COMMISSION OF THE EUROPEAN COMMUNITIES 
C0M(93) 576 final 
Brussels, 16 November 1993 
Green Paper 
ACCESS OF CONSUMERS TO JUSTICE AND THE SETTLEMENT OF CONSUMER DISPUTES IN 
THE SINGLE MARKET 
*-''s£v (presented by the Coanlsslon) 
a«sg» 
ACCESS OF CONSUMERS 
TABLE OF CONTENTS 
L THE PROBLEM 
A. ACCESS TO JUSTICE P.4 
B. CONSUMER ACCESS TO JUSTICE P.7 
1. Background p.7 
Commission Communications COM (84) 692 and COM (87) 210 
The Council Resolutions 
The Resolutions of the European Parliament 
The pilot projects 
2. Completion of the Single Market and the new dimension of p. 10 
the problem 
"National" disputes and "transfrontier" disputes 
The Resolution of the European Parliament of 10 March 1992 
The Lisbon Conference (21,22 and 23 May 1992) and the 
Council Resolution of 13 July 1992 
The latest opinions of the Economic and Social Committee (26/09/1991 
and 24/11/1992) 
3. The Sutherland Report and the strategic Programme on the internal p. 13 
market 
n. THE SITUATION IN THE MEMBER STATES 
A. INTRODUCTION P.15 
Simplified court procedures 
Out-of-court procedures 
The administrative authorities 
Representative actions 
The pilot projects 
B. THE CURRENT SITUATION IN THE MEMBER STATES P.16 
Belgium p. 17 
Denmark p. 20 
Germany p.22 
Greece p. 2 5 
Spain p.26 
France p.29 
Ireland p.35 
Italy p.37 
Luxembourg p.42 
The Netherlands p.43 
Portugal p.45 
The United Kingdom p.50 
m. THE COMMUNITY DIMENSION OF THE PROBLEM 
A. PROTECTION OF INDIVIDUAL RIGHTS p.54 
1. Existing procedures p.54 
a) Court procedures 
b) Out-of-court procedures 
2. Transfrontier disputes and international conventions p.58 
a) Specific and supplementary barriers 
b) The international conventions 
c) Outstanding problems 
d) "Small disputes" 
B. PROTECTION OF COLLECTIVE INTERESTS P.63 
Existing procedures p.64 
Consumer ombudsman and other administrative authorities 
Actions of consumer organisations to protect collective interests 
Actions for an injunction 
Difficulties in applying the existing procedures p.65 
Transfrontier commercial practices 
Article 24 of the Brussels Convention 
The principle of proximity 
C. Am FOR LEGAL ADVICE AND LEGAL AID P.68 
1. Aid for legal advice 
2. Legal aid 
D. COMMUNITY LAW AND REMEDIES P.70 
1. The link between substantive law and remedies 
2. Remedies in Community legislation 
IV. THEMES FOR DISCUSSION P.77 
A. THE FREE MOVEMENT OF ACTIONS FOR AN INJUNCTION P.77 
B. LEGAL Am P.80 
C. SIMPLIFIED SETTLEMENT OF TRANSFRONTIER DISPUTES P.81 
D. SELF-REGULATION AND THE DIALOGUE BETWEEN CONSUMERS AND PROFESSIONALS 
E. TRANSFRONTIER COOPERATION P.84 
V. CONCLUSIONS P.86 
I. THE PROBLEM 
LA Access to justice 
In countries governed by the rule of law, general norms oblige the legislator to establish a 
balance between each individual's rights and duties; if the rights recognised by the legal 
order thus created are infringed through a breach of one of these norms, a procedure (judicial 
or administrative) must exist in order to "render justice" to the victim and at the same time 
to redress the balance of interests as required by the legislator1. 
If such a procedure did not exist or was not "accessible" to the holders of the interest 
protected by the legal order, there would clearly be a gap between the legislator's designs 
and the reality experienced by citizens. The problem summarised here under the rubric 
"access to justice" is nothing other than that of this gap between law and reality. 
Access to justice is at once a human right2 and a prerequisite for an effective legal order -any 
legal order, including the Community one. As regards the latter, however, making access to 
justice work poses very particular and unprecedented problems. 
The Community legal order has established a system of norms whose enforcement3 is not 
normally the responsibility of a separate judicature4 but that of the national courts, which 
normally adhere to the procedures established in the Member States5. 
The difference between a "legal" and "moral" norm lies precisely in the coercive force of the 
former: the penalty for infringement is just a (coercive) application of the general norm to the 
concrete case. 
Article 6 of the European Convention on Human Rights signed in Rome on 4 November 1950. 
The principle of equality before the law, which is common to the constitutional traditions of all 
the Member States, implies an "equality of aims" before the courts (as to the scope of this 
principle, see the judgments of the European Court of Human Rights in Neumeister v. Austria 
(1968), Bônisch v. A ustria (1985) and Feldbrugge v. Netherlands (1986)). Concerning accession 
of the Community as such to this Convention see: 
Common Declaration of the Assembly, Council and Commission of 5 April 1977 (OJ No 
C 103 of 27.4.1977, p. 1); 
Communication from the Commission of 19.11.1990 (SEC(90)2087 final); 
Treaty on European Union, Article f, paragraph 2. 
Direct in the case of a regulation, or via national transposing rules in the case of a Directive. 
The Court of Justice of the European Communities reviews the legality of acts of the Council and 
the Commission (Article 173) as well as "respect of the law" in the interpretation (Article 177) 
and application (examples: Articles 169 and 170) of Community law but does not offer any 
"remedies" (direct redress) against the violation of subjective rights in relations between 
individuals. It is up to the national legal systems to safeguard individuals' subjective rights in their 
reciprocal relations (Delimitis v. Henninger Brau, case C-234/89, ECR 1991,1, p. 935, section 45, 
Grounds; Automec Sri v Commission of the European Communities, Case T-24/90, ECR 1992, 
pp 11-2223, Grounds 85). 
Exceptions to this principle will be treated in Chapter III.D.2. 
Hence the enforcement of Community law generally rests with a multiplicity of courts and 
procedures. This also applies to some national legal orders (example: United Kingdom), but 
in these cases it is "rectified" by an overarching instance of last resort (in the United 
Kingdom, the House of Lords). This is why we speak here of an unprecedented situation. 
However, it follows from Article 7 of the Treaty that the national courts must be equally 
accessible to all individuals, without discrimination on grounds of nationality6, and that the 
divergences between existing national procedures - which as such are quite legitimate -
should not be such as to affect the equality of treatment of Community subjects in different 
countries who invoke respect of one and the same Community provision7. 
It is up to the national courts to enforce Community law in the context of their powers and 
using their own procedures. But this means that if access to justice at national level is 
impeded, the effectiveness (and non-discriminatory application) of Community lawisplaced 
in jeopardy. 
Thus there is a need to start a discussion which, without prejudicing competences (national, 
intergovernmental, Community) could give all interested parties food for thought. This is 
the purpose of this Green Paper, which follows the approach set out in the Communication 
on "Increased Transparency in the Work of the Commission"8 and the Council Resolution 
of 7 December 1992 on making the Single Market work9. 
The principle of non-discrimination concerns both natural and legal persons: access to justice by 
consumer organisations or firms is addressed in the third part of this Green Paper. 
This equality of treatment "concerns not only the definitive finding of a breach of competition 
rules but embraces all the legal means capable of contributing to effective legal protection", such 
as the possibility of obtaining provisional measures through the mechanism of an accelerated 
procedure (extract from Notice on Cooperation between National Courts and the Commission in 
applying Articles 85 and 86 of the EEC Treaty: COM 93/C 39/05, OJ No C 39 of 13.2.1993, p. 7, 
paragraph 11). 
93/C63/03 OJ No C 63, 5.3.1993, p. 8. 
92/C334/01, OJNo 334, 18.12.1992, p. 1. 
Clearly the problem of redress does not affect consumers10 alone. However, there are two 
reasons for opening the debate with a Green Paper devoted to "consumer access to justice" 'l. 
These can be summarised as follows. 
I. Firstly, the "credibility" of European construction in the public eye. 
Consumer protection is a domain of Community law that affects all European 
citizens in their everyday life, and which thus brings European construction "closer" 
to them - the gap between law and reality, summarised under the rubric "access to 
justice", would hence correspond to the disparity between the overarching principles 
of a "People's Europe" and the everyday experience of the European citizen. 
II. Secondly, if there are disputes whose settlement clearly concerns the goal (and the 
management) of the Single Market, they are precisely those disputes which may 
result from this market - above all disputes in the context of consumer contracts12. 
In all Member States, non-performance or faulty performance of a contract entitles the 
promisee to bring an action with a view to settlement.13 From an economic point of view 
there is also - and above all - a preventive aspect. If there are no effective procedures, cases 
of non-performance will proliferate, and eventually the market system will suffer; 
conversely, the existence of appropriate procedures for settling disputes encourages the 
"spontaneous" performance of contractual obligations.14 
The function of dispute settlement procedures in a "Community" market is no different. 
