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

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Abstract

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.

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Notes

  1. Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No. 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR), OJ L 165 of 18 June 2013, pp. 63–79.

  2. Regulation (EU) No. 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No. 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR), OJ L 165 of 18 June 2016, pp. 1–12.

  3. European Commission [2], p. 13.

  4. Ibid.

  5. European Commission [2], p. 13.

  6. Ibid.

  7. European Commission [2], p. 7.

  8. Commission Recommendation 98/257/EC of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes, OJ L 115 of 17 April 1998, pp. 31–34.

  9. Commission Recommendation 2001/310/EC of 4 April 2001 on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes, OJ L 109 of 19 April 2001, pp. 56–61.

  10. European Commission [2], p. 72.

  11. European Commission [2], pp. 18–19.

  12. European Commission [2], p. 73.

  13. European Commission [2], p. 73.

  14. European Commission [2], p. 74.

  15. Ibid.

  16. European Commission [2], p. 17.

  17. European Commission [2], p. 75.

  18. Ibid.

  19. European Commission [2], p. 74.

  20. European Commission [2], p. 74.

  21. Such as those located in Denmark, Estonia, France, Ireland, Lithuania, Luxembourg, Latvia, the Netherlands, Poland, Slovakia, Slovenia, Czech Republic, Malta, the United Kingdom, European Commission [2], p. 16.

  22. European Commission [2], p. 16.

  23. Denmark, Estonia, Greece, Latvia, Lithuania, Malta, Netherlands, Finland and Sweden, European Commission [2], p. 17–18.

  24. European Commission [2], p. 16.

  25. European Commission [2], p. 74.

  26. Ibid.

  27. Ibid.

  28. European Commission [2], p. 16.

  29. Ibid.

  30. European Commission [2], pp. 24–25.

  31. Ibid.

  32. Ibid.

  33. Ibid.

  34. European Commission [2], pp. 24–25.

  35. Even the 2007 Regulation on European Small Claims Procedure, which requires civil courts in Member States to accept a simplified claim form for disputes between two parties of different Member States with claims equal to or less than €1000 and which required courts to follow a simplified procedure for resolving those disputes, has not been judged to be effective at providing a widely used dispute resolution procedure. As of 2010, 47 % of court judges were not even aware of the European Small Claims Procedure, 41 % of courts did not make the claim form available at the courthouse or online or provide assistance to claimants in filling out the form and in 76 % of cases the European Small Claims procedure was not free of charge for consumers, European Commission [2], p. 13.

  36. European Commission [2], p. 25.

  37. European Commission [2], p. 17.

  38. Art. 2 ADR Directive. A number of dispute resolution procedures are excluded: trader-owned dispute resolution bodies, the complaints handling procedures of a trader, non-economic serves of general interest, disputes between traders, the direct negotiations between a consumer and trader to settle their dispute, the actions of a judge to attempt to settle a dispute during litigation, any action commenced by a trader against a consumer, health services provided by health professionals to patients and public providers of higher education.

  39. Art. 2 ADR Directive.

  40. In submissions received by the Commission, a majority of respondents believed that requiring consumers to use an ADR process before applying to court could restrict an individual consumer’s right to go to court, European Commission [2], p. 89. Nonetheless, the Directive permits Member States to implement mandatory ADR processes provided that the use of such bodies will not prevent the parties from accessing the judicial system (ADR Directive, Art. 1). This does not affect existing EU laws which make ADR mandatory in certain economic sectors, such as Directive 2009/72 (OJ L 211 of 14 August 2009, pp. 55–93) and 2009/73 (OJ L 211 of 14 August 2009, pp. 94–136) on common rules for the internal market in electricity and natural gas which requires energy providers to participate in an ombudsman or other out-of-court dispute resolution regime (Directive 2009/72/EC, Art. 13 and Directive 2009/73/EC, Art. 9).

