European Contract Law Reform and European Consumer Law-Two Related but Distinct Regimes

The project to modernise the consumer acquis and the development of general contract law principles have become intertwined. The reasons for this are explained but it is argued that the two could and often should be kept seperate. The proposal for a Consumer Rights Directive has become stalled due to a failure to agree on maximal harmonisation in key areas. The Commission instead sees an Optional Instrument as the engine for increasing cross-border sales through the creation of a 28th regime. In the consumer context this is seen as introducing maximal harmonisation through the backdoor by an Instrument that will not be truly optional for consumers who will be offered it on a take it or leave it basis. Instead a Truly Optional Instrument is proposed to be agreed upon my social dialogue. It would grant consumers a high level of protection and provide for online dispute resolution (ODR). This should address the traders real concern-that they will have to litigate in foreign jurisdictions-whilst not reducing consumer rights, but avoiding in most cases the need to refer to national law by providing simple rules and mechanisms for dealing with most consumer disputes which are often of a fairly straightforward nature. It also raises fewer competence issues.