ANALYSIS OF DIRECTIVES ON CONSUMER PROTECTION – EU FUNDED
Regulation 524/2013 on online dispute resolution for consumer disputes and amending
By Evripides Hadjinestoros
ANALYSIS OF DIRECTIVES ON CONSUMER PROTECTION – EU FUNDED
By Evripides Hadjinestoros
Regulation 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC («Regulation») aims to promote Online dispute resolution («ODR») through the creation of a European Online Dispute Resolution platform («ODR platform»). This Regulation entered into force on the 9th of January 2016.
The said platform, which the Regulation creates, aims to facilitate the independent, impartial, transparent, effective, fast and low-cost out-of-court solution and fair out-of-court resolution of disputes between consumers and traders online., particularly with regard to cross-border markets. The platform launched on February 16.
WHAT IS ONLINE DISPUTE RESOLUTION? Generally, Online Dispute Resolution («ODR»), is the resolution of disputes using technology. The use of ODR, results from the rapid development of both technology and Alternative Dispute Resolution («ADR»). In fact, it has been said that ODR is the future of dispute resolution.
ADVANTAGES: The advantages of Online Dispute Resolution are many. Among these are its low cost, its accessibility and its effectiveness, compared to face-to-face ADR. Since consumers who use Online Dispute Resolution, do business online, this prompts traders to settle their disputes with them – as this avoids bad online reviews. Because consumers are making more and more purchases online, while at the same time more and more traders are selling their products online, the use of ODR enhances consumer confidence in online transactions. Confidence in ODR is also achieved by easy and low-cost access to dispute resolution systems. As reported by Donnelly and White:
“The simple provision of an algorithmically derived standard complaint format can facilitate the negotiation process by removing unnecessary and inflammatory information, thus allowing for more focused engagement”
Based on article 2, the Regulation applies to the out-of-court resolution of disputes arising from disputes related to online sales contracts or service contracts between a consumer residing in the EU and a trader established in the EU where the dispute is handled by an ADR Entity. The Regulation applies to domestic online transactions as well as cross-border transactions, as this ensures equality in the conditions of competition in online commerce in the single market.
The Regulation and Directive 2013/11/EU should be read together since the Regulation complements the Directive to the extent that differences arise from online contracts. However, it does not exclude the use of the ODR platform in complaints which come from a trader against a consumer to the extent that the legislation of a Member State (“MS”) allows this. In such a case, the MSs inform the Commission about the ADR Entities that deal with trader against consumer disputes. Although this provision is of limited use, situations in which a trader may have a claim against a consumer include claims for payment of a price due for products the latter purchased or even cases involving defamation for a false negative consumer review against a trader.
WHAT IS AN ONLINE SALES CONTRACT: According to the Regulation, an online sales contract is a contract for the sale of goods or the provision of services in which the trader or intermediary offers goods or services through a website or other online means and the consumer orders those goods or services through that website or other online means. For example, contracts entered into via an electronic device (e.g. mobile phone) are considered online sales contracts.
As with Directive 2013/11/EU, the Regulation does not affect the application of Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain matters of mediation in civil and commercial matters.
Nor is the Regulation preventing the operation of existing ADR Entities within the Union or their ability to deal with online disputes that have been submitted directly to them.
The use of the words ODR platform is somewhat misleading since the platform is essentially a case management tool rather than a comprehensive dispute resolution process. The process is left to the ADR Entities who willingly use the platform in accordance with their existing procedural regulations. Precisely because of the operation of the platform as a case management tool, as well as the freedom of choice of the use of the platform by the ADR Entities, the latter can use the platform to manage all their cases – whether they concern online purchases or not.
CREATION OF THE ODR PLATFORM: Article 5 of the Regulation provides for the creation and development of the ODR platform at EU level in which consumers resolve disputes with traders through an ADR Entity, and in which information is provided about ADR Entities.
This platform is provided through the “Your Europe” portal and has already been developed by the Commission which is responsible for its operation, maintenance and funding, as well as for the security of the data resulting from it. According to the Regulation, the platform must be easy to use, accessible and useful for everyone, including vulnerable users. It also ensures respect for privacy.
