Local view for "http://purl.org/linkedpolitics/eu/plenary/2000-09-20-Speech-3-167"
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Mr President, ladies and gentlemen, the Commission wishes to begin by expressing its pleasure at the fact that this proposal has received not only the careful attention that the European Parliament gives to all of our proposals, but also because this represents work of the highest quality, which shows the great commitment of its rapporteur, Mrs Wallis, whom I should like to congratulate in particular, and of the Committee on Legal Affairs and the Internal Market, chaired by Mrs Palacio.
This action would, however, have two consequences for Article 15. First of all, its wording needs to be adapted so that it does not limit the scope of Article 15 to contracts concluded in the consumer’s home, which is an impossible condition to establish for contracts concluded electronically. We are therefore not inclined to retain the first part of Amendment No 23. Secondly, it is important to point out that, because of the amendment I have just mentioned, “presential” contracts are also covered by Article 15. By “presential” contracts, I mean those that are concluded face to face. I am thinking here of situations in which the vendor, even if he or she has been contacted by the consumer, via the Internet for example, has gone to the consumer’s home in order to conclude the contract there. I also have in mind contracts where the consumer has been given an incentive, at the initiative of the other party, the co-contractor, even to leave the state in which he or she is domiciled in order to conclude the contract, as happens, for example, in contractual situations involving holidays organised by the suppliers themselves. If these stipulations are guaranteed, we feel that the phrase “contract concluded at a distance” would be much more appropriate to the situations I have been describing.
On the other hand, we have problems with Amendment No 24, which concerns Article 16. Our view is that this amendment would mean applying the general rule of the jurisdiction of the Member State in which the defendant is domiciled and using the courts to override all of the common provisions of European Union and Member State consumer law as they stand today. As I see it, such an amendment would, in fact, render useless any provision in the field of consumer contracts, notably Article 15 itself. Apart from this, unless I am mistaken, this would leave consumers in a worse situation than that of an operator who is bound by a business-to-business contract, and who would be able to choose between having the case heard in a court in the defendant’s state of domicile and a court in the place where the contract was concluded.
The same thing applies to the amendment seeking to open up the system laid down in the Brussels Convention on jurisdiction clauses in consumer contracts. I am referring here to Article 17. The Commission feels that Amendment No 26 is unacceptable since the clauses that are proposed would, in our opinion, be systematically used by the supplier, unless, of course, they were based on free and individual negotiation on the part of the consumer. The new Article 17(a) that has been proposed seeks to replace the guarantees provided by the courts by an extrajudicial and binding system of dispute resolution. The issue of the binding nature of these decisions is extremely important. My view is that this proposal would create a compulsory arbitration system for resolving these consumer disputes. As I see it, however, arbitration generally follows more complex procedural rules than those applied by the courts. I feel that the solution put forward in this proposal would present legal problems with regard to the law applicable and to the implementation arbitration awards.
This concern on the part of the Commission would also apply to Amendment No 39, to which various Members have put their name. We understand the intention of this amendment, which establishes the freedom of the parties to agree upon a ‘get-out’ clause for an extrajudicial mechanism for dispute resolution, and lays down that this mechanism, which may be binding on both parties and which has the Commission's approval, enables the supplier to refuse to enter into the transaction if the consumer does not accept the clause. Presumably, whether
or
applies, this would always be in accordance with Directive 93/13/EEC on abusive clauses. I believe that this amendment would raise similar difficulties in law. I shall not go into further detail about the idea contained in this amendment that an abusive clause would never be involved, but the truth is that by relying on the binding nature of the decision of the ADR (Alternative Dispute Resolution) body on both parties and therefore on the consumer, we would be opting as a general rule to compulsorily replace the courts with extrajudicial dispute resolution mechanisms. Such a solution would, in fact, raise constitutional issues in some Member States, in which it is not possible to prohibit access to the courts, even if only as a last resort, and would open the way for an interpretation of what is a question of law and what is a question of fact in this type of contract which, in my opinion, would vitiate the efficiency and speed of the system.
