Activities of Ashley FOX 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 (62)
Amendment 131 #
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. However, alternative dispute resolution is not yet sufficiently developed across the European Union. In order for consumers to fully exploit its potentialTo improve the functioning of the Single Market, 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 135 #
Proposal for a directive
Recital 6
Recital 6
(6) The development within the European Union of well-functioning alternative dispute resolution is necessarywill help to strengthen consumers' confidence in the Sinternal mgle Market, including in the area of e- commerce. Such development should build on the diverse existing ADR procedures in the Member States and respect their, which are effective in resolving disputes between traders and consumers. Such development should also respect the Member States' legal traditions.
Amendment 138 #
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 disputes arising from the sale or provision of digital content for remuneration. This Directive should apply to complaints submitted by consumers against traders but als. It should not apply to 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 144 #
Proposal for a directive
Recital 10
Recital 10
(10) This Directive should prevail over Union legislation which containsIf any provision of this Directive conflicts with a provision of another Union act governing specific sectors, the provision of that other Union act shall prevail and apply to those specific sectors. However, if the provision is aimed at encouraging the setting up of ADR entities in a specific sector. Where sector-specific legislation mandates the setting up of such entities,, the relevant provisions of this Directive shouldwill prevail only to the extent that such legislation does not ensure at least an equivalent degree of consumer protectionand apply.
Amendment 146 #
Proposal for a directive
Recital 11
Recital 11
(11) ADR entities are highly diverse across the Union but also within the Member States. This Directive should cover any entity that is established on a durable basis and offers the resolution of a dispute through an ADR procedurto solve a dispute between a consumers and a trader that has been listed in accordance with Article 17(2) of this Directive. An arbitration procedure which is created outside the framework of an ADR entity on an ad hoc basis for a single dispute between a consumer and a trader should not be considered as an ADR procedure.
Amendment 149 #
Proposal for a directive
Recital 12
Recital 12
(12) This Directive should not apply to procedures before dispute resolution entities where the natural persons in charge of dispute resolution are employed exclusively by the trader norprovided there is full compliance with the specific independence and impartiality requirements. The Directive should not apply to procedures before consumer compliant handling systems operated by the trader. It should not apply nor to direct negotiations between the parties. Furthermore, it should not apply to attempts made by a judge to settle a dispute in the course of a judicial proceeding concerning that dispute.
Amendment 161 #
Proposal for a directive
Recital 15
Recital 15
(15) This Directive should be without prejudice to Member States maintaining or introducing ADR procedures dealing jointly with identical or similar disputes between a trader and several consumers. Such procedures can be seen as a preliminary step to further developing collective ADR procedures within the UnionComprehensive impact assessments must be carried out on collective out-of-court settlements before they are proposed at a Union level.
Amendment 166 #
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. 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 before consumer compliant handling systems operated by the trader. Specific requirements should be established for ADR schemes in which the natural persons in charge of dispute resolution are employed exclusively by the trader.
Amendment 170 #
Proposal for a directive
Recital 18
Recital 18
(18) ISubject to any national rules making the participation of traders in an ADR procedure mandatory, in order to ensure the transparency of ADR entities and of ADR procedures it is necessary that the parties receive all the information they need to take an informed decision before engaging in an ADR procedure.
Amendment 173 #
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. The ADR entity should be able to extend this time period when the complexity of the dispute in question so demands or because of other justified grounds.
Amendment 177 #
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. Member States shall decide on an appropriate form of industry funding for ADR procedures within their jurisdiction.
Amendment 204 #
Proposal for a directive
Recital 25
Recital 25
(25) Networks of ADR entities which facilitate the resolution of cross-border disputes, such as FIN-NET in the area of financial services, should be strengthened within the Union. Member States should encourage ADR entities to become part of such networks.
Amendment 206 #
Proposal for a directive
Recital 26
Recital 26
(26) Close cooperation between ADR entities and national authorities entrusted with the enforcement of Union legislation on consumer protection should strengthen the effective application of such Union legislation but this cooperation should not be such that it threatens the independence of ADR entities.
Amendment 215 #
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.
Amendment 227 #
Proposal for a directive
Article 2 – paragraph 1 a (new)
Article 2 – paragraph 1 a (new)
1 a. The Directive shall also apply to those ADR entities set-up by national associations or groups of firms and, which constitute a different legal entity from an individual trader.
Amendment 232 #
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 trader; unless there is full compliance with the specific independence and impartiality requirements.
