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Consumer Mediation in the European Union: A Beginner's Guide to Mediation Under Directive 2013/11/EU

by Mahasweta Rayan
October 2017 Mahasweta Rayan

The use of mediation in resolving consumer disputes has always been a subject of curiosity, generating much debate. There are strong supporters as well as staunch critics of the idea. Consumer mediation is generally advocated on the grounds of being cost and time-efficient, with greater chances of amicable settlements and the possibility of building and enhancing trust and preserving relationships. It is commonly opposed on the ground that mediation cannot produce a remedy to adequately address the loss, damage or injury suffered by the consumer, and there are some situations in which judicial redress alone can provide justice. Besides being the center of a raging debate, consumer mediation is also a nascent, fledgling field which has just begun to gain popularity. With India now playing around with the idea of introducing consumer mediation in the country, it becomes imperative to study already-established consumer mediation models in other countries and regions. To that end, the purpose of this article is to detail the consumer mediation framework in the European Union. Back in 2013, the European Union introduced what is perhaps the most structured and disciplined framework of consumer ADR till date and that is why a study of this model is very important for anyone who is truly interested in consumer mediation. This article presents the provisions of EU’s consumer ADR Directive in a simplified, structured manner, intended to give the reader a general understanding of the whole framework.

CONSUMER MEDIATION IN THE EUROPEAN UNION- A BEGINNER’S GUIDE TO MEDIATION UNDER DIRECTIVE 2013/11/EU

Introduction:

The European Commission on 29th Nov, 2011 announced a proposal for a Consumer ADR Directive as part of its Europe 2020 strategy. Before this, the Consumer ADR scene in the EU was regulated by two previous Recommendations- one issued in 1998(Commission Recommendation 98/257/EC) and the other in 2001(Commission Recommendation 2001/310/EC). The Directive 2013/11/EU or the Consumer ADR Directive is the first full-fledged Directive on Consumer ADR in Europe, as part of the Union’s efforts to reinforce faith in the Single market. This step can be seen as reflective of EU’s commitment to ensure consumer protection in the internal market, a step-up from mere Recommendations which are non-binding on the Member States. An EU Directive sets out goals for Member States to achieve by devising their own laws. According to press release MEMO-13-193 of the European Commission, EU estimates that if EU consumers can rely on well-functioning and transparent ADR for their disputes they could save around €22.5 billion a year, corresponding to 0.19% of EU GDP. The Directive became applicable from 8 July 2013 and Member States were required to incorporate it into their laws by 9 July 2015. Since its inception, the Directive is the main force encouraging the growth and harmonization of ADR entities in the EU. For example, the emergence of “Médiateurs”, which are the French ADR entities complying with the standards of the Directive and listed by the European Commission.

Directive 2013/11/EU- a Lone Ranger?

It appears that the Consumer ADR Directive is the sole Directive regulating Consumer mediation in EU. Or is it? Back in 2008, another EU Directive was passed- Directive 2008/52/EC, popularly known as the Mediation Directive. This particular Directive is titled “Mediation in civil and commercial matters” and applies to cross-border disputes, although it can be applied to internal mediation processes by the Member States if they so choose. Ideally, it would appear that consumer protection being a sub-set of civil law, would be covered by this Directive. The scope of this Directive excludes adjudicatory mechanisms such as consumer complaint schemes but that is to be expected as the Directive deals with mediation and not judicial recourse. Questions have been raised from time to time about the relationship between the Mediation Directive and the Consumer ADR Directive. Early this year, in February, this question was referred to an Advocate General at the Court of Justice of the EU- Henrik Saugmandsgaard Øe, for his opinion, in Menini and another v Banco Popolare Società Cooperativa (Case C-75/16). One of the questions referred was whether Directive 2008/52 would only govern disputes to which Directive 2013/11 did not apply, disputes concerning obligations arising from contracts other than sales or service contracts, and disputes excluded from the scope of the 2013 Directive under Article 2(2) thereof (such as proceedings initiated by traders). Article 3(2) of the Directive 2013/11 states that the provisions of this Directive are without prejudice to the Mediation Directive. The Advocate General stated “There is little doubt that Article 3(2) of Directive 2013/11 permits some overlap of the respective scopes of that directive and of Directive 2008/52. In that regard, recital 19 of Directive 2013/11 states that the latter ‘is intended to apply horizontally to all types of ADR procedures, including [those] covered by Directive 2008/52’. Both those directives can govern the same dispute concurrently since, whilst Directive 2008/52 already regulates mediation procedures, Directive 2013/11 harmonises in more detail all ADR procedures.” He further explained that should a conflict arise due to incompatibility of the provisions of the two Directives in the case of a dispute falling simultaneously within the scope of both Directives, Directive 2008/52 would prevail. This was in accordance with Article 3(1) of Directive 2013/11, which gives Directive 2008/52 precedence over other EU Acts containing provisions relating to ADR proceedings brought by a consumer against a trader except where otherwise provided. Article 3(2) of 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, must be interpreted as meaning that 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 applies to all disputes falling within the scope of the latter, as limited by Article 1(2) thereof, even if they also fall within the scope of Directive 2013/11, as limited by Article 2 of that directive. While the CJEU broadly adopted the Advocate General’s opinion, it did not rule on the relationship between the two directives as it felt that the same was not necessary in the instant case.

