Alternative dispute resolution bodies (Austria)

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Signs of the AS agencies in Austria

Alternative dispute settlement bodies (AS agencies, also: consumer arbitration bodies ) are dispute settlement bodies according to the Austrian Alternative Dispute Settlement Act (AStG), with which the procedure for the alternative settlement of disputes about obligations from a paid contract between an entrepreneur established in Austria and a consumer is regulated (§ 1 Abs. 1 AStG).

Dispute settlement bodies

According to Section 4 (1) AStG, the following are approved as AS agencies

The last-mentioned arbitration board for consumer transactions is responsible according to § 4 Paragraph 2 AStG for handling complaints for which the other dispute arbitration boards are not responsible (fall arrest arbitration board). The list of AS positions is final and an extension is only possible by changing the law. In the first half of 2016, 3,500 arbitration proceedings were carried out and almost 3,000 cases were closed. The settlement rate is 63%. The duration of the proceedings in the first half of the year averaged 33 days.

AS agencies are obliged to use a special symbol, the "AS agencies symbol", in accordance with Section 5 (1) AStG. The AS position symbol exists according to § 5 Abs. 2 AStG:

  • from the coat of arms of the Republic of Austria (federal coat of arms) and the word sequence
  • "State-recognized consumer arbitration board";

The AS-places mark may only be used by AS-places according to § 4 Abs. 1 (§ 5 Abs. 3 AStG). According to § 30 AStG, the unauthorized use of AS signs is to be punished as an administrative offense with a fine of up to 3000 euros.

Persons or institutions that do not act as an arbitration body under the AStG or on the basis of other legal provisions may call themselves an AS body, arbitration body or consumer arbitration body, customer complaint body, etc., as this term is not itself protected. The distinction is only made on the basis of the AS digit according to Section 5 (2) AStG. The entrepreneurs are still free to continue to operate, set up or commission other bodies to resolve disputes with consumers. Entrepreneurs must, however, correctly and completely fulfill the information obligations pursuant to Section 19 AStG or Article 14 Paragraphs 1 and 2 of Regulation (EU) No. 524/2013 towards consumers (see Section 29 AStG: inadequate or incorrect information is an administrative offense , which is punishable by a fine of up to 750 euros).

target

The aim of the AS agencies is to strengthen consumer rights through inexpensive, quick and simple alternative dispute resolution mechanisms (see also Art 1 ADR Directive ).

This is intended to bring the parties to an amicable solution or to propose a solution that induces them to reach an amicable settlement (see also § 3 No. 1 AStG).

Procedure

The AS offices have to define detailed procedural rules based on the provisions of the AStG, on the basis of which the parties to the proceedings are guaranteed a fair, fast, objective arbitration procedure (see e.g. §§ 6 and 12 AStG). However, the AS units are not generally committed to a specific conflict settlement procedure. The procedural rules must also specify when the acceptance or processing of a complaint can be refused (see e.g. Section 6 (6) AStG). The procedure is not public (Section 15 (1) AStG). The procedure must be enabled online and offline (Section 8, Paragraph 1, Items 1 and 2 AStG) and disputes must also be carried out which concern foreign issues (Section 8, Paragraph 1, Item 3 AStG).

Party to the proceedings

Those involved in the proceedings are consumers from a member state of the EEA and entrepreneurs with their registered office in Austria , whereby according to Section 12 (1) AStG, only the consumer can appear as the applicant (Art 2 (2) lit. g) ADR-RL).

In principle, Art 12 (1) AStG provides that the procedure is initiated when the consumer receives the complaint from the responsible AS office . The arbitration board can therefore also provide in the rules of procedure that entrepreneurs can initiate the complaint. This is not expressly excluded in the AStG.

Representation or support of the parties by lawyers or third parties is permissible at every stage of the procedure (see Section 12 Paragraphs 3 and 4 AStG).

Voluntariness

Participation in the procedure is voluntary. The parties can break off the procedure at any stage (special regulation, however, for entrepreneurs who are legally or contractually obliged to participate). The parties must be informed of this possibility before the procedure is carried out (Section 12 Paragraph 2 AStG; Art 9 Paragraph 2 lit. a) ADR-RL).

According to Art. 10 Para. 1 ADR-RL, the EU member states must ensure “ that an agreement between a consumer and an entrepreneur about submitting complaints to an AS body is not binding for the consumer if it was made before the dispute arose and if it results in the consumer being deprived of the right to go to the courts to settle the dispute ”.

