• Increase in consumer confidence in shopping cross-border.

• Decrease number of consumers who experience refusal to sell.

• Improve access to offers from across the EU.

Indicators

• Variation in consumer confidence in cross-border shopping.

• Variation in percentage of consumers who experience refusal to sell.

c) Operational objectives

• Reduce level of uncertainty about consumers’ rights in cross-border shopping.

• Ensure high level of consumer protection.

37 4.2.2 The Intended Positive Effects

According to the Commission’s Impact Assessment, the effects on consumers would be the following: 94

• Simplification and strengthened consumer confidence

The option to agree on the CESL would simplify the regulatory environment, eliminating the need for researching and dealing with different national laws as only one regulatory framework would be used.

To strengthen certainty about their rights and thereby consumer confidence, businesses would provide consumers with a standardized information notice whenever the optional Common European Sales Law was chosen for use. This notice would set out information about the key rights consumers would enjoy under such regime. The provision of this information responds to some concerns (i.e. increase of the legal complexity and inability for the consumer to make an informed choice for the application of the CESL) raised by consumers and legal practitioner representatives in their responses to the Green Paper.

Within this setting the optional Common European Sales Law could encourage more consumers to shop cross-border, as they would have the same rights at a high level of protection everywhere in the EU whenever such instrument would apply. Moreover, the information notice would be beneficial for the large percentage of consumers who do not always read terms and conditions, as it would present their key rights in a concise and prominent way before they agree to the contract. If this information is not provided to the consumer, then he would have the right to terminate the contract without bearing any costs.

In addition, the agreement would only be valid if the consumer consented - in a separate statement - to using the optional Common European Sales Law. For this reason a business would not be allowed to include such rules as a default choice in his standard terms and conditions.

The information notice and the explicit separate statement of consent the consumer would have to provide would also eliminate the fears of several Member States and consumer associations regarding the fact that businesses could take advantage of the weaker position of the consumers, if the latter would not be fully able to understand the consequences of choosing an optional Common European Sales Law.

Another substantial advantage is that this option also would provide a high level of consumer protection (in line with Article 38 of the Charter of Fundamental Rights of the EU). The CESL would create protection in areas in which the Union has not previously acted by integrating the fully harmonized provisions of the CRD and by taking the other minimum harmonization provisions of the

acquis as a benchmark.

38

• Reducing consumers missing out on opportunities of the Single Market

The introduction of this option would increase competition in the internal market and consequently lead to a decrease in prices. For competition to increase businesses would need to trade more (both export and import) while lowering the practice of “refusal to sell”. An increase in cross border trade would lead to a rise in imports which would be likely to increase the competition in the importing MS. To be able to compete in the market, businesses would be encouraged to either improve the quality of their products or reduce prices. This would contribute towards the Commission policy on increasing competitiveness.95

Consumers would benefit from an increased choice of products at a lower price. The EC expects prices to decrease around 0.04-0.07% if 25% of EU companies used the optional Common European Sales Law. If non-EU businesses could choose to use the optional Common European Sales Law they would have easier access to the internal market.

Thus, consumers would again benefit from an increased choice of products at a lower price as competition between businesses would be stronger because both non-EU businesses as well companies from inside the EU would be active in the internal market.

4.3 THE EUROPEAN COMMISSION’S OVERALL ASSESSMENT

The optional CESL could turn into a “trustmark” for consumers: once they have become familiar with their rights under this instrument they would become more certain and therefore confident in purchasing products across the EU.

Additionally the CESL would strengthen rights on some points of particular concern to consumers compared to the existing acquis. For instance, the consumer could choose the type of remedy if the goods did not conform to the contract; these remedies would also be available to consumers who bought digital content products which did not conform to the contract. These and other consumer protection provisions would give consumers confidence that they would have a very high level of protection whenever they use this optional instrument.

Finally it would provide incentives to increase trade which would result in more competition in the internal market. The increase in trade and competition could be of an advantage to the economic interests of consumers as they could gain access to more and better offers at a cheaper price, which would not have been made available by foreign businesses if the CESL had not existed.

Overall, the EC believes that this policy option meets the policy objectives as it would offer a less complex legal environment for consumers who wish to trade cross border and at the same time it would increase consumers’ confidence about their rights while providing a high level of consumer protection. Moreover it would reduce consumers missing out on opportunities from the Single Market.96

95

European Commission, Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: “An Integrated Industrial Policy for the Globalisation Era Putting Competitiveness and Sustainability at Centre Stage”. COM (2010) 614

96

39