Scope of the Directive 2013/11:

The consumer ADR Directive is essentially intended to benefit a consumer. Therefore, under this Directive, only a consumer can initiate the ADR procedure. Article 2 of the Directive enumerates its scope.  

Territorial application

Applicable to both domestic as well as cross-border consumer disputes within the EU

Kind of disputes covered

Contractual disputes, both online and offline, relating to sales or services, between a trader and a consumer both being resident in the EU, in all economic sectors other than exempted sectors (health and education). Also applies to sale of digital content for remuneration.

Specific exclusions

·       Health services provided by professionals including diagnosis, prescription and treatment as well as provision of medical devices and medicines

·       Public providers of higher education

·       Procedures before consumer complaint handling systems operated exclusively by the trader

·       Trader-trader disputes

·       Direct consumer-trader negotiations without intervention of a 3rd party

·       Non-economic services- for example, humanitarian assistance after a natural calamity or pro bono service rendered by a lawyer

·       Procedure initiated by a trader against a consumer

·       ADR attempt by a judge in the course of judicial proceedings

Specific inclusions

NA

 

Consumers, traders and mediation defined:

An interesting point to note is that the Consumer ADR Directive only affords protection to consumers who are natural persons. Artificial persons such as corporations and LLPs are not included under the definition of consumers as per the Directive, even where the goods or services in question are not put to use for any commercial purpose. This might turn out to be a fallacy in the long run, as in present times; artificial persons make up a large percentage of consumers in any given market. Article 4(1)(a) of the Directive states, “The definition of ‘consumer’ should cover natural persons who are acting outside their trade, business, craft or profession.” This is in consonance with the generally accepted notion of a consumer wherein the goods purchased or services availed should be for personal use and not for re-sale or a commercial purpose. The Directive is silent on whether a third person using the goods or availing the services in question with the consent of the original consumer can also be considered as a consumer.

Where a sales or service contract falls partly under the domain of personal use and partly under the domain of commercial use, the person would still be a consumer so long as the dominating aspect is personal use. So for example, if a person who acts as a dealer for personal computers purchases a particular model mainly for his personal use but with the ancillary purpose of obtaining knowledge of the features of the concerned model so as to explore the prospect of selling such a model if he finds it sufficiently attractive in the long haul, he will still be a consumer.

With regard to the definition of traders, both natural and artificial persons have been included. A trader who acts through an agent or an intermediary is also a trader for the purposes of the Directive. A trader is merely defined as a person who is acting for purposes relating to his trade, business, craft or profession. Since persons acting in relation to a business are also included, a question arises whether manufacturers can also be considered as traders or only persons who ‘trade’ in the literal sense of the word such as retailers, dealers, etc. are covered by the definition. But the term has not been explained further in the Directive and so this point remains debatable.

It is pertinent to note that since the Directive only applies to contractual rights and obligations between traders and consumers, it goes without saying that some consideration has to be furnished. So far as the Directive is concerned, only monetary compensation- ‘Price’ is appropriate consideration. This means that barter transactions and non-economic services are excluded from the scope of the Directive. Future consideration is also valid consideration.

