Brexit: UK unwinds implementation of EU ADR laws

Jan O’Neill
Professional Support Lawyer, London

 

The UK Government has published legislation to effectively revoke the implementation of the EU Mediation Directive (2008/52/EC) after Brexit.

The Cross-Border Mediation (EU Directive) (EU Exit) Regulations 2019 (the Regulations) were made on 1 March 2019 and will come into effect on exit day, whenever that occurs.

Why?

The development is part of a wider policy decision by the Government to revoke/repeal UK domestic legislation that implemented EU law in instances where that law is based on reciprocity between EU Member States. Continue reading

The EU Online Dispute Resolution (ODR) Platform – an update on timing

It has been confirmed that online businesses will have an extended timeframe in which to comply with new obligations to signpost customers to the Online Dispute Resolution (ODR) Platform being set up by the EU Commission.

As we have previously reported, the EU ODR Regulation which came into force last year (and was implemented in the UK as part of new ADR Regulations) includes a requirement that, from 9 January 2016, all businesses selling goods or services online within the EU carry a link on their website (and in some cases in their contractual terms) to the ODR Platform. While businesses have been preparing to comply with the obligation by 9 January, the missing piece of information to enable them to do so has been the ODR Platform website address, which has not yet been released by the EU Commission.

The UK Department for Business, Innovation & Skills (BIS) has now confirmed that it has been advised by the EU Commission that the 'go live' date for the ODR Platform has been delayed to 15 February 2016.  Businesses will therefore now not be required to carry a link to the ODR Platform until it is launched on this new date.  BIS has confirmed:

'We can reassure you that although the date of 9 January remains in our Regulations, we fully understand that it will not be possible for businesses to meet this date as the ODR platform will not yet be launched. There will of course be no question of enforcement action before 15 February".

We will continue to monitor and report when the link to the ODR Platform becomes available. The EU Commission's most recent factsheet can be accessed here.

UPDATE 1.2.16:  The EU Commission has now announced the website address for the ODR Platform, which will be operational from 15 February:  http://ec.europa.eu/consumers/odr/

 

New ADR consumer information obligations apply from today

From today, almost all UK businesses selling goods or services to consumers in the EU need to comply with new requirements to provide consumers with information about ADR options, under legislation implementing the new EU ADR Directive.

The new rules include obligations (in respect of complaints handling procedures) that apply to all traders regardless of whether they are committed to using ADR or intend to use it.

Click here for details on what businesses need to do to comply with the new obligations.

 

ADR for consumer disputes: New obligations on UK traders from 1 October 2015

The UK government has now published the principal legislation that will implement the European ADR Directive and the European Online Dispute Resolution (ODR) Regulation, both of which seek to encourage the use of ADR to resolve consumer disputes across the EU.  (See our previous posts for details of the EU legislation and the UK’s implementation plans).

Alongside provisions aimed at improving the UK infrastructure for ADR in consumer disputes, the legislative package also extends the obligations on businesses to provide consumers with information about ADR options.

Almost all UK businesses selling goods, services or digital content to consumers in the EU will need to ensure that they comply with the new requirements, which may involve reviewing websites, contractual terms and complaints handling procedures before the first operative date, 1 October 2015. Continue reading

UK Government announces plans for implementation of the EU ADR Directive and ODR Regulation

The UK Government has announced its plans for implementing the ADR Directive and the ODR Regulation, both of which are aimed at promoting the use of ADR schemes in disputes involving consumer complaints throughout the EU.

While the Government is not at this stage pressing forward with a suggested proposal to restructure the entire UK landscape for consumer ADR, the plans include:

  • the creation of a new ‘residual’ ADR scheme to fill the current gaps in the existing consumer ADR landscape;
  • the appointment of the Trading Standards Institute (TSI) as the UK’s competent authority to monitor ADR providers in the non-regulated sectors;
  • an 8 week extension to the standard 6 year limitation period for bringing court proceedings (in disputes covered by the Directive) in cases where ADR is ongoing at the expiry of the 6 year period; and
  • new statutory obligations on businesses to provide information to consumers regarding the availability of ADR schemes.

Businesses engaged in selling to consumers in the EU will need to familiarise themselves with the new consumer information obligations and ensure that they take steps to comply, including by amending contractual terms and website information where necessary. Continue reading

EU: ADR Directive and ODR Regulation to enter into force

We have previously reported on EU legislative proposals for a directive on ADR in consumer disputes and a supporting regulation on online dispute resolution (ODR).

On 18 June 2013, the ADR Directive (Directive 2013/11/EU) and the ODR Regulation (Regulation (EU) 524/2013) were published in the Official Journal of the European Union.  Both will enter into force on 8 July 2013.