Jurisdiction

The responsibility of an AS body is basically based on the subject area in which the complaint has arisen (Section 4 (1) AStG see above: "Dispute resolution bodies"). If an AS agency declares that it is not responsible (there is no possibility of making a complaint), if the other criteria are met (see, for example, Section 6 (6) AStG), the arbitration body is responsible for consumer transactions (Section 4 (4) 1 no. 8 and para. 2 AStG in conjunction with Art. 5 para. 3 ADR-RL).

Procedural costs

The arbitration procedure is basically free of charge (§ 13 AStG). However, a token fee can be provided for in the procedural rules (see e.g. § 6 Paragraph 5 AStG; Art 8 lit. c) ADR-RL).

Duration of proceedings

In principle, arbitration proceedings must be concluded after 90 days, stating the reasons (Section 14 (1) AStG).

In the event of complex disputes, the AS office can extend the deadline. The parties must be informed about this (Section 14 (2) AStG).

Proposed solution

In principle, a solution to the problem must be found by the parties themselves. If, however, “ a solution to the dispute cannot be achieved in any other way, the arbitrator can submit a concrete proposal to the parties for its settlement. The proposed solution must move within the framework of the law ”(Section 16 (1) AStG) and an appropriate period for reflection must be allowed (Section 16 (3) AStG).

The proposed solution has to move within the framework of the law means that the proposed solution must be based on the existing factual and legal situation. To a constitutional process z. B. in view of the transparency requirement, the proposed solution must be provided with a reason, which thus becomes part of the arbitration proposal. A justification is particularly necessary to enable the parties to make an informed decision on whether to accept or reject the proposed solution. From the justification it must therefore be possible in particular to identify the factual and legal considerations on which the arbitrator based his proposed solution. In the case of cross-border payments, the AStG has not provided for the primacy of Austrian law. In such cases, the proposed solution will therefore be based on the applicable conflict of laws that apply at the headquarters of the AS body, whereby principles of Union law must be observed.

According to Section 16 (2) AStG, the parties are free to agree to this proposed solution. The parties must be informed prior to granting consent

  1. that they have the choice of approving or rejecting the proposed solution,
  2. that participation in the proceedings does not preclude the possibility of seeking enforcement of their rights in court,
  3. that the proposed solution may be different than the result of a legal proceeding and
  4. the legal effects of accepting the proposed solution.

The settlement concluded before an AS body is required according to § 33 TP 20 para. 2 no. 5 Fee Act 1957 (GebG) free of charge .

Termination of the proceedings

The procedure is to be closed according to § 17 Abs. 1 AStG if

  1. the consumer withdraws his application or declares that he does not want to continue the procedure,
  2. the entrepreneur does not take part in the procedure or declares that it does not want to continue the procedure,
  3. the AS office is not responsible for the incoming complaint,
  4. an agreement was reached or the attempt to reach an agreement was unsuccessful.
  5. there is a reason for rejection according to § 6 Abs. 6 AStG:
    1. the complaint is malicious or harassed,
    2. the complaint is being or has already been dealt with by an AS office or a court,
    3. the amount in dispute falls below or exceeds a specified threshold,
    4. the consumer has not submitted the complaint to the AS body within a period stipulated in the procedural rules of at least one year from the time at which he submitted the complaint to the entrepreneur,
    5. the handling of the dispute would seriously impair the effective operation of the AS body,
    6. the consumer does not make credible in the complaint that he has attempted an agreement with the entrepreneur or that he has not demonstrably made up for this attempt within a reasonable period set by the AS agency.

The procedure is deemed to have ended when the result is communicated.

Suspension of the statute of limitations

The submission of " a complaint and the proper continuation of a procedure before a responsible AS office inhibit the beginning and the continuation of the statute of limitations as well as other deadlines for asserting the rights and claims affected by the procedure " (§ 18 AStG; Art 12 ADR-RL).

privacy

In accordance with Section 8 (2) AStG, the AS agencies may only process personal data to the extent that this is necessary for the implementation of a procedure. This data must be deleted within a period of three months after three years from the notification of the result of a procedure.

Procedural language

The AStG does not provide for any procedural language. It can therefore be assumed that every EU citizen can contact the AS body in his or her language and must also receive an answer in this language, unless the procedural rules of the respective AS body provide otherwise (non-discriminatory).

Arbitrator

The natural person entrusted with the dispute resolution is referred to as the "mediator" (§ 3 No. 2 AStG). According to Section 7 (2) AStG, AS agencies are obliged to provide the parties with information about the mediator (s), including details of their appointment, intended functional period, names, acquired qualifications and previous professional career, on their website, which is to be continuously updated § 8 para. 1 AStG to offer training for the arbitrators if necessary.

confidentiality

The procedure at the AS agencies is not public (Section 15 (1) AStG). The parties can release the arbitrators and employees of the arbitration board from secrecy and confidentiality with regard to the documents submitted. Otherwise, the arbitrator and the AS office must treat the procedure and all information confidentially and not provide any information (Section 15 (2) AStG, Section 321 (1) no. 3 ZPO).