Further, the Directive does not provide a separate definition for the kinds of ADR namely, mediation, negotiation, ombudsman and arbitration. However, a valid ADR procedure is one which is carried out by a durable ADR entity which satisfies the requirements laid down in the Directive and not any ad-hoc body. A mediation conducted by a mediator appointed by the ADR entity will constitute a valid mediation under the Directive. Further, the Directive allows ADR procedures which are merely aimed at facilitating an amicable solution as well as procedures which propose and impose a solution. This necessarily implies that both the evaluative as well as facilitative models of mediation are covered under the Directive. The Member States may also provide for joint mediation procedures with respect to identical disputes between the same trader and several consumers.

The framework created by the Directive:

1.     Provision of ADR entities: Durable ADR entities are central to the whole scheme established by the Directive. These entities can be established, maintained and operated by natural persons, juristic persons, association of persons as well as any public body or authority and their funding may be either private or public. They can even receive funds from professional organizations or business associations. They will deal with domestic as well cross-border disputes and will render all forms of ADR services, including mediation. Some of them may also offer ODR services. Member States have a responsibility to ensure access to ADR entities and so are also required to set up residual ADR entities which can deal with disputes which no other ADR entity is competent to deal with. Traders of a particular Member State may also be covered by ADR entities in other Member States. In case of cross-border disputes, Member States are to help the consumers in accessing an ADR entity in another State.

2.     List of ADR entities: Both existing and newly established ADR entities are required to comply with the specific quality requirements prescribed by the Directive in Articles 6-9. However, the Directive does not seek to affect any prejudicial changes with respect to ADR entities which already existed before the enactment of the Directive. These entities and the procedure administered by them are further subject to periodical checks to ensure that they comply with the prescribed requirements. Member States are required to designate competent bodies to check compliance of ADR entities with the provisions of this Directive and the concerned national legislation implementing it (eg: France’s Commission d’évaluation et de contrôle de la médiation de la consommation). These bodies will periodically update, maintain and transmit a list of the entities satisfying the prescribed requirements to the Commission. In order to be designated as an ADR entity, the applicant body should furnish the relevant information required under the Directive to the competent authority. An entity satisfying all the requisites is listed by the Commission in accordance with Article 20(2). Such list will be published by the relevant competent authorities, the European Consumer Centre Network and the Commission on their websites as well as through a permanent medium at their offices, thus providing easy access to both consumers and traders. These lists will also contain details such as the entities’ procedural rules, fees, languages in which ADR process will be conducted, etc. Consumer organizations are also encouraged to publish these lists. A particular nation may constitute more than one competent authority under the Directive but will have to appoint one of these authorities as the sole and official via media between the State and the Commission. The Commission will publish a list of the competent authorities in the Official Journal of the European Union. Where an ADR entity no longer complies with the quality requirements, the competent authority will communicate the same to the entity and where the requirements are not met within 3 months from the date of communication; remove such entity from the list of ADR entities.

3.     Co-operation and networking between ADR entities: Member States and the Commission are to encourage networking and co-operation between the ADR entities in relation to their experiences, best practices and resolution of cross-border disputes. FIN-NET is an example of networking between ADR entities in the financial services sector. Further, ADR entities are also required to exchange information with national authorities responsible for enforcement of Union Acts relating to consumer protection about best practices in ADR and different practices in different sectors about which consumers regularly complain, subject to protection of personal data and rules of confidentiality and commercial secrecy.

4.     Obligation on consumers and traders to submit dispute to ADR entities: An agreement between a trader and a consumer to submit a dispute for mediation under the aegis of an ADR entity will be binding only if it was drawn up after the dispute arose and does not deprive either party of the right to a judicial remedy and access to the Courts. Traders generally have the option to decide whether to be subject to mediation under an ADR entity but the same can be made mandatory by national law, and also through the tools of incentives and sanctions where necessary. However, no such condition can be imposed on consumers. Where traders have committed to use ADR for resolution of disputes, they should provide their consumers with the details of the ADR entities by which they are covered, both domestic and trans-national, either on their website or in the terms and conditions of the sales or service contract. They must also state whether they will make use of the relevant ADR entity to resolve the dispute.