The key features of the legislation are outlined  in our earlier post, here.   In summary:

  • The ADR Directive seeks to promote ADR in the consumer sphere in the EU by encouraging the use of approved ADR entities that ensure minimum quality standards.  In particular, it requires Member States to ensure that their approved ADR entities are impartial and provide transparent information about their services, offer their services at no or nominal cost to the consumer, and hear and determine complaints within 90 days of referral.  The Directive applies to domestic and cross-border disputes concerning complaints by a consumer resident in the EU against a trader established in the EU.  Notably, it does not apply to traders’ complaints against consumers (such as claims for payment) or to trader-to-trader grievances.
  • The ODR Regulation provides for the EU Commission to establish a free, interactive website through which parties can inititate ADR in relation to disputes concerning online transactions (offline transactions are excluded).  National ADR entities will receive the complaint electronically and seek to resolve the dispute through ADR, using the ODR platform exclusively if they wish.

Nothing in the legislative package imposes any form of mandatory ADR on any party.    The use of ADR entities or the ODR platform will require the agreement of both the consumer and the trader.

EU Member States are required to bring into force the legislation and administrative provisions necessary to comply with the ADR Directive by 9 July 2015 at the latest.   The ODR Regulation, which is binding on Member States directly,  will take effect from 9 January 2016 in respect of the bulk of the provisions.

We will continue to report on developments with respect to the national implementation of the legislation, both in the UK and across Europe.

 

Improving consumer protection on a European level

Consumer rights have received further support with the announcement that the UK will adopt the proposed Directive on Alternative Dispute Resolution (ADR Directive) and a Regulation on Online Dispute Resolution (ODR Regulation). Anita Phillips, a professional support lawyer in our London office,  looks at the role the legal profession will have to play in ensuring its success. This article was first published on Lexis Library/Lexis PSL on 10 May 2013. Continue reading

European Parliament adopts legislative Resolutions on ADR proposals

On 12 March 2013, the European Parliament adopted two key legislative measures regarding ADR in respect of consumer disputes. The first Resolution deals with the proposed Directive on alternative dispute resolution (ADR) and the second Resolution deals with the proposed Regulation on online dispute resolution (ODR). The EU Parliament adopted the amendments proposed in 2012 by the EU council (see our previous post on these proposals).

Both of these aim to increase the use of ADR schemes in the EU by giving consumers a quicker, cheaper and more informal way to settle disputes with traders. It applies to any purchase made domestically or across EU borders. The consumer ADR Directive will be supported by an ODR mechanism through the setting up of a free, interactive website accessible electronically in all languages of the EU.

The ADR Directive and ODR Regulation still need to be formally adopted by the Council. They will enter into force on the 20th day after they have been published in the Official Journal. The ADR Directive requires domestic implementation and should apply in all Member States within 24 months of its entry into force. The ODR platform will be available shortly thereafter.

ADR central to UK Government’s far-reaching reform of competition law class actions

The Government yesterday published its plans for reforming the UK regime for competition law private actions, following a detailed consultation exercise carried out last year. The wide-ranging reforms controversially include the creation of an opt-out collective action for competition law claims on behalf of both businesses and consumers, despite concerns that this may lead to some of the excesses of US-style class action antitrust litigation.  Under an opt-out regime, a claim can be brought on behalf of a defined group without all the individual claimants needing to be identified, and all parties who fall within the defined group will be bound by the result of the case (including a settlement) unless they actively opt out. A central element of the reforms concern the promotion of non-mandatory ADR, including introducing an opt-out collective settlement regime in the Competition Appeal Tribunal (CAT) and giving the new Competition and Markets Authority (CMA) the power to certify voluntary redress schemes.

It remains to be seen whether the Government's desired balance of increasing redress for competition law breaches, in particular for consumers and SMEs, without creating disproportionate risks of unmeritorious claims or a 'litigation culture' can be successfully achieved. It is clear, however, that despite attempts to also encourage ADR, the reforms will lead to a significant rise in private competition law litigation in the UK, increasing both burdens on business and potential opportunities for bringing claims.  We review here the rationale for the reforms and the range of ADR proposals. Continue reading

UK tax assurance commissioner publishes new code of governance promoting early resolution of tax disputes

Her Majesty’s Revenue and Customs (HMRC)’s new code of governance published on 1 November 2012 aims to resolve tax disputes collaboratively and by agreement, with “only a very small minority” requiring resolution by legal action. The code of governance endorses HMRC’s earlier Litigation and Settlement Strategy (updated in 2011), whose stated aim is to handle disputes “non-confrontationally and by working collaboratively with the customer wherever possible”. Continue reading