2.It could either be reached by the agreement of the parties under article 3 of Rome I, article 14 of Rome II, or outside the scope of those instruments, national private international law rules on choice of applicable law, or it could be reached by the default rules as to applicable law under the same three sets of rules.

3. So, for example, where a French trader agrees to sell goods cross-border to a German SME, the parties could agree that their law should be governed by the law of any Member State under article 3 of Rome I and also that their contract should be subject to the CESL, the assumption being that this choice of the CESL is a choice within the national law chosen under Rome I.

4. However,if the parties do not make an express or implied choice of applicable law under Rome I,but do agree that their contract should be subject to the CESL, the assumption is that this agreement can take effect as a choice within the law designated under the default rules of Rome 1 (here,French law as "the law where the seller has his habitual residence") .

6. In this case, the relevant CESL (as 2nd national law) would be reached either by the agreement of the parties under article 14 of Rome II (to the limited extent to which this provision so allows) or by the default rules set out by Rome II, and in particular, article 12's rules governing u non-contractual obligation [ s ] arising out of dealings prior to the conclusion of a contract.

10. Overall, though, in order to gain the cost-saving benefits of the CESL, it is envisaged that cross-border traders should make two express agreements: the first to subject their contract ( and, indirectly, their pre-contractual liabilities) to the law of a Member State for private international law purposes and the second to subject their contract to the CESL.

12. It is not that article 6(2) would no longer be capable of applying in the case of cross-border consumer contracts,but rather that its application " which is predicated on the existence of differing levels of consumer protection in the Member States, will have no practical importance for the issues covered by the Common European Sales Law".

14. Here,even if the trader directs its commercial or professional activities to Germany (so as to attract the application of article 6 of Rome I ),the choice of French law could not have the effect of depriving the consumer of the protection afforded him or her by mandatory provisions of German law (the law of the consumer's habitual residence).

15. The Proposal then appears to assume that the parties' agreement to subject their contract to the CESL (thereby designating the CESL contained in French law) would mean that the relevant part of the law of the consumer's habitual residence is also the CESL, the German "2nd contract law regimen rather than the pre-existing national law (the " 1 st contract law regime" ).