5.     Access to information: The European Commission and Member States will spread awareness among consumers about ADR entities and how to access them. Consumer organizations are encouraged to provide consumers with details of competent ADR entities whenever a complaint is made against a trader. Both parties should receive clear, appropriate and accurate information about the relevant procedure and rules before deciding to employ the services of a particular ADR entity.

6.     How to approach an ADR entity: At the outset, consumers are encouraged to first contact the trader directly in an attempt to get the dispute resolved without the intervention of a third party. If a consumer still wishes to initiate an ADR procedure such as mediation, the first step would be to access the website of the relevant entity chosen by him/her. Each ADR entity is required to maintain a website furnishing information about the ADR procedure. The consumer will file his complaint online along with the appropriate supporting documents on this website. These documents will be provided to both parties by the ADR entity on a durable medium upon request. The procedure is intended to be convenient for both parties and therefore does away with the requirement of physical presence of the parties, for the stages of application for mediation to the ADR entity by the consumer, transmission of application and documents to the trader and submission of evidence, information and documents by both parties. These stages are completed online on the website of the ADR entity. Offline process and exchange of information by post is still allowed where necessitated by the circumstances of a particular case. Confidentiality and privacy of personal data is paramount and is to be strictly respected throughout the process and Member States are to ensure confidentiality of the process in subsequent arbitration or litigation.

7.     Procedural rules: The ADR entities should be given an option to frame their own procedural rules. Such procedure should be practical for both the trader and consumer. The entities can frame rules prescribing a period of limitation (not less than one year) for approaching it as well as fixing the minimum monetary threshold of value of disputes it can admit. An entity can refuse to deal with frivolous disputes or trifles or disputes already dealt with by a Court or another ADR entity. Where an entity refuses to deal with a particular dispute, it will provide an explanation of the relevant grounds of refusal to both parties within 3 weeks of receiving the complaint. If an entity accepts a dispute, the mediation process commences thereafter in accordance with Articles 6 to 9.

Expertise, Independence, Impartiality, Transparency, Effectiveness and Fairness- the guardians of consumer ADR in EU:

Once both parties agree to use a particular ADR entity and it accepts the complaint file and appoints a mediator or constitutes a panel of mediators to resolve the dispute, the whole process has to satisfy the ‘quality’ requirements laid down in Articles 6-9. These are expertise, independence, impartiality, transparency, effectiveness and fairness. These requirements have been specifically infused by the EU into its consumer ADR process to make it immune from attacks on credibility and also uphold and sustain the faith of the consumers and traders in the process and ensure compliance where solutions are imposed. They form the foundation as well as the pillars on which consumer ADR in the EU rests. These requirements interpreted with respect to consumer mediation are as follows-

1.     Expertise

Mediation cannot be conducted by any layman. The mediator is required to have a basic understanding of law as well as skills relating to ADR as well as judicial adjudication of consumer disputes. It is pertinent to note that the Directive has not imposed any requirement of scientific, industrial or economic knowledge on the mediators.

2.     Independence and impartiality:

This is a continuing obligation throughout the mediation. The mediator should not be subject to the influence or instructions of either party. His remuneration should be independent of the outcome of mediation. Their term of office should be reasonable and they should not be dismissed without proper cause. Whenever a situation involving a conflict of interest with either party arises, by virtue of finance or personal and professional relationships, the mediator shall immediately notify the circumstances to the ADR entity and is to be replaced by another mediator unless the circumstances are informed to both parties and they have no objection to continuing with the same mediator.

Where the mediator is employed and remunerated exclusively by the trader and the same is permitted by the Member State, some additional layers of protection have been provided. In such cases, the mediator has to be appointed by a collegium which is equally representative of the interests of traders and consumers. Such mediator should have a term of office of at least 3 years and also undertake not to work for the trader or any business association of which the trader is a member for 3 years subsequent to the mediation. They should also have a separate budget independent of the trader to fulfil their tasks.

3.     Transparency:

The ADR entities are required to make available in the public domain, certain information which will enable the consumer to decide whether to opt for an ADR process and which will also influence the parties in the choice of an ADR entity.