  41. Art. 2 ADR Directive.

  42. Art. 3 ADR Directive. If a trader is established in multiple Member States, there need only be one ADR body that covers consumer disputes with that trader and Member States can rely on an ADR body in another Member State to fulfil their obligation (Ibid.).

  43. Art. 4 ADR Directive.

  44. Art. 5 ADR Directive.

  45. Art. 6 ADR Directive. Even though the Directive does not apply to trader-sponsored dispute resolution bodies, if a Member State decides to allow such a body to consider consumer disputes, then the person in charge of that body must also comply with the following provisions: she must be nominated by a body that contains an equal number of consumer representatives and trader representatives, she must be granted an appointment for at least a three year term, she must commit to not working for the trader for at least three years after her appointment ends and the ADR body must not have a career promotion link with the business and it must have its own budget which is separate from that of the business (Ibid.). Similarly, if the head of an independent ADR body is appointed from a trader-friendly professional organisation then that head must have a separate and dedicated budget at its own disposal with which to conduct ADR proceedings.

  46. Art. 7 ADR Directive.

  47. Art. 9 ADR Directive.

  48. Ibid. If national law mandates that the trader must participate, then only the consumer will be allowed to withdraw.

  49. Art. 9 ADR Directive.

  50. Art. 9 ADR Directive. If national law requires traders to be bound by the decision of the mediator, ombudsmen etc. then these obligations to inform only apply to the consumer.

  51. Art. 10 ADR Directive.

  52. Art. 10 ADR Directive. Again, a caveat is made for traders where they are required to accept under national law.

  53. Art. 11 ADR Directive.

  54. Art. 13 ADR Directive.

  55. Ibid.

  56. Art. 15 ADR Directive.

  57. Art. 18 ADR Directive.

  58. Art. 20 ADR Directive.

  59. Art. 2 ODR Regulation.

  60. Ibid.

  61. Ibid.

  62. Art. 5 ODR Regulation.

  63. Arts. 5, 8 and 9 ODR Regulation.

  64. Art. 5 ODR Regulation.

  65. Implementatiewet Richtljin buitengerechtelijke geschillenbeslechting of 15 July 2015.

  66. Book XVI of The (new) Code of the Economic Law of 12 May 2014.

  67. Ibid.

  68. Ibid.

  69. French Consumer Code, Mediation of consumer disputes dated 20 August 2015.

  70. Ibid.

  71. Ibid.

  72. www.mediation-conso.fr, last accessed 22 July 2016.

  73. Gesetz zur Umsetzung der Richtlinie über alternative Steitbeilegung in Verbraucherangelegenheiten und zur Durchführung der Verordnung über Online-Streitbeilegung in Verbraucherangelegenheiten of 19 February 2016.

  74. Consumer Protection, The Alternative Dispute Resolution for Consumer Disputes (Competent Authorities and Information) Regulations 2015 by 7 April 2015, 2015 No. 542.

  75. Department for Business Innovation & Skills [1], pp. 5–6.

References

  1. Department for Business Innovation & Skills: Government response to the consultation on implementing the Alternative Dispute Resolution Directive and the Online Dispute Resolution Regulation (2014)

  2. European Commission: Commission Staff Working Paper, Impact Assessment Accompanying the Document Proposal for a Directive of the European Parliament and of the Council on Alternative Dispute Resolution for consumer disputes (Directive on consumer ADR) and Proposal for a Regulation of the European Parliament and of the Council on Online Dispute Resolution for consumer disputes (Regulation on consumer ODR). European Commission, Brussels (2011). Available at: http://ec.europa.eu/consumers/archive/redress_cons/docs/impact_assessment_adr_en.pdf [Accessed 9 May 2016]

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  1. Allen & Overy LLP, London, UK

    Joanna Page & Laurel Bonnyman

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  1. Joanna Page
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Correspondence to Joanna Page.

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Page, J., Bonnyman, L. ADR and ODR—achieving better dispute resolution for consumers in the EU. ERA Forum 17, 145–160 (2016). https://doi.org/10.1007/s12027-016-0424-5

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