Euro Mediation

Alternative Dispute Resolution at the European Community Level

     

EUROPEAN PARLIAMENT

Session document

FINAL

A5-0058/2003

21 February 2003

REPORT

on the Commission Green Paper on alternative dispute resolution in civil and commercial law

(COM(2002) 196 – C5-0284/2002 – 2002/2144(COS))

Committee on Legal Affairs and the Internal Market

Rapporteur: Diana Wallis

CONTENTS

PROCEDURAL PAGE

MOTION FOR A RESOLUTION

EXPLANATORY STATEMENT

OPINION of the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs

PROCEDURAL PAGE

By letter of 19 April 2002, the Commission forwarded to Parliament its Green Paper on alternative dispute resolution in civil and commercial law (COM(2002) 196 – 2002/2144(COS)).

At the sitting of {01/07/2002}1 July 2002 the President of Parliament announced that he had referred the Green Paper to the {JURI} Committee on Legal Affairs and the Internal Market as the committee responsible and the Committee on Citizens' Freedoms and Rights, Justice and Home Affairs, the {EMPL} Committee on Employment and Social Affairs, and the Committee on Environment, Public Health and Consumer Policy for their opinions (C5-0284/2002).

The {JURI} Committee on Legal Affairs and the Internal Market had appointed Diana Wallis rapporteur at its meeting of 22 May 2002.

It considered the Commission Green Paper and the draft report at its meeting of 3 December 2002, 28 January 2003 and 20 February 2003.

At the last meeting it adopted the motion for a resolution unanimously.

The following were present for the vote: Willi Rothley, acting chairman; Diana Wallis, rapporteur; Paolo Bartolozzi, Michel J.M. Dary, Bert Doorn, Janelly Fourtou, Marie-Françoise Garaud, Fiorella Ghilardotti, Malcolm Harbour, The Lord Inglewood, Piia-Noora Kauppi (for José María Gil-Robles Gil-Delgado), Carlos Lage (for Carlos Candal pursuant to Rule 153(2)), Kurt Lechner, Klaus-Heiner Lehne, Neil MacCormick, Arlene McCarthy, Ria G.H.C. Oomen-Ruijten (for Giuseppe Gargani pursuant to Rule 153(2)), Manuel Medina Ortega, Marcelino Oreja Arburúa (for Rainer Wieland), Carlos Ripoll y Martínez de Bedoya (for Joachim Wuermeling), Anne-Marie Schaffner, Ioannis Souladakis (for Maria Berger pursuant to Rule 153(2)), Marianne L.P. Thyssen and Stefano Zappalà.

The opinion of the {EMPL} Committee on Citizens' Freedoms and Rights, Justice and Home Affairs is attached; the Committee on Employment and Social Affairs decided on 15 May 2002 not to deliver an opinion. The Committee on the Environment, Public Health and Consumer Policy decided on 10 July 2002 not to deliver an opinion.

The report was tabled on 21 February 2003.

MOTION FOR A RESOLUTION

European Parliament resolution on the Commission Green Paper on alternative dispute resolution in civil and commercial law (COM(2002) 196 – C5-0284/2002 – 2002/2144(COS))

The European Parliament,

- having regard to the Commission 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, in particular paragraph 41(b) - adopted by the Justice and Home Affairs Council on 3 December 1998,

- having regard to the conclusions of the Tampere European Council calling for the creation of alternative extrajudicial procedures;

- 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 de Feira European Council of 19 and 20 June 2000, in particular paragraph 22, in which it endorses 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 recommendations on the principles applicable to the bodies responsible for out-of-court settlement of disputes and on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes,

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

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

- having regard to the e-commerce directive, 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, 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),

Whereas access to justice is a fundamental right sanctioned 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,

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,

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,

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,

Whereas European citizens are increasingly encountering a growing volume of legislative texts, the complexity and technical nature of which make their access to justice difficult,