10 
12 
13 
14 For example, provision of redress for firms has already been the subject matter of two directives 
creating specific procedures for the award of public contracts (see Chapter III.D.2). 
Consumer access to justice has always been treated as a separate chapter. The background to the 
dossier, which goes back to the seventies, is summarised in chapter I.B.I. The theme of this Green 
Paper is access of consumers to justice in civil law and out of court settlement of consumer 
disputes - mediators or ombudsmen who supervise the activities of public authorities are not 
covered in mis analysis. 
Free movement takes the form of a series of contracts (producer-distributor, distributer-trader, 
trader-consumer), but it is only in the latter that the economic function of the "chain" is realised 
(where there is no final consumer, production and distribution make no sense). 
In a state governed by the rule of law disputes must be regulated through legal channels. 
In economic terms the purpose of the litigation process is to internalise costs which would remain 
external if it were not for the existence of the process. The economic aspects are even more 
important in the case of consumer disputes. Often the consumer is at the mercy of the 
professional, not because he lacks discernment or because the professional is systematically trying 
to defraud him, but because consumer contracts are often for very small sums. Hence the 
consumer's loss does not justify his initiating a costly procedure. 
However, in this "space without internal frontiers" (Article 8a of the Treaty), judicial 
frontiers still endure: the good functioning of the Single Market (and the confidence of the 
economic agents) hinges on a multiplicity of national procedures. 
Thus there is a need to examine these procedures, which are used to regulate a growing 
number of transfrontier disputes, on the same lines as of procedures for the award of public 
contracts (see Chapter IH.D.2). 
LB Consumer access to justice 
IJ3. J Background 
This Green Paper is a follow-up to the first Communication from the Commission on 
consumer redress, transmitted to the Council in the form of a memorandum on 4 January 
1985 (COM (84) 692 final) and a Resolution of the European Parliament of 13 March 1987 
(OJ No C 99 of 13.4.1987, p. 203). The first Communication was followed by a 
"supplementary" Communication of 7 May 1987 (COM (87) 210 final).15 
The Council responded in a Resolution of 25 June 1987 devoted exclusively to consumer 
redress (87/C 176/02, OJ No C 176 of 4.7.1987, p. 2), in which it invited the Commission 
to complete the analysis, taking into account the enlargement of the Community (Spain, 
Portugal and Greece had not been covered in the communications). 
The specific problems which consumers encounter in establishing their rights and the 
Community dimension had already been acknowledged in the Council Resolution of 14 
April 1975 (Preliminary Programme of the European Economic Community for a Consumer 
Protection and Information Policy)16. 
In this Resolution, five "categories of fundamental rights" of the consumer are established, 
the third being the "right to proper redress for... injury or damage by means of swift, 
effective and inexpensive procedures" (paragraphs 3 and 32). 
The time, cost and effectiveness of the procedure were thus the three candidates for analysis 
(since this first resolution) with a view to evaluating the "barriers" which might prevent 
consumer access to justice. 
These principles were reiterated in the Council Resolution of 19 March 1981 (Second 
Programme of the European Economic Community for a Consumer Protection and 
Information Policy)17 and by the Council Resolutions of 23 June 1986 (Future Guidelines 
15 
16 
17 These Communications can be obtained from the Consumer Policy Service's documentation unit 
(archives). 
OJ No C92 of 25.4.1985, p. 1-16 
Oj No C 133 of 3.6.1981, p. 1-12 
for Community policy for the Protection and Promotion of Consumer Interests18) and 
9 November 1989 (Future Priorities for Relaunching Consumer Protection Policy19). 
In the above-mentioned Communication 84/692, which surveyed the situation in the nine 
Member States20 as of 31 December 1982, the Commission affirmed that the "overall aims 
.. remains clear to ensure that consumers throughout the Community enjoy a broadly similar 
standard of redress, " 
To attain this objective and "while not excluding the long-term possibility of a binding legal 
solution", the Commission committed itself "to supporting pilot schemes in order to leant 
how to solve the problems experienced in practice... and... on the basis of the information 
thus obtained, to propose concrete solutions" (solutions mentioned include: changes in the 
legal system itself, setting up of administrative or extra-judicial procedures, or arbitration 
and conciliation procedures, arrangements improving consumer advice and information). 
On the basis of the guidelines set out in these Resolutions, the Commission began to support 
"pilot schemes" at national and local level, with a view to assessing the practicality of the 
new procedures21 or how best to improve existing ones22. 
In 1987, in its supplementary Communication COM(87)210, the Commission gave an 
overview of the most recent developments (including recommendations adopted by the 
Council of Europe in this domain) and drew certain general conclusions, "only on a 
preliminary basis" (paragraph 1 of the Annex), concerning the four pilot projects which it 
had been supporting. Moreover, the Commission announced in its Communication that it 
intended to study "whether it was opportune to draft a framework directive introducing a 
general right for consumer associations to act in the courts on behalf of the general interest 
of consumers" (penultimate paragraph, p. 3). 
This final point had also been addressed in the Resolution which the European Parliament 
adopted on 13 March 1987 (Resolution on consumer redress)23, calling upon the 
Commission "to propose a directive harmonising the laws of the Member States to provide 
for the protection of the collective interests of consumers; giving the consumers'associations 
the possibility of acting in legal proceedings on behalf of the category they represent and of 
individual citizens". 
18 
19 
20 
21 
22 
23 OJ No C 167 of 5.7.1986, p. 1-2 
OJ No C 294 of 22.11.1989, p. 1-3 
Spain, Portugal and Greece were not covered. 
Example: pilot project at Dundee, Scotland. 
Example: pilot project at Deinze and Marchienne-au-Pont (Belgium). 
OJ No C 99, 13.4.1987, p. 203-205, paragraph 4 
Following the transposition of Directive 84/450/EEC, most of the Member States have 
accorded consumer associations the right to bring actions in the field of misleading 
advertising24. 
The same philosophy was recently upheld in Directive 93/13/EEC on unfair terms in 
consumer contracts,25 which must be transposed by 31 December 1994 at the latest. 
In addition the Commission, from the Eighties onwards, has continued to analyse existing 
procedures26 and how to improve things in a large number of studies and pilot projects. 
From the beginning the "pilot projects" instrument was informed by the principle of 
subsidiarity - instead of proposing a single model for one and all, different approaches were 
advanced and "tested" at national or local level, the choice of projects to be supported being 
based on three main criteria: 
decentralisation (management of projects was always entrusted to consumer 
associations or national or local authorities); 
co-financing and cooperation (as far as possible - in certain countries no public 
money is available for consumer protection) with the national or local authorities 
concerned; 
adaptation of the initiative to the country's legal and socio-economic environment. 
The results of this analysis are summarised in the second part of this Green Paper, which 
also reviews projects supported from 1987 (date of adoption of the latest Communication 
in this domain). 
THE WORK OF THE COUNCIL OF EUROPE 
On 8 January 1993, the Council ofEurope adopted a Recommendation [R(93)l] on effective 
access to the law and to justice for the very poor. 
This is a sequel to several recommendations published by the Council of Europe between 
1978 and 1986, discussed in the above-mentioned Commission Communication COM (87) 
210. 
At present, a project group on effectiveness and fairness of civil justice is preparing two 
draft recommendations, the first of which concerns /improvement in redress in civil 
procedures. 
24 
25 
26 In certain countries this was already the case even before adoption of the Directive, but in other 
countries - such as Italy - it was the legislation transposing the Directive which first gave 
consumer associations the right to institute proceedings. 
OJ No L 95 of 21.4.1993, p. 29 
Whether they belong in the context of legal procedures or the domain of self-regulation. 
10 
LB. 2 Completion of the Single Market and the new dimension of the problem 
In the past, the settlement of consumer disputes was considered to be an almost exclusively 
national problem. Any attempt to probe into the "Community" dimension was countered on 
the following lines: the "average" consumer would not go abroad to do his shopping and 
suppliers of services would generally have to open an outlet in each country, thus permitting 
"national" control on the part of the host country. 
At present, this objection stands on very weak foundations for the following reasons: 
a) the principle of host country control has been replaced, in many key domains, by the 
principle of source country control in, with a view to fully assure the free movement 
of services; 
b) the spread of new techniques of "distance selling and provision of services" (for the 
legal definition and for more about the quantitative dimension of this selling 
technique, see the Commission's amended proposal for a directive27 and the 
explanatory memorandum which accompanied the initial proposal28) now means that 
products can cross all geographical frontiers without the intermediary of a local 
distributor; in the event of problems, the consumer would have nobody to turn to in 
the country where he lives; 
c) consumer mobility, notably in frontier regions - partly in consequence of the 
abolition of customs controls and the new VAT rules for private individuals - is 
expected to grow rapidly; 
d) intra-Community tourism (thanks also to the above-mentioned measures) is growing 
steadily29, and in most cases problems concerning goods or services (hotel, transport, 
Eurocheques) purchased abroad cannot be settled during the holiday: if a tourist's 
rights are infringed and the trader refuses immediate settlement, the problem has to 
be solved working from a country other than the one in which it arose30. 
