Since 15 February 2016, consumers and traders have access to the European Online Dispute Resolution platform. The platform was established in the framework of the European Regulation on online dispute resolution of consumer disputes, which entered into force on 9 January 2016.
Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online resolution of consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (the "ODR Regulation") aims at improving confidence in (cross-border) online trade, by providing access to simple, fast and low-cost ways of resolving disputes arising from online transactions. Consumers and traders are sometimes reluctant to shop/sell goods and services online across borders, because of the difficulties and costs they encounter if a dispute arises from such a transaction.
The ODR Regulation should be considered in conjunction with Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (the "ADR Directive").
Alternative dispute resolution helps consumers and traders to resolve their disputes regarding the purchase of goods or services without a judicial procedure, but through the intervention of an ADR entity which proposes or imposes a solution or brings the parties together with the aim of facilitating an amicable solution. The ADR Directive requires Member States to ensure that all disputes between consumers resident in the Union and traders established in the Union, which arise from the sale of goods or provision of services, can be submitted to an ADR entity. The national ADR procedures and ADR entities must meet certain quality standards. In Belgium, the ADR Directive was implemented in Book XVI – "Out-of-court resolution of consumer disputes" of the Economic Law Code ("ELC").
With the ODR platform, the European Union wishes to provide, specifically for disputes arising out of online transactions, a single point of access where consumers can file their complaints in all official languages of the Union. From there, the dispute can be passed on to a national ADR entity that will handle the case. Further, the platform will provide general information on out-of-court resolution of disputes. Every Member State must also have a national contact point for further enquiries from users of the platform.
The platform is available via the following link: http://ec.europa.eu/odr
For which disputes?
The ODR Regulation applies to 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. The Regulation applies to both domestic and cross-border online transactions.
In the first place, the platform is meant for complaints of consumers against traders concerning the online purchase of goods or services. However, the ODR Regulation also applies to out-of-court resolution of disputes initiated by a trader against a consumer, in so far as the legislation of the Member State where the consumer habitually resides allows for such disputes to be resolved through the intervention of an ADR entity. For Belgium, this seems to be the case. It appears from the debates in Parliament that the scope of the Belgian rules on alternative disputes resolution of consumer disputes is limited to relations between traders and consumers, but that it is not excluded that a trader could initiate an out-of-court action.
How does the platform work?
The procedure is carried out entirely online in 4 main steps:
- The consumer fills in the online complaint form;
- The platform passes on the complaint to the trader concerned, who can suggest a dispute resolution body to the consumer from the list which is made available by the platform;
- Once the consumer and the trader have agreed on the dispute resolution body that will handle the dispute, the platform will send the dispute to that body;
- The dispute resolution body handles the dispute online and will inform the parties of the outcome, in principle within 90 days.
Voluntary basis
The online out-of-court resolution of disputes is done on a voluntary basis. The person who receives a complaint through the ODR platform can refuse online out-of-court resolution. If the trader and the consumer cannot agree on the dispute resolution body that will handle the dispute, the complaint will not be processed any further.
Information requirements
In order to ensure that consumers are aware of the existence of the ODR platform, since 9 January 2016, traders established within the Union engaging in online sales or service contracts are obliged to provide on their websites an electronic link to the ODR platform. The same obligation applies to online marketplaces and online platforms which allow traders to make their products and services available to consumers and which are established within the Union. Traders established within the Union engaging in online sales or service contracts must also state their e-mail address on their website, as a first point of contact for consumers. Moreover, traders which are committed or obliged to use one or more ADR entities to resolve disputes with consumers must inform consumers about the existence of the ODR platform and the possibility of using it for resolving their disputes. They must also provide this information in their general terms and conditions applicable to online sales and service. If the offer is made by e-mail, this e-mail must also contain an electronic link to the ODR platform.
These obligations apply in addition to the information obligations already laid down by Book XVI ELC concerning "Out-of-court resolution of consumer disputes" and the rules on distance contracts in Book VI of the ELC. Traders that are subject to out-of-court resolution of consumer disputes (e.g. as a consequence of a specific legal or regulatory provision, a code of conduct subscribed to by the trader, membership of a trade association or a professional organisation), are obliged, pursuant to article XVI.4 ELC, to inform the consumer thereof, in a clear, comprehensible and easily accessible manner. Further, before the consumer is bound by a distance contract, the trader must, where applicable, inform the consumer in a clear and comprehensible manner of the possibility of having recourse to an out-of-court complaint and redress mechanism to which the trader is subject, and the methods for having access to it (article VI. 45, 20° ELC).