Portfolio Gallery: Consumer Protection Book

ANALYSIS OF DIRECTIVES ON CONSUMER PROTECTION – EU FUNDED

Misleading and comparative advertising (Directive 2006/114/EC)

Directive 2006/114/EC of the European Parliament and of the Council, of December 12, 2006, on misleading and comparative advertising (“Directive“) aims to protect traders from misleading advertising and its unfair consequences and to define the conditions under which comparative advertising is permitted. The Directive repealed Directive 84/450/EEC as it had been amended but several of the latter’s provisions remained intact – the jurisprudence of Directive 84/450/EEC therefore remains relevant

This Directive is related to Directive 2005/29/EC on unfair commercial practices, which we have already analyzed in Chapter 3, with the difference that the latter protects consumers while the former protects businesses.

LEVEL OF HARMONIZATION: The Directive is of minimal harmonization  and applies to “advertisements” which are either (1) misleading, or (2) unlawful comparative advertising, or both.

INTERPRETATION OF ADVERTISING:  Based on the Directive, advertising is interpreted as «the making of a representation in any form in connection with a trade, business, craft or profession in order to promote the supply of goods or services, including immovable property, rights and obligations». The scope of the above interpretation is relatively broad, and it has been decided that even metatags consisting of keywords either embedded in website code or entered into a search engine, constitute advertising within its meaning. Likewise, using a domain name is considered advertising.

The reason it became necessary to control such advertisements is to protect against distortions of competition at EU level.

PROTECTION OF PROFESSIONALS: As mentioned above, the Directive is intended to protect professionals (i.e. traders) from misleading advertising by other businesses – i.e. it applies to B2B relationships which are considered unfair commercial practices.  This is because, in relation to consumer protection, Directive 2005/29/EC on unfair commercial practices applies. The Directive clarifies that its purpose is to protect traders from misleading advertising and its unfair consequences for them,  thus setting the minimum objective criteria for determining an advertisement as misleading.

PROTECTION OF TRADERS AND CONSUMERS:  Regarding non-permitted comparative advertising, however, the provisions of the Directive apply not only to B2B relationships but also apply to B2C relationships – that is, where a trader directs comparative advertising to consumers. The way this is achieved is through article 6(2)(a) of Directive 2005/29/EC which states that any practice which creates confusion, including through comparative advertising, with products, trademarks, trade names and other distinctive features of a competitor, is misleading. In other words, the consumer must refer to article 4 of Directive 2006/114/EC to check whether the conditions of permitted comparative advertising are met.

The provision of article 4(a) of the Directive operates in a similar way in relation to B2B transactions. That is, the article in question, which states that comparative advertising which is misleading is not allowed, essentially refers to Directive 2005/29/EC and an examination of articles 6 and 7 concerning misleading commercial practices.

Therefore, the Directive:

“… will either provide conditions for such assessment under the UCPD for B2C transactions or impose additional requirements which are relevant for traders, mainly competitors, in B2B transactions.”

MEANING OF TRADER: Based on the Directive, “trader” is any natural or legal person who is acting for purposes relating to his trade, craft, business or profession and anyone acting in the name of or on behalf of a trader.

1.   MISLEADING ADVERTISING

 INTERPRETATION:  Misleading advertising under article 4(b) is:

«… any advertising which in any way, including its presentation, deceives or is likely to deceive the persons to whom it is addressed or whom it reaches and which, by reason of its deceptive nature, is likely to affect their economic behaviour or which, for those reasons, injures or is likely to injure a competitor»

Based on article 3, in order to assess whether an advertisement is misleading, all its features are taken into account and in particular any information concerning:

«a) the characteristics of goods or services, such as their availability, nature, execution, composition, method and date of manufacture or provision, fitness for purpose, uses, quantity, specification, geographical or commercial origin or the results to be expected from their use, or the results and material features of tests or checks carried out on the goods or services·

 

b)  the price or the manner in which the price is calculated, and the conditions on which the goods are supplied or the services provided ·

 

c) the nature, attributes and rights of the advertiser, such as his identity and assets, his qualifications and ownership of industrial, commercial or intellectual property rights or his awards and distinctions..»

