Euro Mediation

Alternative Dispute Resolution at the European Community Level

     

Official Journal of the European Union C 61 E/260 10.3.2004

Wednesday 12 March 2003

European Parliament resolution on the Commission's Green Paper on alternative dispute resolution in civil and commercial law (COM(2002) 196 — C50284/2002 — 2002/2144(COS))

The European Parliament

6. Alternative dispute resolution in civil and commercial law (Rule 110a)

(vote)

Report by the Committee on Legal Affairs and the Internal Market, on the Commission Green Paper on alternative dispute resolution in civil and commercial law (COM(2002) 196 — C5-0284/2002 — 2002/ 2144(COS))

(A5-0058/2003) (Rapporteur Mrs Wallis).

(Simple majority)

(Voting record: Annex 1, Item 3)

MOTION FOR A RESOLUTION:

Adopted by single vote (P5_TA(2003)0084).

 P5_TA(2003)0084

Alternative dispute resolution in civil and commercial law

European Parliament resolution on the Commission's Green Paper on alternative dispute resolution in civil and commercial law (COM(2002) 196 — C50284/2002 — 2002/2144(COS))

The European Parliament,

— having regard to the Commission's Green Paper on alternative dispute resolution in civil and commercial law (hereinafter referred to as ‘ADR’) of 19 April 2002 (COM(2002) 196 — C5-0284/ 2002),

— having regard, in particular, to Articles 65 and 155 of the Treaty,

— having regard to the Vienna Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice, adopted by the Justice and Home Affairs Council on 3 December 1998 (1), in particular paragraph 41(b) thereof,

— having regard to the conclusions of the Tampere European Council calling for the creation of alternative extrajudicial procedures (2);

— having regard to the conclusions of the Lisbon European Council of 23 and 24 March 2000, in particular paragraph 11 thereof,

— having regard to the conclusions of the Santa María da Feira European Council of 19 and 20 June 2000, in particular paragraph 22 thereof, endorsing the ‘eEurope 2002 Action Plan’,

— having regard to the conclusions of the Laeken European Council of 14 and 15 December 2001, in particular paragraph 25 thereof,

— having regard to the Commission's recommendations of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes (3) and of 4 April 2001 on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes (4),

  — having regard to its resolution of 21 September 2000 (5) on the proposal subsequently adopted as Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (6),

— having regard to European Extra-Judicial Network (EEJ-Net) launched on 16 October 2001,

— having regard to Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the internal market (7), in particular Article 17 thereof,

— having regard to the Communication from the Commission to the Council and the European Parliament on the biannual update of the scoreboard to review progress on the creation of an area of ‘freedom, security and justice’ in the European Union, in particular chapter 3.1 thereof, of 16 December 2002 (COM(2002) 738),

— having regard to the Opinion of the European Economic and Social Committee,

— having regard to Rule 47(1) of its Rules of Procedure,

— having regard to the report of the Committee on Legal Affairs and the Internal Market and the opinion of the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs (A5-0058/ 2003),

A. whereas access to justice is a fundamental right enshrined in Article 6 of the European Convention on Human Rights and Fundamental Freedoms and proclaimed in Article 47 of the Charter of Fundamental Rights of the European Union,

B. whereas the Union should guarantee that its citizens may enjoy the right of freedom of movement throughout the Union in conditions of safety and justice accessible to all,

C. whereas a true European area of justice must enable European citizens and businesses access to the courts and to the authorities of all the Member States as easily as in their own country, without the incompatibility or complexity of the legal and administrative systems of the Member States preventing or discouraging them from exercising their rights,

D. whereas European citizens in certain Member States find it difficult to gain access to justice, since disputes before the courts have increased in number and procedures have tended to become longer and, in consequence, more expensive,

E. whereas European citizens are increasingly faced with a growing volume of legislative texts, the complexity and technical nature of which make it difficult for them to have access to justice,

F. whereas ADR (particularly on-line) forms part of the whole access-to-justice agenda, especially in the context of cross-border disputes and e-commerce, where it is seen as having the potential to cut through difficult issues of differing law and jurisdiction,

G. whereas, however, ‘justice’ as delivered by the traditional, formal court system is normally regarded as a public good which is an inherent part of the order, values and culture of each society and hence covered by the principle of subsidiarity,

H. whereas, although cross-border disputes are increasing in importance, ADR should not be seen as detracting from the traditional judicial system or from the sacrosanct principle of access to justice as enshrined especially in Article 6 of the European Convention on Human Rights, and must not constitute a means of depriving citizens of access to the traditional judicial system,

I. whereas, notwithstanding this caveat, as far as cross-border disputes are concerned ADR affords the same advantages as it does for the settlement of disputes arising within a single Member State, inasmuch as it is a potentially cheaper option than traditional legal services and takes some cases out of the mainstream system, thereby reducing waiting time in courts and affording earlier access to other litigants and, as far as litigants are concerned, it is potentially cheaper, quicker and less stressful and may also afford them a remedy in that the cost and anxiety of proceedings brought in the judicial system may dissuade consumers from asserting claims,

J. whereas ADR is going through a phase of expansion, experimentation and innovation across Europe and this should not be needlessly hampered by the imposition of burdensome legislation,

