ADR Directive Research Articles

OUT-OF-COURT RESOLUTION OF CONSUMER DISPUTES UNDER THE EUROPEAN UNION LAW

The subject of the article is an analysis of out-of-court methods of resolving consumer disputes in European Union law. They constitute a procedural guarantee of the implementation of consumers’ right to a high level of protection, guaranteed in Art. 38 of the Charter of Fundamental Rights of the European Union. The article describes Directive 2013/11/EU on alternative dispute resolution for consumer disputes. The principles of its implementation in European Union countries are also presented. Also addressed by the analysis is the latest proposal to amend the ADR Directive presented by the European Commission. According to the author, Directive 2013/11/EU has fulfilled its role as the foundation of the consumer rights protection system in the European Union. However, with the development of services on the internet, consumers are exposed to new threats. The proposal to modify the ADR Directive presented by the European Commission is a step aimed at increasing the level of consumer protection.

Towards High-Quality Consumer ADR: The Belgian Experience

Since the 1990s, the development of Consumer Alternative Dispute Resolution (CADR) schemes allowing consumers and traders to solve their disputes out-of-court has been an ever-growing phenomenon with increasing political importance at the European level. The EU regulatory framework for CADR started with informal measures and then evolved to more formal rules. Directive 2013/11/EU (the Consumer ADR Directive) has established a new regulatory framework with the intent to develop high-quality CADR schemes and to promote trust and confidence among consumers and traders. National ‘Competent Authorities’ are in charge of reviewing the quality of CADR providers and ensure that the quality requirements are met on an on-going basis. This paper investigates the impact of the Consumer ADR Directive at Member States level, and more specifically uses Belgium as a case study. It notably builds on an online survey completed in Winter/Spring 2018 by the Belgian Competent Authority. The objectives of the paper are threefold: it explores how quality criteria have been working in practice in Belgium, it sheds some light on several persisting issues, and finally tries to look to the future by proposing some policy recommendations aimed at further strengthening the Belgian framework for high-quality CADR.

ADR u pravu potrošača - iskustvo Albanije u prenošenju EU direktive 2013/11 u nacionalno zakonodavstvo

The consumer protection has been of paramount importance for the EU institutions with the final aim of strengthening the EU single market. At present consumer law occupies a considerable part of the EU regulatory framework. After settling the substantial law with regard to consumer rights, a stronger need for guaranteeing and enforcing those rights is observed. The EU has adopted Directive 2013/11 on Consumer ADR aiming to establish fast, efficient, low-cost and qualitative schemes of consumer redress, operative since the second half of 2015. This paper aims to outline the general requirements of Consumer ADR Directive and introduce the Albanian experience on its transposition. A minor comparative overview to the experience of other EU countries is underlined in order to evaluate the better solution.

Monitoring Consumer ADR in the EU: A Critical Perspective

One of the key objectives of Directive 2013/11/EU (the Consumer ADR Directive) has been to promote high quality ADR entities through the creation of a certification scheme for ADR providers. In parallel, the Directive has also established a monitoring framework in which Member States’ 'Competent Authorities' play pivotal roles to ensure ADR providers’ continuous performance and compliance. Against this background, key questions arise with regard to the enforcement of those quality standards, and the behaviour of those entities that are in charge of monitoring. While presenting the particularities of ADR monitoring schemes established in Member States, this paper argues that, despite the efforts made to promote high quality ADR schemes, the Consumer ADR Directive has ultimately fallen short of securing a consistent approach to ADR monitoring across the EU and has left open the possibility for patchy and disorganised initiatives at Member States’ level. This is due to the high number of national Competent Authorities currently operating in the EU and issues with monitoring architectures, insufficiency of the quality standards set out in the Directive, and risks of highly diverging monitoring behaviour from Competent Authorities. Moreover, the possible coexistence of certified and non-certified ADR providers in some Member States tends to undermine the overall homogeneity of ADR sectors and creates confusion for consumers. A more structured and effective approach to ADR monitoring is needed for meeting consumers’ expectations, ensuring consistency, and creating a levelled playing field for all ADR providers. Competent Authorities have the capacity to contribute significantly to a better rationalisation of ADR sectors, and a better embedment of ADR within civil justice systems. Revised monitoring architectures should help maximise their interventions. In the context of the upcoming publication of the national monitoring reports expected by 9 July 2018, considering these changes appear particularly timely.

