Carlo Alberto Calcagno

 

Allego qui di seguito il testo del riassunto in lingua inglese, operato dalla Comunità, delle risoluzioni del Parlamento europeo approvate il 23 marzo 2013 dal Parlamento europeo in tema di ODR ed ADR:

1) Risoluzione legislativa del Parlamento europeo del 12 marzo 2013 sulla proposta di regolamento del Parlamento europeo e del Consiglio relativo alla risoluzione delle controversie online dei consumatori (regolamento sull’ODR per i consumatori) (COM(2011)0794 – C7-0453/2011 –2011/0374(COD) )[1];

2) Risoluzione legislativa del Parlamento europeo del 12 marzo 2013 sulla proposta di direttiva del Parlamento europeo e del Consiglio sulla risoluzione alternativa delle controversie dei consumatori, recante modifica del regolamento (CE) n. 2006/2004 e della direttiva 2009/22/CE (direttiva sull’ADR per i consumatori) (COM(2011)0793 – C7-0454/2011 – 2011/0373(COD) )[2]

(1)

The European Parliament adopted by 622 votes to 24 with 32 abstentions, a legislative resolution on the proposal for a regulation of the European Parliament and of the Council on online dispute resolution for consumer disputes (Regulation on Consumer ODR).

Parliament adopted its position in first reading following the ordinary legislative procedure. The amendments adopted in plenary are the result of a compromise negotiated between Parliament and Council. They amend the Commission proposal as follows:

Scope: the new regulation will ensure a high level of consumer protection, and shall apply to the out-of-court resolution of disputes initiated by traders against consumers where the relevant ADR procedures are offered by ADR entities listed in the Directive on alternative dispute resolution (ADR Directive). Since, in particular, consumers and traders carrying out cross-border online transactions will benefit from the ODR platform, this Regulation should also apply to domestic online transactions in order to allow for a true level playing field in the area of online commerce.

The platform for online dispute resolution (ODR): this should take the form of an interactive user-friendly website offering a single point of entry to consumers in all the official languages of the institutions of the Union free of charge. The Commission shall develop the ODR platform (and be responsible for its operation, including all the translation functions, maintenance, funding and data security. The development, of the ODR platform shall ensure that the privacy of its users is respected from the design stage (‘privacy by design’) and that the ODR platform is accessible and usable by all, including vulnerable users (‘design for all’), as far as possible.

The Commission shall make the ODR platform accessible, as appropriate, through its websites that provide information to citizens and businesses in the Union and, in particular, through the ‘Your Europe portal’.

Functions of the ODR platform: the platform’s functions shall be, amongst other things;

· to inform the respondent party about the complaint;

· to identify the competent ADR entity or entities and transmit the complaint to the ADR entity, which the parties have agreed to use,

· to offer 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;

· to provide the parties and ADR entity with the translation of information which is necessary for the resolution of the dispute and is exchanged through the ODR platform;

· to provide in an accurate, up to date and clear, understandable and easily accessible way certain information, for example: (i) general information regarding ODR; (ii) the competent ADR entity or entities; (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; (v) statistical data on the outcome of the disputes which were transmitted to ADR entities through the ODR platform.

Testing of the ODR platform: at the latest 18 months after entry into force of the regulation, the Commission will test the technical functionality and user-friendliness of the ODR platform and of the complaint form, including with regard to translation.

Network of ODR contact points: each ODR contact point shall host at least two ODR advisors. The ODR contact points shall provide support by fulfilling the following functions:

· facilitating communication between the parties and the competent ADR entity, which may include, in particular: (i) assisting with the submission of the complaint and, where appropriate, relevant documentation; (ii) providing the parties and ADR entities with general information on consumer rights and explanations on the procedural rules applied by the ADR entities identified;

· submitting, based on the practical experience gained from the performance of their functions, every two years an activity report to the Commission and to the Member States.

Submission of a complaint: the complaint form shall be user-friendly and easily accessible on the ODR platform. If the complaint form has not been fully completed, the complainant party shall be informed that the complaint cannot be processed further, unless the missing information is provided.

Upon receipt of a fully completed complaint form, the ODR platform shall, in an easily understandable way and without delay, transmit to the respondent party, in one of the official languages of the institutions of the Union chosen by that party, the complaint together with certain data, for example:

· information that the parties have to agree on an ADR entity in order for the complaint to be transmitted to it, and that, if no agreement is reached by the parties or no competent ADR entity is identified, the complaint will not be processed further;

· information about the ADR entity or entities which are competent to deal with the complaint, if any are referred to in the electronic complaint form.

Before submitting their complaint to an ADR entity through the ODR platform, consumers should be encouraged by Member States to contact the trader by any appropriate means, with the aim of resolving the dispute amicably.

An ADR entity that has agreed to deal with a dispute shall not require the physical presence of the parties or their representatives, unless its procedural rules provide for that possibility and the parties agree.

Consumer information: traders established within the Union engaging in online sales or service contracts, and online marketplaces established within the Union, shall provide on their websites an electronic link to the ODR platform. That link shall be easily accessible for consumers. Traders established within the Union engaging in online sales or service contracts shall also state their e-mail addresses.

Member States shall encourage consumer associations and business associations to provide an electronic link to the ODR platform.

(2)

The European Parliament adopted by 617 votes to 51 with 5 abstentions a legislative resolution on the proposal for a directive of the European Parliament and of the Council on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on Consumer ADR).

