«Cross-Border Alternative Dispute Resolution in the European Union STUDY Abstract The study identifies barriers to the use of ADR schemes by consumers ...»
DIRECTORATE GENERAL FOR INTERNAL POLICIES
POLICY DEPARTMENT A: ECONOMIC AND SCIENTIFIC POLICY
INTERNAL MARKET AND CONSUMER PROTECTION
Cross-Border Alternative Dispute
Resolution in the European Union
The study identifies barriers to the use of ADR schemes by consumers in the EU,
especially in cross-border cases. It assesses other legislation relevant for consumer redress: the European Small Claims Procedure, the Injunctions Directive and the Mediation Directive. Finally, it examines ways to improve the effectiveness of cross-border ADR and the usefulness of a European legal instrument.
IP/A/IMCO/ST/2010-15 June 2011 PE464.424 EN This document was requested by the European Parliament's Committee on Internal Market and Consumer Protection.
Civic Consulting (Berlin):
Dr. Frank Alleweldt (Project director) Dr. Senda Kara (Scientific director) Ms. Neva Nahtigal (Coordination, ADR analysis) Prof. Tom Van Dyck (Legal analysis) Ms. Justine Verbeke (Legal analysis) Prof. Evelyne Terryn (Second reader legal analysis) Mr. Roman Brock (Contributor, German law) Ms. Paulina Komorowska (Contributor, Polish law)
LINGUISTIC VERSIONSOriginal: [EN] Executive Summary: [DE, FR]
ABOUT THE EDITOR
To contact the Policy Department or to subscribe to its newsletter please write to:
Poldep-Economy-Science@europarl.europa.eu Manuscript completed in June 2011.
Brussels, © European Parliament, 2011.
This document is available on the Internet at:
DISCLAIMERThe opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament.
Reproduction and translation for non-commercial purposes are authorized, provided the source is acknowledged and the publisher is given prior notice and sent a copy.
IP/A/IMCO/ST/2010-15 -2- PE464.424 Cross-Border Alternative Dispute Resolution in the European Union ___________________________________________________________________________________________
LIST OF ABBREVIATIONS 5
LIST OF TABLES 7
PLP Prescription and Limitation Period SMEs Small and Medium Enterprises TFEU Treaty on the Functioning of the European Union
EXECUTIVE SUMMARYBackground This report presents the results of research on cross-border alternative dispute resolution (ADR) and selected EU legislation relevant for consumer redress. The research was conducted by Civic Consulting between February and May 2011 on the basis of four main tasks specified in the terms of reference (ToR).
ADR is understood as a dispute resolution procedure (for disputes between consumers and businesses) that takes place out of court through the use of a pre-established third-party mechanism, i.e. an ADR scheme.
Overview of ADR in the EU A 2009 study identified 750 ADR schemes that handle consumer disputes across the EU. Research has revealed significant differences in these schemes both among Member States and business sectors.
Among the very diverse group of ADR schemes, some main features make it possible to construct a general classification. Those features are: notification, nature of a scheme and its funding, participation of industry, outcomes of procedures, geographical coverage, and sectoral coverage.
Confirming previous research, the latest available data for 21 large schemes (i.e. those which handled more than 4,000 cases in any of the observed years) reveals an increasing trend in the use of ADR. In total, about 410,000 cases were reported in the EU in 2006, about 473,000 in 2007, and more than 500,000 in 2008.
Progress has been made in terms of the availability of ADR mechanisms in the EU, but they have developed unequally and their use is not evenly distributed across Member States. There are geographical, as well as sectoral gaps in the coverage, pointing to disparities in the accessibility of effective ADR to European consumers.
The functioning of existing cross-border ADR schemes Research and public consultations have identified several barriers to the use of ADR by consumers across the EU. Coverage gaps have been identified as a recurring issue, along with the low awareness of ADR among consumers and businesses, and the frequent reluctance of businesses to engage in ADR.
The main problems with cross-border ADR overlap with problems at the national level, but they are aggravated by specifics of cross-border situations, such as language barriers and the physical absence of the consumer from the trader’s country.
Typically, ADR schemes as a rule do not accept complaints against traders in other Member States. This is mainly due to a lack of ADR schemes’ jurisdiction, knowledge of applicable law, and/or enforceability of final decisions.
ECC-Net’s centralised and IT-supported complaints-handling system plays a fundamental role in bridging language gaps between consumers, traders, and (where applicable) ADR schemes. Moreover, national ECCs directly intervene in cross-border disputes where no ADR scheme is available.
Assessment of selected legislation relevant for consumer redress Both the European Small Claims Procedure (ESCP) Regulation and the Injunctions Directive have been fully implemented into national law in all selected jurisdictions (France, Poland, the Netherlands, the UK, Germany), but only the UK has implemented the Mediation Directive (as of March 2011).
