The Act on Out-of-court Consumer Dispute Resolution
Facts
The Act on Out-of-court Consumer Dispute Resolution was passed by the Sejm on 23 September (the “Act”). Its main purpose is to regulate the rules on which public (e.g. Trading Standards Authority, Financial Ombudsman) as well as private (e.g. Bank Arbitrator) entities conducting proceedings in out-of-court consumer dispute resolution cases act (“Proceedings”).
Moreover, the intention of the Act is to adapt Polish legal regulations to the legislative package published on 18 June 2013, covering Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes, as well as Regulation (EU) No. 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes (Regulation on consumer ODR).
The new regulation will specify the obligations of entities authorised to resolve out-of-court consumer disputes (“authorised entities”), as well as the rules of conducting Proceedings by them, and will also establish a requirement for them to be entered in a special new register kept by the President of the OCCP. All public entities conducting ADR proceedings will be obliged to participate in the system. They will become entities authorised by law.
The Act introduces the possibility of resolving a dispute between a consumer and a company by an ADR entity (one of the ADR entities entered in the register kept by the President of the OCCP). The system of ADR entities is open (new entities will be able to join it) and mixed, i.e. composed of both business and public ADR entities.
Commentaries
The issue of the kind of claims which entities can pursue in the ADR procedure provided for in the Act requires more extensive comment. The legislator has restricted the scope of application of the Act’s provisions to consumer disputes between a consumer residing in Poland or another EU member state and a company with its registered office in Poland. Excluded from the Act are:
proceedings in which disputes are resolved by persons employed or remunerated exclusively by the company with which the dispute is taking place;
complaint proceedings, consideration of consumer complaints by a company, and direct negotiations between the consumer and the company;
actions taken by the court to resolve a dispute in the course of court proceedings;
out-of-court dispute resolution between companies;
disputes concerning services of a non-economic kind, rendered in the general interest;
disputes arising from agreements concerning health services provided by health service employees to patients in order to assess, maintain or improve their state of health;
disputes arising from agreements whose subject is educational services or services of continual education, provided by public schools or institutions as well as public colleges and universities.
Under the new rules, Proceedings will in principle be started at the consumer’s request. A company will only be able to initiate Proceedings if this is provided for in the regulations on the basis of which the entity authorised to conduct the Proceedings is acting (“regulations”).
The Act imposes specific information obligations on companies with respect to consumers. Firstly, a company which undertook or is obliged, on the basis of separate regulations, to make use of out-of-court dispute resolution with consumers is obliged to provide information to the consumer about the authorised entity appropriate for that company. The information should contain at least the authorised entity’s e-mail address. The company is obliged to make the information available in a manner which is comprehensible and easily available to the consumer on the website (if it has one) or in specimen agreements concluded with consumers (if it uses them). Secondly, if, as a result of a complaint filed by a consumer, a dispute is not resolved, the company is obliged to send the consumer, on paper or on another permanent medium, a statement about the intention to file an application for Proceedings to be initiated or consent to participate in the Proceedings or refusal to participate in the Proceedings. If the company does not file any statement, this will be deemed to mean that it has consented to participate in the Proceedings.
Analysis
One can expect a considerable popularity of amicable proceedings among consumers, as the Proceedings will in principle be gratuitous. The regulations will be able to anticipate the possibility of charging consumers fees, but on condition that their total amount does not significantly make access to the Proceedings difficult for the consumer. The amount of the fees charged will be estimated at the stage of registering an entity. However, the provision in question does not rule out the possibility of the consumer being charged the costs of actions taken at his or her request during the Proceedings (e.g. the costs of appointing an expert).
The authorised entity will be able to resolve a dispute and impose its solution on the parties only if the parties have been informed about the binding character of the solution being the outcome of the proceedings and about the consequences of failing to comply with that solution, and have given their consent to submit to such a resolution.
Finally, it is worth adding that the legislator has made it possible for Proceedings to be conducted both in paper form and electronically. Only in exceptional cases will it be permissible to obligate the parties or their representatives to appear in person. Attention should also be drawn to a regulation by virtue of which initiating Proceedings will interrupt the period of limitation for the claim being the subject of the dispute.
The Act was published in the Journal of Laws of 9 November 2016. It will for the most part enter into force after the lapse of two months from the day of publication – 10 January 2017.