Appointment of the arbitrator

The arbitrator is to be appointed for at least three years and may only be dismissed for the reasons stated in Section 10 (2) AStG. The AStG does not regulate whether reappointment is permissible.

Qualification of the arbitrator

The arbitrator must have legal knowledge, the necessary specialist knowledge, the experience and the skills required for work in the AS office or the judicial settlement of consumer disputes (Section 10 (1) AStG; Article 6 ADR-RL) . Arbitration bodies can be active in a wide variety of areas. It is therefore necessary as an arbitrator not only to have basic legal knowledge, but also B. also or predominantly technical knowledge.

Bias of the arbitrator

The arbitrator entrusted with the conduct of the proceedings must exercise his office independently and impartially (Section 10 (1) and (3) AStG; Article 6 ADR-RL). If this is not the case, the mediator must immediately disclose this to the management of the AS office (Section 10 Paragraph 3 AStG; Art 6 ADR-RL), which has to replace the mediator with another (Section 10 Paragraph 4 AStG; Art 6 ADR-RL).

The arbitrator does not have to disclose his bias to the parties according to AStG, even if this could affect his independence or impartiality (see, however, Art 6 para. 2 lit. c) ADR-RL). According to the AStG, the parties do not have a right of refusal if they know that the arbitrator is biased or if it becomes apparent, and they also have no opportunity to call the responsible AS office.

The exact procedure in the event of bias or partiality (or protection of impartiality) must be specified in the procedural rules in accordance with Section 6 (3) AStG.

independence

Arbitrators within the meaning of the AStG can also be persons who are employed or remunerated by a professional or business association of which the entrepreneur is a member. The AStG partially leaves open the extent to which personal, economic or organizational independence must be given, although Article 2 (2) of the ADR-RL requires clear transparency here. According to the AStG there is no possibility if z. B. a mediator has been appointed by the entrepreneur, so that a representative of the workers' side or a consumer association must or can participate in the mediation as an arbitrator ( equal representation ).

Only if collegial bodies are used as arbitration bodies, they must be filled with the same number of representatives of consumer interests and representatives of entrepreneurial interests (Section 11 AStG; Article 6 (5) sentence 1 of the ADR-RL). The members of such a collegial body must basically each meet all the requirements for an arbitrator. In principle, it cannot be ruled out that these mediators in the collegial committee, B. were posted by a business association and a consumer association, one or more other neutral third parties may also be posted.

It is not provided in the AStG that an arbitrator who z. B. is employed or remunerated by a business association, this must be disclosed to the parties before, during or after the arbitration procedure (see, however, Art 7 para. 1 lit.d ADR-RL).

If the arbitrator is employed in a professional or business association that represents entrepreneurs, he must be provided with a separate accounting group and sufficient funds from the AS office (Section 10 (5) AStG; Article 6 (4) ADR-RL), provided that the arbitrator is not active in a collegial body.

According to the AStG, there are basically no concerns with regard to independence if an arbitrator previously z. B. was employed by a company that is involved in an arbitration case (no cooling-off period required).

The AStG does not provide for a regulation if the mediator is awarded remuneration that is related to the outcome of the dispute settlement procedure (other regulation, however, in Art 6 Para. 1 lit.d) ADR-RL - the independence and impartiality of mediators is accordingly only guaranteed if they are “ remunerated in a way that is not related to the outcome of the procedure ”).

The AStG does not provide for a general freedom of instruction for the arbitrator in the arbitration procedure. The fact that the regulation in the AStG on the independence of the arbitrators from the parties as well as in relation to the AS bodies and other institutions corresponds to Article 6 (3) of the ADR Directive is rather to be denied, as several in Article 6 (3) of the ADR -RL required criteria in the AStG have not been fully or not implemented at all.

Tasks of AS bodies

Information obligations

AS agencies are obliged to maintain a continuously updated, suitable, clear and easily understandable " website that offers the parties easy access to information and an opportunity to apply about the procedure " (Section 7 (1) and (2) AStG).

According to § 21 AStG, the AS agencies have to publish the list of the European AS agencies and a link to the OS platform of the European Commission on their websites and, if necessary, make them publicly accessible on a permanent data carrier on their premises.