WHAT IS THE ODR PLATFORM? The platform is an interactive website listing ADR Entities and offering free access to consumers and traders to resolve their disputes by providing the following features:
|a)||It provides an electronic complaint form which can be filled in by the complainant party in accordance with Article 8;|
|b)||it informs the respondent party about the complaint;|
|c)||it identifies the competent ADR entity or entities and transmit the complaint to the ADR entity, which the parties have agreed to use, in accordance with Article 9;|
|d)||It offers an electronic case management tool free of charge, which enables the parties and the ADR entity to conduct the dispute resolution procedure online through the ODR platform;|
|e)||It provides the parties and ADR entity with the translation of information which is necessary for the resolution of the dispute and which is exchanged through the ODR platform;|
|f)||it provides an electronic form by means of which ADR entities shall transmit the information referred to in point (c) of Article 10;|
|g)||it provides a feedback system which allows the parties to express their views on the functioning of the ODR platform and on the ADR entity which has handled their dispute;|
|h)|| it makes publicly available the following:
CONTACT POINTS FOR ODR: Each MS designates an ODR contact point which can be the European Consumer Center of the MS or another consumer association or other entity. The contact points host two ODR consultants.
These contact points are entrusted with various tasks which consist of facilitating communication between the parties and the ADR Entity as well as submitting to the Commission an activity report every two years. It is noted that the said duties do not need to be performed when the parties have their habitual residence in the same MS unless the MSs decides otherwise. Contact points work together to carry out their tasks through a network of ADR contact points established by the Commission.
The submission of a complaint is governed by article 8 of the Regulation, while the processing and transmission of the complaint is governed by article 9.
Article 8 states that, in order to submit a complaint to the ODR platform, the complainant (i.e. either the consumer, or – in case the MS chooses – the trader) completes the online complaint form which contains information to identify the competent ADR Entity. The information is contained in the Annex to the Regulation and includes the name and address of the consumer and the trader, the language, the price of the products purchased, the type and description of the order and some other information. The complaint may also contain supporting documents such as invoices, receipts, photos, etc.
By completing the complaint form, the consumer has the possibility to negotiate directly with the trader before being informed of the complaint before the complaint is made known to the ADR Entity.
INFORMATION COMMUNICATED TO THE TRADER: Where the above selection is not made, as soon as the completed complaint form is received, the ODR platform forwards the complaint to the complainant in an online form along with specific information regarding the right to choose/use an ADR Entity, the ADR Entities that may handle the dispute, inviting the trader to state within 10 days whether he is committed or required to use a specific ADR Entity for resolving disputes with consumers or, where he is not committed, whether he is willing to use such an entity. The information also includes the contact points of the MS.
INFORMATION COMMUNICATED TO THE CONSUMER: Upon receipt of the above information and the trader’s response, the ODR platform communicates to the complainant information regarding the right to choose/use an ADR Entity as well as the entities indicated by the trader that he is willing to use (if the complainant is a consumer) and it invites him/her to agree on a specific ADR Entity within 10 calendar days. The information also includes the contact points of the MS.
All notifications contain the following information regarding the characteristics of the ADR Entity:
|a)||the name, contact details and website address of the ADR entity;|
|b)||the fees for the ADR procedure, if applicable;|
|c)||the language or languages in which the ADR procedure can be conducted;|
|d)||the average length of the ADR procedure;|
|e)||the binding or non-binding nature of the outcome of the ADR procedure;|
|f)||the grounds on which the ADR entity may refuse to deal with a given dispute in accordance with Article 5(4) of Directive 2013/11/EU.|
INFORMATION COMMUNICATED TO THE ADR ENTITY: The ODR platform automatically forwards the complaint to the ADR Entity that the parties have agreed to use according to the above procedure.
FAILURE TO START THE PROCESS: If the parties are unable to agree within 30 calendar days of the submission of the complaint form regarding the ADR Entity of their choice, then the complaint is not processed further, and the complainant is informed of the opportunity to contact an ODR Adviser. The same happens if the ADR Entity refuses to deal with the dispute. As we shall see below, in the year 2020, 89% of the cases referred, the trader did not respond within the 30-calendar day period, while in 6% of the cases, it refused to participate within the above time frame.