In all these cases the consumer is domiciled in a country other than the one in which the 
professional is established. 
27 
28 
29 
30 COM (93) 396 final 
OJC 156 of 23.6.1992, p. 14 
Council Decision (92/421/EEC) of 13 July 1992 on a Community action plan to assist tourism (OJ 
No L 231 of 13.8.1992, p. 26) stresses the importance of supporting initiatives which "improve 
the information of tourists and their protection, in areas such as ... time-share arrangements, over­
booking and procedures for redress" (paragraph 4 of the Annex). 
This situation concerns not only tourists: the official (or national expert) who goes to Brussels for 
a Council meeting (or for a meeting of experts) faces the same difficulties if his luggage is stolen 
from a hotel foyer or if he is a victim of overbooking or buys a defective product. He will clearly 
not be able to settle the problem before he leaves unless the professional agrees to immediate 
reimbursement. 
11 
After all, the objective of the Single Market is the creation of "an area without internal 
frontiers in which the free movement of goods, persons, services and capital is ensured in 
accordance with the provisions of this Treaty" (Article 8a of the Treaty). 
However, this free movement takes place in an area in which legal frontiers still exist. 
Consequently, the disputes which may arise from the above-mentioned contracts (cases a, 
b, c and d) will remain "transfrontier" disputes31. 
Taking these points into account, the question is to determine: 
a) what specific and supplementary difficulties (as compared with a similar domestic 
dispute) arise from the transfrontier nature of performance of the contract; 
b) will these difficulties prevent or dissuade consumers (or SMEs) from benefiting from 
the Single Market and, if so, to what extent. 
The Green Paper will attempt to answer these questions. 
For the present, let us recall that the new dimension of the problem has already been 
discussed in several Community documents: 
the Resolution of the European Parliament of 10 March 1992; 
the Council Resolution of 13 July 1992; 
the opinions adopted by the Economic and Social Committee on 26 September 1991 
and 24 September 1992. 
In its Opinion on Consumer Protection and Completion of the Internal Market adopted on 
26 September 1991 the Economic and Social Committee affirmed that: 
"The problems of access to the courts which the creation of a European area will pose are 
far from having been resolved. If there is a dispute, the single Market will be replaced by 12 
- or even more - legal systems, all jealous of their independence and sovereignty. European 
political leaders will have to address the problem of the settlement of cross-frontier disputes 
if they are not to produce an imperfect, inconsistent economic system. The Committee urges 
31 According to the definition proposed here, a dispute is a transfrontier one when the complainant 
is domiciled in a country other than the one in which the defendant is legally established (see 
Chapter III.A.2). 
In principle, the "specific" difficulties or supplementary difficulties which arise are as follows: 
the court handling the case is not the court of the country in which the consumer is 
resident (cases c and d); 
the legal documents may be required (letters rogatory) in a country other than that of the 
adjudicating court (cases a, b, c and d); 
service of the documents must take place in a country other than the one in which the 
complainant is domiciled (cases a, b, c and d); 
enforcement of the judgment may be required in a country other than the one of the 
adjudicating court (cases a and b). 
Other supplementary difficulties (or "barriers") may concern, for example, translation of the court 
documents,attendance in person of the parties and legal aid. The international conventions 
applicable in this domain will be dealt with in the third part (chapter III.A.3) of this Green Paper. 
12 
the Commission to carry out as a matter of urgency the work needed to identify possible 
solutions to the problem of settling cross-frontier disputes." 
On 21, 22 and 23 March 1992, under the aegis of the Portuguese Presidency and the 
Commission, the "Third European Conference on Consumer Access to Justice"32 was held 
in Lisbon. Approximately 300 experts from the 12 Member States of the EEC and certain 
EFTA countries participated (the problem of transfrontier disputes also arises a fortiori, for 
the European Economic Area which was the subject of the agreement between the EEC and 
the EFTA). 
The conclusions of the four working parties (access to law and justice, legal procedures, out-
of-court procedures, protection of collective interests and transfrontier disputes) confirm the 
concerns already voiced by the Economic and Social Committee and the European 
Parliament. 
LB. 3 The Sutherland Report and the strategic Programme on the internal market 
In March 1992 the Commission invited a group of independent personalities, under the 
chairmanship of Mr Peter Sutherland, to prepare a report on the functioning of the Internal 
Market33. 
The Report ("The Internal Market after 1992: meeting the challenge") was presented to the 
Commission on 26 October 1992 and transmitted by the Commission to the Council, the 
European Parliament and the Economic and Social Committee. This report "examines in 
depth the issues which need to be resolved to enable Community law to be administered 
fairly and equitably" and considers "what is required to meet the continuing expectations... 
of those involved in the marketplace - consumers and businesses" (preface, ultimate and 
penultimate paragraph). 
Considering "that the rules of the Internal Market must have equivalent effect throughout 
the Community" (page 3, penultimate paragraph) and that "it is not enough to pass laws and 
simply hope that they will be applied evenly in all Member States" (page 5, first paragraph), 
the Report formulates a series of "recommendations". 
As regards access to the courts (pages 34 to 39) the Report affirms that "doubts about the 
effective protection of consumer's rights need to be overcome. The issue should be given 
rapid attention by the Community" (Recommendation No 22, page 35). 
32 
33 The first Conference on Consumer Access to Justice had been held in Montpellier in France in 
1975 and the second in Ghent in Belgium in 1982. A summary of the conclusions of these 
conferences is provided in Communications (84)692 and 87(210). 
The members of this "high level group on the functioning of the Internal Market" were: Peter 
Sutherland (chairman), Ernst Albrecht, Christian Babusidux, Brian Corby, Pauline Green and 
Giuseppe Tramontana. 
13 
In the Communication from the Commission to the Council and the European Parliament 
of 2 December 1992 (SEC(92)2277 final - The Operation of the Community's internal 
market after 1992 - Follow-up to the Sutherland Report), Recommendation No 11 is retained 
(page 12, third indent of paragraph 31). 
The working document "on a strategic Programme on the internal market", (COM(93)256) 
presented by the Commission in June 1993, recognised the necessity of establishing a 
consistent operational framework on access to justice; this framework is to integrate a group 
of actions which aim at the diffusion, transparency and application of community law. 
The Green Paper is to be replaced within this framework and endeavours to carry out the 
following analyses : a study of the procedures existing in the Member States (part II) and an 
analysis of the difficulties in appplying these procedures to "transfrontier" disputes (part HI). 
The second three-year Commission action plan in the field of consumer policy adopted on 
28 July 199334 established "selective priorities to raise the level of consumer production," 
including access to justice and the settlement of disputes (Part H, paragraphs 36 to 39). 
The action plan announces new initiatives, mainly concerning the settlement of transfrontier 
disputes. 
Part IV of this Green Paper describes certain initiatives which might be envisaged, taking 
into account the principle of solidarity, in the perspective of the three-year action plan. 
In-depth consultations with the parties concerned on the options envisaged will give us a 
clearer idea of the scope for Community action in this domain. 
34 COM(93)378 final 
14 
IL T^IE SITUATION IN THE MEMBER STATES 
II.A Introduction 
In view of the Communications already presented by the Commission (COM(84)692 and 
COM(87)210), the following analysis mainly concerns developments since 198735; 
Procedures applicable to consumer disputes which date from before 1987 are referred to in 
the form of a "cross-reference" to these Communications. 
To provide a better overview the national chapters have been structured around four themes, 
three of which were already addressed in Communication (84)692: 
legal procedures applicable to (individual) consumer disputes; 
out-of-court procedures especially devoted to these disputes (arbitration is treated 
only in this perspective), including mediators and ombudsmen (and similar 
structures) which have recently been created in various economic sectors; 
the protection of collective interests36, including both the capacity to bring an action 
on the part of consumer organisations and the powers of certain administrative 
bodies (examples: consumer ombudsman in Denmark, Director of Fair Trading in 
the United Kingdom); 
the "national pilot projects, for countries in which such projects have been 
implemented (a table summarising the pilot projects supported by the Commission 
is annexed to the Green Paper); transfrontier initiatives are dealt with in 
Chapter IV.E. 
The situation in the individual Member States was discussed at a meeting of national experts 
held in Brussels on 9 February 1993. Following this meeting, the draft version of each 
national chapter was sent to the national authorities for review and the text was verified and 
completed after receipt of their comments. Thanks to this feedback it has been possible to 
prepare a picture of the situation at 30 April 1993. 
35 
Except for the Member States which were not covered by the Communications (Spain, Portugal 
and Greece). 
