Measures in the field of consumer protection have been undertaken within the framework of a program aimed at providing consumers with better access to justice. Directive 98/27/EC on injunctions for the protection of consumer interests was adopted. Under this Directive, the Member States must enable independent public bodies and consumer organisations to bring actions for an injunction against certain commercial practices. The Commission has adopted two recommendations establishing the principles applicable to out-of-court procedures for the resolution of consumer disputes. The first recommendation, which was adopted in March 1998 relates to the procedures, which, no matter what they are called, lead to a resolution of the dispute through the active intervention of a third party that formally adopts a position with regard to a solution. This recommendation sets out the seven minimum principles for the establishment and operation of ADR facilities. It does not relate to the procedures often referred to as mediation procedures. A list has been published by the Commission of all the bodies in Member States that are responsible for out-of-court resolution of consumer disputes, which the Member States consider to be in line with the recommendation. The second recommendation of April 2001 relates to procedures, which are limited to a simple attempt to bring the parties together to convince them to find a solution by common consent. The third party can however propose a solution informally. These recommendations have been accompanied by the publication of the European complaint form for consumers. This form has been designed to ‘guide’ and orient consumers in formulating their claims. It contains multiple-choice lists of responses to help consumers indicate their problems and their claims, together with sufficient space for users to give additional details or describe particular circumstances not covered by the multiple-choice lists.
ECODIR
In the field of electronic commerce ADRs have received particular attention, in particular in the e-Europe Action Plan.1 This concerns the traditional alternative channels and Online Dispute Resolution, which can also be used to resolve disputes that are not related to e- commerce. An online ADR initiative that is supported by the Commission is ECODIR (Electronic Consumer Dispute Resolution Platform). The whole procedure consists of three phases: 1) the negotiation phase, 2) the mediation phase and 3) the recommendation phase.
In the negotiation phase the First Party logs in and creates a new user account after having checked that the dispute comes within ECODIR dispute resolution rules. The First Party then fills out the online invitation to negotiate. Having filed the electronic invitation to negotiate form, the First Party receives a confirmation message from the Secretariat via email within the next 24 hours. The Second Party will receive the invitation to negotiate from the Secretariat and will be given seven days to respond. In the absence of a response, the Second Party is deemed to have refused to participate. If the Second Party responds, both Parties negotiate in an attempt to find a mutually acceptable solution to the dispute. Subsequently, in the absence of agreement, either party may request the assistance of a neutral third party, the Mediator (mediation phase). The Secretariat may appoint a Mediator selected from ECODIR’s lists or appoint the mediator chosen by the Parties. The Mediator then reviews the file and makes an attempt to bring the Parties to a settlement. The Mediator is proactive and can make settlement proposals. In the absence of agreement after 15 days from the beginning of the mediation phase, the Mediator makes a recommendation. Except where otherwise agreed, the Parties are not bound by this recommendation.
3.5.4. European Networks: the EEJ-net and the FIN-NET
In the field of consumer protection, the Commission has established two European networks of national bodies both aimed at facilitating access for consumers to out-of-court procedures for the resolution of cross-border disputes. The European Extra-Judicial Network (EEJ-net)194 is a consumer support and information structure, which consists of national contact points. Each of the contact points relays information to the 400 bodies that the MS considered to have fulfilled the requirements of the two Commission recommendations. The FIN-NET (Financial Services Complaint Network) is a network of the competent national ADR bodies, which meet the requirements of the first Commission recommendation. This network provides consumers who have problems related to financial services (bans, insurance companies etc.) with direct access to an ADR facility.
