Directive on Alternative Dispute Resolution in Consumer Matters

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Directive 2013/11 / EU

Title: Directive 2013/11 / EU of the European Parliament and of the Council of May 21, 2013 on the alternative resolution of consumer disputes and amending Regulation (EC) No. 2006/2004 and Directive 2009/22 / EC
Short title: Directive on Alternative Dispute Resolution in Consumer Matters
Scope: EU
Legal matter: Consumer law
Basis: TFEU , in particular Article 114
Procedure overview: European Commission
European Parliament
IPEX Wiki
To be used from: July 9, 2015
Reference: OJ L 165 of June 18, 2013, pp. 63-79
Full text Consolidated version (not official)
basic version
The regulation must have been implemented in national law.
Please note the information on the current version of legal acts of the European Union !

The Directive on Alternative Dispute Resolution in Consumer Matters is an EU piece of legislation on alternative dispute resolution (AS) between consumers and businesses to promote growth and confidence in the internal market and achieve a high level of consumer protection without restricting consumer access to justice. In addition, the directive aims to remove direct and indirect barriers that stand in the way of the proper functioning of the internal market.

The aim of the directive is to create an independent, impartial, transparent, effective, quick and fair out-of-court opportunity to resolve disputes arising from domestic and cross-border sales of goods or the provision of services, thereby building the trust of consumers and businesses especially in cross-border electronic buying and selling.

The directive and the ODR regulation (on the online settlement of consumer disputes) are two legislative instruments that are closely related and complement one another.

Aim and purpose

The main objective of the directive is to create or design alternative dispute settlement bodies (AD bodies) in areas where these do not yet exist or are insufficient in the EU member states. The directive is also intended to create quality requirements for AS bodies, which should guarantee the same level of protection and the same rights for consumers in both domestic and cross-border disputes. The Directive should not prevent Member States from adopting or maintaining rules that go beyond the provisions of this Directive.

scope

The Directive applies to the out-of-court settlement of disputes (AS) in which consumers residing in the Union can take action against traders established in the Union. The guideline applies to contractual obligations arising from sales contracts or service contracts concluded both online and offline in all economic sectors except the sectors specifically excluded. The directive does not necessarily apply to complaints by entrepreneurs against consumers or to disputes between entrepreneurs. However, the Union Member States may introduce or maintain provisions on procedures for the out-of-court settlement of such disputes.

The directive

  • does not apply to services of general interest for which no economic consideration is provided (non-economic services). These are e.g. B. services provided by or on behalf of a Member State of the Union free of charge;
  • does not apply to health services within the meaning of Article 3 letter a of 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;
  • is not intended to replace legal proceedings and does not affect the right of consumers or entrepreneurs to seek the enforcement of their rights in court. Therefore, an agreement between a consumer and an entrepreneur about submitting complaints to an AS body is not binding on the consumer if it was made before the dispute arose and if it results in the consumer being deprived of the right to To bring the dispute to court to settle the dispute. Furthermore, in AS proceedings in which the dispute is to be settled by imposing a binding solution, the imposed solution should only be binding on the parties if the parties have been informed beforehand about the binding nature of the solution and have expressly accepted this . The express consent of the entrepreneur should not be required if national legislation provides that these solutions are binding on entrepreneurs .
  • does not apply to proceedings before dispute resolution bodies in which the natural persons entrusted with dispute resolution are employed or paid exclusively by a single entrepreneur, unless the Member States decide to allow such proceedings as AS proceedings in accordance with this Directive and that the the requirements laid down in Chapter II of the Directive, including the specific independence and transparency requirements set out in Article 6 (3), are met;
  • does not apply to proceedings before consumer complaints offices operated by the entrepreneur;
  • does not apply to disputes between entrepreneurs;
  • does not apply to direct negotiations between the consumer and the entrepreneur;
  • does not apply to proceedings initiated by entrepreneurs against consumers;
  • does not apply to public providers of further education or higher education.

Duration of proceedings

In principle, a result of the procedure can be achieved within 90 calendar days of receipt of the complete complaint file by the AS office. In highly complex exceptional cases, including cases in which one of the parties cannot participate in the AS process for legitimate reasons, the AS units should have the option of extending the deadline to examine the case in question. The parties are to be informed of any such extension of the deadline and of the expected time until the dispute is settled.

Costs of AS

AS procedures should preferably be free of charge for consumers. If costs are claimed, AS procedures should be accessible, attractive and low cost to consumers. Therefore, the costs should not exceed a nominal fee

Consumer information

Entrepreneurs do not have to take part in AS procedures unless this is stipulated by the national provisions of the Union member states. Entrepreneurs should as far as possible be encouraged to take part in AS procedures. Consumers should be encouraged to contact the entrepreneur before submitting a complaint to an AS body in order to resolve the problem bilaterally.

