Out of court settlement of consumer disputes – new legislation
The most significant change that brings with it the proposal of the Consumer Protection Act is the introduction of a new system of extra-judicial settlement of consumer disputes, among other things, stipulates the obligation of the trader to participate in such proceedings (when a consumer starts).
In the explanation of the bill stated that the new system of extrajudicial resolution of consumer disputes introduced in order to harmonize national legislation with EU regulations. In particular, the EU Directive on alternative resolution of consumer disputes (Directive No. 2013/11). However, it should be noted that the directive does not prescribe the obligation to participate in alternative dispute retailers of consumer disputes but leaves Member States the choice to own law offices if the participation of traders in such dispute resolution be a mandatory or voluntary basis. Different EU Member States this issue differently and solve only example here say that participation of traders in the extra-judicial settlement of disputes is not compulsory in Austria, Finland, Estonia, etc.
Certainly, traders can not be satisfied with the proposed solution because their time impose obligations can be very burdensome for them. Although individual trader with one or two stores will often rub shoulders with the obligation to participate in extra-judicial resolution of consumer dispute, the bigger dealers and retailers likely will have to hire new employees or lawyer who will deal with their representation in extra-judicial resolution of consumer disputes because, due to the number of consumers and objects more often be in a position to “defend” in such proceedings.
In this article, we will provide an overview of all the necessary information you need to know about the new procedure out of court settlement of consumer disputes (hereinafter VRPS).
General obligations dealer in connection with the related VRPS:
The seller is obliged to participate in the extra-judicial resolution of consumer dispute.
In addition, the dealer is required on every sales point to a visible and clear way, notice that is required by law to participate in the extra-judicial resolution of consumer dispute.
What is the body responsible for resolving VRPS?
Responsibility for solving VRPS according to the draft law are intermediaries, that is, persons who are under the Law on Mediation in resolving disputes registered and have a license for mediation with the additional requirement that these people graduating from law school and have at least two years of practice in civil law matters.
A list of these intermediaries will be specially made by the Ministry and will be available on a special website of the Ministry of Trade.
Who can submit a proposal?
Proposal for VRPS submitted to the Ministry of Trade by post or electronically.
After I close my ministry proposal that it continues to forward the mediator from the list that we talked about above. When submitting the proposal from the ministry will take into account that this proposal forward within the jurisdiction of that intermediary that is closest to their place of residence consumer or intermediary for any ministry estimate that the procedure out of court settlement of the dispute resolved in the most efficient and most appropriate manner.
Who can submit a proposal?
Proposal may submit only one consumer who has previously said the complaint or objection seller.
The proposal can be submitted within one year from the date when the decision on the complaint or objection consumers.
What the proposal should consist of the data?
The proposal should include:
1) name, domicile or residence of the consumer;
2) the business name, address, tax identification number of the trader;
3) information on the subject of consumer dispute, along with a description of facts and evidence to establish the facts;
4) a motion of the outcome of the consumer of the consumer of the conflict;
5) A statement that the consumer has previously said complaint or objection for the seller;
6) the date of filing a claim or claim;
7) A statement that the conflict is not in progress or is already completed in the trial, arbitration or other procedure;
8) A statement of the method of the procedure (either directly or via electronic mail);
9) date and signature of the consumer.
Plea dealer in the proposal:
After receiving the proposal and determine the conditions for treatment, the broker pays the seller so that it delivers the proposal and accompanying documentation and dealer calls to be made within 15 days comment on the proposal and stated in the proposal.
In their submissions trader needs to indicate whether he agreed with the proposal or not. If he does not agree, the trader should specify the factual and legal arguments due to which disputes the requirements of consumers and to provide evidence intermediary referred to prove the fact that he goes attachment or challenging the claims of consumers.
Further course of action:
In the further course of the proceedings broker will introduce a pause on their rights and obligations, will allow them to take a stand on all the relevant arguments and evidence of the opposing party.
The mediator may schedule an oral hearing when it considers that it would be whole, and in this case the consumer and the merchant are obliged to approach such a discussion. A merchant who does not approach a penalty, and if not accessed the consumer, he will be considered that he withdrew his proposal for out-of-court dispute resolution.
Both the consumer and the trader have the right to represent them in this procedure from the lawyer’s orders.
As this procedure is urgent, the legislator envisages that the procedure should be completed within 90 days from the date of starting. And only an exceptional deadline for solving the procedure can be extended for another 90 days.
The procedure can be completed in one of three ways:
1) By concluding a dispute agreement
2) recommendation on how to resume consumer dispute;
3) By the decision of the body that the procedure is suspended, because further management of the procedure is not expelled (eg complexity of proceedings and SL).
Agreement on Resolving the Spore
If the parties reach an agreement in the procedure, an intermediary achieved in writing and submitted to the parties to the signature.
The parties are free to decide disagree on their own or with the help of an independent manner, and to enter into an agreement in accordance with that agreement.
After signing the agreement, each of them retains one copy of each.
The parties are obliged to behave in accordance with the signed agreement, that is, to carry out all those obligations that have taken over to the agreement.
Ancillary resolution agreement may have the force of an executive document if the executability clause shall be entered in its obligations.
In such a case, a person who has the right to claim something from another person (say consumer that has the right to pay a certain amount) may initiate the executive proceeding directly on the basis of such an agreement.
If the agreement does not contain the Executive Clause, a person who has rights under the agreement may be considerably facilitated in the court proceedings because it has been significantly facilitated because it already has the content of the agreement that determine the rights and obligations between the parties.
The dispute may be completed by the recommendation when the parties do not reach an agreement. Then an intermediary, if it estimates that it is so expelled, it brings in writing a recommendation on the way the dispute should be resolved. The recommendation must be reasoned and submitted to the parties in the procedure.
However, such a recommendation does not have any legal force so that the parties in the procedure are not obliged to accept the recommendation.
Finally, a mediator may also make a decision to suspend the procedure without making a recommendation when it considers that further management of the procedure and eventual commitment would not be beneficial for the sides in the proceedings.
A consumer who is not satisfied with the outcome of the ex-court resolution of the dispute has the right to address the competent court for protection of its right.
The bill contains a provision provided by the body’s work for extrudious resolution of the consumer dispute is free for parties in the proceedings, which is certainly good and commendable. However, it is not such a good solution, which envisages that each party in the proceedings alone bear its costs. It would be fairer if you envisage the possibility that the party that succeeds in the procedure has the right to compensate costs, at least those who were objectively necessary to keep the proceedings.