Amendment 235 #
Proposal for a directive
Article 2 – paragraph 2 – point d a (new)
Article 2 – paragraph 2 – point d a (new)
(d a) complaints submitted by the trader against a consumer;
Amendment 236 #
Proposal for a directive
Article 2 – paragraph 2 – point d b (new)
Article 2 – paragraph 2 – point d b (new)
(d b) complaints where a consumer has not already sought an amicable solution of the dispute with the trader;
Amendment 237 #
Proposal for a directive
Article 2 – paragraph 2 – point d c (new)
Article 2 – paragraph 2 – point d c (new)
(d c) complaints that arise from the sale of goods or the provision of services that was concluded before 24 months after publication in the Official Journal;
Amendment 238 #
Proposal for a directive
Article 2 – paragraph 2 – point d d (new)
Article 2 – paragraph 2 – point d d (new)
(d d) health services provided by health professionals, to patients to assess, maintain or restore their state of health, including the prescription, dispensation and provision of medicinal products and medical devices;
Amendment 239 #
Proposal for a directive
Article 2 – paragraph 2 – point d e (new)
Article 2 – paragraph 2 – point d e (new)
(d e) further or higher education providers that are eligible for government funding or whose courses are designated for state-funded student finance support;
Amendment 242 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
2. Article 5(1) of this Directive shall prevail over the provisions referred to in the AnnexIf any provision of this Directive conflicts with a provision of another Union act governing specific sectors, the provision of that other Union act shall prevail and apply to those specific sectors. However, if the provision is aimed at encouraging the setting up of ADR entities in a specific sector, the relevant provisions of this Directive will prevail and apply.
Amendment 243 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
Amendment 246 #
Proposal for a directive
Article 4 – paragraph 1 – point d a (new)
Article 4 – paragraph 1 – point d a (new)
(d a) "ADR procedure" means a procedure as referred to in Article 2 which complies with the requirements set out in this Directive and is carried out by an ADR entity;
Amendment 247 #
Proposal for a directive
Article 4 – paragraph 1 – point d b (new)
Article 4 – paragraph 1 – point d b (new)
(d b) "Contractual dispute" means that the customer and the trader cannot agree bilaterally. As such a contractual dispute does not manifest itself until the trader has had the opportunity to handle the complaint fairly and promptly;
Amendment 248 #
Proposal for a directive
Article 4 – paragraph 1 – point e
Article 4 – paragraph 1 – point e
(e) ‘"ADR entity’" means any entity, however named or referred to, which is established on a durable basis and offers the resolution of a dispute through an ADR procedure and that has been listed in accordance with Article 17(2);
Amendment 251 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Member States shall ensure that disputes covered by this Directive and involving a trader established on its territory can be submitted to an ADR entity which complies with the requirements set out in this Directive.
Amendment 256 #
Proposal for a directive
Article 5 – paragraph 2 – introductory part
Article 5 – paragraph 2 – introductory part
2. Member States shall ensure that in relation to disputes covered by this Directive ADR entities:
Amendment 263 #
Proposal for a directive
Article 5 – paragraph 2 – point d
Article 5 – paragraph 2 – point d
(d) when dealing with disputes covered by this Directive take the necessary measures to ensure that the processing of personal data complies with the rules on the protection of personal data laid down in the national legislation implementing Directive 95/46/EC in which the ADR entity is established.
Amendment 265 #
Proposal for a directive
Article 5 – paragraph 2 a (new)
Article 5 – paragraph 2 a (new)
2 a. Member States may set a time limit by which the consumer can submit a complaint to an ADR entity, or to the trader where this is a prerequisite to the ADR procedure, which shall not be shorter than the time limit, where such a limit exists, in the legal acts of the Member State allowing the parties to initiate judicial proceedings.
Amendment 272 #
Proposal for a directive
Article 5 – paragraph 3 a (new)
Article 5 – paragraph 3 a (new)
3 a. Member States may introduce, maintain or allow ADR entities to introduce or maintain procedural rules allowing them to refuse to deal with a given dispute. Such procedural rules must not unjustifiably impair consumers' access to ADR procedures.
Amendment 274 #
Proposal for a directive
Article 5 – paragraph 3 b (new)
Article 5 – paragraph 3 b (new)
3 b. Where, in accordance with the procedural rules referred to in paragraph 4, an ADR entity is unable to consider a dispute that has been submitted to it, Member States shall not be required to ensure that the consumer can submit his dispute to another ADR entity.
