EU has sought to address problems of rights enforcement and access to justice in consumer disputes. The EU Commission has set up a network of European Consumer Centres which offer free consumer advice for EU residents buying good or services from a trader based in another state.
The EU Commission has sought to make judicial procedures more simple and less costly. The European Small Claims procedure applies as an alternative to national procedure. The Legal Aid Directive provides minimum requirements for legal aid in cross-border disputes.
The Brussels and Rome Regulations provide that in most cases, consumer disputes are to be governed by the law and heard in the place where the consumer has his place of habitual residence.
There is provision for cooperation for the enforcement of consumer protection laws between states. There is provision for injunctions an on the protection of consumer interest.
A consumer protection cooperation network is established. There is a framework for cooperation between national enforcement authorities.
A 2009 Directive requires independent public bodies to seek injunctions where the infringement is harmful so that the collective interest can be protected in good time.
Consumer Protection Mechanisms
A directive on consumer protection injunctions is aimed at preventing practices which are harmful to the consumer’s collective interest. States are obliged to introduce provisions to prevent violation of EU consumer protection rules in the area of misleading advertising, consumer credit, unfair contract terms, unfair contract practices, package travel et cetera.
Consumer associations and public organisations in charge of consumer protection may bring injunctions to protect consumer’s collective interest. The injunction may lead to the publication of the decision or an amended declaration to eliminate the effects of the infringement. It may involve an order against the infringer or for payment of a penalty in the event of failure of compliance with the decision within a time limit.
In the case of an offence within an EU state which adversely affects the collective interest of consumers, any qualified entity in the state may institute an action for an injunction. This does not affect the rights of consumers to obtain compensation for damage suffered. Member state must notify the EU commission of entities qualified to bring actions for an injunction in other EU state.
Before bringing an action for an injunction, member states may envisage a prior consultation procedure between their infringer and the qualified entity with a view to encouraging a negotiated solution. If the infringement is not terminated within two weeks following receipt of the request for consultation, an action for an injunction may be brought. States may extend the possibility of bringing an action for an injunction to other persons.
Consultation Between States
An EU regulation provides for judicial cooperation between member states with a view to protecting consumers against fraudulent traders. The regulation establishes a network of authorities responsible for monitoring application of the legislation concerning consumers. Each state must designate a competent authority and a single liaison officer responsible for the application of the regulation. They must have investigation and enforcement powers.
Authorities must act without delay in putting an end to infringement identified using appropriate legal means. This will often be an injunction which allows speedy action.
There is a framework for mutual assistance which covers exchange of information, request for enforcement measures and coordination of surveillance and enforcement.
When an authority becomes aware of cross-border infringement it must notify the authorities of the other states and the Commission. It must supply all required information to establish whether the infringement has occurred. It must take enforcement measures to bring about the cessation or prohibition of the infringement.
The request for mutual assistance must contain sufficient information to enable the request to be fulfilled.
The EU small claims procedure is established by EU-wide regulation. It is intended to improve access to justice by simplifying cross-border small claims litigation in civil and commercial matters.
Claims may be for sums under €2,000 excluding interest, expenses, and disbursements. Judgements delivered under the procedure are recognised and enforceable in other states without the need for a declaration of enforceability.The European small claims procedure does not require a lawyer.
It involves the following steps.The claimant fills the standard form specified in the regulation giving details of the claim sums demanded. He lodges it with the court by means of communication acceptable to the state. If the claim is outside the regulation the court must notify the claimant. If it is not, the court will proceed in accordance with the applicable procedural law.
If the claimant does not provide enough information, the court will request the missing or incomplete information. The claim will be rejected if it is not completed or corrected within the specified time limit or if it is manifestly unfounded or inadmissible.
Once the properly completed claim is received, the court prepares a standard answer form. This together with the claim and supporting documents is served on the defendant by post and dated acknowledged of receipt within 14 days. The defendant replies within 30 days. He then gets 30 days to prepare and return his response counting from the date of service of the answer form.
The defendant’s response is also forwarded to the claimant. Within 14 days of the response, the court follows the copy to the claimant and any supporting documents.
Any counterclaim by the defendant serves in the claimant in the same way. The claimant has 30 days to respond. If the counterclaim is for more than €2,000 both are dealt with in accordance with the relevant laws of the state.
The claim must be submitted in the language of the court as must the response and counterclaim. The court can require a translation of documents received in another language if they seem to be necessary for giving the judgement. If a party refuses to accept a document because it is in a language he does not understand, the court will notify the other party so that he can supply a translation.
The court determines the extent of the evidence necessary for judgement and the means of taking it. It should be the simplest and least burdensome method.Oral hearings are only held where they are necessary or requested. They may be refused if they are obviously not necessary for the fair conduct of proceedings. They may be conducted with video conference or communication technology. The costs are borne by the unsuccessful party.
The claims procedure applies to cross-border cases. That is cases when at least one party is domiciled habitually resident in a state other than that where the action was brought.
In order to decide whether a person is domiciled in the state of the court, the internal law applies. If the party is not domiciled in that state, the court determines whether he is domiciled in another state by applying the law of that state. Companies are domiciled where they have their registered office, central administration or place of business.
Judgement is given within 30 days of receipt of the defendant’s response or response to counterclaim. The court may ask for further information and the parties have 30 days to respond. The court made takes evidence in the matter and summons the parties for a hearing within 30 days. In these cases, the court gives judgment within 30 days of receiving information or of the hearing. If the parties do not reply in time, the court will give its judgement.
Judgments are recognised and enforced throughout member states. A certificate of judgment is issued at the request of either party.
There is provision for appeals against the European small claims procedure. The defendant can apply to the court that gave the judgement for review when
- the claim or summons was not served by a method with proof of receipt to him personally
- services was not effected in time for him to prepare his defence without fault on his part
- he was prevented from objecting to the claim by reason of force majeure or due to extraordinary circumstances, not due to his fault.
In these cases, the defendant must act promptly.
Enforcement of Consumer Claims
Enforcement is covered by the law of the place in which the enforcement is to take place. The person seeking enforcement produces an original copy of the judgement and certificate translated by a qualified person into the language of the state of enforcement. He need not have an authorised representative or postal address in the state other than agents competent to carry out the enforcement procedure. The authorities cannot require any security or bond on the basis of the claimant being bound or non-domicile.
The enforcement may be refused if
- it is irreconcilable with an earlier judgement in the same matter
- the earlier judgement was given in the state of enforcement or fulfils the conditions necessary for recognition
- the irreconcilability of judgments was not or could not have been raised as an objection to the proceedings in the court with the
- judgement in the European small claims procedure was given.
The legislation does not apply to revenue, customs, and administrative matters. It does not apply to
- Employment law
- Tenancies of property except monetary claims
- Status and capacity of legal persons
- Bankruptcy and similar procedures
- Social security