South African Complaint Forums in the Retail Industry: a Survey of Literature and Some Lessons from the EU

South African consumers receiving poor service in the retail industry want to complain, but have limited or no knowledge of the available consumer complaint forums. The consumer complaint forums in the retail industry can generally be divided into those established in terms of the Consumer Protection Act 68 of 2008 and other complaint forums. Before consumers can decide which forum they want to lodge their complaint with, they first need to identify possible complaint forums and then measure each forum according to certain factors. This study made a unique contribution by identifying possible factors which a consumer can refer to in this regard. In developing these factors, guidance was taken from the EU Consumer ADR Directive and the ODR Regulation. The factors suggested in this study included the following: the cost of and time spent on lodging a complaint, the effective functioning of the complaint forum, transparency in the operation of the complaint forum, the relief that a consumer may obtain from the complaint forum, and the user-friendliness of the complaint process. The National Consumer Tribunal, the National Consumer Commission, the Consumer Goods and Services Ombud, and ordinary civil courts were assessed using the above factors. A limitation of this study was that not all complaint forums could be assessed in terms of these factors, due to the lack of publicly available information. This study found that even though South Africans now have more complaint forums at their disposal, this does not translate into positive outcomes for aggrieved consumers. The strength of these forums lies in the buy-in received from both consumers and retailers. True consumer power arises through collective action after careful investigation, and resolving individual complaints may not result in the change of consumer policy which is actually what is required in the long run.

Postępowanie w sprawie pozasądowego rozwiązywania sporów konsumenckich w świetle ustawy z dnia 23 września 2016 roku

The ADR Act of 23 September 2016 addressing consumer dispute resolution implements the EP and EC ADR Directive of 21 May 2013 regulating consumer dispute resolution, and EU and EP Regulation 524/2013 of 21 May 2013 on Online Dispute Resolution in Consumer Disputes. The aim is to give consumers who engage in dispute resolution with business entities an option to apply to legal entities that offer independent, impartial, transparent and effective facilities of amicable dispute resolution. The aim is also to equip entrepreneurs with a necessary tool to avoid costly and prolonged court proceedings against consumers. This article discusses how the Act regulates the substance, commencement, conduct and conclusion of the proceedings in out-of-court settlement of consumer disputes.

Postępowanie w sprawie pozasądowego rozwiązywania sporów konsumenckich w świetle ustawy z dnia 23 września 2016 roku

The ADR Act of 23 September 2016 addressing consumer dispute resolution, marks an implementation of the EP and EC ADR Directive of 21 May 2013, regulating consumer dispute resolution, and EU and EP Regulation 524/2013 of 21 May 2013 on Online Dispute Resolution in Consumer Disputes. The aim is to provide consumers in need of dispute resolution against business entities with an option to apply to legal entities that offer independent, impartial, transparent and effective facilities of amicable dispute resolution. The aim is also to equip entrepreneurs with an instrument to avoid costly and long-term court proceedings against consumers. This article discusses how the Act regulates the substance, commencement, conduct and conclusion of the proceedings in the out-of-court resolution of consumer disputes.

Critical Remarks on the ADR Directive

The ADR Directive pursues an honourable aim trying to provide consumers and traders with access to a simple, fast and low-cost method of dispute resolution. In the short term, it will probably improve the position of consumers compared to the status quo ante. However, it does not guarantee consumers the remedy they are entitled to. It institutionalises a system that does not meet the standards for the proper administration of justice and it may jeopardise the efforts made for the harmonization of the material rules of consumer protection and the creation of a level playing field for traders in the internal market in the long term. An EU measure aimed at amending the existing court procedures in the Member States in order to make them better suited to deal with low value consumer claims would have been preferable.

Online Dispute Resolution to Resolve Consumer Disputes from the Perspective of European Union Law: Is the Potential of ODR Fully Used?