Amendment 276 #
Proposal for a directive
Article 6 – title
Article 6 – title
Expertise, independence and impartiality
Amendment 278 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. Member States shall ensure that the natural persons in charge of alternative dispute resolutionADR procedures possess the necessary expertise and are impartial. This shall be guaranteed by ensuring that they:
Amendment 279 #
Proposal for a directive
Article 6 – paragraph 1 – introductory part
Article 6 – paragraph 1 – introductory part
1. Member States shall ensure that the natural persons in charge of alternative dispute resolution possess the necessary expertise and are independent and impartial. This shall be guaranteed by ensuring that they:
Amendment 281 #
Proposal for a directive
Article 6 – paragraph 1 – point a
Article 6 – paragraph 1 – point a
(a) possess the necessary knowledge, and skills and experience in the field of alternative dispute resolution;
Amendment 283 #
Proposal for a directive
Article 6 – paragraph 1 a (new)
Article 6 – paragraph 1 a (new)
1 a. ADR schemes are responsible for defining appropriate expertise in light of the nature and complexity of disputes.
Amendment 284 #
Proposal for a directive
Article 6 – paragraph 1 b (new)
Article 6 – paragraph 1 b (new)
1 b. Where the natural persons in charge of dispute resolution are employed exclusively by the trader, Member States shall ensure that they comply with the following requirements: (a) appointment by the highest level of management and for a sufficient duration to ensure the independence of their action; (b) lack of hierarchical link with the operational management, in particular with those responsible for customer relationships; (c) remuneration not bound to the results of the ADR procedure; (d) establishment of a dedicated budget providing the appropriate resources to ensure the effectiveness of ADR procedures.
Amendment 285 #
Proposal for a directive
Article 6 – paragraph 2
Article 6 – paragraph 2
Amendment 292 #
Proposal for a directive
Article 7 – paragraph 1 – introductory part
Article 7 – paragraph 1 – introductory part
1. Member States shall ensure that ADR entities make publicly available on their websites and in printed form at their premisesby any other means they consider appropriate information on:
Amendment 295 #
Proposal for a directive
Article 7 – paragraph 1 – point b
Article 7 – paragraph 1 – point b
Amendment 301 #
Proposal for a directive
Article 7 – paragraph 2 – introductory part
Article 7 – paragraph 2 – introductory part
2. Member States shall ensure that in relation to disputes covered by this Directive ADR entities make publicly available on their websites and in printed form at their premisesby any other means they consider appropriate annual activity reports. These reports shall include the following information relating to both domestic and cross-border disputes:
Amendment 304 #
Proposal for a directive
Article 7 – paragraph 2 – point c
Article 7 – paragraph 2 – point c
(c) the ratenumber of dispute resolution procedures which were discontinued before an outcome was reached;
Amendment 310 #
Proposal for a directive
Article 8 – paragraph 1 – point c
Article 8 – paragraph 1 – point c
(c) the ADR procedure is free of charge for at moderate costs for consumersconsumers and Member States shall decide on an appropriate form of industry funding for ADR procedures within their jurisdiction;
Amendment 316 #
Proposal for a directive
Article 8 – paragraph 1 – point d
Article 8 – paragraph 1 – point d
(d) the dispute is resolvedoutcome of ADR procedure is made available within 90 days from the date on which the ADR entity has received the complaint. In the case of complex disputes, the ADR entity may extend this time perio and all relevant documentation pertaining to that complaint. In the case of complex disputes or for other justified grounds, this time period may be exceeded.
Amendment 351 #
Proposal for a directive
Article 9 – paragraph 2 a (new)
Article 9 – paragraph 2 a (new)
2 a. Member States may place limits on the amount of redress that may be awarded by an ADR entity or on the value of the disputes claimed by the consumer.
Amendment 352 #
Proposal for a directive
Article 9 a (new)
Article 9 a (new)
Article 9 a Binding ADR Procedures Member States shall ensure that in ADR procedures which aim at resolving the dispute by imposing a solution the solution imposed may be binding on the parties only if they were informed of its binding nature in advance and specifically accepted this. Specific acceptance by the trader is not required if national rules provide that solutions are binding on traders.
Amendment 359 #
Proposal for a directive
Article 9 b (new)
Article 9 b (new)
Article 9 b Legality Member States shall ensure that in ADR procedures which aim at resolving the dispute by imposing a solution on either the consumer or both parties, any solution imposed on the consumer shall not result in the consumer being deprived of the protection afforded by the mandatory provisions applicable under the law of the Member State in the territory of which the ADR entity is established. In the case of cross-border disputes, the solution imposed by the ADR entity shall not result in the consumer being deprived of the protection afforded by the mandatory provisions applicable under the law of the Member State where the consumer has his habitual residence as defined in Article 6 of Regulation (EC) No 593/2008.
