Keywords
Summary

Keywords

1. Approximation of laws – Electronic communications networks and services – Universal service and users’ rights – Directive 2002/22 – Out-of-court dispute resolution

(European Parliament and Council Directive 2002/22, Art. 34)

2. Community law – Principles – Right to effective judicial protection

Summary

1. Article 34 of Directive 2002/22 on Universal Service and users’ rights relating to electronic communications networks and services (Universal Service Directive) must be interpreted as not precluding legislation of a Member State under which the admissibility before the courts of actions relating to electronic communications services between end-users and providers of those services, concerning the rights conferred by that directive, is conditional upon an attempt to settle the dispute out of court.

Article 34(1) of that directive assigns to Member States the objective of establishing out-of-court procedures for dealing with unresolved disputes involving consumers and relating to issues covered by that directive. Accordingly, the fact that national legislation has not only put in place an out-of-court settlement procedure, but has also made it mandatory to have recourse to that procedure before bringing an action before a judicial body, is not such as to jeopardise the attainment of that objective. On the contrary, such legislation, in so far as it ensures that out-of-court procedures are systematically used for settling disputes, is designed to strengthen the effectiveness of the Universal Service Directive.

(see paras 45, 67, operative part 1)

2. The principles of equivalence and effectiveness and the principle of effective judicial protection do not preclude national legislation which imposes, in respect of actions relating to electronic communications services between end-users and providers of those services, concerning the rights conferred by Directive 2002/22 on Universal Service and users’ rights relating to electronic communications networks and services (Universal Service Directive), prior implementation of an out-of-court settlement procedure, provided that that procedure does not result in a decision which is binding on the parties, that it does not cause a substantial delay for the purposes of bringing legal proceedings, that it suspends the period for the time-barring of claims and that it does not give rise to costs – or gives rise to very low costs – for the parties, and only if electronic means is not the only means of access to the settlement procedure and interim measures are possible in exceptional cases where the urgency of the situation so requires.

It is true that, by making the admissibility of legal proceedings concerning electronic communications services conditional upon the implementation of a mandatory attempt at settlement, such legislation introduces an additional step for access to the courts. That condition might prejudice implementation of the principle of effective judicial protection, reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union.

However, fundamental rights do not constitute unfettered prerogatives and may be restricted, provided that the restrictions in fact correspond to objectives of general interest pursued by the measure in question and that they do not involve, with regard to the objectives pursued, a disproportionate and intolerable interference which infringes upon the very substance of the rights guaranteed. In that regard, where the aim of the national legislation is the swifter and less expensive settlement of disputes relating to electronic communications and a lightening of the burden on the court system, it thus pursues legitimate objectives in the general interest. Further, the imposition of such an out-of-court settlement procedure is not – in the light of its detailed rules for operation, referred to above – disproportionate in relation to the objectives pursued, provided that, first, no less restrictive alternative to the implementation of a mandatory procedure exists, since the introduction of an out-of-court settlement procedure which is merely optional is not as efficient a means of achieving those objectives and, second, it is not evident that any disadvantages caused by the mandatory nature of the out-of-court settlement procedure are disproportionate to those objectives.

(see paras 54-59, 61-65, 67, operative part 2)