The legal del 
individual interests - hence "class actions" are considered as a separate category. ^6 
The legal defence of collective interests is not to be confounded with the collective defence of 
15 
ILB The current situation in the Member States 
16 
BELGIUM 
1. Legal procedures 
The Act of 3 August 1992 amending the Judicial Code (Moniteur Belge of 31.8.1992) 
reformed many procedural rules with a view to removing the court backlog and the 
unjustified delays in enforcement (explanatory memorandum, first and second paragraphs). 
The importance of this reform for consumer disputes mainly concerns amendments relating 
to: 
the jurisdiction ratione summae of the justice of the peace, which is raised to 
BEF 75 000 BEF (ECU +/- 1 871); 
the maximum non-appealable claim, which is raised to BEF 50 000 (ECU +/-1 247) 
for the justice of the peace and BEF 75 000 for the court of first instance; 
the introduction of the voluntary attendance instance and the "requête contradictoire" 
(joint application by both parties) (the latter is standard whenever voluntary 
attendance is provided for by law); 
succinct hearings; 
time limits for filing submissions and rules concerning invalidity; 
penalties for vexatious or dilatory appeals. 
This Act entered into force on 1 January 1993. 
2. Out-of-court procedures 
An arbitration procedure (geschillen commissie) has been created by consumer organisations 
and professionals in three specific sectors: travel agencies, laundries and furniture sales. The 
decisions of the arbitration committees are binding on the parties, just like any arbitration 
decision, and the consumer who decides to go to arbitration must pay a sum which is 
proportional to the value of the claim. The Ministers of Justice and Economic Affairs have 
officially recognised the contribution of the committee that deals with travel disputes, 
particularly by providing it with offices and administrative staff. 
In the financial sector, certain procedures for settling disputes have been established by the 
professionals bodies (Ombudsman of the Belgian Banking Association, Disputes 
Commission of the Savings Bank Group, Ombudsman of the insurance companies, Stock 
Exchange Ombudsman); decisions under these procedures are not binding. 
17 
X) 
As regards certain public services (post, telephone, railways), the Act of 21.3.1991 provides 
for the establishment of an ombudsman service. The ombudsmen have been nominated by 
the Royal Decrees of 22.12.1992 and may, at the request of the parties, invoke arbitration. 
3. Authorities 
The Inspection Générale Economique (Economische Algemene Inspectie) has broad powers 
in the field of information, prevention, determination and punishment of infringements of 
economic regulations. In accordance with the Act of 14 July 1991 on commercial practices 
(Moniteur Belge of 29.8.1991), agents of the IGE are entitled to issue an "admonition" to 
the infringer, ordering him to desist. If the injunction is not heeded, the Ministry may: 
a) forward the dossier (which is considered valid until the contrary is proved) to the 
Royal Prosecutor, in the case of penal offences; 
b) bring an action for an injunction before the commercial court (Article 95). 
The Minister's agents may also propose that the infringer pay a sum, leading to withdrawal 
of the charges (Article 116). 
In the domain of foodstuffs, the power to investigate lies with the foodstuffs inspectorate. 
4. Representative actions 
The action for an injunction provided for in Article 95 of the Act on commercial practices 
of 14 July 1991 may also be brought at the request of "an association whose goal is to defend 
consumer interests, which is a legal person and is represented on the Consumer Council or 
is approved by the Minister for Economic Affairs" (Article 98). This action is brought before 
the commercial court, in accordance with the relevant procedures; the judgment is 
provisionally enforceable, though it is open to appeal and no surety is required. 
An action for an injunction may be brought against any act, including penal offences, which 
infringes the provisions of the above-mentioned Act, whose scope is very wide (inter alia, 
it regulates advertising for the purposes of Directive 84/450/EEC). Moreover, its "specific" 
provisions are supplemented by an umbrella clause in Article 94, which outlaws "any act 
which is contrary to fair practice in the commercial field by which a vendor harms or is 
liable to harm one or several consumers". 
Other actions to protect collective interests may be brought by consumer organisations in 
specific domains, notably: 
consumer credit (Act of 12 June 1991, Moniteur Belge of 9.7.1991); 
financial services (Act of 4 December 1990, Moniteur Belge of 22.8.1990); 
misleading advertising in the liberal professions (Act of 21 October 1992, Moniteur 
Belge of 17.11.1992). 
18 
5. Pilot projects 
Two parallel pilot projects in Marchienne-au-Pont and Deinze were supported by the 
Commission from 1984 to 1986. These projects have already been described in the 
supplementary Commission Communication on consumer redress (COM(87) 210 final) in 
1987. They centred on the establishment of a legal consultant (stafmedewerker) at the "juge 
de paix" tribunals (court of first instances). 
A centre of lawyers specialised in consumer law was created by order of the Liège Bar, 
which pays part of the costs. The fees required by the centre are flat rate and below standard 
rates for all disputes up to a ceiling FB 75 000 (ECU +/- 1 871). 
The centre drew inspiration from an experiment launched in 1981 by the Paris Bar (see 
Chapter on France) and has the same name (AARC - Avocat, Assistance et Recours du 
Consommateur -Lawyer, Aid and Redress for the Consumer). 
A similar initiative called ABC (Advocaat Bijstand Consument - Consumer Aid Lawyer) 
was recently launched by the Ghent Bar. 
19 
DENMARK 
1. Court procedures 
Consumer disputes before the Courts are dealt with in accordance with the general rules of 
civil procedure. 
Most consumer claims are dealt with by the subdistrict court (Byret). Legal representation 
before this Court is not compulsory (Article 259, Administration of Justice Act) and the 
Court itself is obliged to assist parties that are not legally represented (Article 339, paragraph 
4 of the same Act). If a consumer is sued in a case which may be dealt with by any of the 
boards mentioned below, he may request that the case is submitted to such a board (Article 
361 of the Administration of Justice Act). It is the duty of the Court to inform the consumer 
about this right. 
2. Out-of-court procedures 
Since 1975 the Consumer Complaints Board, which is a public administrative body, has 
been handling consumer disputes. The Board deals with individual disputes concerning a 
wide range of goods and services within certain price limits. In 1992, the Board dealt with 
2 823 cases. 
The chairman of the Board is a court judge; consumer and business interests are also 
represented. 
The decisions of the Board are not legally binding, but most are complied with by the 
business community. If a decision is not complied with the matter can be brought before the 
Courts. The Secretariat of the Board assists the consumer in this respect. Consumers with 
an annual income under a certain specified limit may in these cases be granted free legal aid. 
Apart from a minor fee paid by the consumer, courts costs are covered by the Board. 
The average time between the application and the decision is about 6 months. 
The Consumer Complaints Board has approved a number of private boards set up by trade 
associations in cooperation with consumer organisations. 
A more detailed description of these boards is given in the first Commission's 
Communication on consumer redress (EC Bulletin, Supplement 2/85). 
3. Protection of collective interests 
The office of "Consumer Ombudsman" was set up in 1975 under the Marketing Practices 
Act. 
20 
The Consumers Ombudsman has a general market-regulating function, designed to protect 
the average consumer without taking the situation of individual consumers and concrete 
legal disputes into account. The idea is to prevent future infringements of the legislation. 
The rules for the Consumers Ombudsman's activities are laid down in the Danish Marketing 
Practices Act. Basically, no marketing may be in conflict with fair commercial practices, nor 
may misleading statements be made. There are penalties for infringements in the form of 
fines or prohibitions. However, the Consumer Ombudsman cannot order a business to pay 
damages to a consumer. 
The Consumer Ombudsman seeks through negotiation to get the business community to 
comply with the Marketing Practices Act. Such negotiation can result in indicative 
guidelines setting out codes of conduct for specific areas, such as advertising of prices, 
marketing of alcoholic beverages or manufacturer guarantees. 
The Consumer Ombudsman can request the Maritime and Commercial Court to issue 
injunctions prohibiting illegal marketing practices. In urgent matters he can issue an interim 
injunction which has to be confirmed by the Court. 
Usually, the Consumers Ombudsman's intervention is successful even before this stage: in 
1992, the Court was asked for only four injunctions and one injunction was issued by the 
Ombudsman himself. 
Moreover, consumer organisations may seek injunctions against infringement of the 
Marketing Practices Act, provided that they have a legal interest in the case. 
A more detailed description of the Marketing Practices Act and the Consumer Ombudsman 
is given in the above-mentioned communication (EC Bulletin, Supplement 2/85). 
21 
GERMANY 
1. Court procedures 
A simplified procedure was established by the "Rechtspflege-Vereinfachungsgesetz" of 
17/12/1990 (Bundesgesetzblatt 1,2847) and came into force on 1 April 1991: according to 
the new Article 495a ZPO (Code of Civil Procedure), "the court may conduct the procedure 
according to its reasonable discretion, if the value of the claim does not exceed DM 1 000 
(approximately 512 ECU) ". On 1 March 1993, this financial ceiling was raised to DM 1 200 
(+/- 615 ECU) under the "Gesetz zur Entlastung der Rechtspflege" of 11/01/1993 
(Bundesgesetzblatt I, p. 50). 
