Opinion of the Advocate General — ECLI:EU:C:2009:720
Date: 2009-11-19
Language of the case: Italian
Subject matter: Telecommunications
Procedure: Reference for a preliminary ruling
Origin: Italy

summary, Directive 2002/22 does not provide any indication whether a mandatory out-of-court dispute resolution procedure is permissible or not. Therefore, that question is to be assessed only in the light of the principle of effective judicial protection. 2. Principle of effective judicial protection 37. According to settled case-law, the principle of effective judicial protection is a general principle of Community law stemming from the constitutional traditions common to the Member States, which has been enshrined in Articles 6 and 13 of the European Convention on the Protection of Human Rights and Fundamental Freedoms. (13) Furthermore, this principle was reaffirmed by Article 47 of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 7 December 2000. (14) 38. It must be pointed out at the outset that national legislation is to be reviewed in the light of the general principles of Community law only where it falls within the scope of application of Community law. (15) 39. Directive 2002/22 establishes substantive rights for end-users of telephone services. Given that the mandatory dispute resolution procedure affects the legal enforcement of the substantive rights arising under that directive, the present case falls within the scope of application of Community law. 40. In principle, it is for the national laws of each Member State to put in place procedures for the enforcement of Community law and to adopt procedural rules governing legal actions. At the same time, Member States are not entirely free to choose the procedural rules they put in place with regard to the application of Community law. 41. According to the Court’s settled case law, procedures aimed at safeguarding the enforcement of individuals’ rights under Community law must be no less favourable than those governing similar domestic situations (principle of equivalence). What is more, they must not render practically impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness). (16) 42. In respect of the judicial enforcement of Community law, the principle of effectiveness is an expression of the general principle of effective judicial protection. Therefore, I shall review the case first in the light of the general principle of effective judicial protection. Subsequently, I shall discuss the question of equivalence. 43. According to the Italian provisions, court proceedings must be preceded by an attempt at out-of-court dispute resolution. If no attempt at dispute resolution is made, such proceedings will be inadmissible. That provision thus creates an additional hurdle in respect of access to the courts. Much like any other condition governing admissibility, a mandatory requirement that an attempt be made to settle the dispute limits access to the courts. The principle of effective judicial protection is thus infringed. 44. The right to effective judicial protection is not granted unconditionally. Rather, access to judicial protection may be restricted. Every judicial procedure requires procedural rules and conditions governing admissibility. In this respect, Member States have a particularly broad discretion. As the Court has held in connection with compliance with procedural rules, restrictions must actually correspond to objectives in the general interest and must not be disproportionate with regard to the objective pursued in a way that infringes upon the very substance of the rights guaranteed. (17) 45. At the hearing, the Italian Government submitted that the aim of the mandatory requirement that an attempt be made to settle the dispute is the quicker and less expensive resolution of disputes. A quicker and less expensive resolution of disputes is, first of all, in the interest of the parties. At the same time, it lightens the burden on the court system as a whole and thus enhances the effectiveness of the administration of justice by the State. (18) Finally, an agreement which the parties have reached out-of-court is frequently more likely to bring about the long-term resolution of the dispute than a judicial decision with which the parties are dissatisfied. (19) Accordingly, the Italian provisions pursue legitimate objectives in the general interest. 46. Introducing a mandatory requirement that an attempt be made to settle the dispute out-of-court is suitable for the attainment of those objectives. 