F. Whereas ADR (particularly on-line) is 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 - very much a 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 located within a single Member State, namely it is potentially a cheaper option than traditional legal services and takes some cases out of the mainstream system, thereby reducing pressure on waiting time in courts and securing 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 in a period 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 constituted 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 introduced by parliaments is one of the constitutional State’s contributions to civilisation, 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 ADRs, and 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, although Member States may propose ADR to both parties as a preliminary option to access courts, whilst not undermining parties’ rights to take action through the courts if necessary;

4. Advises the Commission that, whereas some degree of coherence and coordination in the provision of cross - border ADR is desirable, it should be cautious and undertake in-depth studies and wide-ranging consultations before considering proposing any legislative initiatives ; it should promote self-regulatory initiatives and avoid any approach which would reduce flexibility and party autonomy or create new trade barriers vis-à-vis non-member countries; however, the Commission might consider the further development of the principles for out-of-court 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 capacity in ADR, the development of 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 to have 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 (commercial law, family law, labour law), its users (businesses/consumers, business to business) , whether it is court-induced or conventional, on-line or off-line and whether it is appropriate and relevant in the light, inter alia, of 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 third party neutral has a duty to assist 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 parties should be fully informed of the scope of the ADR and of the enforceability of decisions; in certain cases, parties should be guaranteed a minimum cooling-off 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 the 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 in existing ADR provision;

10. Believes that the Union's approach to ADR should be globally oriented and take account of solutions such as the UNICITRAL model law;

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

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

EXPLANATORY STATEMENT

Content of the Green Paper

The Green Paper is concerned with alternative dispute resolution defined as an out-of-court dispute resolution process, excluding arbitration properly so called.  Arbitration is highly regulated nationally and internationally and is more akin to a quasi-judicial procedure.  The Commission asserts that there is growing interest in ADR in the EU for three main reasons:

(a) increasing awareness of ADR as a means of improving access to justice;

(b) ADR has received close attention from the Member States, many of which have passed legislation encouraging it;

(c) ADR as a political priority particularly in the context of e-commerce (on-line dispute resolution).

The Green Paper was produced at the Council's request in order to take stock of the current situation and launch broad consultations on the possible need for common European provisions. It has also constituted an opportunity to familiarise a broader public with the existing rules and regulations and to make the initiatives taken by Member States and the Community more highly visible.

The questions put in the Green Paper are primarily legal, and concern matters such as ADR clauses in contracts, limitation periods, confidentiality, the validity of consent, effectiveness of agreements generated by ADR processes, training of third parties, their accreditation and rules on liability and insurance. The Green Paper also asks whether any initiatives taken should be confined to defining principles applicable in individual areas of law (commercial law, family law, etc) or whether general principles should be drawn up for ADR in the civil and commercial field. Initiatives already taken in the fields of consumer protection and family law are examined with a view to possibly developing them further.

The Green Paper also considers whether the development of ADR in labour relations should be boosted by creating European mechanisms. Finally, the Commission asks whether Member States' legislation in areas such as family law should be harmonised with a view to achieving some degree of communality with regard to procedural guarantees.

The rapporteur's approach

The rapporteur is sympathetic to the idea of ADR as a cheaper, less confrontational and more consensual approach than that afforded by the judicial system.  However, she is anxious that it should not deprive citizens of their right to their day in court.  She appreciates that it affords a solution to a number of the jurisdictional problems raised by cross-border disputes, particularly on-line, but considers that, in order to safeguard consumers, certain procedural guarantees should be respected.

The rapporteur is conscious that ADR may be used in many different areas of law, for which different requirements will have to apply, and in different contexts (on-line and off-line; court-induced and voluntary ADR).  She feels that, in some respects, the Commission's Green Paper fails to distinguish sufficiently between the different types of ADR and depending on the type of user (consumers/businesses).

This having been said, the rapporteur feels that there is at present little need for legislation in this area, but rather for recommendations, codes of conduct and exchanges of best practice.  She would also like to see the Commission raising public awareness of the existence and advantages of quality ADR, among other things by improving and strengthening the EEJ Net.