Amendment 363 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Member States shall ensure that traders established on their territories inform consumers about the ADR entities by which they are covered and which are competent to deal with potential disputes between themselves and consumers. Suchwhich commit to or are obliged to use an ADR entity or ADR entities to resolve disputes with consumers inform their consumers about the relevant ADR entity or ADR entities. The information shall include the addresses of the relevant ADR entities' websites and specify whether or not the trader commits to use these entities to resolve disputes with consumersy's or ADR entities' website.
Amendment 368 #
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 permanent clear comprehensible and easily accessible way on the trader's website, where one exists, and if applicable, 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 contracts. It shall specify how further information on the ADR entity concerned and on the conditions for using it can be accessedsales or service contracts between the trader and a consumer.
Amendment 372 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
Member States shall ensure that ADR entities, consumer associations, business associations, the centres of the European Consumer Centre Network and, where appropriate, the bodies designated in accordance with Article 11(2), make publicly available aton their premises and on their websiwebsites by providing a link to the Commission's website and by any other means they consider appropriates, the list of ADR entities referred to in Article 17(34).
Amendment 377 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. Member States shall ensure thatcourage ADR entities to cooperate onwith the resolution of cross-border disputes.
Amendment 379 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. Member States shall ensurcourage cooperation between ADR entities and national authorities entrusted with the enforcement of Union legislation on consumer protection.
Amendment 380 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. This cooperation shallmay include mutual exchange of information on practices in specific business practicesectors by traders about which consumers have 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 cannot be obtained elsewhere.
Amendment 383 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
1. Each Member State shall designate an authority as competent authority in charge of monitoring the functioning and development of ADR entities established on its territory. Each Member State shall communicate the authority it has terms of Articles 16 and 17. Each Member State may designate more than one competent authority. If a Member State does so, it shall determine which of the competent authorities designated is the single point of contact for the Commission among the competent authorities established on its territory. Each Member State shall communicate the authority or, where appropriate, the competent authorities including the single point of contact it has designated to the Commission.
Amendment 390 #
Proposal for a directive
Article 16 – paragraph 2 a (new)
Article 16 – paragraph 2 a (new)
2 a. Member States shall ensure that ADR entities, where the natural persons in charge of dispute resolution are employed exclusively by the trader established on their territories, notify the competent authority on an annual basis of their continued compliance with the following requirements: (a) appointment by the highest level of management and for a sufficient duration to ensure the independence of their action; (b) lack of hierarchical link with the operational management, in particular with those responsible for customer relationships; (c) remuneration not bound to the results of the ADR procedure; (d) establishment of a dedicated budget providing the appropriate resources to ensure the effectiveness of ADR procedures.
Amendment 392 #
Proposal for a directive
Article 17 – paragraph 2 a (new)
Article 17 – paragraph 2 a (new)
2 a. Competent authorities shall notify an ADR entity if that ADR entity no longer fulfils the requirements set out in paragraph 1. If the ADR entity after a period of three months still does not fulfil the requirements set out in paragraph 1, the competent authority shall remove the ADR entity from the list.
Amendment 393 #
Proposal for a directive
Article 17 – paragraph 2 b (new)
Article 17 – paragraph 2 b (new)
2 b. This list shall be updated without undue delay and the relevant information notified to the Commission.
Amendment 394 #
Proposal for a directive
Article 17 – paragraph 2 c (new)
Article 17 – paragraph 2 c (new)
2 c. If a Member State has designated more than one competent authority, the list and the updates referred to in paragraph 2 shall be notified to the Commission by the single point of contact. The list and the updates shall relate to all ADR entities established in that Member State.
Amendment 397 #
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 and shall take all measures necessary to ensure that they are implemented. The penalties provided for must be effective, proportionate and dissuasive.
Amendment 398 #
Proposal for a directive
Article 22 – paragraph 1 – subparagraph 1
Article 22 – paragraph 1 – subparagraph 1
Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [Office of Publications insert date: 1824 months after entry into force] at the latest. They shall forthwith communicate to the Commission the text of those provisions and a correlation table between those provisions and this Directive.
Amendment 402 #
Proposal for a directive
Annex 1
Annex 1
deleted