Existing redress mechanisms in the EU

A set of access to justice instruments has already been put in place to facilitate consumer redress. In 1993 the European Commission published a Green Paper on Consumer Access to Justice in order to improve redress mechanisms and out-of-court procedures,[1] and since 1995 consumer access to justice through efficient redress has been given high priority in the Commission’s policy.[2]

With the entry into force of the Treaty of Amsterdam in 1999, ‘judicial cooperation in civil matters’ became a new EU policy, to improve the efficiency of the European civil justice system.[3] Accordingly, three priority actions have been decided: better access to justice, mutual recognition of judicial decisions, and convergence of procedural law. For consumer law, the output of this new policy field was the adoption of common minimum rules on legal aid in 2003, to improve access to justice[4] and a European Small Claims Procedure Regulation in 2007.[5] While the latter regulation reduces the length and cost of procedure, gaps in coverage, cost, and complexities still pose a barrier to access to justice.[6]

In 2004, a Regulation on Consumer Protection Cooperation was adopted, to improve the public enforcement of consumer law. This permits designated national authorities to request actions on an infringement by an authority in another Member State.[7]

Moreover, a particular instrument to address collective consumer redress was introduced by Directive 98/27/EC on injunctions for the protection of consumer interests (the ‘Injunctions Directive’),[8] adopted in 19 9 8.[9] This directive establishes common procedures enabling qualified organizations in one Member State (such as consumer interest groups) to bring actions for the cessation of an infringement of consumer rights in another Member State.[10] By so doing, this directive protects the collective interest of consumers in the internal market. However, it has rarely been applied, because of the intricate system it relies on, and because it does not prescribe financial compensation for the consumer for the damage suffered.[11]

Finally, the EU has strengthened alternative dispute resolution (ADR) by setting minimum-quality criteria for these schemes, and by facilitating cross-border complaints.[12] These schemes offer an expeditious and cheap alternative to court procedures. However, they often lack binding force and are not available in all EU countries and market sectors.[13] Therefore, the EU adopted new consumer ADR and online dispute resolution (ODR) rules in 2013, which aim to fill the gaps in ADR coverage at the Union level.[14]

In conclusion, the existing consumer redress mechanisms still present some procedural flaws, which undermine their effectiveness.[15] While these EU mechanisms tend to facilitate access to justice and in particular out-of-court dispute resolution, none of them allow for collective redress for damages, which would compensate consumers for the harm or losses suffered. This might adversely affect a multitude of consumers, and raises the question of how Member States have dealt with this issue.

  • [1] Commission Green Paper on Access of Consumers to Justice and the Settlement of ConsumerDisputes in the Single Market, COM(93) 576.
  • [2] In 1996, the Commission focused on alternative dispute resolution and presented an actionplan to improve consumer access to justice and extrajudicial conciliation, COM(96) 13, 14.02.1996.
  • [3] E. Storskrubb, Civil Procedure and EU Law: A Policy Area Uncovered (Oxford: OUP, 2008).
  • [4] Directive 2003/8/EC, OJ L 26, 31.01.2003, to improve access to justice in cross-border disputesby establishing minimum common rules relating to legal aid; see also subsection 4.1 of this chapter.
  • [5] See Regulation (EC) 861/2007 of 11 July 2007 establishing a European small claims pro cedure, OJ L 199/1, 31.7.2007; see more in G. Haibach (2005), ‘The Commission Proposal for aRegulation Establishing a European Small Claims Procedure: An Analysis’, Eur. Rev. Private , pp. 593-600.
  • [6] See more at the Leuven Study, An Analysis and Evaluation of Alternative Means of ConsumerRedress other than Redress through Ordinary Judicial Proceedings, 2007, p. 10.
  • [7] Regulation 2006/2004 of 27 October 2004 on cooperation between national authoritiesresponsible for the enforcement of consumer protection laws, OJ l 364, 9.12.2004.
  • [8] Directive 98/27/EC on injunctions for the protection of consumers’ interests, OJ L 166,11.6.1998. This directive has been modified subsequently and has been codified by Directive2009/22/EC of 23 April 2009 on injunctions for the protection of consumers’ interests, OJ L110/30, 1.5.2009.
  • [9] Other EU directives also include a clause allowing consumer organizations to take enforcementactions, such as Directive 93/13/EEC on unfair contract terms and Directive 2005/29/EC on unfairbusiness-to-consumer commercial practices.
  • [10] H.-W. Micklitz, Verbraucherschutz durch Unterlassungsklagen: Umsetzung und Anwendung derRichtlinie 98/27/EG in den Mitgliedstaaten (Baden-Baden: Nomos, 2007); P. Rott, ‘The Protectionof Consumers’ Interests After the Implementation of the EC Injunctions Directive Into Germanand English Law’, (2001) 24J. Consumer Policy, pp. 399-439.
  • [11] Leuven Study (n 22), p. 273; see also the European Commission’s Report concerning theapplication of Directive 98/27/EC Brussels, 18.11.2008 COM(2008) 756 final.
  • [12] ADR Recommendations 98/257/EC and 2001/310/CE; Directive 2008/52/EC of 21 May2008 on mediation in civil and commercial matters: .
  • [13] See the Study on ADR in the EU by Civic Consulting, 16 October 2009.
  • [14] See subsection 3.5 in this chapter and Regulation (EU) No 524/2013 of 21 May 2013 ononline dispute resolution for consumer disputes and Directive 2013/11/EU of 21 May 2013 onalternative dispute resolution for consumer disputes.
  • [15] The Green Paper on Consumer Collective Redress, COM(2008) 794 final, p. 6 and CivicConsulting, Report on the Effectiveness and Efficiency of Collective Redress in the EuropeanUnion, 2008, pp. 42-4.
 
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