Johanna Stark

The CESL as a European Brand - Paypalizing European Contract Law

According to the Commission, the main political goal behind the Common European Sales Law (CESL) is advancing cross-border trade between EU member states, thereby helping to further establish and strengthen a common market within the EU. The CESL is chosen and even symbolized by an already legendary blue button that consumers have to push in order to opt into the new European law. However, the blue button is more than a mere technicality: It aims at increasing consumer trust in cross-border trade by using the (expectedly) positive signaling effect of the European brand. Thus, if traders know that consumers are more likely to engage in cross-border trade on the basis of the CESL than by relying on a national contract law, offering to contract on this basis will be attractive to them for precisely this reason. If a CESL offer can be expected to increase consumers’ trust in a prospective transaction, traders will be able to use such an offer as a marketing instrument. A similar branding strategy is known from the US online payment service PayPal who has established its “payment trust button” already a decade ago. The present article deals with the question to what extent PayPal’s success story can be transferred to European contract law and what lessons the European legislator can learn from it. Could the CESL with its blue button potentially become a new, PayPal-like mechanism for consumer protection by creating and strengthening consumer trust in cross-border trade?

Buttons, Boxes, Ticks, and Trust

Consumers shall be considerate and responsible, have the necessary information available and choose from a vast array of goods whatever best satisfies their needs. The ideal understanding of the European consumer relies on splendid supply and sound choice. Whereas the supply of goods and services in the Union as well as in most Member States is impressive, consumer choice in form of B2C contracts is a weak point. Sure enough, choosing contractual options and agreeing to proposed conditions has definitely become fancier in the digital age. Customers tick appealing boxes with green checkmarks and hit stylish buttons to plot a way through the conclusion of a contract. At the same time, choices have not become easier at all as traders and legislators have come to know how to expertly strike the keys of choice architecture. Thus, how much of contemporary consumer choice does in fact match the ideal of considerate and responsible decisions? Examining three examples of how relevant information is presented to consumers in order to contribute to their “empowerment”, we come to the conclusion that the current EU consumer policies fail, at least occasionally, to take into account key lessons that cognitive psychology and behavioural law and economics have taught us over the past decades. We conclude by giving an outline of how the current strategies could be amended so as to make them more effective towards the overall goals of consumer empowerment and consumer confidence.

Buttons, Boxes, Ticks, and Trust: On the Narrow Limits of Consumer Choice

Consumers shall be considerate and responsible, have the necessary information available and choose from a vast array of goods whatever best satisfies their needs. The ideal understanding of the European consumer relies on splendid supply and sound choice. Whereas the supply of goods and services in the Union as well as in most Member States is impressive, consumer choice in form of B2C contracts is a weak point. Sure enough, choosing contractual options and agreeing to proposed conditions has definitely become fancier in the digital age. Customers tick appealing boxes with green checkmarks and hit stylish buttons to plot a way through the conclusion of a contract. At the same time, choices have not become easier at all as traders and legislators come to know how to expertly strike the keys of choice architecture. Thus, how much of contemporary consumer choice does in fact match the ideal of considerate and responsible decisions? Examining three examples of how relevant information is presented to consumers in order to contribute to their “empowerment”, we come to the conclusion that the current EU consumer policies fail, at least occasionally, to take into account key lessons that cognitive psychology and behavioural law and economics have taught us over the past decades. We conclude by giving an outline of how the current strategies could be amended so as to make them more effective towards the overall goals of consumer empowerment and consumer confidence.