47. However, the introduction of a mandatory dispute resolution procedure is necessary only where dispute resolution that is merely optional is not an equally suitable, but less restrictive means of attaining the above objectives. However, I must concede to the Italian Government that an out-of-court dispute resolution procedure that is merely optional is not as efficient as a mandatory one that must be conducted before any legal action can be brought. The German Government also rightly points out that experience has shown that even in situations in which one or even both parties refuse to attempt to settle the dispute, the chances are that, during the procedure itself, opportunities for achieving a resolution of the problem that the parties did not recognise at the outset become apparent. 48. Finally, there is no great conflict between the stated aim of a quick and inexpensive resolution of a legal dispute reflecting the interests of the parties and the possible disadvantages that might result from the obligation to conduct a mandatory dispute resolution procedure. This is the case because the infringement of the right to judicial protection represented by the requirement to attempt out-of-court dispute resolution must be regarded as minor, so that the advantages associated with that procedure far outweigh any possible disadvantages. 49. On the one hand, the dispute resolution procedure that must precede legal action will delay the start of that legal action by very little. Article 3 of Annex A to Decision 173/07/CONS stipulates that the out-of-court procedure must be completed within 30 days of the date an attempt at settlement was requested. Even where this is not the case, the parties may commence legal proceedings after that deadline has expired. 50. Moreover, as already explained above, (20) out-of-court dispute resolution is inexpensive. 51. Furthermore, for the duration of the attempt to achieve a settlement, the period of limitation for any claims is suspended. Therefore, attempting to achieve a settlement poses no risk in respect of the enforcement of rights. 52. In its order for reference, the referring court criticises one formal aspect of the dispute resolution procedure which might lead to the entire procedure being viewed as a disproportionate infringement. The referring court explains that the forms that must be used to apply for dispute resolution can be found on the internet site of the regulatory authority. That constitutes an obstacle for those claimants who do not have access to a computer. I agree with the referring court that, if it is true that dispute resolution can be applied for only by using a certain form which can be accessed only through the internet, access to dispute resolution – and with that, also, in the final analysis, to legal action – will be rendered considerably more difficult for persons without access to the internet. If this is indeed so, I take the view that there is a disproportionate infringement upon the right to judicial protection. 53. However, Article 13(1) of Annex A to Decision 173/07/CONS provides merely that an application may also be submitted electronically. The legal provisions submitted to the Court do not reveal that the necessary forms are available only through the internet. It is for the national court to examine, definitively, whether a potential claimant can reasonably be expected to access the forms needed for the dispute resolution procedure by different means. 54. Finally, I must examine the two recommendations on which the referring court seeks clarification. Contrary to the view of the referring court and the Polish Government, they do not call into question the validity of the conclusions set out above. Both Recommendation 98/257 (in recital 21 in its preamble) and Recommendation 2001/310 (in recital 14 in its preamble) refer to the fact that out-of-court procedures are not to replace judicial proceedings, for which reason persons who resort to out-of-court procedures must not be deprived of their right to bring the matter before the courts. However, the Italian provisions are not inconsistent with those recitals. The Italian provisions do not provide for the out-of-court procedure to stand in the place of court proceedings and access to the courts is therefore not denied, but at most delayed by a maximum of 30 days. 55. Moreover, Directive 2008/52 on certain aspects of mediation in civil and commercial matters (21) supports that finding. Even though that directive does not apply to the present case, it reflects an approach that may be applied to the circumstances of this case. Article 5(2) of Directive 2008/52 states that that directive is to be without prejudice to national legislation making the use of mediation compulsory or subject to incentives or sanctions, whether before or after judicial proceedings have started, provided that such legislation does not prevent the parties from exercising their right of access to the judicial system. As shown, the Italian provision fulfils those conditions; in particular, access to the judicial system is merely delayed. 