Activities of Hans-Peter MAYER related to 2011/0373(COD)
Shadow reports (1)
REPORT on the proposal for a directive of the European Parliament and of the Council on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) PDF (690 KB) DOC (1 MB)
Amendments (48)
Amendment 127 #
Proposal for a directive
Recital 2 a (new)
Recital 2 a (new)
(2a) In the event of a complaint arising from the sale of goods or provision of services, customers should always first contact the entrepreneur or service- provider concerned in order to discuss their complaint and seek, at the initial stage, to solve the problem bilaterally. In many cases, consumer problems can thus be solved in advance.
Amendment 130 #
Proposal for a directive
Recital 3
Recital 3
(3) Alternative dispute resolution offers a simple, fast and low-cost out-of-court solution to disputes between consumers and traders which it has not previously proved possible to resolve bilaterally. However, alternative dispute resolution is not yet sufficiently developed across the European Union. In order for consumers to fully exploit its potential, it is necessary that alternative dispute resolution is available for all types of consumer disputes, quality levels of ADR procedures are even and consumers and traders are aware of such procedures. It is also necessary that ADR entities handle cross- border disputes effectively.
Amendment 137 #
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, with the exception of services of general economic interest (services of general interest). 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 152 #
Proposal for a directive
Recital 12 a (new)
Recital 12 a (new)
(12a) This Directive should not apply to the sale of goods or provision of services which are provided as services of general economic interest (services of general interest) and thus constitute sovereign activities. This applies, for example, to water supply, waste water management and waste disposal services insofar as they are regulated by law as services of general interest in a Member State.
Amendment 159 #
Proposal for a directive
Recital 14
Recital 14
(14) This Directive should be without prejudice to traders established in a Member State being covered by an ADR entity which is located in another Member State. Member States should encouragesupport the development of such entities. However, ADR entities should finance themselves, for example from donations, membership charges, relatively small fees for services rendered and associations of several entities and members. Financing by Member States should only be a last resort.
Amendment 160 #
Proposal for a directive
Recital 15
Recital 15
Amendment 162 #
Proposal for a directive
Recital 16 a (new)
Recital 16 a (new)
(16a) Confidentiality and privacy should always be guaranteed during the ADR procedure. Insofar as it is intended that exemplary final decisions should be published, the names of the parties and any references to them should be masked out unless both parties have expressly consented to their publication.
Amendment 165 #
Proposal for a directive
Recital 17
Recital 17
(17) The natural persons in charge of alternative dispute resolution should only be considered impartial if they cannot be subject to pressure that potentially influences their attitude towards the dispute. TSuch pressure should automatically be assumed to exist not only if the natural person in charge of dispute resolution is partly cofinanced by one of the parties: there is a particular need to ensure the absence of such pressure where ADR entities are financed solely by one of the parties to the dispute or solely by an organisation of which one of the parties is a member.
Amendment 172 #
Proposal for a directive
Recital 19
Recital 19
(19) ADR procedures should be effective. They should provide for a simple and fast procedure whose duration generally does not exceed 90 days. Tcalendar days from the receipt of the complaint by the ADR entity until a solution is recommended by that entity. In the case of highly complex disputes, the ADR entityies should be able to extend this time period when the complexityin exceptional cases for the purpose of objective examination of certain aspects of the disputcase in question so demands.
Amendment 176 #
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. parties to use such procedures. At the end of the ADR procedure, the winning party should have the costs arising from the initiation of the procedure reimbursed by the losing party.
Amendment 196 #
Proposal for a directive
Recital 22 a (new)
Recital 22 a (new)
Amendment 197 #
Proposal for a directive
Recital 23
Recital 23
(23) This Directive does not prescribe that participation of traders in ADR procedures be mandatory or that the outcome of such procedures be binding on traders, when a consumer has lodged a complaint against them. However, this Directive is without prejudice to any national rules making the participation of traders in such procedures mandatory or their outcome binding on traders, provided that such legislation does not prevent the parties from exercising their right of access to the judicial system as guaranteed in Article 47 of the Charter of Fundamental Rights of the European Union. If the outcome of an ADR procedure is binding on an undertaking under domestic law, a right to judicial review should be guaranteed.
Amendment 205 #
Proposal for a directive
Recital 25 a (new)
Recital 25 a (new)
Amendment 214 #
Proposal for a directive
Recital 28
Recital 28
(28) It is necessary that Member States lay down penalties for infringements of the provisions of this Directive relating to consumer information by traders and information to be notified to competent authorities by ADR entities and ensure that they are enforced. The penalties should be effective, proportionate and dissuasive. They should be imposed only after an initial warning has been issued without success.
