Verbatim report of proceedings

Monday, 24 October 2011 - Strasbourg

19. Alternative dispute resolution in civil, commercial and family matters (short presentation)

  President. – The next item is the report by Diana Wallis, on behalf of the Committee on Legal Affairs, on alternative dispute resolution in civil, commercial and family matters (A7-0343/2011).

  Diana Wallis, rapporteur. – Madam President, in this instance, alternative dispute resolution is said to be about civil and commercial matters, but it concentrates mainly on consumer issues. What we are talking about is delivering access to justice and, by doing so, finding a way of encouraging cross-border transactions, because at the moment – and this has, in fact, been the case for many years now – there are too many fears about enforcement of rights. Traditional justice is complicated, slow and expensive.

At a time when we need to encourage cross-border commerce and transactions, we need to find a new culture of civil justice: one that is different, one that is quicker, cheaper and more conciliatory, and one that brings results.

For many years now, a loose network of ADR providers has been in existence, coordinated through the Commission: ‘EEJ-Net’ and ‘FIN-Net’. They have been successful in their way, but they are not enough. They do not answer the question that most citizens will have. When they want justice, they know where their local court is. They do not know where their local ADR system is. We need to make sure that the systems that exist are given publicity. We need to make sure that there is an overall system to ensure that every consumer can reach an ADR system to solve a dispute. We need to ensure that the systems that do exist are of good quality, that training is provided to those providing ADR, and that the quality is independently monitored.

So, that is the direction we want to go in. However, we do not only want ADR: we also want ODR, online dispute resolution. People are buying online across borders: they should also be able to settle their disputes online. But this should not be limited to activity in one area of consumer disputes. There should be joined-up thinking with regard to other Community instruments such as the proposal for a contract law – now called sales law – and proposals for collective redress. All of these things deserve to have an ADR element.

Alternative dispute resolution should be about a new form of cross-border European justice, a change of culture for the 21st century. It should go across the board, but what would be most important at the moment is to deliver that change in relation to consumer and SME cross-border transactions. We should do that and do it as a priority, and I think this Parliament looks forward to seeing the Commission’s proposal before the end of this year.

  Alajos Mészáros (PPE). – (HU) Madam President, alternative dispute resolution has become a technique in social, legal and economic areas. It is indispensable in the administration of justice, in environmental protection, as well as in labour affairs and international economic relations.

Ms Wallis has prepared her report in the Committee on Legal Affairs in order to develop a safer and more effective EU system. The increasing number of procedures shows that there is a need to harmonise legal frameworks within the EU. A more transparent system, coordinated at a European level, can increase legal security and the protection of consumer rights.

Promoting more intensive communication and cooperation between Member States and competent professional organisations at EU level is more important than making alternative dispute resolution compulsory. We can save considerable energy and costs for society and the economy by providing adequate information for citizens and SMEs on the various options for dispute resolution. In addition to the existing guarantees provided at Member State level, it is the EU’s job to provide the benefits of alternative dispute resolution for the 27 Member States within the single market.

  Zuzana Roithová (PPE). – (CS) Madam President, I have long supported alternative dispute resolution, but with one major reservation, which is the inclusion of family cases within the scope of this proposal. On account of national traditions, this area belongs within the competence of Member States. Moreover, complex family disputes, including disputes over the raising of children, should be decided by judges trained and specialised in these matters, and the EU should not interfere in this area.

Of course, I welcome the development of a system of alternative dispute resolution in civil and commercial cases, particularly the resolution of consumer disputes, since this system offers cheaper and faster practical solutions. These systems should be developed on the Internet and fully automated at the first level in order to be attractive to businesses, and they should also fulfil the principle of impartiality, transparency, effectiveness and fairness. I drew attention earlier to the fact that we must make use of experience from the system of handling EU Internet domains, for example.

I would like to end by stressing that the Commission should make a strong appeal to states such as the Czech Republic, where alternative dispute resolution systems are not yet fully operational.

  Elena Băsescu (PPE). – (RO) Madam President, I, too, would like to congratulate Diana Wallis for drafting this report in the context of the Europe 2020 strategy.

I think that providing consumers and SMEs with access to alternative dispute resolution mechanisms is vital for consolidating the single market. These bodies ensure that disputes are resolved in confidence and quickly, under more favourable financial terms than in the judicial system.

I should point out that, although the courts of commercial arbitration are fully operational in Member States, they specialise in resolving national law disputes. The reason for this is the lack of legislative harmonisation at European level. This makes it difficult to resolve a dispute within several legal systems.

I therefore support a code of good practice being drawn up for standard contracts. This would facilitate the use of alternative mechanisms, especially for low value international disputes.

  Silvia Costa (S&D). – (IT) Madam President, ladies and gentlemen, a point I very much welcome in Ms Wallis’s report on alternative dispute resolution is the fact that it calls for a general ‘justice for growth’ agenda across sectors which goes beyond consumer-producer disputes to include civil transactions, and family disputes in particular.

I would argue that family mediation and a strong commitment from Europe in this respect are extremely important issues, in view of the growing number of disputes that generally follow separations and divorces in the European Union. In particular, disputes between spouses who are often of different nationalities tend to drag on longer and consequently have a terrible effect on the children.

Experience in many countries shows that having a family mediator, as someone neutral that they can freely turn to, helps partners reach a mutually acceptable understanding, with an agreement in writing that can be submitted to a judge to be made official. This goal must therefore be determinedly pursued at a European level, although with due respect for subsidiarity, not least in light of the 2005 EU regulation on parental responsibility. It will also strengthen cross-border protection, particularly with regard to child abduction and the role of the European Parliament Mediator.