Further tasks

According to § 9 AStG, AS agencies have to prepare an annual activity report and appoint the arbitrator (§§ 9 and 10 AStG).

AS agencies have to support one another, cooperate and exchange information (§ 20, 22 AStG). In the event of cross-border disputes, the European Consumer Center Austria has to support consumers in finding the responsible AS office.

Reporting obligations of the AS bodies

AS agencies have a far-reaching reporting obligation to the competent authorities (Sections 26 to 28 AStG).

Tribunal within the meaning of the ECHR?

The AS agencies are in no way a tribunal within the meaning of the European Convention on Human Rights . In any case, there is a lack of safeguarding independence (freedom of instruction), full cognitive authority (right to examine all relevant factual and legal questions) and impartiality is not objectively due to the admission of persons as mediators who are paid by an employers 'association or workers' association, etc. guaranteed (especially because you do not have to disclose this affiliation and remuneration to the parties).

Publication ban for the parties

The prohibition in Section 6 (4) AStG that parties and their representatives can be forbidden during pending proceedings and thereafter by the procedural rules of an AS body from bringing the dispute or the content of the arbitration procedure to the public or media reporting To achieve this is an inadmissible interference with constitutional and in particular Union law principles (e.g. violation of the principle of proportionality ).

Such a ban on secrecy for the parties, as provided in Section 6 (4) AStG, is also not provided for in the European legal basis, Directive 2013/11 / EU (ADR Directive) (cf.Art.17 ADR-RL - only for the AS bodies mandatory).

In order to use and grant an interest in secrecy, in particular in favor of the entrepreneur, within the meaning of Section 6 (4) AStG, at least the criteria for excluding the public according to Section 172 ZPO would have to be met, provided that an analogy is considered permissible.

Information requirements for entrepreneurs

According to § 19 AStG (Art 13 ADR-RL), entrepreneurs have to inform consumers on their website and, if applicable, in the general terms and conditions in a clear, understandable and easily accessible manner via the responsible AS office or the AS offices of the or to which it is recorded, provided that it is obliged or obliged to involve these bodies to resolve disputes with consumers. This information must contain details of the website address of the relevant AS body or bodies .

If the entrepreneur and the consumer are unable to reach an agreement in a dispute, the entrepreneur must inform the consumer on paper or another permanent data carrier of the AS office or AS offices responsible for him. The entrepreneur must also indicate whether he will take part in a procedure (Section 19 (3) AStG).

Scope and scope

The AStG applies to (Section 1 (1) AStG):

  • Disputes about obligations from a paid, civil law contract,
  • between an entrepreneur established in Austria and
  • resident consumer.

The AStG therefore does not apply to disputes

  • on obligations arising from a paid contract with companies or consumers from third countries (e.g. Switzerland ),
  • from entrepreneurs against consumers,
  • of entrepreneurs against entrepreneurs and
  • of consumers against consumers (e.g. sales on online platforms) and therefore not disputes relating to inheritance or family law, as the parties to the dispute are not involved in their capacity as consumers or entrepreneurs,
  • between entrepreneurs or consumers with third parties who were not or are not involved in the legal transaction.

Disputes arising from legal transactions (Section 1 (2) AStG) are expressly excluded from the scope of application:

  1. on health services provided by health professionals to patients in order to assess, maintain or restore their state of health, including the prescription, dispensing and provision of drugs and medical devices;
  2. with public providers of further education or higher education,
  3. non-economic services of general interest and
  4. Purchase contracts for immovable property.

The AStG did not regulate the extent to which disputes under employment contracts are excluded. Disputes with entrepreneurs who practice a so-called liberal profession (e.g. lawyers) are not generally excluded from the scope of the AStG (see also § 2 AStG). Disputes under tenancy law are included in accordance with Section 12 (4) AStG.

Come into effect

The AStG generally came into force with its publication on August 13, 2015. The central Sections 5 to 19, 21 to 23 and 25 to 30 are not applicable until January 9, 2016 in accordance with Section 31 AStG.

