Alternative dispute resolution
Council agreement introduces exemptions
By Sophie Petitjean | Thursday 31 May 2012
The Council supports an alternative dispute resolution system limited to procedures brought by a consumer against a trader, and not covering health care services. Meeting in Brussels, on 30 May (in the Competitiveness Council), a qualified majority of member states approved a general approach on a draft directive on alternative dispute resolution (ADR) and a draft regulation on online dispute resolution (ODR). Germany and Romania abstained.
The ministers back the creation of out-of-court settlement bodies for contractual disputes between a consumer and a trader, as proposed by the European Commission, to enable consumers to seek redress through the intervention of a mediator or conciliation entity. They nonetheless find that this process should not apply to actions by the trader against a consumer, or to health care services (including the prescription, delivery and supply of medicines and medical devices).
The compromise drawn up by the Danish EU Presidency clarifies the procedural rules. ADR entities will be authorised to refuse to handle a dispute for any of the following reasons: 1. the consumer has not directly contacted the professional in an effort to resolve the dispute before turning to the ADR body; 2. the claim is reckless or vexatious; 3. the dispute has already been examined by another ADR body or a court; or 4. handling of the dispute would significantly hinder in another way the proper functioning of the ADR entity. The general approach also authorises member states to set financial thresholds below which the directive shall not apply. It sets a time limit of at least one year, from the date on which the consumer presented a claim to the trader, before a claim may be introduced with the ADR body.
The ministers also added exemptions to the principle of impartiality of third parties: procedures brought before entities within which natural persons in charge of dispute resolution are employed or paid solely by the trader are not covered by the regulation, “save where there are additional guarantees of the independence of the ADR entity and of the natural person and if the member state decides that such procedures may constitute ADR procedures within the meaning of this directive,” reads the Council’s addition.
Six member states spoke up during the airing of views, under the principle of ‘silence means consent’: Poland, the United Kingdom, Germany, Romania, the Netherlands and Portugal. But only Germany and Romania decided to maintain their reservations during the vote and thus abstained. Berlin regrets the absence of exemptions for additional sectors (eg excluding disputes related to real estate leases or compensation for a person’s death) and Bucharest finds that the new EU rules will have a negative impact on consumer protection.
The Commission, subject to the European Parliament’s vote, described the general approach as “a good balance between the administrative and financial burden on the one hand and improved consumer confidence on the other”. Consumer Policy Commissioner John Dalli nevertheless mentioned certain concerns related to the derogations for the health care sector and the “watering down of information criteria”.
The European Parliament is set to hold a first committee vote in July, with a view to first-reading adoption in plenary in late autumn.
Germany and Romania decided to maintain their reservations during the vote and thus abstained