I hope, therefore, that the Commission also includes this aspect directed to the Member States in its legislative proposal.

  Monika Flašíková Beňová (S&D). – (SK) Madam President, access to justice is a fundamental right. The aim both of judicial processes and of alternative means of dispute resolution is to strive for the restoration of legal peace or the resolution of disputes between parties. Alternative dispute resolution helps consumers and businesses to resolve conflicts through a third party by an out-of-court route, and thus becomes an effective alternative to the judicial process, particularly in terms of cost.

It is a pity that the knowledge and awareness of Member State citizens is relatively sparse regarding the existence of alternative systems for dispute resolution. Only a small percentage of citizens know how to submit an actual complaint to an alternative dispute resolution body. In my opinion, we must educate and inform the public about the possibility of resolving disputes through alternative mechanisms to judicial proceedings. These also offer the possibility of avoiding a directly confrontational approach and, at the same time, provide the possibility of dispute resolution that is advantageous to both parties.

We must, however, strive for a balanced approach, taking account, on the one hand, of the scope of powers of the alternative dispute resolution systems and, on the other, fair procedures and proceedings in relation to the parties involved.

  Anna Záborská (PPE). – (SK) Madam President, I support the idea of seeking agreement. I think it would be a good idea if, in the interests of greater legal certainty, procedures for the alternative resolution of commercial and property-related disputes were unified. Consumers and businesses both surely applaud the effort of the Commission and Parliament to constantly improve the mechanism for seeking agreement via an out-of-court route. It has advantages for both sides.

I would like draw attention, however, to the fact that the family, which is mentioned in the title of the report, does not fall within the remit of the Union and its institutions. I share Ms Roithová’s opinion that this is a highly sensitive issue, demanding respect for the different national traditions and social conditions. A single standard will not suffice here. We should not forget the problems created by the effort to handle international divorces at European level, and we should bear in mind that there is no one to represent the child in the process of mediating a dispute between two parents.

  Jaroslav Paška (EFD). – (SK) Madam President, alternative dispute resolution in civil, commercial and family matters may, in many cases, be a more peaceful, less costly and quicker form of dispute resolution. It is therefore important for the European public to be well informed as to the relevant legislation, as well as the possibilities arising from it. In particular, the regulations governing European proceedings in low value cases, and the directive on certain aspects of mediation in civil and commercial matters, provide a common European basis for cross-border and national alternative dispute resolution.

I agree with the view that high levels of awareness among the public and businesses regarding the advantages of alternative dispute resolution will help towards a substantial expansion in the use of these methods, relieving the courts of the burden of resolving consumer and family disputes in particular.

Recourse to out-of-court possibilities for resolving family disputes, making it possible to reduce the psychological burden on the parties in dispute, as well as on the children, is certainly a better solution than lengthy disputes involving evidence and witnesses. It is therefore sensible to support the application of reliable alternative dispute resolution at all levels.

  Viviane Reding, Vice-President of the Commission. – Madam President, the Commission welcomes the support on alternative dispute resolution (ADR) for consumers and businesses and we also welcome your suggestions concerning the Commission’s legislative proposal on ADR for consumer disputes. The Kraków Declaration, which the Single Market Forum adopted earlier this month, repeated this call.

ADR is also one of the 12 proposals in the Single Market Act. My colleague, Commissioner Dalli, will be putting forward two legislative proposals which are scheduled for adoption by the Commission on 23 November: one for a framework directive on ADR for business-to-consumer (B2C) disputes; and one for a regulation on online dispute resolution. The directive will ensure that consumers and traders can access ADR schemes for any dispute between them, and the regulation will establish an EU platform for disputes related to cross-border online transactions between consumers and traders.

These proposals will be the first bricks for the construction of an effective out-of-court redress system. The Commission is also aware, as your report states, that we have to deal with business-to-business (B2B) dispute resolution, particularly for SMEs.

During the Commission consultation on B2C disputes, stakeholders were very clear: they expressed a preference for a different type of instrument to apply to B2B disputes, catering for them more specifically. Therefore, the Commission is, at present, examining different types of ADR, including arbitration work, in particular, in the cross-border context of B2B disputes. We are at a very early stage of information gathering and we will examine all possible problems which could hinder businesses, in particular, SMEs. However, we would welcome all proposals on this while we are working on it. If the outcome of the work is positive, as I believe it will be, I will ultimately come forward with a proposal.

Concerning the Mediation Directive, it is a viable option of ‘first resort’, particularly – as has been mentioned – in family law cases where the parties cannot settle their conflict themselves and going to court may unnecessarily escalate their dispute. Mediation may lead to fast and cheap results.

The Mediation Directive has applied everywhere, except in Denmark, since 21 May 2011. This directive can be applied to civil and commercial matters, including family matters and disputes between businesses and consumers. The only exclusion is where parties are not free to decide on their rights and obligations under the applicable law.

The Commission welcomes Parliament’s support for the key provisions in the Mediation Directive, which should also apply to other ADR schemes. Independence, impartiality, confidentiality, the effects on prescription and the enforceability of agreements are to be regarded as common standards for all kinds of ADR.

Specifically concerning the Mediation Directive, following the opening of pre-infringement proceedings in July 2011 against nine Member States which were late in transposing the directive, today, 20 Member States have notified the Commission of national measures for implementing it. I am continuing to follow carefully the situation in the other Member States.

  President. – The debate is closed.

The vote will take place on Tuesday, 25 October 2011, at 12.30.