The Commission’s view is that this regulation should not depend on the adoption of a package of legislative and non-legislative measures on e-commerce between companies and consumers. We feel sure that actions we have already launched and which are now up and running will enable alternative dispute resolution mechanisms to be put in place shortly and will enable us to provide a rapid response to the challenges of settling disputes arising from e-commerce. I would remind you of the revision of the Commission’s 1998 recommendation on the principles applying to alternative dispute resolution bodies, which in fact form the basis of what is known as the EEJ-Net – the European Extrajudicial Network – which has already been launched. Similarly, under the e-Europe initiative, which was adopted by the Feira European Council, the Commission is currently actively working on formulating proposals for codes of conduct, trust marks and extrajudicial procedures for the extrajudicial resolution of disputes arising from e-commerce. The Commission has also been given the task of preparing a Green Paper solely devoted to alternative methods of dispute resolution, as was decided by the Justice and Home Affairs Council of May of this year.
All of this is currently being done and is part of our short-term work programme. In another area, that of minor disputes heard by the so-called "small claims" courts, we have already initiated work in line with the Tampere mandate, to simplify and speed up the processing of trans-border disputes involving small or uncontested sums. We are therefore convinced that these initiatives, which are already under way, and on which there will have to be a full debate with civil society, with interested parties, with associations representing industry, business and consumers and, of course, with the European Parliament, will enable us to put in place, in the short term, a legal reference framework which will establish alternative dispute resolution mechanisms. We therefore think that, in order to allow this process some time in which to develop, it would be appropriate if the entry into force of this regulation were postponed for a few months. We propose that this should wait until six months after its publication, not only so as to enable operators to become fully conversant with the regulation, but also so as to enable the work that is currently under way on alternative means for dispute resolution to be concluded.
Lastly, the Commission wishes to state that it is able to accept Amendments Nos 3, 27 and 30 on the introduction of provisions on trusts, with the reservation that some small changes are made to the terminology used. We can also accept Amendment No 22, on group insurance contracts, Amendments Nos 28, 29, 33 and 34, which allow notaries to be included in the authorities that are able to take part in the
procedure. We also accept Amendments Nos 18 – in part – and 29, but we have difficulty in accepting Article 55, which seeks, for the purposes of compulsory implementation, to give extrajudicial dispute resolution the same status as authentic acts that have been recognised by a body which has public authority.
Mr President, forgive me for being more of a bore than I usually am, but the valid arguments and especially the passion of the criticisms that have been made deserved a frank answer from the Commission. The Commission is humble enough to say that it has learnt from this legislative process and that you can be quite sure that this work will not end here.
The "Amsterdamisation" of the Brussels I Convention is, as you know, one of the priorities of the French Presidency. From the Commission’s point of view, the issue is to adopt a legal instrument which will enable us to define clear and transparent rules which everyone can accept. These rules are necessary if we are to be able to harmoniously apply the principle of mutual recognition of legal judgments, which will, of course, involve a debate on determining the principles and rules that apply to the competence of the Member States’ courts when they rule on trans-border disputes.
The scope of this regulation is therefore very broad. First of all, it contains a principle which I believe is universally accepted today: that of the jurisdiction of the courts in the Member State in which the defendant is domiciled. To achieve greater flexibility and to adapt more efficiently to the specific needs of the parties in a given dispute, the proposal for a regulation lays down alternative rules for jurisdiction, essentially the jurisdiction of the courts in the Member State of the place where the contract was concluded or of the place where the damage was done in the event that an offence has been committed. The regulation also lays down rules for the protection of the weaker party to consumer contracts, that is to say the consumer, but I shall return to this subject in greater detail later. It also lays down rules for the protection of workers and insurance policyholders, who are deemed to be the weaker parties to such contracts. As long as certain conditions are met, these parties have the right to bring a case before a court in the Member State in which they reside. This is the broad legal framework.
