The European Commission has noted that the internet is being increasingly used by both consumers and businesses to “buy products, access entertainment and manage their daily life”.  However, the Commission believes that EU cross-border e-commerce has not reached its full potential and is currently hindered by differing contractual rules between EU countries and has opened up a consultation to gauge views on the matter.

On 6 May 2015, the EU’s Digital Single Market Strategy was adopted, with a proposal to break down the barriers that currently hinder cross border e-commerce.   There is currently a big gap between the number of online purchases made from a business in the same country as a consumer, compared with much fewer online purchases from abroad. The Commission is concerned that the barrier of different contracting laws across EU member states results in consumers not taking the full benefit of the most competitive deals.

The background to the Commission consultation is widespread opposition to the Commission's proposal for a Common European Sales Law (CESL).  In its Strategy documentation, the Commission said it instead intended to make an alternative proposal allowing traders to rely on harmonised EU rules for online purchases of digital content, and their national laws, based on a set of obligatory EU contractual right for domestic and cross-border online sales of tangible goods.

The new consultation looks like it is the first step in this legislative initiative (as a response to “Pillar 1” of the Strategy, to give better access to consumers and businesses to digital goods and services across Europe).  Contributions to the consultation will be collected on the possible ways forward to remove contract law obstacles related to the online purchases of digital content and tangible goods (with copyright related issues to be addressed by a separate course of action).

The Commission's questionnaire has also asked businesses to explain whether they "see a need to act for business-to-consumers transactions only" or whether measures to remove contractual barriers should also apply to "business-to-business transactions".

 The Consultation is open to all with a closing date for responses of 3 September 2015.