Towards a sharp distinction between b2b and b2c? On consumer, commercial and general contract law after the consumer rights directive

The proposed directive fits very well with a sharp distinction between b2c and b2b contracts and comprises several features that - especially as a combination - provide an optimal basis for a future European consumer (contract) code. Still, nothing in the directive renders further distinction between b2c and b2b compulsory. This raises the question as to whether a rigid, categorical distinction between rules governing b2c and those governing b2b contracts is desirable. This paper argues that no substantive ground justifies such a categorical distinction. Non-consumers, especially small businesses, often encounter situations identical to those usually invoked to justify consumer protection. In such cases the equality principle would require that the legislator extend the protection prescribed for consumers to include this group. In this respect, greater transparency may be expected from the European Commission. How does the Commission view the future: does a European Code of Consumer Law lie ahead? The Council of the European Union and the European Parliament should ask the Commission for guidance here and should adopt a clear position themselves. This is important for two reasons. The first is that prior to transposition of this directive, Member States should know what to expect. The second is that if a European Code of Consumer Law ever materializes, it will need to be the outcome of a deliberate decision to this effect.