Legal protection for consumers at European level has come a long way through 2 differentiated stages:

  1. The recognition of various principles and rights for consumers.
  1. The establishment of appropriate channels so that consumers can assert their rights as recognized in the earlier stage above.

At present, we are at that second stage, for the European Parliament and the European Council have started to issue rules so that this protection fully materializes.

Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on minimum harmonization, obliges Member states to guarantee consumers residing in the European Union the possibility of resolving their disputes with companies established in any Member State, through entities which offer alternative dispute resolution mechanisms for consumer disputes.

In order to fulfill this mandate, these entities will voluntarily request the accreditation by the competent authority. Subsequently, this authority will perform an analysis and assessment on the fulfillment of all the requirements established in the Directive and will issue a decision later on.

Spanish act 7/2017 of 2 November, on alternative dispute resolution of consumer disputes, transposes the aforementioned Directive into the Spanish national law. According to article 1, the purpose of this act is to guarantee consumers residing in the European Union access to alternative dispute resolution mechanisms of high quality given their independence, impartiality, transparency, effectivity, swiftness and fairness, upholding thus, the principles provided by the Directive.

In chapter 1 of the act, we can find the most important requirements to be fulfilled by the alternative dispute resolution entities, in order that they are granted accreditation:

  1. The alternative dispute resolution entities must be established in Spain.
  1. They must have an operating regulation on a durable medium, which is easily accessible to all citizens and includes, among other things, information on the functioning and funding of the entity, the type of disputes that the entity accepts, information on the resolution procedure and the manner of appointment, qualification and experience of the people in charge of resolving the disputes.
  1. They must resolve both national and cross-border consumer disputes.
  1. They must respect the principles of independence, impartiality, transparency, efficiency and fairness.
  1. The submission to the alternative dispute resolution proceeding must be voluntary for both parties.
  1. Entities will have the obligation to inform the parties that they are not compelled to be assisted by an attorney or legal adviser but, if the parties do intend to appoint an attorney, they will have to report this to the entity within a period of 3 days from the submission of the claim.
  1. The procedure will be free of charge.
  1. Access to the files will be simple and easily identifiable. On-line access is allowed.
  1. Agreements derived from a non-binding proceeding subscribed by the parties before the occurrence of the consumer dispute will have no effect.
  1. The result of the procedure will be disclosed within 90 days from the date upon which the claim was submitted or, from the date upon which all the documents necessary for the initiation of the proceeding were submitted.

According to the Spanish act, following the accreditation on the part of the entity, the competent authority will send the information to the Spanish Consumption, Food Security and Nutrition Agency so that it may compile a list of Spanish entities. This list will be accessible on the website of the said agency and will be sent to the European Commission so that it adds the Spanish entities to a European list of entities and likewise publishes the list on its own website.

From now on European consumers can safely assume that regardless of the Member State in which they find themselves, they will have access to an alternative dispute resolution mechanism, which means further protection to this vulnerable group.

 

 

Pedro Blanco Guardado

Vilá Abogados

 

For more information, please contact:

va@vila.es

 

10th of November 2017