The Case for a common European Sales Law in an Age of rising Nationalism

The European Commission’s recent proposal for a common European sales law was made in a political climate of rising nationalism. The Commission makes a solid economic and constitutional (legal basis) case for its proposal. However, its argument, which focuses exclusively on the internal market, is not likely to fully convince the opposition. The reason is that it fails to address the widespread notion, underlying also many technical arguments, that Member States should remain sovereign in matters of general private law for the reason that private law is a matter of national identity. In this paper, I address that argument head on. I do this by first identifying the nationalist undertone in many technical arguments raised against the Europeanisation of private law and by then defending the CESL as an expression of another identity that many Europeans share, ie their European identity. I argue, in particular, that the proposed CESL should be welcomed as a common European model of justice between private parties, as rules of just conduct for the internal market. Since most people in Europe identify with both their nation-state and Europe, albeit in different degrees, it makes sense to offer them the choices between national and European contract law. Although the question whether to opt into a CESL should be a matter of private autonomy, the question which legal options will be available is matter of the public autonomy of citizens and requires a full democratic legitimation. Therefore, Article 352 TFEU, the flexibility clause that bypasses the ordinary legislative procedure, would be unacceptable as a legal basis.