The member states’ justice ministers defend diverging positions on the relevance, form and content of a 28th uniform contract law regime. At the 8 June Justice Council, only Poland, Lithuania, Latvia, Greece, Estonia, Malta and Bulgaria expressed support in principle for the European Commission’s proposal to establish a non-compulsory common European law to be used for cross-border sales in lieu of national law.

The discussion, organised on the initiative of the Danish EU Presidency, was meant to define a constructive position to allow the negotiations, begun in October 2011, to continue. “This discussion confirmed that the positions vary and member states expressed mutually exclusive positions. The Presidency will draw conclusions to enable us to continue this work,” concluded Danish Justice Minister Morten Bodskov.

In their responses to a questionnaire drawn up by the Presidency, Hungary, the Netherlands, Slovenia, Germany and Finland appeared unconvinced of the relevance of a new optional instrument that would apply to contracts concluded between businesses or between businesses and consumers. “This instrument does not satisfy the objectives of legal certainty or the need for predictability. In our opinion, it simply has too little added value,” explained the Dutch State Secretary for Justice and Security, Fred Teeven. The Czech Republic was more moderate, saying it could accept an instrument “limited to online sales”. Slovenia and Romania defended a non-binding instrument similar to a toolbox. Conversely, Poland, Lithuania, Latvia, Greece, Estonia, Malta and Bulgaria firmly backed this instrument “capable of strengthening cross-border trade and therefore stimulating growth”.

Over and above this fundamental opposition, the member states are also at odds over the proposal’s legal basis and content. On the legal basis, Hungary, the Czech Republic and France called for replacing Article 114 TFEU, proposed by the European Commission, with Article 352, which requires unanimity. On content, the discussions remained limited mainly to the “standard European contract clauses” found in the draft regulation. Hungary and Slovenia expressed support for the use of these provisions in the place of a 28th regime, while Greece, Latvia and Luxembourg argued that they should complement a common European sales law. Italy rejected this idea at EU level.

The European Parliament is set to vote in December 2012.