Amendment 218 #
Proposal for a directive
Article 1
Article 1
This Directive is to contribute to the functioning of the internal market and to the achievement of a high level of consumer protection by ensuring that, in the event of disputes between, consumers and traders can be submittedapply on a voluntary basis to entities offering impartial, independent, transparent, rapid, effective and fair alternative dispute resolution procedures.
Amendment 223 #
Proposal for a directive
Article 2 – paragraph 1
Article 2 – paragraph 1
1. This Directive shall apply to procedures for the out-of-court resolution of contractual disputes arising from the sale of goods or provision of services by a trader established in the Union to a consumer resident in the Union through the intervention of a dispute resolution entity which proposes or imposes a solution or brings the parties together with the aim of facilitating an amicable solution, hereinafter ‘ADR procedures’.
Amendment 229 #
Proposal for a directive
Article 2 – paragraph 2 – point a
Article 2 – paragraph 2 – point a
(a) procedures before dispute resolution entities where the natural persons in charge of dispute resolution are employed exclusively by the traderone of the parties and which do not fulfil the criteria of Chapter II of this Directive;
Amendment 233 #
Proposal for a directive
Article 2 – paragraph 2 – point b a (new)
Article 2 – paragraph 2 – point b a (new)
(ba) the sale of goods or provision of services which are provided as services of general economic interest (services of general interest).
Amendment 245 #
Proposal for a directive
Article 4 – paragraph 1 – point c a (new)
Article 4 – paragraph 1 – point c a (new)
(ca) "contractual dispute" means a dispute arising from the sale of goods or provision of services which it has not proved possible to resolve bilaterally between the customer and the trader and/or service provider.
Amendment 257 #
Proposal for a directive
Article 5 – paragraph 2 – point a
Article 5 – paragraph 2 – point a
(a) have a website enabling the parties to submit a complaintn application for ADR online;
Amendment 264 #
Proposal for a directive
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
2a. An ADR entity cannot refuse to process a dispute without giving the parties an appropriate justification for its refusal, which it must do within 14 calendar days of receiving the application for ADR.
Amendment 268 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
3. Member States may fulfil their obligation under paragraph 1 by ensuring the existence of a residual ADR entity which is competent to deal with disputes as referred to in paragraph 1 for the resolution of which no existing ADR entity is competent. Member States may also fulfil this obligation by using sectorial ADR entities established in another Member State.
Amendment 302 #
Proposal for a directive
Article 7 – paragraph 2 – point b a (new)
Article 7 – paragraph 2 – point b a (new)
(ba) with due regard for data protection, ‘exemplary decisions’ based on the outcomes of important disputes;
Amendment 307 #
Proposal for a directive
Article 8 – paragraph 1 – point a
Article 8 – paragraph 1 – point a
(a) the ADR procedure is easilyalways accessible to both parties irrespective of where the party is situatedonline and easily accessible offline to both parties;
Amendment 308 #
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. At the end of the ADR procedure, the losing party shall reimburse the winning party for the costs arising from the initiation of the procedure;
Amendment 314 #
Proposal for a directive
Article 8 – paragraph 1 – point d
Article 8 – paragraph 1 – point d
(d) the dispute is resolved within 90 calendar days from the date on which the ADR entity has received the complaint to the date on which the ADR entity recommends a solution. In the case of highly complex disputes, the ADR entity may, in exceptional cases, extend this time period at its own discretion.
Amendment 320 #
Proposal for a directive
Article 8 – paragraph 1 – point d a (new)
Article 8 – paragraph 1 – point d a (new)
(da) The Member States are not responsible for the financing of the ADR entities.
Amendment 328 #
Proposal for a directive
Article 9 – paragraph 2 – introductory part
Article 9 – paragraph 2 – introductory part
2. Member States shall ensure that in ADR procedures which aim at resolving the dispute by suggesting a solution
Amendment 330 #
Proposal for a directive
Article 9 – paragraph 2 – point a – introductory part
Article 9 – paragraph 2 – point a – introductory part
(a) the consumer, before agimmediately after receing to a suggested solution,pt of the application for ADR, the consumer is informed that:
Amendment 335 #
Proposal for a directive
Article 9 – paragraph 2 – point a – point i
Article 9 – paragraph 2 – point a – point i
(i) heboth parties hasve the choice as to whether or not to agree to a suggested solution;
Amendment 338 #
Proposal for a directive
Article 9 – paragraph 2 – point a – point ii
Article 9 – paragraph 2 – point a – point ii
(ii) the suggested solution may be more or less favourable than an outcome determined by a court applying legal rules;
Amendment 342 #
Proposal for a directive
Article 9 – paragraph 2 – point a – point iii
Article 9 – paragraph 2 – point a – point iii
(iii) before agreeing or rejecting the suggested solution he has the right to seek independent advice at any time, particularly with regard to the recommended solution;
Amendment 343 #
Proposal for a directive
Article 9 – paragraph 2 – point a – point iii a (new)
Article 9 – paragraph 2 – point a – point iii a (new)
(iii a) before agreeing to a suggested solution, the parties are informed of the legal effect of such agreement;
Amendment 344 #
Proposal for a directive
Article 9 – paragraph 2 – point a – point iii b (new)
Article 9 – paragraph 2 – point a – point iii b (new)
(iii b) the applicant has the option at any time of withdrawing his application for ADR and thus declaring the procedure terminated.