The ordinary procedure which applies to claims falling under the competence of the 
A m tsgericht (up to DM 10 000 or approximately 5121 ECU) is anyway simpler than the one 
before the other Courts: 
the complaint may be filed by the party itself and posted to the Court, as it just has 
to set out the facts and submit evidence; 
- theoretically, it may even be lodged orally (Article 496 ZPO) at the clerk's office, 
who will refer it to the competent court; 
- the defendant is asked by the Court whether he wants to defend; is he does not reply 
within two weeks, the Court can issue a judgement by default; 
at any stage of the procedure, Article 279 ZPO obliges the Court to consider the 
possibility of an amicable agreement; 
- legal representation is not required; 
- normally, the case is disposed of one single act hearing. As a result, 80% of cases are 
completed in less than 6 months. 
Another simplified procedure, which is called 'Mahnverfahren" (Articles 668 ff. ZPO), can 
be used to collect money: normally, in a "Mahnverfahren", the consumer is the defendant 
(the procedure is not used by him but against him). 
As far as consumer contracts are concerned, specific rules exist which give exclusive 
jurisdiction to the Court of the place where the consumer has his domicile or residence 
(Door-to-door Sales Act, Distant Education Act); generally speaking, choice of jurisdiction 
in consumer cases is only permitted after the dispute has arisen (Article 38 ZPO). 
22 
2. Out-of-court procedures 
Several alternative redress schemes exist and were already summarised in the first 
Commission's Communication on consumer redress (COM(84) 692); the most important is 
mat of the Chambers of Trade and Industry ("Schlichtungsstellen der Industrie-und 
Handelskammem") which handle about 10 000 complaints each year (90% of which are 
settled amicably). 
As far as the former GDR is concerned, the Unification Treaty (Einigungsvertag) stated that 
some GDR acts will remain in force: among them, the Act on the Municipalities Complaint 
Boards("GesetziiberdieSchiedsstellenindenGemeinden": GB1DDRI, 1527)introduced 
a Conciliation Board (one chairman and two deputies) to be appointed by the Municipal 
Council. 
In 1992, the Federal Association of German Banks (Bundesverband deutscher Banken) 
introduced an "Ombudsman" scheme: individual consumer's complaints which have not 
been settled within one month by the "Consumer Clients Complaints Office" (each bank 
should have such an office) will be submitted to the Ombudsman. If the amount involved 
does not exceed DM 10 000 (approximately ECU 5 120) the Ombudsman's decision is 
binding on the bank (but not on the consumer). The scheme is also available to professional 
customers where complaints about crossborder payments are concerned: a crossborder 
payment is a payment within the meaning of EC Recommendation 90/109 (Transparency 
of Bank charges relating to crossborder transactions). 
3. Representative actions 
Consumer associations have the right to bring an action for an injunction or withdrawal of 
unfair contract terms listed in Articles 9 to 11 of the General Contractual Terms Act 
(Allegemeine Geschaeftsbedingungen Act of 09/12/1976: Bundesgesetzblatt I, 3317). 
Furthermore, consumer associations may bring an action for an injunction against 
misleading advertising and related "unfair trade practices" under Article 13 of the Unfair 
Competition Act 1909 (Gesetz gegen den unlauteren Wettbewerb) as modified by the Act 
of 21/07/1965 (Bundesgesetzblatt I, 675). 
Both procedures are triggered when an "A bmahnung" (warning) has not been complied with: 
in 1991, the Verbraucherschutzverein (Consumer Associations' Union) launched 632 
"A bmahnung" procedures, which were complied with in some 50% of the cases. 
The "Zentrale zur Bekâmpfung unlauteren Wettbewerbs e. V." and " Verein zur Bekâmpfung 
der Wirtschaftskriminalitât" (business organisations with large adherence from German 
industry and trade) operate in a similar fashion; where consumer and business interests 
coincide in cases of unfair competition they implicitly also act on behalf of consumers. 
4. Pilot projects 
23 
A pilot project (advice on consumer credit) was carried out in Hamburg and is described in 
the supplementary Communication from the Commission on consumer redress (COM(87) 
210). 
A second pilot project, carried out in 1990-1991, focused on the development of software 
for legal and technical counselling in the field of credit. Three modules are now available: 
Computer Assisted Loan Services (CALS : advice on credit contracts), Computer Assisted 
Debt Advice System (CADAS: counselling for over-indebted households) and Information 
System on Financial Services (FIS: a general databank of statutory and case law). The 
system is now being aligned with the situation in other Member States and is being 
networked with parallel systems. The software is now being used by all regional consumer 
organisations (Verbraucherzentralen der Lander). 
A third pilot project, based in Halle (former GDR) is starting in 1993 and is designed to 
improve advice for overindebted consumers. 
24 
GREECE 
1. Court procedures 
Articles 466 to 472 of the Civil Code establish a simplified procedure for disputes up to a 
ceiling of Drs 60 000 (+/- ECU 227). A lawyer's assistance is not required, the procedure is 
oral (the justice of the peace prepares the record) and the court must attempt to reconcile the 
parties before handing down judgment. 
2. Out-of-court procedures 
Act 1961/91 of 31.9.1991 provides for the creation of local conciliation committees, 
composed of a consumer representative, a representative of the chamber of commerce and 
a representative of the bar. If the conciliation attempt fails, these committees adopt an 
"opinion" which is not binding but which must be considered by the court hearing the case. 
3. Representative actions 
Act 2000/91 of 24.12.1991 established an action for an injunction in respect of commercial 
practices of firms which exercise exclusive rights or have specific privileges, whenever these 
practices can adversely affect the health, safety or economic interests of consumers (for 
example, Article 27.2 of this Act prohibits the marketing of dangerous products, misleading 
advertising and unfair terms). Such actions may be brought only by associations which meet 
the criteria set out in Article 35 of Act 1961/91 and have been approved by the Ministry of 
Trade. 
4. Pilot projects 
In May 1992 a pilot project supported by the Commission of the European Communities was 
launched with a view to providing legal aid to consumers. The project was designed and 
managed by a consumer organisation. 
In the context of this project "legal advice bureaux" have been opened to the public in four 
Greek cities (Athens, Kavala, Drama and Eraklion). Their objective is to give the consumer 
any legal aid required in connection with information, mediation, conciliation and - when 
the general interest is at stake - instituting legal proceedings. 
The project is particularly important because legal aid in Greece is less developed than in 
the other Member States. The eligibility conditions are such that the vast majority of citizens 
are excluded. 
Moreover, several "guides" have been made available to the public, containing information 
on consumers' rights under Community law. 
25 
5) 
SPAIN 
1. Simplified court procedures 
An oral procedure ("juicio verbal") is foreseen in the case of disputes whose value does not 
exceed PTA 80 000 (+/- ECU 519). These disputes are normally dealt with by a justice of 
the peace ("juzgado de paz") and a lawyer's assistance is not required. Claims in excess of 
PTA 80 000 are dealt with by "Juzgados déprimera instancia", by applying one of the three 
following procedures: 
"juicio de cogniciôn" for claims between PTA 80 000 and 100 000 (+/- ECU 5 190); 
"juicio de menor cuantia" for claims between PTA 800 000 and 160 000 000 
(+/ECU 1038 140); 
"juicio de mayor cuantia" for claims in excess of Pta 160 000 000. 
The court may try to effect conciliation at the request of one of the parties; this request may 
be submitted to the court of the locality where the complainant is domiciled, regardless of 
the jurisdiction ratione loci of this court (Articles 460 and 463 of the Code of Civil 
Procedure). 
2. Out-of-court procedures 
Consumer protection is enshrined in the Spanish constitution itself: pursuant to Article 51, 
the public authorities "shall ensure, with the aid of effective procedures, protection of the 
safety, health and legitimate economic interests of consumers and users". 
On the basis of this constitutional tenet, Act 26/1984 of 19 July 1984 (Framework Act on 
Consumer and User Protection) establishes a specific arbitration system for consumer 
disputes (Article 31). Act 36/1988 of 5 December 1988 concerning arbitration provided, in 
its two first "supplementary provisions", that such arbitration would be free of charge: the 
government was mandated to "regulate the name, nature, nomination procedure and 
territorial jurisdiction" of the arbitration boards. 
The regulation (REAL DECRETO) was adopted by the Spanish government on 30 April 
1993 and provides for the implementation of a "SISTEMA ARBITRAL DE CONSUMO" 
with the aid of "JUNTAS ARBITRALES DE CONSUMO". 
The "JUNTAS ARBITRALES DE CONSUMO" are established under an agreement 
between the central government (which has exclusive powers regarding arbitration) and the 
autonomous and local administrations (to which the juntas arbitrales must answer). 
