The Online Dispute Resolution (ODR) in the European Union

Transcription

1 Amsterdam, 05 June 2015 The Online Dispute Resolution (ODR) in the European Union Avv. Giorgio Grasso 1 /

2 The legislation ODR Regulation (Regulation 524/2013 EU) ADR Directive (Directive 2013/11/EU) 2 /

3 Introduction The ODR Regulation (No. 524/2013 EU) provides for the creation of an ODR Platform by the European Commission. This Platform is a web site by which consumers and traders concluding online contracts will have the opportunity to resort online an ADR entity listed in accordance with Article 20(2) of Directive 2013/11/EU. The ADR entity (not ODR Platform) can use online, offline and hybrid methods as well, to resolve the out-of-court disputes. This type of dispute resolution does not require the physical presence of the parties or their representatives. 3 /

4 Purpose of ODR Regulation The purpose of this Regulation is, through the achievement of a high level of consumer protection, to contribute to the proper functioning of the internal market, and in particular of its digital dimension by providing a European ODR platform ( ODR platform ) facilitating the independent, impartial, transparent, effective, fast and fair out-of-court resolution of disputes between consumers and traders online. (Art. 1 Reg. 526/2013). 4 /

5 ODR Regulation: scope of apply This Regulation shall apply to the out-of-court resolution of disputes concerning contractual obligations stemming from online sales or service contracts between a consumer resident in the Union and a trader established in the Union through the intervention of an ADR entity listed in accordance with ADR Directive. 5 /

6 ADR entities ADR entity means any entity, however named or referred to, which is established on a durable basis and offers the resolution of a dispute through an ADR procedure and that is listed in accordance with Article 20(2) of ADR Directive; The Competent authorities designated by Member States create this ADR entities list (Art. 20(2) of Directive 2013/11/EU); Most likely the Competent authorities of Italy will be: Ministero della Giustizia, as a unit with Ministero dello sviluppo economico, Consob, AEEGSI, AGCOM and Banca d Italia (Plan of Legislative Decree 8/05/2015). 6 /

7 Some important definitions Sales contract means any contract under which the trader transfers or undertakes to transfer the ownership of goods to the consumer and the consumer pays or undertakes to pay the price thereof, including any contract having as its object both goods and services; (ADR Dir. 2013/11/EU) Service contract means any contract other than a sales contract under which the trader supplies or undertakes to supply a service to the consumer and the consumer pays or undertakes to pay the price thereof; (ADR Dir. 3013/11/EU) 7 /

8 Some Important Definitions Online sales or service contract means a sales or service contract where the trader or the trader s intermediary, has offered goods or services on a website or by other electronic means and the consumer has ordered such goods or services on that website or by other electronic means; Online marketplace means a service provider which allows consumers and traders to conclude online sales and service contracts on the online marketplace s website; (ODR Reg.) (ODR Reg.) 8 /

9 The ODR Platform The Commission shall develop the ODR platform and be responsible for its operation, including all the translation functions necessary for the purpose of this Regulation, its maintenance and funding. The ODR platform shall be a single point of entry for consumers and traders seeking the outof-court resolution of online trade disputes! 9 /

10 Meeting of the parties The meeting of the parties in front ADR entity may be effected by chatroom, videoconference or by traditional offline methods (e.g. excange of documents by mail) To guarantee the identity of parties, the platform shall provide username, password and an access code for each subject of dispute to access at platform and recognize themselves. Concerns The limited distribution of digital signature and the limitated use of certified electrionic mail will impede the full online realization of outof-court dispute resolution. 10 /

11 Benefits for consumers and traders Access to simple, efficient, fast and low-cost ways of resolving disputes which arise from the sale of goods or the supply of services online Increase security of transaction online Removal of barriers within the EU internal market To increase confidence in the online trade 11 /

12 Entry into force 8 July 2013 Articles and paragraphs relating to Commission and Member States: Establishment and testing of ODR platform Designation of ODR contact points 9 July 2015 Articles and paragraphs relating to Commission and Member States: Member States shall inform the Commission about whether or not their legislation allows ADR which are initiated by a trader against a consumer, 9 January 2016 Complete entry into force of Regulation Establishment of a network of ODR contact points 12 /

13 Duties of Traders From 9 January 2016 Traders established within the Union engaging in online sales or service contracts, and online marketplaces established within the Union, must provide on their websites an electronic link to the ODR platform which shall be easily accessible for consumers state their addresses Similar duty to inform is imposed to traders which are committed or obliged to use one or more ADR entities to resolve disputes with consumers. 13 /

14 Duties of information Traders who commit to using ADR entities to resolve disputes with consumers must provide information on the entity on their website and/or in their terms and conditions; These duties shall be without prejudice to the others provisions on consumer information on out-of-court redress procedures contained in other Union legal acts 14 /

15 Duties of Insurance Companies and financial intermediaries Also the insurance companies and financial intermediaries established within the Union engaging in online service contracts shall provide on their websites an electronic link to the ODR platform. 15 /

16 Privacy The European Data Protection Supervisor recognizes three actors involved in data processing ADR entities ODR facilitators, that will provide support to the resolution of disputes submitted via the ODR platform The Commission Each of these actors is to be considered as a controller as regards the processing of personal data related to their responsibilities 16 /

17 Data processing, duties of traders Traders are not data controllers in ODR process They haven't duties in this area 17 /

18 Data processing. Some Problems Data subjects should be informed about, and give their consent to, the processing of their personal data in the ODR platform, and should be informed about their rights with regard to that processing, by means of a comprehensive privacy notice to be made publicly available by the Commission and explaining, in clear and simple language, the processing operations performed under the responsibility of the various actors of the platform; The ODR regulation does not specify to which of the controllers data subjects should address their requests of access, rectification, blocking and erasure; and which controller would be accountable in case of specific breaches of the data protection legislation 18 /

19 Penalties Member States shall lay down the rules on penalties applicable to infringements of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive. 19 /

20 Italy, the implementation of european legislation Italian Council of Ministers last 8 Maggio 2015, enacted a plan of Decreto Legislativo to implement Directive 2013/11/EU (ADR) and Regulation 524/2013 EU (ODR); This plan will be examined by Parliamentary Committees within 17 June 2015; The plan of D.lgs 8 Maggio 2015 introduce in the Codice dei Consumatori a new title entirely devoted to the Alternative Dispute Resolution (artt. 141 bis 141 decies). 20 /

21 ODR contact points Each Member State shall designate one ODR contact point; Most likely in Italy the ODR contact point will be the Centro nazionale della rete europea per i consumatori (ECC-NET), managed by two consumers associations: Adiconsum e CTCU (Plan of D.lgs 8/05/2015). 21 /

22 Italy, the Online Dispute Resolution In Italy there are two entities rather operative in management of ODR: Risolvionline ( established from Camera di Commercio di Milano Conciliacamera ( established from Camera di Commercio di Firenze 22 /

23 ODR, main problems in Italian experience At the time it is not possible to conduct online all steps of ODR procedure, because of technical obstacles Many offline methods take place in ODR for exchange of documents, examination of witnesses or questioning. In these cases usually the exchange of documents occurs by mail and often the meet of witnesses happens in persons in a physical location. 23 /

24 Amsterdam, 05 June 2015 Thank you very much for your attention Avv. Giorgio Grasso, PhD Rome, Italy simmons-simmons.com elexica.com 24 /