Amendment 345 #
Proposal for a directive
Article 9 – paragraph 2 – point b
Article 9 – paragraph 2 – point b
(b) twhe parties, before agreeing to a suggested solution, are informn the recommended solution is communicated tof the legal effect of suchparties, they agreement;:
Amendment 346 #
Proposal for a directive
Article 9 – paragraph 2 – point b – point i (new)
Article 9 – paragraph 2 – point b – point i (new)
(i) again reminded of the binding legal effect of agreement to a recommended solution;
Amendment 347 #
Proposal for a directive
Article 9 – paragraph 2 – point b – point ii (new)
Article 9 – paragraph 2 – point b – point ii (new)
(ii) informed of the 14 calendar day time limit for agreement which runs from the date of delivery of the recommended solution;
Amendment 348 #
Proposal for a directive
Article 9 – paragraph 2 – point b – point iii (new)
Article 9 – paragraph 2 – point b – point iii (new)
(iii) informed that, if they do not agree to the recommended solution in writing within 14 calendar days of delivery, this will be deemed to constitute rejection of it, while the time limit will be considered to have been respected if the document indicating agreement is posted within the 14 calendar days.
Amendment 350 #
Proposal for a directive
Article 9 – paragraph 2 – point c
Article 9 – paragraph 2 – point c
Amendment 366 #
Proposal for a directive
Article 10 – paragraph 2
Article 10 – paragraph 2
2. The information referred to in paragraph 1 shall be mentioned in an easily, directly, prominently and permanently accessible way on the trader's website, where one exists, in the general terms and conditions of contracts for the sale of goods or provision of services between the trader and a consumer and in invoices and receipts relating to such contractsmust be easily accessible and comprehensible. It shall specify how further information on the ADR entity concerned and on the conditions for using it can be accessed.
Amendment 371 #
Proposal for a directive
Article 10 – paragraph 3
Article 10 – paragraph 3
3. The provisions in this Article shall be without prejudice to the provisions in Articles 6, 7 and 8 of Directive 2011/83/EU concerning consumer information for distance and off-premises contracts and corresponding provisions of Directive 2009/138/EC on the taking-up and pursuit of the business of Insurance and Reinsurance (Solvency II) and Directive 2002/65/EC concerning the distance marketing of consumer financial services.
Amendment 381 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. This cooperation shall include mutual exchange of information on business practices by traders about whichom consumers have repeatedly lodged complaints. It shall also include the provision of technical assessment and information by such national authorities to ADR entities where such assessment or information is necessary for the handling of individual disputes and is already available.
Amendment 387 #
Proposal for a directive
Article 16 – paragraph 2 – point e
Article 16 – paragraph 2 – point e
Amendment 388 #
Proposal for a directive
Article 16 – paragraph 2 – point g
Article 16 – paragraph 2 – point g
Amendment 389 #
Proposal for a directive
Article 16 – paragraph 2 – point h
Article 16 – paragraph 2 – point h
Amendment 395 #
Proposal for a directive
Article 17 – paragraph 5 – introductory part
Article 17 – paragraph 5 – introductory part
5. Every twohree years, each competent authority shall publish a report on the development and functioning of ADR entities. The report shall in particular:
Amendment 396 #
Proposal for a directive
Article 18 – paragraph 1
Article 18 – paragraph 1
Member States shall lay down the rules on penalties applicable to infringements of the national provisions adopted pursuant to Article 10 and Article 16(1) and (2) of this Directive in the event of a required initial warning being issued but without success, and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.
Amendment 400 #
Proposal for a directive
Article 23 – paragraph 1
Article 23 – paragraph 1
No later than [Office of Publications insert date: fiveour years after the entry into force], and every threfive years thereafter, the Commission shall submit to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Directive. Theis report shall consider the development and the use of ADR entities and the impact of this Directive on consumers and traders. The report shall be accompanied, where appropriate, by proposals for amendment of this Directive.