Consumer Law: Protection and Compliance UCC 11 December 2014
Consumer Law: the European Agenda
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Ireland and Europe Shift to Europe 1980s- 1990s Return to
endogenous 2000s -
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European agenda Treaty 1957 5 references 1970s- 1990s
Legislation in context of Harmonisation/Market Integration
Maastricht Treaty 1992: Specific Legislative Competence: Art. 153
(now Art. 169 TFEU) In order to promote the interests of consumers
and to ensure a high level of consumer protection, the Union shall
contribute to protecting the health, safety and economic interests
of consumers, as well as to promoting their right to information,
education and to organise themselves in order to safeguard their
interest.
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Commission moves toward Maximum Harmonisation
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Member States fight-back?
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Current Agenda
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ADR as Alternative to Court Procedure
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European Regulation of ADR: current position Recommendation
98/257/EC and 2001/310/EC (not binding) Outline of principles:
Independence Transparency Adversarial Effectiveness Legality
Liberty to ensure that the decision taken may be binding on the
consumer only if they are informed of its binding nature in advance
Representation to ensure that the consumer has the possibility to
be represented in the procedure by a third party if they wish.
Fairness
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ADR Directive Directive 2013/11/EU on alternative dispute
resolution for consumer disputes To be transposed by 9 July 2015
Application to Binding/non-binding ADR Application to
Domestic/Cross-border ADR Two pronged approach
Availability/Accessibility of ADR Procedural Requirements for ADR
providers
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Availability Member States required to ensure that disputes
covered by ADR Directive can be submitted to an ADR entity which
complies with the requirements of the Directive.
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Accessibility Domestic and cross-border disputes But no
mandatory participation by traders Some scope for refusal by ADR
entities
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Procedural Requirements Impartiality: no conflict of interest
Transparency: annual reports Terms of reference Effectiveness: Ease
of access regardless of location No requirement for legal
representation Free of charge or at moderate cost for consumers;
Time limit of 90 days Fairness
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Enforcement Designation of competent authority Penalties for
traders for non- compliance with information requirement
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ODR as a form of ADR Dispute Resolution which uses technology
to resolve/help to resolve disputes between parties Technology: the
fourth party Consensus building Decision-making Interaction Can
apply to disputes arising online/offline Particularly appropriate
in B2C eCommerce
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ODR Regulation in Europe Provides for Establishment of European
ODR platform to Complements ADR Directive
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ODR Regulation in Outline Public/Private mix Single Platform
Web-interface to act as hub Linked to European Consumer Centres in
Member States No submission fees for consumers Own language
facility But ODR providers may charge reasonable fee and may use
other language Traders not required to participate but will have to
provide information to consumers about platform
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Timeline for Implementation 9 Jan 2015: Testing of technical
functionality/user friendliness (inc privacy requirements) ODR
Regulation in force from 9 Jan 2016 except Provisions re relevant
network points: from 9 July 2015 Provisions re establishment of
databases etc from 8 July 2013
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ODR Regulation in Operation: art. 9 Initial Stages in the
Process Completion of electronic complaint form Transmit to
respondent without delay + names of competent ADR entities Invite
respondent to name ADR entity Obliged or prepared to use 10 day
time limit ODR entity transmits complaint to named ADR entity
Without delay ADR entity accepts/declines Without delay If ADR
entity accepts 90 days to resolve
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Mortgages Directive
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Application (a) Credit agreements which are secured either by a
mortgage or by another comparable security commonly used in a
Member State on residential immovable property or secured by a
right related to residential immovable property; and, (b) Credit
agreements the purpose of which is to acquire or retain property
rights in land or in an existing or projected building.
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Possible exemptions Buy-to-let mortgages; Credit agreements
relating to credit granted to a restricted public under a statutory
provision with a general interest purpose, free of interest or at
lower borrowing rates than those available on the market Bridging
loans; Credit agreements with non-profit mutual societies
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Basic Requirements Information Withdrawal/reflection Tying
Credit-worthiness/suitability Advisory Services Early Repayment
Arrears and Foreclosure
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Payment accounts Directive Aims: to facilitate comparability of
bank account fees to facilitate switching between payment accounts;
to provide access to basic payment accounts.
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Comparability of fees Standard terminology across Member States
List of Main Services
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Switching Accounts A switching service must be provided by
payment services providers.
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Access to Basic Payment Account At least one payment service
provider per member state must offer a payment account with basic
features to consumers at no or minimal cost and not solely online
banking facilities