Traditional judicial mechanisms did not offer an adequate solution for cross-border electronic commerce disputes. Although there has been expected great potential in solving disputes online and the rise of Online Dispute Resolution (ODR) use, the assumptions has not been confirmed yet. Only a few examples demonstrate the success stories of ODR, which is in big contrast to the continuous growth of electronic transactions and in general with the use of the online environment. The European Commission however understood the potential of ODR and it is trying to foster the use of it by adopting the ODR Regulation and the ADR Directive. Such legal framework has been developed to apply in consumer disputes arising out of sales or providing services between an EU consumer and an EU trader.The ADR Directive sets out basic standards of ADR entities and processual rules under which it is possible to solve the dispute. Then under the ODR Regulation the complainant will be able to submit a complaint using the ODR platform. The complaint (and any related documentation) will be submitted to the ODR platform via an electronic form.Yet it is necessary to assess the risks of above mentioned legal framework. One of the great concerns are connected with possible forum shopping while providers are registering as ADR entities. Experienced trader (unlike the consumer) is able to choose ADR provider, which is more likely to decide in his favour. Possible exclusion of online negotiation or even online tools in general is then further underlining possible. The paper will thus assess main legal aspects of ADR / ODR legal framework of European Union Law and will deal with main problematic parts of it.

Ombudsman Schemes Energy Sector in Germany, France and the UK

This chapter provides an overview of the most successful ADR model in the EU for resolving consumer disputes: the ombudsman model. After introducing the differences and similarities of both public sector and private sector ombudsman schemes, a comparison of existing consumer ombudsman models in the energy sector in Germany, France and the UK is offered. Drawing on an extensive empirical dataset of 981 responses to consumer satisfaction surveys of recent users of ADR in the energy sector, cross-national specificities in customer expectations and ombudsman procedures are compared. The ombudsman model is flexible, consumer friendly and adaptable to changing consumer needs. However, currently no shared language, standards or training exists in the EU. There is a real opportunity here, if the ADR directive is used as an incentive to create a harmonized ADR landscape with streamlined procedures and outcomes, consistent terminology, and early management of consumer expectations. It remains to be seen over the next years how member states choose to make use of the ADR directive.

Regulating ADR: Lessons from the UK

This chapter analyses the manner in which the ADR Directive and ODR Regulation have been implemented in the UK, with a particular focus on the ombudsman sector. The chapter argues that in the UK implementation has been minimalist and that this represents a missed opportunity. The Directive is capable of laying the foundations for robust ADR, but the regulation of the sector looks deficient. As a result, there is a heightened risk that sub-optimal standards in the sector will go undetected which may in turn undermine user confidence. More work needs to be done to make the regulatory set-up a standard-bearer for the sector rather than a passive observer.

ADR and ODR—achieving better dispute resolution for consumers in the EU

Prior to the recent adoption of the Alternative Dispute Resolution Directive and the Online Dispute Resolution Regulation by the EU Commission, the use by consumers of ADR to resolve disputes with traders has varied widely across the EU, even though ADR often offers a more cost-effective and speedy resolution to disputes than court proceedings. This article examines the use of ADR by EU consumers before the Directive and Regulation were implemented, highlights key harmonising aspects of the Directive and identifies different approaches that several Member States have taken to give effect to the ADR Directive.

The Implementation of the Consumer ADR Directive in Belgium

This chapter analyses the current (consumer) ADR and ODR landscape in Belgium. In 2014, Belgium was one of the first Member States to implement the new 2013 Consumer ADR Directive. The Act of 4 April 2014 on the Out-of-Court Resolution of Consumer Disputes introduces new standards on internal complaints procedures and defines a series of quality requirements ADR entities have to meet. Most importantly, the Act of 4 April 2014 establishes a Consumer Mediation Service. This government body dispatches consumer or trader complaints to the competent ADR entities and acts as Belgium’s residual ADR entity.

Releasing the Potential for a Value-Based Consumer Arbitration under the Consumer ADR Directive

Abstract: This article identifies the tension between the public and the private nature of arbitration and analyses how this tension prevents consumer arbitration of fulfilling important public functions. We conclude that the EU should thrive to introduce a system which facilitates justice for consumers, i.e., a system of dispute resolution which is committed to procedural and substantive public policy. The latter should be preferred over a system which is primarily concerned with the resolution of disputes between businesses and consumers however efficient and fair that system may be. Résumé: Der Beitrag fokussiert das Spannungsverhaltnis zwischen der offentlichen und der privaten Natur der Streitschlichtung und analysiert, wie dieses Spannungsverhaltnis die Erfullung wichtiger offentlicher Funktionen durch Verbraucherstreitschlichtung verhindert. Wir kommen zu dem Ergebnis, dass die EU sich bemuhen sollte, ein System einzufuhren, das Gerechtigkeit fur Verbraucher fordert, d.h. ein Streitschlichtungssystem, das der verfahrensmasigen und materiell-rechtlichen offentlichen Ordnung verpflichtet ist. Solch ein System ist vorzugswurdig gegenuber einem System, das sich hauptsachlich auf die Losung von Konflikten zwischen Unternehmern und Verbrauchern konzentriert, unabhangig davon, wie effizient und fair dieses System sein mag.