The ADR entities are required to provide their contact details- postal address as well as email and also mention whether they are listed by the Commission. They should provide details of the mediators, their mode of appointment and term of office as well as expertise and neutrality of such mediators. Another required piece of information relates to the languages in which the complaint can be submitted and mediation conducted. The ADR entities should also mention whether they are part of networks facilitating cross-border dispute resolution. Other details required include the kind of disputes they are competent to deal with, procedural rules, costs, option of parties to withdraw from mediation at any point, preliminary requirements to be met by parties, whether disputes will be decided on basis of legal rules or equity or morality or ethics, expected length of an average mediation procedure, legal effect of outcome of mediation, penalties for non-compliance, etc.

These details are intended to help the parties make informed, convenient, practical choices. For added transparency, the ADR entities are required to publish an annual report containing the number of complaints dealt with and resolved, compliance rate, any significant practice which is frequently causing consumer-trader disputes, average time taken for the processes, percentage of disputes in which the process was discontinued, etc.

4.     Effectiveness:

The mediation process should be available both online and offline to traders as well as consumers. The parties are not obligated to be represented by a lawyer at the mediation. They can represent themselves. But they are not precluded from being advised, represented or assisted by any third party, whether a legal practitioner or not, at any stage of mediation.

The parties are to be informed as soon as the ADR entity has received all relevant information and documents pertaining to the complaint. Mediation is generally required to be completed within 90 days, although this period can be extended as per the exigencies of the case, after informing the parties about the estimated number of days required. Mediation should either be free of charge or very nominal costs should be imposed.

5.     Fairness:

Both parties should be given an opportunity to be heard and submit relevant facts, arguments, evidence, documents and expert testimony expeditiously. Any submissions and arguments by one party should be transmitted to the other party and the other party should be given an opportunity to refute the same. Once an outcome is reached, parties are to be given a written notification of the same, along with an explanation of the grounds on which the outcome was arrived at.

Enforceability of outcome of mediation:

The Directive envisions 3 kinds of ADR processes- one where the parties are brought together to facilitate an amicable solution, another where a solution is proposed and a third where a solution is imposed. A combination of these approaches can also be adopted. This necessarily implies that both facilitative and evaluative mediation is permitted under the Directive.

In the case of a facilitative mediation, where an amicable solution is not reached, the parties cannot be prevented from initiating litigation in the Courts subsequently to settle their dispute. Where a solution is proposed, both parties have to be compulsorily informed of their rights before they decide whether to adopt the solution or not. The parties should also have full knowledge of the legal effect of accepting the outcome and should be given some time to reflect on the possible implications before they are required to make their choice. A proposed solution need not necessarily be built on legal grounds. It can be built on other considerations as well. In cases where a solution is imposed, the same would be binding only if the parties were aware of its binding nature and consented to be bound by it at the time of commencing the process. However, such solutions can be made binding on traders irrespective of their consent by means of national legislation. The imposed solution should also afford the consumer the same level of protection granted by the national law of the Member State and this requirement cannot be derogated from even by means of an agreement between the trader and the consumer or the consumer and the ADR entity.

The parties also have an option to withdraw from the mediation at any time. However, this right is not available to traders where their participation in mediation is compulsory under the national law of the relevant Member State. Further, the periods of limitation and prescription to seek judicial remedy from a Court is suspended for the period of the mediation procedure and gets revived once again after the completion of mediation, subject to the rules laid down in any international agreements to which the relevant Member States are signatories.

Other Directives Applicable to Consumer Mediation:

There are a few other Directives/Regulations which are relevant to consumer mediation in the EU and which are related to the Consumer ADR Directive. They are-

1.     Regulation No. 524/2013 or the Regulation on Consumer ODR: This Regulation is applicable only to consumer-trader disputes arising from sales or service contracts concluded online. It aims to create an ODR platform at Union level. The ODR platform should take the form of an interactive website offering a single point of entry to consumers and traders seeking to resolve disputes out-of-court which have arisen from online transactions. The ODR platform should provide general information regarding the out-of-court resolution of contractual disputes between traders and consumers arising from online sales and service contracts. It should allow consumers and traders to submit complaints by filling in an electronic complaint form available in all the official languages of the institutions of the Union and to attach relevant documents. It should transmit complaints to an ADR entity competent to deal with the dispute concerned. The ODR platform should offer, free of charge, an electronic case management tool which enables ADR entities to conduct the dispute resolution procedure with the parties through the ODR platform. As per Recital 18, ADR entities should not be obliged to use the case management tool.