2.   COMPARATIVE ADVERTISING

WHAT IS COMPARATIVE ADVERTISING:  Comparative advertising based on the Directive is «any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor ».

PERMISSIBLE COMPARATIVE ADVERTISING:  The general perception as well as the course of jurisprudence to date, including the relevant Directive, is that comparative advertising is permissible. The reason given by the CJEU and the Directive is that it contributes:

“…in the objective presentation of the advantages of various comparable products and, therefore, in stimulating competition between suppliers of goods and services for the benefit of consumers, the conditions laid down for comparative advertising must be interpreted in the most favorable way.”

Indeed, consumers’ choices are widened when they are able to differentiate between goods – through this logic, it is legitimate to compare and promote product comparison through advertising.

At the same time, however, it must be ensured that comparative advertising is not used in a manner contrary to the rules of competition and unfairly or in a manner that affects the interests of consumers. That is, such advertising should be subject to rules that ensure transparency, prevent confusion and “motivate businesses to invest in the quality and image of their products”.

INTERPRETATION:  The broad interpretation of the concept of “comparative advertising” is intended to cover all forms of comparative advertising regardless of how the comparison is viewed – that is, whether it is directly or indirectly viewed. For example, where advertising refers to a type of product (even if no specific business or product is mentioned) that refers to a competitor, it is considered comparative advertising. This applies regardless of whether the reference concerns undertakings acting in concerto – i.e. together.

COMPETITIVE RELATIONSHIP:  From the above, it follows that it is necessary for a business, to be able to prove that it is a competitor of the advertiser, before making any claims against the advertised business.

Relevant is case C-381-05 where it was decided that for a case to fall within the Directive, there must be a competitive relationship between the advertiser and the business identified in the advertising message with reference to the products (goods or services) offered – that is, the existence of a relationship between businesses depends on the finding that the products they offer have some degree of substitutability – one for the other. To determine the existence of such a competitive relationship between products, the following shall be taken into account:

  • the present state of the market and consumer habits as well as the possibilities of their evolution and the further potential for the substitution of products for one another which may be revealed by intensification of trade;
  • the part of the Community territory in which the advertising is disseminated, without, however, excluding, where appropriate, the effects which the evolution of consumer habits seen in other Member States may have on the national market at issue and
  • the particular characteristics of the product which the advertiser seeks to promote and the image which it wishes to impart to it.

CRITERIA OF COMPARATIVE ADVERTISING:  However, in order to allow comparative advertising, the following conditions must be cumulatively fulfilled in their entirety:

«a) it is not misleading within the meaning of Articles 2(b), 3 and 8(1) of this Directive or Articles 6 and 7 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (‘Unfair Commercial Practices Directive’) (7);.

 

b)  it compares goods or services meeting the same needs or intended for the same purpose;

 

c)  it objectively compares one or more material, relevant, verifiable and representative features of those goods and services, which may include price;

 

d)  it does not discredit or denigrate the trade marks, trade names, other distinguishing marks, goods, services, activities or circumstances of a competitor;

 

e)  for products with designation of origin, it relates in each case to products with the same designation;

 

f)  it does not take unfair advantage of the reputation of a trade mark, trade name or other distinguishing marks of a competitor or of the designation of origin of competing products;

 

g)  it does not present goods or services as imitations or replicas of goods or services bearing a protected trade mark or trade name;

 

h)  it does not create confusion among traders, between the advertiser and a competitor or between the advertiser’s trade marks, trade names, other distinguishing marks, goods or services and those of a competitor..»