COMMENCEMENT OF THE PROCEDURE: Once the ADR Entity receives the complaint, it informs the parties whether it agrees or refuses to deal with the particular dispute (always in accordance with Directive 2013/11/EU) and informs the parties of its procedural regulations and the costs of the chosen dispute resolution process.
DISPUTE RESOLUTION: According to article 10 of the Regulation, the ADR Entity that agreed to handle the dispute should:
|a)||conclude the ADR procedure within the deadline referred to in point (e) of Article 8 of Directive 2013/11/EU;|
|b)||not require the physical presence of the parties or their representatives, unless its procedural rules provide for that possibility and the parties agree;|
|c)||without delay transmit the following information to the ODR platform:
|d)||not be required to conduct the ADR procedure through the ODR platform|
PRESENCE OF THE PARTIES: As mentioned in the above article, the process takes place online through the platform and the procedural rules for resolving the dispute of the selected ADR Entity are followed. The only case in which the procedure may take place in the physical presence of the parties is (a) if the procedural rules of the ADR Entity allow it and (b) the parties agree to it.
The Regulation places particular emphasis on the protection of personal data. First of all, it should be noted that, in relation to the electronic complaint form, only information that is accurate, relevant, and not excessive in relation to the purposes for which it is collected is processed. A complaint that is not fully completed will not be processed, and in such case the complainant is informed that his complaint cannot be further processed, unless the missing information is provided.
According to article 11 of the Regulation, the Commission takes the necessary measures to create and maintain an electronic database in which it stores the information processed.
Access to the necessary information constituting the dispute is limited to the ADR Entity and – to the extent necessary for the fulfillment of their duties as well as for platform maintenance purposes – the ODR contact points and the Commission.
The data retention period in the ODR platform is 6 months from the date of completion of the dispute investigation process.
RESPONSIBLE FOR PROCESSING: ODR consultants and ADR Entities are considered data controllers for their own activities.
DATA SECURITY: ODR contact points are subject to the rules of professional secrecy or other equivalent confidentiality obligations set out in the legislation of the relevant MS. The Commission, for its part, must take appropriate technical and organizational security measures.
According to the Commission’s report regarding the operation of the ODR platform in the year 2020, it is important to mention the following in relation to the use of the ODR platform:
Although over time there is an increase in complaints that are filed and resolved on the ODR platform, from the above data it appears that Alternative Dispute Resolution does not end up with the ADR Entities. This is not necessarily negative, given that complaints are resolved before reaching the ADR Entities. Unfortunately, the above report does not include cases where the trader and the consumer have reached a compromise, e.g. outside the ADR platform.
Given the voluntary use of the ODR platform by traders as well as consumers, it seems that the information obligation provided by the Regulation (but also by Directive 2013/11/EU) act as push mechanisms for traders (directly through informing them and indirectly through the information consumers receive) to use ODR.
Article 14 provides for the obligation of traders who are established in the EU and conclude contracts for online sales or services as well as in online markets established in the union, to provide on their websites the link to the ODR platform as well as their email. The purpose of this provision is to make the ODR platform widely known to consumers.
“Online marketplace” is defined as a service provider providing information society services that enables traders to make their products and services available to consumers and therefore to electronically enter into sales and service contracts with each other through the online market website.
CASES WHERE TRADERS ARE REQUIRED TO USE ADR ENTITIES: In case traders are bound or obliged to use ADR Entities, this information also includes the possibility of using the ODR platform. Where prior to the purchase there was an offer from the trader via e-mail, all such information should be included in the e-mail. They should also be included in the general terms and conditions applicable to the contract of online sales or services.
The information on the basis of article 14 of the Regulation, is without prejudice to the duties of information of the Trader to inform about the ADR Entities covered by Directive 2013/11/EU, and is also without prejudice to the duties of information regarding the possibility of recourse by a consumer in an out-of-court complaint mechanism to which the trader is subject, and for the relevant methods of access to those referred to in Directive 2011/83/EU.
According to the Regulation, the MSs ensure that the ADR Entities, the Network of European Consumer Centers as well as the competent authorities, provide a link to the ODR platform. Also, the MSs encourage consumer associations and business associations to provide a link to the ODR platform.