The overview shows that whenever the EU instruments leave discretion to the Member States, implementation across jurisdictions differs.
Although, at least theoretically, the examined EU legislative instruments share a high potential for offering consumers alternative redress, they have been used in a rather limited number of cases. That could be mainly due to the low level of awareness by consumers; the potential costs related to translation; travelling and lawyers’ fees; gaps in the regulatory framework; lack of clarity of the procedure leading to legal uncertainty; and the complexity of the (differing) procedures.
Possibilities for improving cross-border ADR and the need for a specific legislative instrument The examined EU legislative instruments are characterised by the fact that they still presuppose court intervention. They can be considered as complementing cross-border ADR schemes, but they cannot serve as effective substitutes.
A specific EU legislative instrument mandating cross-border ADR across sectors could build on previous (sectoral) legislative requirements, which have proven to encourage the establishment of ADR schemes in Member States.
An EU legislative instrument either could specifically address cross-border ADR or be a legislative measure for ADR in general. However, a narrow focus on cross-border ADR has significant disadvantages, as it would be difficult to tackle sectoral gaps for crossborder ADR without addressing shortcomings in coverage within a Member State.
A simple access point (or ‘single entry point’) for all consumer disputes is compelling. A key function would be to channel the dispute to the most appropriate dispute resolution venue, including ADR, national small claims procedures, the ESCP, or other paths of redress.
It is very likely that any future single entry point would need to build on ECC-Net’s experiences with cross-border complaints, or use ECC-Net as its ‘channel’ for crossborder complaints. Handling cross-border complaints would be even more efficient if a standard form for these complaints (such as used by ECC-Net) could be also used to transfer cases to a relevant ADR scheme, and if Member States were required to have at least one ADR scheme in each sector (or a cross-sectoral scheme) that accepts complaints submitted in this form in English.
An EU legal instrument needs to require Member States to ensure sufficient funding for their ADR system to operate effectively. The question of who ultimately pays for ADR schemes (and a possible single entry point) can be answered in many ways, including the government, traders that face claims, service users, and industry sectors.
Regardless of each country’s choice, a key consideration will be ensuring that independence is not curtailed by the source of funding.
1. INTRODUCTION The 2009 Study on the use of Alternative Dispute Resolution in the European Union found that progress had been made in terms of ADR’s availability but barriers still prevented both consumers and businesses from making more use of ADR.1 Focusing specifically on the cross-border perspective, ECC-Net, a European network that deals with consumer complaints, concluded that “ADR is not working at a cross-border level”.2
1.1 Main tasks This report presents the results of research conducted by Civic Consulting between February and May 2011 on the basis of four main tasks specified in the terms of reference (ToR):
1. Provide an overview of existing ADR schemes in all 27 EU Member States based on recently published studies, indicating differences and similarities among Member States.
2. Evaluate the functioning of existing cross-border ADR schemes (e.g. FIN-NET, ECCs – European Consumer Centres, SOLVIT), clarify the possible differences in ADR use in the 27 Member States, and identify possibilities for improvement.
3. Provide an assessment of recently adopted legislation and elaborate how it contributes to facilitatingor complementing cross-border ADR schemes, or whether it
can serve as their effective substitute:
- Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing an EU small claims procedure
- Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters
- Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests
4. Assess whether there is a need for a specific legislative instrument to facilitate or to mandate cross-border ADR.
1.2 Approach In this report, ADR is understood as a dispute resolution procedure that takes place out of court through the use of a pre-established third-party mechanism, i.e. an ADR scheme (also referred to as an ‘ADR body’).3 Unless otherwise specified, the report only covers disputes between consumers and businesses (so-called ‘B2C’).
The specified tasks were approached with desk research, a review of literature and legal frameworks, and semi-structured interviews with relevant EC officials (from DG SANCO, DG MARKT, and DG JUST), representatives of seven ADR schemes, four European Consumer Centres, and national authorities responsible for the transposition of the above-mentioned legislation in France, the Netherlands, Poland and the UK (England and Wales). In addition, the EC database of notified schemes was systematically reviewed in March 2011 and Civic Consulting 2009.
ECC-Net 2009, p. 57.
ADR schemes, or bodies, have been defined as “Institutional mechanisms responsible for the out-of-court settlement of disputes between businesses and consumers (B2C),” including those that impose or propose a solution to a dispute, as covered by the Commission Recommendation 98/257/EC, as well as bodies involved in the consensual resolution of consumer disputes within the meaning of the Recommendation 2001/310/EC.
Settlements reached in the framework of a judicial procedure and dispute resolution schemes between businesses are not contained in this understanding of the term (Civic Consulting 2009, p. 23).