The New ADR Directive: Designed to Fail? A Short But Hole-Ridden Stairway to Consumer Justice

The European Commission adopted the new ADR Directive with an aim to create an additional, attractive stairway to consumer justice. As such, the ADR Directive intends to encourage more consumers to invoke their consumer rights and thus strengthen consumer law enforcement. However, in order to realize the Commission’s goals, this stairway must also be able to be negotiated (i.e. it must be effective) and it must actually lead to consumer justice (it must be fair). This paper questions whether the ADR Directive’s regime is appropriately designed to achieve these results and, consequently, to entice more consumers to claim their rights in the future. This assessment is conducted considering the potential impact of the ADR Directive on consumer behaviour, with respect to mitigating their ‘biases’ against the effectiveness of ADR procedures and their perception of fairness of ADR entities. I examine whether the ADR Directive is likely to eliminate or at least diminish such biases more than in the case of judicial procedures. Throughout this paper, based on the analysis of consumer attitudes and beliefs towards ADR, I indicate where the ADR Directive fails to provide more or better regulation, arguing that if these shortcomings are not corrected within national implementation regimes, the result may be that ‘ADR stairway’ will contain holes that consumers may fall through during their climb towards justice.

Online ADR for the E-Commerce? European Union’s ADR Legislation for Cross-Border Online Trade

The European Union has adopted the ADR Directive and ODR Regulation in 2013 with the purpose to strengthen the e-commerce within the EU. Not covered by these legislations is the trade in the B2B sector. The author examines the question of whether online ADR under the currently applicable legal framework would be possible in Germany. At the center of his review is the possibility of an arbitration clause which refers exclusively to an online ADR scheme, may be included in the General Terms and Conditions of an online trader.

The ombudsman as democratic ‘alternative’: Reading the EU Consumer ADR Directive in the light of the PASC reports

This article considers the potential impact of the EU Consumer ADR Directive on the future development of public-sector ombudsmen in the UK. It suggests that, whilst the Directive might constructively encourage the reinforcement of consumer rights, any such tendency towards consumerism in the development of the ombudsman institution should be balanced by respect for the distinctive qualities of public-sector ombudsmen as agents of a form of participatory democracy. This disciplined reading of the Directive points towards the need to heed the recommendations, and underlying thinking, of the report on the UK Parliamentary Ombudsman by the Public Administration Select Committee in 2014.

What Future for the Ombudsman?

AbstractThe ombudsman institution, in both the public and private sectors, is increasingly identified with the ethos of consumerism and the protection of consumer rights. The current trend is exemplified and reinforced by the EU ADR Directive and by the government response to a recent inquiry into complaints conducted by the Public Administration Select Committee. This article argues that the dominant consumerist ethos diminishes the ability of the ombudsman institution to fulfil its potential. If the ombudsman institution, in particular as manifest in the office of the UK Parliamentary Ombudsman, is to serve the public interest, it must instead promote human rights principles and constitutional morality, adopt a process that is marked by public reasoning and participation and seek by a whole‐system approach to realise a vision that is integrated and truly democratic.

European Collective Redress Developments (August 2013)

The purpose of this brief note is to provide an overview of recent collective redress developments in Europe, in particular on the European level and four European jurisdictions: the Netherlands, Germany, France and Belgium. With respect to the European developments, attention is paid to the recent Recommendation of the European Commission on Collective Redress Mechanisms (in which it lists some common, non-binding, principles that Member States should take into account when crafting such mechanisms), the proposal for a Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, and the recent ADR Directive and ODR Regulation. Furthermore, the Dutch Act of June 26, 2013 amending the Dutch Collective Settlements Act, is discussed. The two most significant revisions are the applicability of the act in bankruptcy cases, and the introduction of a pre-trial hearing. Next, the 2012 amendments of the German KapMuG are analyzed. The most salient amendment is that class members now can register (announce) their claim with the court and the defendant and apply for model case treatment without having to initiate fully-fledged proceedings. Finally, the two recent class action proposals that were launched in France and Belgium are discussed.

The Independent Judiciary in an Interest-Group Perspective

The Independent Judiciary in an Interest-Group Perspective