OBJECTIVITY:  An interesting case in the field of comparative advertising and the way objectivity is examined in relation to article 4(c) of the Directive, is case C-562/15 Carrefour Hypermarchés. In that case, Carrefour company (which operates various stores – including hypermarkets, supermarkets and other smaller stores), launched a television advertising campaign entitled “Lower Price Guarantee” in which it quoted comparative prices of other competing chains and offered consumers as refund, double the price difference in the event that they found any of the specific products at a lower price in a store other than Carrefour. What had been done, however, was that Carrefour had compared products of the Carrefour supermarket (and not of its smaller stores) with the smaller chain stores of its competitors – with the result that the price of Carrefour products was clearly lower.

Examining the issue, the CJEU stated that, as a general rule, article 4(c) of the Directive does not require that the category or size of the stores in which the products whose prices are compared are sold be similar. Also, comparing the prices of similar products sold in stores of a different category or size is permissible and does not oppose fair competition or the interests of consumers  provided, however, that (1) the conditions of article 4 are met and (2) the advertisement compares prices objectively and is not misleading.

Where, however, the stores whose prices have been obtained are members of chains each of which has a range of stores of different sizes and categories, and the advertiser compares the prices of stores of a larger size or higher category in his chain with those recorded in stores of a smaller size or lower category of competitive chains, without this element appearing in the advertisement, this may distort objectivity.

Similarly, an objective comparison cannot be made where, what is being compared is price, while the products being compared have different qualities without these qualities being mentioned in the advertisement.

MISLEADING ADVERTISING:  Regarding article 4(a) of the Directive, the CJEU decided that comparative advertising is misleading where, in any way, by act or omission, it misleads consumers it is addressed to and influences their economic behaviour or, for these reasons, it harms a competitor.  It is important to mention that, although the CJEU recognized that under article 7 of Directive 2005/29/EC, restrictions on the medium in which the advertisement is shown may be taken into account for whether there is a misleading omission, in such circumstances, these limitations did not justify the omission of essential information about store differences.  That is, the information should not only be clear, but should also be included in the advertising medium itself.

DESIGNATION OF ORIGIN:  In relation to article 4(e), and products with a designation of origin, case C-381-05 is relevant  where the question was whether beer could be compared to champagne. It was decided that for products that do not have a designation of origin, any comparison with products that have a designation of origin is not prohibited.

TRADEMARKS:  With reference to article 4(d) and (f) – (h) and the use of trademarks, it should be noted that comparative advertising that makes reference to competitors’ trademarks is permissible, given that it complies with the provisions of the Directive.

However, it is impermissible (especially in relation to articles 4(f) – (h)) to use trademarks, brands or other distinguishing marks of a competitor to promote the advertiser’s products. Nor is it permissible for someone to copy a competitor’s mark and state above that the product (which the mark represents) is an imitation, since in this way he effectively usurps and unfairly benefits from the reputation of the mark.

METATAGS:  Also of interest is the use of competitor brand metatags to attract consumers to websites. Such practice may be considered trademark infringement – but is there a way for it to be considered permissible comparative advertising?

The answer seems to be negative since it is difficult for the advertiser to be able to convince that the use of competitor metatags is not misleading and/or that it is not taking unfair advantage of the competitor’s trademark.

3.   ROLE OF MEMBER STATES

Based on article 5 of the Directive MSs should provide appropriate and effective means to combat misleading advertising and enforce compliance with the provisions on comparative advertising in the interest of traders and competitors. Such means include:

  • Right to take legal action against the said advertisement or
  • File a complaint against the advertisement before an administrative authority which is competent to either decide on the complaint or refer the matter to the competent court.

EXERCISE OF RIGHTS BY ORGANIZATIONS: The above rights are exercised by anyone with a legal interest including organizations.

MSs may also decide that before a court or administrative body can take up a dispute, other existing means of dealing with complaints should first be resorted to, including means such as voluntary control of such advertising by independent bodies.

APPEAL BY A CODE OWNER:  Also, the MSs can decide whether appeals can be brought separately or jointly against a number of traders in the same economic sector and whether these appeals can be brought against a code owner, if the code in question promotes non-compliance with any legal provisions.  According to the Directive, a “code owner” is:

“…any entity, including a trader or group of traders, which is responsible for the formulation and revision of a code of conduct and/or for monitoring compliance with the code by those who have undertaken to be bound by it.”