Parliament adopted its position in first reading following the ordinary legislative procedure. The amendments adopted in plenary are the result of a compromise negotiated between Parliament and Council. They amend the Commission proposal as follows:

Purpose and scope: the purpose of the Directive is, through the achievement of a high level of consumer protection, to ensure that consumers might, on a voluntary basis, submit complaints against traders to entities offering independent, impartial, transparent, effective, fast and fair alternative dispute resolution procedures.

The Directive provides that Member States will be permitted to maintain or introduce national provisions with regard to procedures not covered by the Directive. It acknowledges the competence of Member States to determine whether ADR entities established on their territories are to have the power to impose a solution.

The Directive will apply to procedures for the out-of-court resolution of domestic and cross-border disputes concerning contractual obligations stemming from sales contracts or service contracts between a trader established in the Union and a consumer resident in the Union through the intervention of an ADR entity. Confidentiality and privacy should be respected at all times during the ADR procedure.

The Directive will not apply to:

procedures before dispute resolution entities where the natural persons in charge of dispute resolution are employed or remunerated exclusively by the individual trader;

• non-economic services of general interest;
• disputes between traders;
• procedures initiated by a trader against a consumer;
• health services provided by health professionals;
• public providers of further or higher education.

Access to ADR entities and ADR procedures: Member States shall facilitate access by consumers to ADR procedures.

ADR entities must: (i) maintain an up-to-date website which provides the parties with easy access to information concerning the ADR procedure, and which enables consumers to submit a complaint and the requisite supporting documents online; (ii) provide the parties, at their request, with the information on a durable medium; (iii) where applicable, enable the consumer to submit a complaint off-line.

Member States may, at their discretion, permit ADR entities to maintain and introduce procedural rules that allow them to refuse to deal with a given dispute, for example, on the grounds that the dispute is frivolous or vexatious or that the consumer did not attempt to contact the trader concerned in order to discuss his complaint and seek, as a first step, to resolve the matter directly with the trader.

Where an ADR entity is unable to consider a dispute that has been submitted to it, that ADR entity shall provide both parties with a reasoned explanation of the grounds for not considering the dispute within three weeks of receiving the complaint file.

The Directive should allow traders established in a Member State to be covered by an ADR entity, which is established in another Member State.

Expertise, independence and impartiality: persons in charge of ADR must: (i) possess the necessary knowledge and skills in the field of alternative or judicial resolution of consumer disputes, as well as a general understanding of law; (ii) be appointed for a term of office of sufficient duration to ensure the independence of their actions; (iii) be remunerated in a way that is not linked to the outcome of the procedure.

Transparency: ADR entities must make publicly available on their websites, or on a durable medium upon request, clear and easily understandable informationon: (i) their contact details, including postal address and e-mail address; (ii) the expertise, impartiality and independence of the natural persons in charge of ADR, if they are employed or remunerated exclusively by the trader; (iii) the procedural rules governing the resolution of a dispute and the grounds on which the ADR entity may refuse to deal with a given dispute; (iv) any preliminary requirements the parties may have to meet before an ADR procedure can be instituted, including the requirement that an attempt be made by the consumer to resolve the matter directly with the trader; (v) whether or not the parties can withdraw from the procedure; (vi) the average length of the ADR procedure; (vii) the legal effect of the outcome of the ADR procedure, including the penalties for non-compliance; (viii) the enforceability of the ADR decision.

Effectiveness: the ADR procedure must be available and easily accessible online and offline to both parties irrespective of where they are. The parties have access to the procedure without being obliged to retain a lawyer or a legal advisor. Furthermore, ADR procedure must be free of charge or available at a nominal fee for consumers. Lastly, the outcome of the ADR procedure must be made available within a period of 90 calendar days from the date on which the ADR entity has received the complete complaint file.

Liberty: Member States shall ensure that in ADR procedures which aim at resolving the dispute by imposing a solution, the solution imposed may be binding on the parties only if they were informed of its binding nature in advance and specifically accepted this.

Legality: in ADR procedures which aim at resolving the dispute by imposing a solution on the consumer, where there is no conflict of laws, the solution imposed shall not result in the consumer being deprived of the protection afforded to him by the provisions that cannot be derogated from by agreement by virtue of the law of the Member State where the consumer and the trader are habitually resident.

In a situation involving a conflict of laws, where the law applicable to the sales or service contract is determined in accordance with Regulation (EC) No 593/2008 (Rome I), the solution imposed by the ADR entity shall not result in the consumer being deprived of the protection afforded to him by the provisions that cannot be derogated from by agreement by virtue of the law of the Member State in which he is habitually resident.

The right to an effective remedy: ADR procedures should not be designed to replace court procedures and should not deprive consumers or traders of their rights to seek redress before the courts.

Information to be given by traders: traders who commit to use ADR entities to resolve disputes with consumers should inform consumers of the address and website of the ADR entity or entities by which they are covered. That information should be provided in a clear, comprehensible and easily accessible way on the trader’s website, where one exists, and if applicable in the general terms and conditions of sales or service contracts between the trader and the consumer.

Monitoring of ADR entities: each Member States should designate a competent authority or authorities, which should perform this function. Member States should ensure that ADR entities, the European Consumer Centre Network, and, where appropriate, the bodies designated in accordance with the Directivepublish that list on their website by providing a link to the Commission’s website, and whenever possible on a durable medium at their premises.

 

[1] http://www.europarl.europa.eu/oeil/popups/summary.do?id=1253707&t=d&l=en

[2] http://www.europarl.europa.eu/oeil/popups/summary.do?id=1253139&t=e&l=en

 

A cura di Carlo Alberto Calcagno - Docente Quadra (source)