Europaudvalget 2010-11 (1. samling)
EUU Alm.del Bilag 326
Offentligt
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MINISTRY OF ECONOMIC
The Danish Governments feedback on "the use of Alternative
Dispute Resolution as a means to resolve disputes related to
commercial transactions and practices in the European Union" from
DG SANCO.
Summary
The Danish Government supports the intention of the Commission
to secure consumers and traders a cheap, simple and quick way of
solving disputes, for example through ADR.
The Commission should consider introducing limits to which
disputes should be covered by an ADR solution (eg. upper and
lower price limits).
It should not be compulsory to try a dispute before an ADR board
before it can be brought before the courts, and the decisions of
ADR boards should not be binding.
The funding of ADR solutions should be left to the Member States
to decide.
The Danish Government’s feedback
The Danish Government supports the intention of the Commission to
secure consumers and traders a cheap, simple and quick way of solving
disputes, for example through ADR. Denmark agrees that ADR solutions
may contribute to increased consumer confidence in cross-border trade,
which is relevant in relation to e-commerce in particular.
The Danish Government already makes wide use of ADR in the consumer
complaints field. The Danish Government has a public body called the
Consumer Complaints Board (Forbrugerklagenævnet). Additionally, 18
private complaints boards consider cases within their respective fields.
They are approved by the Minister for Economic and Business Affairs.
Finally, there are various non-approved complaints boards. These private
complaints boards are run by the relevant industries, and they are not
covered by the principles stated below. The Danish consumer complaints
system satisfies the desire of the Commission to secure consumers and
traders a cheap, simple and quick dispute resolution mechanism, for
example through ADR.
AND BUSINESS AFFAIRS
Slotsholmsgade 10-12
DK-1216 Copenhagen K
Tel.
Fax
+45 33 92 33 50
+45 33 12 37 78
CVR no. 10 09 24 85
[email protected]
www.oem.dk
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The Danish Government’s position is that it should be possible to
continue the main principles of the Danish consumer complaints system
in case EU rules are introduced in this field.
Relative to the specific questions of the Commission in its consultation
paper, the Danish Government wishes to make the following
observations:
1. The Commission should carefully consider whether all disputes
between consumers and traders should be covered by an ADR
solution. In Denmark, it is possible to specify limits as to what cases
are eligible for consideration. These limits may be lower or upper
price limits for the product or service. The Danish Consumer
Complaints Board set a fixed lower limit to obviate the need for the
Board to consider all ordinary daily shopping transactions, and an
upper limit to ensure that buyers of products or services characterised
as luxuries cannot make use of a publicly funded complaints board.
If no limits are laid down for the cases to be covered by ADR
solutions, the consequences may be far-reaching and may imply
unnecessary costs and administration for both the public authorities
and businesses, particularly in the countries where ADR solutions are
not yet in wide use.
The Danish Government therefore suggests that any EU rules on
ADR solutions be targeted at the products and services that may
especially contribute to increased consumer confidence in cross-
border trade, particularly e-commerce. Relevant products or services
could be those that already constitute a large proportion of the cross-
border trade today, such as air travel or products typically traded on
the Internet.
2. In Denmark, the Consumer Complaints Board and the approved
private complaints boards only consider individual complaints
submitted by consumers. In relation to ADR systems the Danish
Government has no experience or tradition of collective complaints.
3. It should not be compulsory to try a dispute before an ADR board
before it can be brought before the courts. Consumers should not be
restricted in their access to resolution of disputes. If consumers find
that the court system is the most expedient way of settling a dispute,
they should not be barred from such procedure.
Moreover, a very large number of boards of very different types exist.
The boards differ greatly by their fields of work, composition
(including participation by legally trained persons and by professional
and industrial bodies) and methods of work. Also, the individual
cases differ. As an example, cases presenting evidential problems that
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should be clarified by statements from the parties or witnesses are
usually not very suited for consideration by a complaints board.
Concerning the interaction between complaints boards and courts in
consumer cases, reference is also made to section 361(1) of the
Danish Administration of Justice Act (retsplejeloven). This provision
prescribes that if a consumer requests that a case eligible for
consideration by the Consumer Complaints Board or a complaints or
appeal board approved by the Minister for Economic and Business
Affairs be considered by the relevant board, the court will dismiss the
case and refer it to such board. In that connection, it should be noted
that Part XXXIX of the Administration of Justice Act provides rules
on court consideration of small claims cases. The rules provide for an
easy and cheap procedure for civil actions concerning disputed claims
not exceeding DKK 50.000.
4. The Danish Government is not to supportive of a rule making
decisions of ADR boards binding as that could give rise to significant
due process concerns. One reason is that, when making their
decisions, ADR boards do not offer the same procedural guarantees as
the courts. Consideration by the courts implies various procedural
guarantees following from the Danish Constitution, the European
Convention on Human Rights and otherwise provided by law. Similar
guarantees are not offered in case of consideration by a board.
In 2009, Denmark made efforts to make complaints board decisions
binding on traders. However, this was not implemented as it clearly
appeared from the consultation responses to the relevant bill,
including the response from the Supreme Court that such scheme
would give rise to significant procedural concerns. Moreover, a
consumer would risk being forced into court proceedings even against
the consumer’s desire. Instead, a two-pronged scheme was introduced
to ensure the enforceability of board decisions. One prong of the
scheme means that a trader must notify the board in writing within 30
days of a decision delivered by the board if the trader does not want
to be bound by such decision. It is then up to the consumer to choose
whether to bring an action before the court. If the trader remains
passive, the consumer can have the decision enforced with the help of
the enforcement court. The other prong of the scheme implies that
consumers may have their expenses for a legal action based on a
board decision covered by the Competition and Consumer Authority.
This two-pronged scheme applies to complaints submitted after 1
January 2010.
5. EU legislation in the field should be based on Commission
Recommendations
98/257/EC
and
2001/310/EC.
These
Recommendations are well-known and provide the important
principles guaranteeing due process protection of consumers and
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traders. The recommendations thus form the basis of the Danish
Consumer Complaints Board and the approved private complaints
boards.
6. The funding of ADR solutions should be left to the Member States to
decide. In connection with ADR solutions, it should be possible to
charge a fee for consumers wanting to complain and to order the
traders to pay the costs.
ADR solutions should be based on the principle that public authorities
should not become involved in disputes which can be settled between
the parties concerned. Traders and consumers should take
responsibility for their own complaints to a wide extent, also in terms
of funding. That is the reason why consumers have to pay a fee to
submit a complaint and traders have to pay the costs if they lose the
case. This is a vital prerequisite for building a well-functioning
consumer complaints system based on dialogue and cooperation.
On the one hand, the consumer fee is to urge consumers to consider
their complaints once more, thereby contributing to make sure that the
complaints are substantive. On the other hand, the fee should not be
so large as to keep consumers from complaining.