Consumer access to justice (Green Paper)

1) OBJECTIVE

To enable all the Community's consumers to gain access to justice and to deal with cross-border disputes.

2) COMMUNITY MEASURE

Commission Green Paper of 16 November 1993 on access of consumers to justice and the settlement of consumer disputes in the single market.

3) CONTENTS

The situation in the Member States

In its Green Paper, the Commission outlines, for each Member State:

• the legal procedures applicable to consumer disputes;
• the out-of-court procedures devoted to such disputes (mediators, ombudsman);
• the protection of collective interests via consumer organisations or certain administrative bodies;
• the national pilot projects.

This comparative study shows that, in most of the Member States, the court procedures applicable to small disputes have been simplified either through reform of the code of civil procedure or through the creation of simplified procedures. This has the effect of speeding things up, making it possible to proceed without a lawyer or attempting to effect conciliation with the parties appearing in person.

Moreover, out-of-court procedures specifically devoted to consumer disputes have also been created: conciliation, mediation or arbitration.

The specific problem of cross-border disputes

The Commission analyses the difficulties associated with cross-border disputes:

• identification of the applicable law;
• determination of the competent court;
• submission and translation of the documents;
• enforcement of the judgment.

These aspects constitute supplementary and specific barriers encountered by consumers seeking to invoke their rights.

The Commission then looks at the relevant international conventions which have been signed, and points out that the situation is not satisfactory as regards the law applicable to cross-border disputes.

A further difficulty lies in applying the simplified procedures introduced in the Member States.

Collective action provided for in the various national legislations may well have no effect in connection with cross-border commercial practices. Consumer protection organisations do not have the capacity to act or have no interest in doing so. If the single market is to operate effectively, solutions need to be found.

Topics for discussion

With regard to actions for an injunction, three approaches must be considered, in the light of the principle of subsidiarity:

• establishment of a Community "regulator" applying a Community procedure;
• harmonisation of national provisions;
• mutual recognition of national provisions.

The question of legal aid is also addressed. Consumer organisations have insufficient resources and may find it difficult to perform their allotted role in national disputes. The added cost of disputes of a cross-border nature and their complexity necessitate more in-depth study of the situation.

The Commission advocates the setting up of a mechanism for monitoring cross-border disputes, involving judges and independent experts, with the aim of identifying the problems encountered in practice and establishing a list of priority areas for action.

Finally, the Commission suggests the creation of a code of conduct. It hopes to clarify the concept of "mediator" and to develop all the out-of-court procedures, thereby lessening the imbalance between the cost of the cross-border legal procedure and the value of the dispute.