New perspectives on sale of consumer goods – maximum harmonization and high protection of consumers as a condition for the further development of cross-border trade in single market

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 by Maria João Pestana de Vasconcelos, Professor at the School of Law, UMINHO 

As a part of Digital Single Market Strategy for Europe published in May 2015, the Commission adopted, on 9 December 2015, two proposals of Directives: one for a Directive on certain aspects concerning contracts for the online and other distance sales of goods (“Sales of Goods proposal” or “Sales of Goods Directive”); another for a Directive on certain aspects concerning contracts for the supply of digital content and digital services (proposal for a “Directive on Digital Content” or “Digital Content Directive”).

These proposals are the basis of a future reform on consumer sales contracts based on the principle of maximum harmonisation while providing for a high level of consumer protection.

It is already clear that the minimum harmonization approach, adopted by the Consumer Sales Directive (1999/44/EC) [i] has proved not to be appropriate to ensure the proper functioning of the internal market. Member States allowed go beyond the minimum rules, and to impose a high level of consumer protection, have acted on different elements and to different extents. As a result, national provisions transposing the Consumer Sales Directive (99/44/EC) significantly diverge today on essential elements, such as the absence or existence of a hierarchy of remedies. These disparities between the national laws of the Member States constitute one of the major obstacles to the development of the cross-border trade in Single Market given that they may adversely affect business (in particularly small and medium enterprises) and consumers[ii].
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