These are permanent bodies with both administrative and pre-litigation functions. It is the 
juntas which are responsible for running the system, registering requests for arbitration and 
finalising the arbitration bond. 
26 
Under the aegis of this organ, "COLEGIOS ARBITRALES" (arbitration committees) will 
be designated with a view to settling disputes. 
These arbitration committees will consist of a chairman, representing the government, a 
representative of consumers' and users' organisations, and a representative of the 
professional bodies belonging to the arbitration system. 
The procedure is free of charge, except for the expert's fees (which are borne by the party 
requesting the expert report). The request for arbitration must be submitted in writing to the 
JUNTA ARBITRAL, which examines its validity and may attempt to mediate. 
In the context of the arbitration procedure, a conciliation agreement may be concluded and 
endorsed by a "laudo". 
The decisions of the COLEGIO ARBITRAL have the same binding force as a judgment. 
The firms which belong to the arbitration system receive a "DISTINTIVO OFFICIAL" 
(official sticker) so that consumers can identify them. A register of firms that have received 
this "distintivo" will be kept and updated by each junta arbitral. 
As regards disputes between banks and users, a "servicio de reclamaciones" has been 
established at the Central Bank (Act of 12.12.1980). Any dispute which has not been 
resolved within two months by the claims department of the bank concerned may be referred 
to this service. 
3. Administrative authorities 
A "DEFENSOR DEL PUEBLO" was established under Act No 3/1981 of 6 April 1981 to 
protect the rights enshrined in the first chapter of the constitution against abuses of the 
administration. 
His powers of inquiry are exercised either ex officio or at the request of a private individual 
or an organisation; the "SUGERENCIA" (recommendation) he issues is not legally binding. 
4. Representative actions 
Consumer organisations are entitled to bring actions under Act 3/1991 of 10 January 1991 
(Act concerning Unfair Competition) against "acts of unfair competition which directly 
affect consumer interests" (Article 19). 
The "general" definition of unfair competition (Article 5) is very wide: it concerns "any act 
which is directly contrary to the requirements of good faith". 
Actions brought by consumer organisations (Article 18) may have as their object: 
1. "establishment" of the act of unfair competition (formal declaration); 
2. suspension (admonition) or prohibition of such action (preventive action); 
27 
3. "annulment" of the effects (repudiation); 
4. rectification of the misleading, incorrect or false information. 
28 
FRANCE 
1. Simplified court procedures and the Dijon-le Creusot pilot project (March 1988 -
December 1990) 
In the mid-eighties, simplification of the legal settlement of small claims was the subject of 
an in-depth exchange of ideas between the French government (Ministry of Justice, Ministry 
of the Economy and notably its Directorate-General for Competition, Consumption and 
Prevention of Fraud) and the Commission of the European Communities. 
On 4 March 1988 the French government adopted Decree No 88-209 establishing new 
procedures before the court of first instance, viz the: declaration before the court registrar 
(simplified referral) and the injunction to act. 
At the same time the Commission of the European Communities decided to finance a host 
structure with a view to encouraging the use of the new procedures in the two "pilot" cities 
of Dijon and le Creusot. 
The mechanism established at the Dijon and le Creusot courts of first instance in the context 
of the pilot project comprised: 
creation of a host structure open to the public and managed by a lawyer specialised 
in consumer law, with its own office, with a view to advising the parties (information 
on the various procedures, assistance in preparing the file, information on the hearing 
procedure and enforcement of the decisions, referring citizens to other institutions 
or legal professionals who may be called on to resolve the dispute); 
creation of "standard forms" for plaintiffs and defendants; 
establishment of special conciliation hearings to deal with consumer and housing 
disputes; 
creation of a steering committee. 
The procedures covered by the pilot projects were as follows: 
a) Conciliation: anyone who wishes to effect a conciliation may submit his request, free 
of charge, to the registrar of the court of first instance, either in the form of an oral 
declaration or of a simple letter addressed to the registrar (Article 83 0( 1 ) of the New 
Civil Code); the registrar informs the parties as to the venue, date and time of the 
conciliation session; the parties are obliged to attend in person (they may not be 
represented by an authorised agent); if the parties reach agreement, they request the 
judge to enter this agreement in the record; the record is signed by the parties and 
judge and an order for enforcement may be attached to them without the need to 
pursue the matter further. 
29 
b) Simplified referral (for small claims not exceeding FF 13 000 +/- ECU 973). The 
writ served by a bailiff37 is replaced by a declaration made directly to the court 
registrar, who himself convenes the parties; the declaration (written or even oral -
Article 847-1(1), New Code of Civil Procedure) states the identity of the parties and 
the subject of the request accompanied by a brief statement of the grounds; the 
invitation addressed by the court registrar to the defendant must be cited. 
c) Injunction to act: this procedure allows anyone to whom a contractual obligation is 
owing to request the court (through a simple written request) to enjoin performance 
in kind of this obligation (hence the idea is to secure rapid performance of the 
contract rather than to obtain damages); if the request seems justified, the court of 
first instance issues an order which is at once an injunction to act and is not open to 
appeal (the defendant may set out his defence at the hearing) and an invitation to the 
parties to attend a hearing (which is convened only if the defendant challenges the 
injunction); in case of complete or partial failure to comply with the injunction, the 
court hands down a definitive judgment after attempting to reconcile the parties. 
The courts of first instance, created under an Order of 22 December 1958, may rule on all 
personal actions valued at up to FF 30 000 (+/- ECU 4 553) (for claims up to FF 13 000, it 
is also the court of last resort; claims exceeding this sum are open to appeal). Hence it deals 
with most consumer disputes of a civil nature. 
For the consumer, the big advantage is that he does not have to engage a solicitor; the parties 
may defend themselves. 
A second noteworthy feature is the preliminary conciliation procedure (at the request of one 
of the parties) which may lead to an agreement between the parties (debated in the presence 
of the judge) which has the same binding force as a judgment. 
The Decree of 4 March 1988, while confirming the judge of first instance " in his vocation 
as representative of a form of justice that is accessible, effective, cheap, close to the user, 
humane and sufficiently rapid" was designed to cover all kinds of small claims and not only 
consumer disputes. 
The objective of the pilot project was to facilitate, in the two pilot cities, the implementation 
of the new procedures provided for in the decree (in parallel with the relaunching of the 
conciliation procedure already envisaged) and to evaluate their impact, mainly as regards 
access of consumers to justice. 
From 10 March 1988 to 31 December 1990, 787 conciliation dossiers were registered (of 
which 564 at Dijon and 223 at le Creusot); as to the two procedures created under the Decree 
of 4 March 1988, the statistics reveal that there were 362 simplified referrals and 93 
injunctions to act between 1 January 1989 (date of entry into force of these procedures) and 
31 December 1990. 
37 Estimated cost in 1988: approximately FF 200 (+/- ECU 30) for FF 13 000 (+/- ECU 1 973) 
claimed. 
30 
As regards conciliation, the result was impressive: at Dijon alone, there were 170 
conciliation dossiers in 1988,191 in 1989 and 203 in 1990, as compared with 51 conciliation 
dossiers in 1987 (i.e. before the project was launched); these cases were concluded within 
an average of 43 days after the date of referral to the court and only very rarely (in seven 
cases altogether) did the complainant have to pay costs. 
As regards simplified referrals (declaration to the court registrar), 362 dossiers were opened, 
of which 142 in 1989 and 220 in 1990; 58% of these cases led to a judgment favourable to 
the complainant, 11.8% to unfavourable judgments, 21.5% to withdrawals from smt, 5% 
cancellations and 3.5% conciliations; on average the hearing took place 56 days after the 
date of registry of the declaration with the court registrar and a final decision was reached 
116 days after the date of registry (but when the cases were not appealed, the average period 
was only three months). 
However, the injunction to act was not widely used (46 cases in 1989,47 cases in 1990), and 
rejections were numerous (44 altogether); the court's order was obtained within 11 days on 
average and a final decision handed down within an average of 93 days. It seems that this 
procedure is useful only in "straightforward" cases relating to the performance of an 
unchallenged and unchallengeable contractual obligation. 
In 1990 the courts of first instance dealt with a total of 506 154 cases (all procedures 
together); average duration was 4.3 months. 
2. Out-of-court procedures 
1) PO Box 5000 
PO Box 5000 is a unique address (created in 1977) to which consumers may send 
their claims or request for information; the secretariat - which is managed in each 
department by the Departmental Directorate for Competition, Consumer Affairs and 
the Prevention of Fraud - classifies incoming mail by dossier type and is responsible 
for follow-up, either directly (e.g. if the letter mentions the existence of facts which 
constitute an infringement) or by sending the dossier to the professional organisation 
concerned or to a consumer organisation. The idea behind this system is to provide 
a single and easily remembered address for all consumers. 
