In order to better guarantee and safeguard consumer rights, an act of 4 April 2014 inserts Book XVI on the extrajudicial resolution of consumer disputes in the new Code of Economic Law. Some provisions already entered into force on 13 May 2014; others will take effect on 1 January 2015. The legislator wishes to make the resolution of consumer disputes more efficient, rapid and accessible for both consumers and enterprises.
The Act of 4 April 2014 (the "Act") establishes Book XVI on the extrajudicial resolution of consumer disputes and inserts it in the new Code on Economic Law ("CEL"). The Act was published in the Official Gazette on 12 May 2014. Together with the class action, the extrajudicial resolution of consumer disputes forms the final part of the measures safeguarding consumer rights.
By adopting the Act, the legislator transposes Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC ("Directive on consumer ADR") and some dispositions of Directive 2006/123/EC of 12 December 2006 on services in the internal market.
A consumer dispute in the sense of the Act is a dispute between a consumer and an enterprise concerning the execution of a services or sales agreement, or related to the use of a product.
In the first place, the objective of the Act is to let the enterprises handle the consumers' complaints themselves. They have to do everything they can to find an adequate solution for the complaint. The Act provides a modus operandi for enterprises for the provision of information.
In the event that the consumer and the enterprise do not reach an amicable settlement, the dispute can be settled extrajudicially. Extrajudicial resolution is any intervention of an entity established by the State or of an independent private entity that proposes or imposes a solution, or brings the parties together in order to resolve their dispute.
The legislator wants to offer the consumer an alternative to judicial proceedings by providing a faster procedure, with limited costs and fewer formalities. Although several bodies for the extrajudicial resolution of consumer disputes exist (in the sectors of telecommunications, postal services, the railways, energy, financial services and insurance), there was no general policy. Hence, a general, coordinated and coherent system enabling the handling of any consumer dispute by an extrajudicial body was needed. Such bodies or "qualified entities" are private entities or entities established by a public authority which provide extrajudicial resolution of consumer disputes and are included on a list maintained by FPS Economy, SMEs, Self-Employed and Energy (published on its website) and which the latter also communicates to the European Commission in execution of the Directive on consumer ADR. A qualified entity meets all the requirements of accessibility, competence, independence, transparency, impartiality, equity and efficiency as provided for by the Act.
In order to provide this dispute resolution in all economic sectors, a Service for Consumer Mediation (the "Service") has been organised, which acts as a coordinating structure over the existing mediation services. However, each mediation service maintains its autonomy, legal framework and area of competence. All mediation services will be centralised in one "front office". At the time of publication of this article, the starting date for the front office still has to be established by royal decree.
The duties of the Service are threefold. First, it needs to inform consumers and enterprises of their rights and duties, in particular regarding the possibility of extrajudicial resolution of consumer disputes. The Service will therefore establish a contact point. Secondly, the Service will play a central role and will act as a single office to receive requests for extrajudicial resolution, which it will either handle itself or transfer to the competent qualified entity. Requests can be made by letter, fax or e mail or can be handed over at the front office. Finally, the Service has to deal with the residual disputes in the event that no other qualified entity has competence.
In such a situation, the Service will not deal with a complaint (i) if it is invented, offensive or constitutes defamation of character, (ii) if it has been filed anonymously or where the counterparty is not or cannot be identified, or (iii) where another qualified entity has already dealt with the case (even when the demand has been dismissed, except when the reason for dismissal was within the competence of the Service), and (iv) where the claim is or has been the object of a judicial procedure. Moreover, the Service can refuse to deal with a complaint if it has not previously been submitted to the enterprise or was submitted more than one year ago, or if dealing with the dispute would seriously jeopardise the effective functioning of the Service.
If the Service decides to deal with the complaint, it is entitled – but only in this context – to examine on the spot the books, correspondence, reports and, in general, all documents and all pieces of writing of the enterprise that directly concern the object of the demand. The Service can request all necessary explanations and information from the directors, agents and employees of the enterprise, and perform all necessary verification in the framework of the examination. It can also be assisted by experts. However, any information received by the Service must be treated confidentially and may only be used in the framework of the dispute resolution (except for processing for the annual report). The treatment of the complaint is free of charge.
The Service communicates its decision to deal (or not to deal) with the complaint within 3 weeks after receipt of the complete request. A decision of refusal must be justified.
Within 90 calendar days after receipt of the complete request (this period can be extended only once, in the case of a complex dispute), the Service notifies the parties of the outcome of the dispute.
Where no amicable settlement can be reached, the Service can issue a recommendation to the enterprise concerned. In the event that it does not wish to follow the recommendation, the enterprise must notify the Service and the claimant of its reasoned position.
Finally, the Act provides for conditions to be met by qualified entities, in order to guarantee consumers and enterprises high-quality extrajudicial resolution of consumer disputes.
Following the Act, articles XVI.1–XVI.5, XVI.8, XVI.10–XVI.12, XVI.22, XVI.23, §1 of the CEL, and articles 4–10 of the Act entered into force the day after their publication in the Official Gazette, i.e. on 13 May 2014. The Royal Decree of 10 April 2014 on the entering into force of the Act provides for articles XVI.6, XVI.7, XVI.9, XVI.13 to XVI.21, XVI.23, §2 and XVI.24 to XVI.28 of the CEL to enter into force on 1 January 2015.