The MSs, in accordance with article 5(3), are required to confer on the courts or administrative authorities powers under which they may, when they consider such measures necessary and, taking into account all the interests involved and in particular the public interest: order the cessation of misleading advertising or unauthorized comparative advertising, or initiate the appropriate legal proceedings for this purpose or, if the misleading advertisement or unauthorized comparative advertising has not yet been published, but its publication is imminent, prohibit it or initiate the relevant legal proceedings to ban this publication even if actual damage or harm, fraud or negligence on the part of the trader is not proven. Based on the same article, the MSs should ensure that the measures referred to in this paragraph can be taken within the framework of an expedited procedure, either with temporary or final effect.

In addition, in order to eliminate the continuing effects of misleading advertising or unlawful comparative advertising, the cessation of which has been ordered by a final decision, the MSs may confer on the courts or administrative authorities powers under which they may require the publication of the decision (in whole or in part in such form as they deem fit) and/or require the publication of a remedial statement.

Administrative bodies should, among other things, justify their decisions.

PROOF OF CLAIMS:  Under article 7, MSs should confer powers on courts or administrative authorities to require the advertiser to provide evidence of the accuracy of the factual claims contained in the advertisement, if deemed necessary on the basis of the data of the specific case and taking into account the legitimate interests of the advertiser and in the case of comparative advertising to require that the advertiser present these evidence in a short period of time and in the event that he does not do so or where the claims are inaccurate, then these are considered inaccurate.

RIGHTS OF MSs:  Based on article 8(1), MSs may adopt provisions which provide greater protection to traders and competitors against misleading advertising (but not comparative advertising as far as the comparison is concerned).

Σχετικά Άρθρα

Conciliation Rules of the Cyprus Center for Alternative Dispute Resolution
Mediation Rules of the Cyprus Center for Alternative Dispute Resolution
Arbitration Rules of the Cyprus Center for Alternative Dispute Resolution
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ANALYSIS OF DIRECTIVES ON CONSUMER PROTECTION – EU FUNDED

Regulation 524/2013 on online dispute resolution for consumer disputes and amending 

By Evripides Hadjinestoros

1. INTRODUCTION

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”

2. SCOPE

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.

3. ADR Platform

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:

i) general information on ADR as a means of out-of-court dispute resolution;

 

ii) information on ADR entities listed in accordance with Article 20(2) of Directive 2013/11/EU which are competent to deal with disputes covered by this Regulation;

 

iii) an online guide about how to submit complaints through the ODR platform;

 

iv) information, including contact details, on ODR contact points designated by the Member States in accordance with Article 7(1) of this Regulation;

 

v) statistical data on the outcome of the disputes which were transmitted to ADR entities through the ODR platform.

 

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.

3.1.              Complaint

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.

 

3.2.              Dispute Resolution

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:

i) the date of receipt of the complaint file;

 

ii) the subject-matter of the dispute;

 

iii) the date of conclusion of the ADR procedure;

 

iv) the result of the ADR procedure;

 

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.

3.3.              Personal Data

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.

3.4.              Statistical Data

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:

  • A total of 17,641 fully completed complaints were registered.
  • 50% of complaints registered are cross-border.
  • In 95% of complaints, the trader ignored the complaint or refused to resolve it (89% of complaints were ignored) while 4% of complaints were withdrawn by consumers.
  • In fact, 1% of complaints ended up with an ADR Entity.
  • Most complaints concerned airlines – most likely due to the impact of Covid-19 on flight schedules (about a quarter of the total number of complaints) while the second largest area of ​​complaints concerned motor vehicle spare parts (6.38% of complaints).

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.

4. Trader’s Obligations

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.

5. Role of Member States

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.

Σχετικά Άρθρα

Conciliation Rules of the Cyprus Center for Alternative Dispute Resolution
Mediation Rules of the Cyprus Center for Alternative Dispute Resolution
Arbitration Rules of the Cyprus Center for Alternative Dispute Resolution
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