15 Amendments of Arlene McCARTHY related to 2011/0373(COD)
Amendment 60 #
Proposal for a directive
Recital 7
Recital 7
(7) This Directive should apply to contractual disputes between consumers and traders that are arising from the sale of goods or provision of services in all economic sectors. This should include complaints submitted by consumers against traders but also complaints submitted by traders against consumers. This Directive should not apply to disputes between traders; however, it should not prevent Member States from adopting or maintaining in force provisions on procedures for the out- of-court resolution of such disputes.
Amendment 64 #
Proposal for a directive
Recital 13
Recital 13
(13) Member States should ensure that all disputes covered by this Directive can be submittresolved toby an ADR entity fulfilling the requirements set out in this Directive. Member States should have the possibility to fulfil this obligation by relying on existing ADR entities and adjusting their scope of application, if needed, or by providing for the creation of new ADR entities. This Directive should not oblige Member States to create a specific ADR entity in each retail sector. Member States should have the possibility to provide for the creation of a residual ADR entity that deals with disputes for the resolution of which no specific entity is competent.
Amendment 68 #
Proposal for a directive
Recital 17
Recital 17
(17) The natural persons in charge of alternative dispute resolution should only be considered independent and impartial if they cannot be subject to pressure that potentially influences their attitude towards the dispute. There is a particular need to ensure the absence of such pressure where ADR entities are financed by one of the parties to the dispute or an organisation of which one of the parties is a member. Conflicts of interest may also arise when the person taking the decision of the person in charge of the ADR scheme is currently employed by, or has been employed in the past 3 years by, for example, a party to the dispute; a representative body related to one of the parties; or any other enterprise or representative body related to the industry in which the parties to the dispute operate.
Amendment 72 #
Proposal for a directive
Recital 20
Recital 20
(20) ADR procedures should be free of charge or of moderate costs for consumers so that it remains economically reasonable for consumers to use such procedures.
Amendment 74 #
Proposal for a directive
Recital 21
Recital 21
(21) ADR procedures should be fair so that the parties to a dispute are fully informed about their rights and the consequences of the choices they make in the context of an ADR procedure. Consumers should not be deprived of the protection afforded by the mandatory provisions of the law of the State in who territory the body is established. In case of cross-border disputes, consumers should not be deprived of the protection afforded by the mandatory provisions applying under the law of the Member State in which they are normally resident in the instances provided for under Article 6 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)1. _____________ 1 OJ L 177, 4.7.2008, p.6.
Amendment 76 #
Proposal for a directive
Recital 21 a (new)
Recital 21 a (new)
(21a) In order to comply with the recognised principle of liberty, the outcome of ADR procedures should not be binding for the parties unless they are informed before the commencement of the procedure about the binding nature of the outcome and explicitly state their consent to it. This provision should not apply where national rules provide that solutions are binding on the trader.
Amendment 88 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Member States shall ensure that all disputes covered by this Directive can be submittresolved toby an ADR entity which complies with the requirements set out in this Directive.
Amendment 100 #
Proposal for a directive
Article 7 – paragraph 2 – point b
Article 7 – paragraph 2 – point b
(b) any recurrent problems leading to disputes between consumers and traders, and any recommendations as to how such problems can be avoided or solved;
Amendment 101 #
Proposal for a directive
Article 8 – paragraph 1 – point a
Article 8 – paragraph 1 – point a
(a) the ADR procedure is easilyavailable and accessible to both partiesonline and offline irrespective of where the party isies are situated;
Amendment 102 #
Proposal for a directive
Article 8 – paragraph 1 – point b a (new)
Article 8 – paragraph 1 – point b a (new)
(ba) an ADR procedure can only be initiated by the consumer;
Amendment 104 #
Proposal for a directive
Article 8 – paragraph 1 – point c
Article 8 – paragraph 1 – point c
(c) the ADR procedure is free of charge or at moderate costs for consumers;
Amendment 109 #
Proposal for a directive
Article 9 – paragraph 1 – point a
Article 9 – paragraph 1 – point a
(a) allow the parties have the possibility to express their point of view and hear, be provided with and comment upon the arguments and facts put forward by the other party and any experts' statemen, including any statements and opinions given by experts;
Amendment 110 #
Proposal for a directive
Article 9 – paragraph 1 – point b a (new)
Article 9 – paragraph 1 – point b a (new)
(ba) the outcome of an ADR procedure cannot have any binding effect of the parties involved unless they are informed before the commencement of the procedure about the binding nature of that outcome and explicitly sate their consent to it. This provision shall not apply where national rules provide that solutions are binding on the trader.
Amendment 111 #
Proposal for a directive
Article 9 – paragraph 1 a (new)
Article 9 – paragraph 1 a (new)
1a. Where ADR procedures which aim at resolving the dispute by suggesting a solution are established, Member States may specify that suggested solutions of these ADR procedures are binding on a trader at the election of a consumer. In such cases Article 9(2)(b) and Article 9(2)(c) shall be read as only applying to the consumer.
Amendment 120 #
Proposal for a directive
Article 9 a (new)
Article 9 a (new)
Article 9a Legality The decision taken by the body may not result in the consumer being deprived of the protection afforded by the mandatory provisions of the law of the state in whose territory the body is established. In the case of cross-border disputes, the decision taken by the body may not result in the consumer being deprived of the protection afforded by the mandatory provisions applying under the law of the Member State in which he or she is normally resident in the instances provided for under Article 6 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)1. _____________ 1 OJ L 177, 4.7.2008, p.6.