2) Conciliators specialised in consum er disputes 
The conciliator's task is "to facilitate, to the exclusion of any legal procedure, the 
amicable settlement of disputes relating to rights which the interested parties can 
freely dispose of (Article 1 of the Decree of 20 March 1978), irrespective of value 
or nature (the conciliator's powers do not extend to disputes relating to the status and 
capacity of individuals, divorce, and public policy in general); his jurisdiction covers 
one or several cantons and the is characterised mainly by the complete absence of 
formalities. 
31 
The conciliator is appointed by order of the first judge of the court of appeal and has 
his office at the town hall; matters may be referred to him in writing, by telephone 
or in person; if one of the parties refuses to attend, the conciliator cannot coerce him. 
In the event of (full or partial) conciliation the conciliator drafts a statement of 
agreement; the conciliation statement is enforceable only if the two parties consent; 
otherwise it is just a simple contract. 
Decree 93-254 of 25 February 1993 (amending and supplementing the 
above-mentioned Decree 28-381 ) provides for "conciliators exclusively responsible 
for settling disputes between persons acting by way of trade and consumers". These 
conciliators must have at least five years' legal experience "acquired in the field of 
consumer affairs or at an approved consumer association" (Article 1 ). The procedure 
provided for in Decree 28-381 has not been amended, but consumers "may be 
accompanied by a person of their choice" (this person may be a representative of a 
consumer organisation or any other individual). 
3) The conciliation committees 
Under the aegis of the Departmental Consumer Committees (consisting of an equal 
number of consumer representatives and representatives of professional bodies), 
several agreements have been signed concerning the establishment of "joint 
conciliation committees" made up of representatives of professionals in the branch 
covered by the agreement and representatives of the signatory consumer 
organisations. 
A referral may be made to the conciliation committees either by a signatory 
association or a signatory professional, which limits the scope of this type of 
settlement, since the consumer himself may not directly address the committee. 
4) The overindebtedness committees 
The Act of 31 December 1989 on the prevention of difficulties linked with 
overindebtedness has established a mechanism for amicable settlement by 
committees, created in each Département, which are composed of representatives of 
the government and consumer or family associations; the secretarial infrastructure 
is provided by the Bank of France. 
The job of these committees is to establish the debtor's degree of overindebtedness 
and to try to reconcile the parties, with a view to drawing up a contractual settlement 
scheme; if this procedure fails, the debtor or the creditors may refer the matter to the 
court of first instance with a view to obtaining remedy at law. 
3. Aid in accessing justice 
Aid in accessing justice, introduced by Act 91-647 of 10 July 1991, comprises aid in 
obtaining legal advice (by enabling the beneficiary to obtain information on his rights and 
duties, advice as to how to invoke his rights, and assistance in preparing legal documents) 
32 
and aid in connection with non-judicial or administrative procedures (such as the 
overindebtedness committees). This - highly innovative - text fills in the gaps in traditional 
legal aid, which normally (in most countries) does not provide for assistance in disputes with 
the administration (with a view to obtaining a decision or in the context of mandatory pre­
trial remedies) and applies only to the courts as such. 
4, The AÂRC service 
The AARC (Avocat Assistance et Recours du Consommateur - Solicitor, Assistance and 
Redress for the Consumer) is a counselling and redress centre created in 1981 by order of 
the advocates at the Paris Bar, with a view to reducing the cost of "small claims" in the 
consumer domain. 
The advocates have offices open to the public and their fees are flat rate (200 francs for 
consultation on a dossier, 400 francs for an amicable settlement or "list of arguments" 
providing guidance to the consumer who wishes to undertake his own defence at the court 
of first instance, 900 francs for instituting proceedings). 
Since its foundation the AARC has dealt with 500 dossiers and taken approximately 4 500 
telephone calls (free of charge). 
5. Representative actions and "actions in joint representation" 
Act 88-14 of 5 January 1988 (in abolishing Article 46 of Act 73-1193 of 27 December 1973) 
provides that "approved" consumer associations may request the civil courts or criminal 
courts acting in a civil matter "to order the defendant or the accused, where applicable with 
sanctions, to undertake any measure designed to terminate illegal acts or to remove an illegal 
term from the individual or standard contract proposed to the consumer" (the request is filed 
with the civil courts when its purpose is compensation for damages incurred by one or 
several consumers by virtue of circumstances which do not constitute a penal infringement). 
Hence, this is a representative action, which is brought by an organisation on behalf of 
interests which "transcend" particular interests. 
This Act has recently been supplemented by Act 92-60 of 18 January 1992 which has 
created an action in joint representation: when several consumers have suffered individual 
damages which were caused by one and the same professional, and which have a common 
origin, any duly recognised representative association may, if it has been designated by at 
least two of the consumers concerned, sue for damages before any court on behalf of these 
consumers. 
The same Act (Article 12) establishes that "a consumer code shall be created" which "shall 
consolidate the legislative and regulatory texts laying down rules relating to individual or 
collective relations between consumers and persons acting by way of trade, notably those 
relating to fair practice and safety of products or services". 
33 
(6) 
The preparatory work has since been completed and the text is now before the Council of 
State. 
34 
IRELAND 
1. Court procedures 
A procedure to deal specifically with small consumer claims was formally established in 
December 1991 (District Court - small claims procedure - Rules, 1991). 
The procedure, which is currently operating on a pilot basis in Dublin, Cork, Sligo and 
Swords, is intended to be progressively phased in throughout the rest of the country. A small 
claim is defined as any civil proceedings brought by a consumer against a seller in relation 
to any goods or services purchased in which the amount of the claim does not exceed IRL 
500 (625 ECU approx.) and which is not a claim under Irish Hire Purchase law or a claim 
in respect of a breach of a leasing agreement. 
Each participating district Court has a small claims Registrar whose special responsibility 
is to oversee the implement and procedure: he assists the consumer in filling out the form 
(special application forms were created) and process the claim, which essentially is to record 
it and to send the completed form to the respondent. Where the respondent admits the claim 
and wishes to make arrangements for payment, he simply fills out the form and returns it to 
the Registrar. 
If the respondent wishes to dispute the claim, or wishes to make a counterclaim, he must do 
so on the appropriate form within 15 days of receiving it. 
If within 15 days the respondent does not reply, then the claim will automatically be treated 
as undisputed and the District court will make an order for the amount claimed to be paid 
within a stipulated period of time (what is more, the Registrar will assist with the 
enforcement procedure if payment is not made). 
Where a notice of intention to dispute the claim is given, the Registrar will try to settle the 
dispute between parties: he may interview both parties and/or invite both parties to discuss 
the claim together. 
If an agreement cannot be reached, the Registrar will bring the case to the District Court for 
a hearing. The initial fee (IRL 5,6 ECU approx.) covers the cost of this Court hearing and 
the claim can be brought without a solicitor: the Registrar will attend the hearing and outline 
the alleged facts. 
In the period mid December 1991 to mid October 1992,646 claims were received into the 
small claims system (450 in Dublin, 99 in Cork, 39 in Sligo, 5 in Swords); 379 of them 
(58.7%) were settled without the need for a Court hearing, 78 (12.1%) were listed for a 
hearing and 189 (24.3%) were ongoing. 
35 
2. Out-of-Court procedures 
Several out-of-Court procedures have been established on the initiative of specific business 
sectors: among them, the insurance ombudsman scheme and the credit institutions 
ombudsman scheme. Membership of both these schemes is voluntary but the companies 
whrch^QHere to them are bound by the Ombudsman's-decision;- the consumer on the 
opposite can always take the matter to Court. 
The claims brought before the Ombudsmen may not involve an amount exceeding IRL 100 
000 (124 965 ECU approx.) for insurances and IRL 25 000 (31 240 ECU approx.) for credit 
institutions. 
A parliamentary Ombudsman (appointed by the Irish President) investigate complaints from 
anybody (natural or corporate persons) feeling that they have been unfairly treated by certain 
public bodies; although the outcome of the procedure is not binding, all recommendations 
of the parliamentary Ombudsman have been followed so far. 
3. Representative actions 
The Director of Consumer Affairs (created by the consumer information act, 1978) is the 
main enforcer of consumer legislation. 
He is statutorily independent and has a variety of powers to deal with false or misleading 
advertising, misleading price indications and so on. 
In this capacity, he can secure an injunction "to cease and desist" against any practices 
contravening the Consumer information act. He also promotes the creation of private codes 
of practice (example: code of advertising standards). 
4. Pilot projects 
A pilot project, called "ConsumerPersonal Service" (CPS) has been run by the Consumers' 
Association of Ireland since June 1990. 
The project is meant "to inform, advise and assist the consumers who encounter problem s 
with goods and services they buy"; a fixed fee of IRL 19 (24 Ecu approx.) is paid by the 
consumer who will be assisted, no matter how far the proceedings will be taken. 
A prime objective is to find an out-of-court settlement but in case of need full legal 
assistance is provided before the courts. 
In the period June 1990 to May 1993, the CPS received 780 complaints; some 100 cases 
were taken before the Courts, including 40 to be heard by the Small Claims Court. 