I understand – and I feel that it is important to make this clear to the House – that the proposed regulation is a horizontal instrument, which can be applied, in a general way, to both civil and commercial matters. It covers both contractual and non-contractual matters. It is therefore worth bearing in mind that in the field of contracts, we are dealing with legal rules on general contracts between companies, between companies and consumers, and even contracts between private individuals. Various types of special contract, such as employment or insurance contracts, are therefore dealt with separately. Having said this, my concern is to emphasise the fact that although we recognise that the debate has naturally become polarised around one aspect of the regulation’s implementation, namely that concerning the new rules on e-commerce, this regulation covers more than just this one area. There is an enormous and immediate advantage in moving towards adopting a regulation on this matter on the basis of civil judicial cooperation.
Let us move on now to the issue that has aroused the most passion in the debate, which concerns consumer contracts concluded electronically, in other words, the amendments to Articles 15, 16 and 17. First of all, I wish to say, on behalf of the Commission, that our proposal, which defines rules for judicial competence, is not seeking to come down on the side of judicial procedures at the expense of an alternative dispute-resolution system. This is not a dogmatic proposal seeking to enshrine the legal approach and to reject the choice of extrajudicial approaches to dispute resolution. Quite the contrary. The Commission shares the concern that honourable Members have expressed about the fact that perhaps in an increasingly general way, but particularly where e-commerce is concerned, the extra-judicial resolution of disputes is, without a shadow of a doubt, a much better solution in most cases than resorting to judicial procedures. This is not only because in most cases, in this type of contract, the sums involved today are, as we know, relatively small. Also and above all, it is because the speed with which these contracts are concluded by electronic means is in stark contrast to the excessive formality and slowness with which courts tend to act when resolving these disputes.
The Commission does not, therefore, recognise itself in the portrait that you might wish to paint of us, that is one of a nineteenth century dinosaur, or an even older one, if you prefer. We do not see ourselves in this light because, as you know, anthropologically speaking, dinosaurs no longer existed in the nineteenth century. We are not dinosaurs, fiercely resisting the adoption of alternative methods for resolving disputes and obsessively pursuing the notion that the courts are always the solution to all ills. This is not the Commission’s position. I even think that the extremely intensive work that we have been carrying out, which I will shortly discuss in greater detail, to promote alternative means for resolving disputes at European level is tangible proof that instead of merely making grandiose statements, we are working on the ground to implement mechanisms for alternative forms of dispute resolution.
Furthermore, we are convinced that it is possible to make use of new communication technologies, such as the Internet, the new network concept and flows to facilitate extrajudicial dispute resolution. That is why I would say that the commitment to responding to the challenges that have been set for us here is not so much a question of a making a dogmatic choice of legal solutions. It is rather a question of our ability to give credibility to alternative mechanisms for dispute resolution and to give consumers and business people confidence in these mechanisms. Probably the greatest tribute that we could pay to this debate would be to say in a few years’ time that we wasted a great deal of time on a highly legalistic debate that in practice was shown to have no real importance at all.
In other words, the best way of honouring this debate would be to see if we can create a system for dispute resolution that renders the debate on access to the judicial process almost obsolete. Why is it that we cannot avoid discussing the issue of the judicial approach? It is because the Commission does, in fact, share the idea that extrajudicial resolution must become the rule but that, in order to provide an incentive for people to seek recourse to this extrajudicial approach, there must be clear principles for the alternative, that is the judicial route. There must therefore be rules on the jurisdiction of the courts in those cases – which the Commission hopes will be rare – where an alternative form of resolution is not possible or does not produce a satisfactory result.
Accordingly, with regard to consumer contracts the Commission found the discussion in the Committee on Legal Affairs extremely useful and takes the view that the second part of Amendment No 23 contains a principle which is considerably clearer and more reliable than that contained in our original proposal. The phrase ‘directs such activities to’ is an ambiguous one, which could cause problems by being open to interpretation and could drag us into a never-ending discussion on what are positive, active or passive web sites. We therefore feel that it would be helpful to replace this phrase with “contracts concluded at a distance”. We are prepared to incorporate this phrase into the amended proposal."@en1
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