Entrepreneurs established in the Union must, if they have undertaken to do so or are legally obliged to do so, provide a link to the responsible AS body on their websites. This link must be easily accessible to consumers.

Sanctions

The penalties provided by the Member States of the Union in the event of a breach of the Directive must be effective, proportionate and dissuasive.

Demarcation

The alternative dispute resolution (AS - see also Alternative Dispute Resolution - ADR) differs from

  • State court proceedings , as no sovereign coercion can be exercised by any party involved . The agreement is voluntary and the proposal to solve the problem does not have to be accepted by either party,
  • the arbitration because the institutions of alternative dispute resolution are provided by the state and not have to be agreed by the parties, the arbitral tribunal or the arbitrators themselves or determined and must not be assumed that the proposal to solve the problem,
  • of mediation , as the participation of the entrepreneur is regularly obligatory on the alternative dispute resolution, while the participants in principle voluntarily participate in mediation.

Case law of the ECJ

The Court of Justice of the European Union ruled in proceedings on C-75/16 of June 14, 2017 in relation to the Directive on Alternative Dispute Resolution in Consumer Matters (2013/11 / EU) and the Directive on certain aspects of mediation in civil and commercial matters ( 2008/52 / EC) stated that

  • The voluntary nature of the proposed alternative dispute resolution procedure does not consist in the parties being free to use this procedure or not, but rather in the fact that the parties themselves are responsible for the procedure and can organize it at their own discretion and terminate it at any time. It is therefore not a question of the mandatory or voluntary nature of the mediation regime, but - as expressly provided for by the directive - the fact that the parties' right of access to justice is preserved. In order for the principle of effective judicial protection for the parties to be preserved, the alternative dispute resolution procedure should not lead to a decision that is binding on the parties, should not cause a significant delay in bringing a lawsuit and should result in an inhibition of the statute of limitations claims.
  • Procedures for alternative dispute resolution must not involve significant costs,
  • electronic communication should not be the only means of access to this dispute settlement procedure and
  • Urgent interim legal protection measures must continue to be possible.
  • National legal provisions may also not require that the consumer involved in a procedure for alternative dispute resolution must have legal assistance and
  • The protection of the right of access to the judiciary means that if the consumer discontinues the alternative dispute resolution procedure - with or without a justifying reason - in the subsequent stages of the dispute, he must never have negative consequences. National law may, however, provide for penalties in the event that the parties fail to participate in the mediation process without justification, provided that the consumer is allowed to break it off after the first meeting with the mediator.

See also

Web links

Individual evidence

  1. ↑ See recitals 1 and 60 of the directive.
  2. ↑ See Recital 3 of the Directive.
  3. ↑ Art. 1, 6, 7 and 9 as well as recitals 5, 22, 32, 33 and 51 of the directive.
  4. ↑ See recitals 5 to 12 of the directive.
  5. ↑ Recital 12 of the directive.
  6. ↑ See also Article 5 of the directive. Further details on the design were provided in the Implementing Regulation 2015/1051, ABl. 2015 L 171, 1, published.
  7. ↑ Recital 38 and Article 2 (3) of the directive.
  8. ↑ Art. 2 of the directive.
  9. ↑ Art. 2 of the directive.
  10. ↑ Recital 16 of the Directive.
  11. ↑ See Article 2 (2) of the directive.
  12. ↑ See Recital 13 of the Directive.
  13. ↑ See Recital 14 of the Directive.
  14. ↑ Art. 10 and recitals 17, 22 and 23 of the directive. See also Recital 45 of the Directive and recital 26 of the ODR Regulation: The right to an effective remedy and the right to a fair trial are among the Article 47 of the Charter of Fundamental Rights of the European Union enshrined fundamental rights .
  15. ↑ Recital 43 of the Directive.
  16. ↑ Art. 8 let. e) of the Directive. Recital 40 of the Directive. See also Art. 10 let. a of the ODR Directive.
  17. ↑ See Recital 41 of the Directive. See also Art. 5 (2) and Recital 22 of the ODR Regulation.
  18. ↑ Recital 49 of the directive.
  19. ↑ Recital 50 of the Directive.
  20. ↑ Art. 13 Directive.
  21. ↑ Art. 21 and Recital 56 of the Directive.
  22. ↑ ECJ case C ‑ 75/16 .
  23. ↑ ECJ confirms mandatory mediation , website Administrative Judges Association, 7 July 2017.