K. whereas, however, in keeping with the principle of legal certainty, the enforceability of ADR decisions should either depend on approval by the courts or be established in a notarial act,

L. whereas the advantage of ADR lies in its flexibility, and this should not be compromised by regulation; whereas, nonetheless, there is a need for coherence, common procedural guarantees and common quality standards in order to protect consumers and avoid a proliferation of differing systems as between the Member States, and this could be secured through soft-law solutions, including the issuance of guidelines and codes of conduct, and through the promotion of best practice,

M. whereas dispute settlement in the public courts based on laws enacted by parliaments is one of the contributions to civilisation made by a society based on the rule of law, and ADR serves only to complement this process,

1. Welcomes the fact that the Commission, exercising its right of initiative, has submitted a Green Paper on alternative dispute resolution in civil and commercial law;

2. Notes that the Member States of the Union do not have detailed framework legislation on ADR, and that their legal systems differ greatly in this area;

3. Takes the view that ADR should be permitted as a non-binding option to be encouraged, on the basis, however, that Member States may propose ADR to both parties as a preliminary option to access to the courts, whilst not undermining the parties rights to take action through the courts if necessary;

4. Advises the Commission that, whilst some degree of coherence and coordination in the provision of cross-border ADR is desirable, it should adopt a cautious approach and undertake in-depth studies and wide-ranging consultations before proposing any legislative initiatives; it should promote self-regulatory initiatives and avoid any approach which would reduce the flexibility and autonomy of the parties or create new trade barriers vis-à-vis third countries; however, the Commission might consider the further development of the principles applicable to extrajudicial bodies involved in the consensual resolution of consumer disputes in the light of the follow-up given to the present recommendation; in the first instance the Commission should prepare a follow-up Green Paper concentrating on the goal of building up capacity in the field of ADR, developing standards for ADR, improving quality and benchmarking, so as to achieve both coherence and consumer confidence in the use of ADR;

5. Considers that there is a need for a common definition of terms and that differing approaches and principles will have to be adopted in respect of ADR, depending on the area of law concerned (commercial law, family law, labour law), those having recourse thereto and the context in which they do so (business/consumer transactions, business to business transactions), whether it is court-induced or takes place by agreement between the parties, whether it is conducted on-line or off-line and whether it is appropriate and relevant in the light of, inter alia, national practices and procedures;

6. Proposes that a follow-up Green Paper should consider a future Europe-wide model code encompassing at least the following minimum procedural guarantees:

(a) the use of ADR in cross-border disputes should not prejudice access to justice in any way;

(b) both parties, in particular where they come from different Member States, should recognise the dispute-settlement procedure;

(c) the third party conciliator or mediator should be independent and impartial; it should be established that the neutral third party has a duty to assist the parties where necessary, while maintaining his or her impartiality;

(d) there should be a duty of confidentiality in so far as matters disclosed by party A to the dispute to the mediator/conciliator should be disclosed to party B or a third party only with party A's consent;

(e) the principle of fairness (principles of natural justice) must be sacrosanct;

(f) ADR should be consensual and the parties should be fully informed of the scope of the ADR and of the enforceability of decisions; in certain cases, the parties should be guaranteed a minimum coolingoff or reflection period before agreeing to the results of mediation; expiry of a time-limit for recourse to ADR should not result in a denial of access to the courts;

(g) in general, consumers should always be able to go to court if they are dissatisfied with the result of — even mandatory — ADR, even if only to have the legality of the ADR clause reviewed in accordance with the ratio decidendi of the judgment of the Court of Justice of 27 June 2000 in Joined Cases C-240/98 to C-244/98 Océano Grupo Editorial SA;

(h) formalities should be kept to a minimum and legal jargon eschewed;

(i) records should be kept of ADR decisions and, in principle, published, provided that the parties agree and having due regard to the protection of personal data;

(j) there should be no penalties in the form of costs orders for parties reasonably refusing to have recourse to ADR;

7. Calls on the Commission to encourage the development of a pan-European network of practitioners, professional bodies and other interested parties, involving meetings and the exchange of best practice;

8. Urges the Commission and the Member States to raise public awareness and promote the use of ADR through information campaigns and by involving consumer organisations;

9. Recommends the Commission to improve and reinforce the EEJ Net so as to encourage Member States to make proper provision for good quality ADR and fill the gaps currently existing in this field;

10. Believes that the Union's approach to ADR should be globally oriented and take account of solutions such as the model law proposed by UNCITRAL (United Nationas Commission on International Trade Law);

11. Calls on the Commission to keep the whole sector under review and envisage launching an action programme involving funding for research, the monitoring of pilot projects and the organisation of conferences;

12. Instructs its President to forward this resolution to the Council and Commission and the parliaments of the Member States.

(1) OJ C 19, 23.1.1999, p. 1.

(2) Conclusions, point 30.

(3) OJ L 115, 17.4.1998, p. 31.

(4) OJ L 109, 19.4.2001, p. 56.

(5) OJ C 146, 17.5.2001, p. 94.

(6) OJ L 12, 16.1.2001, p. 1.

(7) OJ L 178, 17.7.2000, p. 1.