See also

Web links

Sources and References

  1. ↑ Long title: Federal law that enacts a federal law on alternative dispute resolution in consumer matters and changes the Consumer Protection Act, the Fees Act 1957 and the Consumer Authorities Cooperation Act, Federal Law Gazette I 105/2015.
  2. ^ Arbitration board of Energie-Control Austria .
  3. ↑ Telecommunications arbitration board of the Rundfunk und Telekom Regulierungs-GmbH .
  4. ^ Post arbitration board of the Rundfunk und Telekom Regulierungs-GmbH .
  5. ↑ Passenger and Passenger Rights Agency .
  6. ↑ Independent joint arbitration board of the Austrian banking industry .
  7. ↑ Internet Ombudsman .
  8. ↑ Prefabricated House Ombudsman .
  9. ^ Arbitration board for consumer transactions .
  10. ↑ Consumer arbitration : Two out of three cases resolved by mutual agreement , APA-OTS broadcast by the Austrian Ministry of Social Affairs.
  11. ↑ It is doubtful whether these sanctions with a maximum penalty of up to EUR 750.00 according to Art. 21 of the ADR-RL are actually " effective, proportionate and dissuasive " for the entrepreneur .
  12. ↑ According to Art 4 para. 1 lit. a) ADR-RL are consumers: " any natural person who acts for purposes that cannot be attributed to their commercial, business, craft or professional activity ."
  13. ^ Union member states as well as Iceland , Liechtenstein and Norway . But not Switzerland .
  14. ↑ The possibilities that Regulation (EU) No. 524/2013 (ODR Regulation) would offer in Art 2 Paragraph 2 (opening of proceedings also by entrepreneurs against consumers) are therefore not used in Austria.
  15. ↑ Art 8 lit. b) and Art 9 para. 1 lit. b) ADR-RL do not foresee any restriction to a certain group of people or certain associations for "third parties" who can represent before AS bodies or support the parties, which is why the national legislature is probably denied any restrictions.
  16. ↑ The amount of the nominal fee is not determined. It is generally assumed that, as in Germany , this must not exceed EUR 30 for consumers. See also Recital 41 of the ADR-RL.
  17. ↑ The arbitration procedure can be such or a mediation procedure. However, the decision must never be binding on the consumer, which is why adjudication procedures are not permitted. See Section 16 (2) AStG.
  18. ↑ See e.g. B. Regulation (EC) No. 593/2008 on the law applicable to contractual obligations (Rome I), OJ. L 177, 6. See private international law (European Union) .
  19. ↑ § 33 TP 20 para. 2 no. 5 Fees Act 1957 (GebG) was added on January 9, 2015 according to Art 3 AStG.
  20. ↑ See Art 5 Para. 4 ADR-RL.
  21. ↑ Directive 2013/11 / EU uses the neutral term “natural persons entrusted with AS” (AS persons).
  22. ↑ Art 2 para. 2 lit. a) of the ADR-RL: " Proceedings before dispute settlement bodies in which the natural persons entrusted with dispute settlement are employed or paid exclusively by a single entrepreneur, unless the member states decide to authorize such procedures as AS procedures in accordance with this directive and that the requirements set out in Chapter II, including the specific independence and transparency requirements set out in Article 6 (3), are met ”.
  23. ↑ According to Art 6 para. 3 lit. c ADR-RL, however, mediators may " for a period of three years after the expiry of their term of office in the dispute settlement body (to) work neither for the entrepreneur nor for a professional or business association of which the entrepreneur is a member ".
  24. ↑ According to § 23 AStG, AS agencies are responsible bodies according to § 3 of the Consumer Authorities Cooperation Act, Federal Law Gazette I No. 148/2006.
  25. ↑ The European Consumer Center Austria is the OS contact point according to Regulation (EU) No. 524/2013 (ODR Regulation) .
  26. ↑ This already results from a simple size inference ( Argumentum a fortiori / Argumentum a minori ad maius ). Such a ban is not contained in the code of civil procedure . It does not affect the parties if there is then a civil court proceeding. It is therefore all the less possible to impose such a prohibition on the parties in a voluntary procedure such as the arbitration procedure. Does one party (usually the entrepreneur) want z. B. Withholding information, he can cancel the arbitration procedure at any time (Section 12 (2) AStG - there may be special regulations for entrepreneurs, e.g. in flight and passenger law ). There is this possibility of terminating the procedure at any time according to the ADR-RL and in any case less interference with the rights of the parties than the ban on publication provided for in Section 6 (4) AStG. At the latest in civil proceedings, however, he will have to present this information if he wants to invoke it. This provision is probably also an unusual clause that Union citizens generally do not have to reckon with, which is why such a clause must remain inapplicable for this reason.
  27. ↑ See Art 3 lit. a) Directive 2011/24 / EU of the European Parliament and of the Council of 9 March 2011 on the exercise of patients' rights in cross-border healthcare, ABl. L 88, 45 and recital 14 of Directive 2013/11 / EU.
  28. ↑ According to Article 25, Paragraph 1 of Directive 2013/11 / EU (ADR Directive) , the directive must be implemented by July 9, 2015. The Austrian legislature's entry into force on January 9, 2016 is therefore late.