The Implementation of the Consumer ADR Directive in Italy

Transcription

1 The Implementation of the Consumer ADR Directive in Italy Prof. Carlo Pilia Università di Cagliari Associazione Mediatori Mediterranei Dr Paolo Vargiu University of Leicester School of Law

2 Implementation of Directive 2013/11/EU Legislative Decree 6 August 2015 n. 130, in force since 3 September, 2015 Renovation of the Italian Consumers Code Title II bis Alternative Dispute Resolution Arts. 140 to 140-decies Important change in the Italian consumer ADR architecture Legislation is now uniform, general and connected to sectorial disciplines New procedural standards Fundamental cultural and regulatory step

3 Judicial Backlog 5 million pending civil cases 10 years average length of proceedings Limited public resources available Economic bias and social dissatisfaction

4 Lack of ADR culture in Italy Litigation culture remains dominant Professional opposition to extrajudicial reforms Abuse in the judicial process, especially by practitioners Lack of protection, particularly for consumers

5 ADR Rules and Regulations Stratification of ADR laws Plurality of general and cross-sectorial rules on ADR Little knowledge and little use of ADR Mandatory recourse to mediation information meetings as the main solution envisaged by the legislator

6 General ADR civil and commercial mediation (Directive 2008/52/EC) broad scope (all civil and commercial disputes, cross-border and internal ones, also involving consumers) operation (onerous, legal and judicial mandatory character, mandatory legal assistance, possibility of a written proposal to be accepted in 7 days) negotiation assisted by lawyers broad scope operation (compulsory for road accidents and in claims up to 50K, except for consumers)

7 ADR for consumers Most popular ADR schemes: Telephone mediation: sectorial, compulsory, free, managed by the regional sector s authority ADR for telecoms (CORECOM) Representative negotiations/joint conciliations: general, voluntary, privately managed on the basis of agreements between professionals and consumer groups, equal and collegial committee ADR energy, banking, financial etc.

8 Main regulatory changes in the ADR reform Scope: Consumer ADR Only non-adjudicative ADR methods i.e. gathering of the parties and proposal of a solution Exclusion of ADR imposing a solution to the consumer Inclusion of ADR that impose a solution to the professional, leaving the consumer free to agree

9 Italian best model: Representative negotiations or joint conciliations Accredited ADR entities that can be funded by professionals General and specific European quality standards Limitations under Italian law: Procedures can only be used by the main consumer organizations at national level private area of application: protocols must be signed between businesses and at least 1/3 of consumer organizations public area of application: protocols must have requirements shared by public bodies

10 ADR managed by public officers Protection of the public ADR Managed by public officers/civil servants who represent both professionals and consumers interests

11 Regulatory Autonomy of ADR bodies Expressed recognition of the power to reject a claim Limitations: absence of provisions to the contrary in the secondary legislation specific cases indicated in art. 5 of the EU Directive reasoned reply within 21 days without affecting the right of consumers to use ADR

12 Pluralistic system of Authorities Competent Authorities for each sectors Currently 6 but open to new appointments Minister of the Economic Development: the only Authority connected with the EU Commission National European Consumer Centre as the contact point in the ODR platform

13 Voluntary nature of ADR Principle of voluntariness in ADR Consensual access, participation and conclusion of the dispute Except Mandatory mediation information meetings Telephone conciliation for disputes with telecom providers Conciliation for energy disputes Other cases of mandatory ADR for the professionals-only

14 Main problems of the reform Transition from mandatory to voluntary ADR schemes Coordination of general and sectorial regulations Adaptation to the new uniform European standards Compulsory procedures Legal assistance Service not free of charge

15 Unresolved issues The law includes a financial invariance clause The reform relies on a combined financing scheme Private disputes: representative negotiation funded by businesses Public disputes: public bodies using public resources

16 Thanks! We expect to examine and compare best practices in EU Thank you for your attention