56. Finally, the provisions at issue in the main proceedings do not infringe the principle of equivalence. According to that principle, the detailed procedural rules governing actions for safeguarding an individual’s rights under Community law must be no less favourable than those which apply to similar situations which are governed only by domestic law. (22) In response to a question raised by the Court during the hearing, the Italian Government did concede that, in Italy, mandatory dispute resolution has so far been put in place in the area of telecommunications alone. According to the Italian Government, mandatory dispute resolution has been introduced in that area first, with efforts currently under way to introduce it in other areas as well, such as the energy sector. In my view, this does not represent a breach of the principle of equivalence. Treatment is not less favourable than in purely domestic situations. First of all, there is no evidence that actions in other areas, such as, for example, the supply of energy, concern ‘similar situations’. Secondly, I have to assume that the provisions at issue in the main action apply not only to rights under Community law in the area of universal services, but equally to rights under national law. 57. In summary, I take the view that, in principle, a mandatory dispute resolution procedure without which judicial proceedings may not be brought does not constitute a disproportionate infringement upon the right to effective judicial protection. Provisions such as those at issue in the main proceedings constitute a minor infringement upon the right to enforcement by the courts that is outweighed by the opportunity to end the dispute quickly and inexpensively. V – Conclusion 58. In the light of the foregoing observations, I suggest to the Court that it should answer the four references for a preliminary ruling from the Giudice di pace di Ischia as follows: Article 34 of Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive) requires that procedures for out-of-court dispute resolution must be transparent, simple and inexpensive. The principle of effective judicial protection does not preclude such procedures for out-of-court dispute resolution from being mandatory, provided they pursue legitimate objectives in the general interest and are not disproportionate with regard to the objective pursued. 1 – Original language: German. 2 – OJ 2002 L 108, p. 51 (‘Directive 2002/22’). 3 – Published in the Gazzetta Ufficiale della Repubblica Italiana No 120 of 25 May 2007. 4 – In Cases C-317/08, C-319/08 and C-320/08. 5 – In Case C-318/08. 6 – See, to that effect, Case C‑299/95 Kremzow [1997] ECR I‑2629, paragraph 15, and Case C‑112/00 Schmidberger [2003] ECR I‑5659, paragraph 75. 7 – See, for example, Case C-238/05 Asnef-Equifax and Administración del Estado [2006] ECR I-11125, paragraph 15, and Case C-48/07 Les Vergers du Vieux Tauves [2008] ECR I-0000, paragraph 16, and the case-law cited in those paragraphs. 8 – Case 244/80 Foglia [1981] ECR 3045, paragraph 27, and Joined Cases C-295/04 to C-298/04 Manfredi and Others [2006] ECR I-6619, paragraph 27. 9 – See Joined Cases C-94/04 and C-202/04 Cipolla and Others [2006] ECR I-11421, paragraph. 25, as well as the case-law cited. 10 – OJ 1999 L 171, p. 12 (‘Directive 1999/44’). 11 – Commission Recommendation 98/257/EC of 30 March 1998 on the principles applicable to the bodies responsible for out-of-court settlement of consumer disputes (OJ 1998 L 115, p. 31) 12 – Commission Recommendation 2001/310/EC of 4 April 2001 on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes (OJ 2001 L 109, p. 56) 13 – See Case 222/84 Johnston [1986] ECR 1651, paragraph 18 and 19, Case C-432/05 Unibet [2007] ECR I-2271, paragraph 37, and Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I‑6351, paragraph 335. 14 – OJ 2000 C 364, p. 1. 15 – See Kremzow (cited in footnote 6, paragraph 15) and Schmidberger (cited in footnote 6, paragraph 75). 16 – Case C‑13/01 Safalero [2003] ECR I‑8679, paragraph 49; Case C‑147/01 Weber’s Wine World and Others [2003] ECR I‑11365, paragraph 103; Case C‑201/02 Wells [2004] ECR I‑723, paragraph 67; and Unibet (cited in footnote 13, paragraph 43). 17 – Case C‑28/05 Dokter and Others [2006] ECR I‑5431, paragraph 75, and Case C‑394/07 Gambazzi [2009] ECR I-0000, paragraph 32. 18 – As regards the efficient conduct of proceedings in the interests of the sound administration of justice, see Gambazzi (cited in footnote 17, paragraph 32). 19 Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters (OJ 2008 L 136, p.3) also refers to this aspect. 20 – See point 31 of this Opinion. 21 – Cited in footnote 19. 22 – See, inter alia, Weber’s Wine World and Others (cited in footnote 16, paragraph 103).