2.     Regulation (EC) No. 2006/2004 or the Regulation on Consumer Protection Cooperation: Art. 1 states that this Regulation lays down the conditions under which the competent authorities in the Member States designated as responsible for the enforcement of the laws that protect consumers' interests shall cooperate with each other and with the Commission in order to ensure compliance with those laws and the smooth functioning of the internal market and in order to enhance the protection of consumers' economic interests. The scope of this Regulation is limited to intra-Community infringements of Community legislation on consumer protection.

3.     Directive 2009/22/EC on injunctions for the protection of consumers’ interests: The purpose of this Directive as per Art. 1(1) is to approximate the laws, regulations and administrative provisions of the Member States relating to actions for an injunction referred to in Article 2 aimed at the protection of the collective interests of consumers included in the Directives listed in Annex I, with a view to ensuring the smooth functioning of the internal market.

Conclusion:

The Consumer ADR Directive is largely a pro-consumer Directive and a monumental step towards making Consumer ADR systematic in the EU. It is perhaps EU’s strongest endorsement of Consumer ADR till date. The effectiveness of the framework remains to be seen and only time will tell whether such a framework can afford sufficient protection to consumers. There are certain easily identifiable flaws in the nature of certain points which the Directive has not addressed such as providing the parties with an opportunity to choose not just an ADR entity but also the mediator/arbitrator they prefer from that particular entity, which ADR entity is to be approached in case of a cross-border dispute i.e. an entity in the State of residence of the consumer or one in the State of residence of the trader, previous mandatory training and experience of mediators/arbitrators, lacunae in some definitions (such as not including artificial persons under the ambit of the definition of consumers), etc. Nonetheless, it is to be noted that the Directive is only intended to be a skeleton and it is up to the Member States to give flesh, breath, substance and life to the system envisioned by the Directive by enacting appropriate national laws which are suitable and adaptable to the circumstances prevailing in a particular State, having regard to the standard of living of the people, their customary trading practices, type of economy, cultural considerations, etc. So far as fulfilling the purpose of a ‘Directive’ goes, the Consumer ADR is sufficiently adequate.

ENDNOTES:

1.     Commission Recommendation 98/257/EC on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes, 1998 O.J. L 115/31.

2.     Commission Recommendation 2001/310/EC on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes, 2001 O.J. L 109/56.

3.     A step forward for EU consumers: Questions & answers on Alternative Dispute Resolution and Online Dispute Resolution, European Commission (May 22, 2017, 5.57 PM), http://europa.eu/rapid/press-release_MEMO-13-193_en.htm.

4.     Alternative Dispute Resolution for Consumer Disputes, EUR-Lex (May 25, 2017, 6.25 PM), http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:0904_3.

5.     Opinion of Advocate General Henrik Saugmandsgaard Øe, Menini and another v Banco Popolare Società Cooperativa, Case C-75/16.

6.     Regulation (EU) No 524/2013 of the European Parliament and of the Council on online dispute resolution for consumer disputes, 2013 O.J. L 165/1 [Regulation on consumer ODR].

7.     Regulation (EC) No 2006/2004 of the European Parliament and of the Council on cooperation between national authorities responsible for the enforcement of consumer protection laws, 2004 O.J. L 364/1 [Regulation on consumer protection cooperation].

8.     Directive 2009/22/EC of the European Parliament and of the Council on injunctions for the protection of consumers' interests (codification), 2009 O.J. L 110/30.

Biography


Mahasweta Rayan is a penultimate year student at Indian Law Society's Law College, Pune, with a recently discovered love for ADR. She is currently also pursuing a certificate course in Dispute Management from the Indian Institute of Arbitration and Mediation and is enrolled in the Young MCIA initiative of the Mumbai Centre for International Arbitration.



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