36 
ITALY 
1. Court procedures 
The Code of Civil Procedure was recently overhauled on the basis of Acts 3 53 of 26.11.1990 
(urgent measures concerning civil procedure) and 374 of 21.11.1991 (establishing the j ustice 
of the peace). 
The entry into force of some of the above-mentioned provisions was carried forward by Act 
No 477 of 4.12.1992; consequently, the reform will be fully effective as of 3 January 1994. 
The most important effects of the reform, from the consumer/user viewpoint, may be 
summarised as follows. 
a) Establishm ent of the justice of the peace 
The procedure before the justice of the peace is governed by special provisions 
(Article 316ff of the Code of Civil Procedure), which partly draw their inspiration 
from the provisions governing the procedure before the "conciliatory judge"™. 
The procedure is a simplified one in that: 
an action may be brought in the form of a simple declaration before the 
judge, who will keep a record and convene the parties (time limits for 
attendance have been halved, as compared with the norm); 
at the hearing, the justice of the peace listens to the parties and tries to effect 
conciliation; if the parties come to an agreement, this is entered in the record, 
which is enforceable; 
if conciliation fails, the justice of the peace invites the parties to set out the 
facts, produce documents and, where relevant, proof; 
a second hearing may be scheduled only if circumstances so require; 
the judgment must be handed down within 15 days of the hearing. 
The request for "non-litigious" conciliation, already provided for in the provisions 
concerning the conciliatory judge, may also be submitted to the justice of the peace, 
irrespective of the value of the claim; however, the record which establishes the 
parties' agreement will be enforceable only if the dispute falls within the jurisdiction 
of the justice of the peace. 
38 In effect the justice of the peace will replace the former " conciliatory judgen and will have broader 
jurisdiction. 
37 
The jurisdiction ratione summae of the justice of the peace is fixed at Lit 5 million 
(+/- ECU 2 790), or Lit 30 million (+/- ECU 16 732) in the case of disputes 
concerning civil liability in connection with motor vehicles and ships; hence, most 
consumer claims are covered. 
The freedom not to engage a lawyer is however limited to disputes whose value does 
not exceed Lit 1 million (+/- ECU 558) and the judgment "in equity" to disputes of 
up to Lit 2 million (+/- ECU 1 115). 
b) Interim measures 
All tribunals of first instance (justice of the peace, "pretore", court) may order 
interim ("anticipatory") measures in the context of procedures that will be introduced 
as of 2 January 1993: these measures will take the form of an order to deliver 
("injiunzione di consegna") or to effect payment. 
c) The time limits 
The new rule on time limits (and notably the amendment to Article 184 of the Code 
of Civil Procedure) should reduce the average duration of court proceedings, which 
is very high in Italy39. 
This new rule will take effect in 1994. 
d) Provisional enforcement 
Provision enforcement of a judgment of first instance (which up to now was the 
exception) becomes the rule for actions brought after 1 January 1993; suspension of 
the provisional judgment can only be ordered by the court of appeal on real and 
serious grounds (Article 283 of the Code of Civil Procedure). 
The purpose of this amendment to the Code of Civil Procedure is to discourage 
appeals made with the sole purpose of prolonging the procedure ("dilatory" appeals). 
2. Out-of-court procedures 
Arbitration tends to be expensive and so as a rule is beyond the reach of private individuals: 
it is normally used by firms. Thanks to arbitration a binding decision can be obtained far 
more rapidly than by going through the regular courts. 
39 538 days in the case of the "preture", 1 166 days before the lower courts and 1119 days before 
the courts of appeal. 
Source: Ministry of Justice, Documenti Giustizia 1-2/1993, p. 269. The statistics refer to all civil 
cases in 1991. 
38 
A special arbitration procedure has been established for disputes involving the 
telecommunications service, based on an agreement concluded on 24 July 1989 between the 
SIP (the telecommunications authority) and 12 consumer organisations. 
This project was piloted in Lombardy and Sicily and subsequently extended to six other 
regions; it now covers the whole country and the settlement procedure has been revised. 
There are two distinct phases: the user (after having exhausted the SIP's own claims 
procedure) may approach the regional conciliation committee, made up of one SIP nominee 
and one nominee of the consumer organisations. 
The conciliation procedure ends with a statement of conciliation or non-conciliation. In the 
case of non-conciliation the user may appeal to an arbiter (chosen by agreement between the 
SIP and the signatory associations) whose competence is limited to claims not exceeding Lit 
3 million. The arbiter decides "on the basis of equity" and the costs are borne by the losing 
party, but a "ceiling" has been established for the arbiter's fees. 
In the banking sector an "Agreement on the creation of a claims bureau and bank 
ombudsman" was recently concluded under the aegis of the ABI (Italian Banking 
Association). Under this agreement, a claims office is to be established in each bank or credit 
institution by 15 April at the latest. From this date, a national bank ombudsman (a five-
member body) may be approached by any consumer who has exhausted the internal claims 
procedure (for which a time limit of 16 days has been established). The ombudsman's 
services are free of charge and the ombudsman's decision is binding on the bank (without 
affecting the consumer's right to bring legal action) within the ceiling laid down by the 
agreement (Lit 5 million). 
Asregardspublicity,a"GUIRIDIAUTODISCIPLINAPUBBLICITARIA" (self-regulatory 
advertisement standards board) was set up in 1966, and has handed down a total of 1 076 
decisions; the self-regulatory advertising code applied by this board is regularly updated. 
The nineteenth version took effect on 15 June 1993. 
As regards relations between citizens and government, a "DIFENSORE CIVICO" 
(ombudsman) exists in each of Italy's 20 regions and provides information, counselling and 
assistance to all citizens (or organisations of citizens) on request. The powers of the difensori 
civici are governed by regional laws, but normally their opinion is not (legally) binding on 
the administration. 
3. Protection of collective interests 
In principle, organisations representing a collective interest would not have the "interest in 
bringing an action" required by Article 100 of the Code of Civil Procedure (in accordance 
with the prevailing school of thought). 
However, more recent legislation has recognised their right to bring an action in specific 
domains. 
39 
The collective interest of consumers (who in Italy are not protected by any public authority, 
such as the Danish ombudsman or the Irish Director of Consumer Affairs) is governed by 
the following statutes: 
Legislative Decree No 74 of 25 January 1992 transposing Directive 84/450/EEC on 
misleading advertising; 
Act 287 of 10 October 1990, concerning protection of competition and the market, 
which recognises the collective interest of consumers (and also the right of their 
organisations to bring an action) in the case of mergers, abuse of a dominant position 
or restrictive practices. 
Consumer organisations may bring civil actions in criminal cases under the terms of Act 462 
of 7 August 1986 concerning the "prevention and suppression of adulterated foodstuffs". 
4. Pilot projects 
A project called "Access of consumers to justice" proposed by a consumer organisation and 
financed by the Commission of the European Communities was established in Milan on an 
experimental basis as of January 1991. The service provided under the project is completely 
free of charge and the offices are open to the public on all working days between 13.00 to 
19.00. 
The main task of this service is to inform the consumer about his legal rights and how to 
avail of them. If a claim appears to be substantiated an attempt may be made to effect an 
out-of-court resolution so as to settle the dispute amicably, if the consumer so wishes. 
If this does not work the service may assist the consumer in all disputes brought before the 
conciliatory judge (where the assistance of a lawyer is not required). If the dispute falls 
outside the jurisdiction of the conciliatory judge, the consumer is invited to consult his 
lawyer or the law society. 
What singles out this project is the use of the non-litigious conciliation procedure (Article 
321 of the Code of Civil Procedure), which is also envisaged in the Act establishing the 
justice of the peace. This procedure used to be largely ignored in practice. 
From November 1991 to October 1992 the service received 1 302 requests for information 
and/or intervention. Each case was examined. A total of 3 57 files were opened. Of these, 119 
of them were resolved under the out-of-court procedure by agreement with the respondent, 
wliile 18 were resolved in the procedure before the conciliatory judge (15 non-litigious, three 
dSfitaded.) 
ÂJ 31 October 1992, 220 disputes were pending of which 25 were before the conciliatory 
judge. 
The good results of this pilot project led to the opening of a second centre with a view to 
evaluating the impact of the initiative in a different socio-economic milieu (Forli). 
40 
A second project launched by a consumer organisation (and linked to the implementation 
of the conciliation and arbitration procedure described in point 2) provides training to 
aspiring members of the telecommunications conciliation committees. 
41 
LUXEMBOURG 
1. Simplified court procedures 
Two simplified procedures exist to facilitate recovery of debts: the payment order (Articles 
48-58 of the Civil Code) and the sequestration of salary (Decree of 11.11.1970, Mémorial 
1970, 1314). 
Given their objective, these procedures have virtually never been initiated by consumers 
who, on the contrary, are normally at the receiving end. On very rare occasions, consumers 
have initiated the first type of procedure. 
No simplified procedure (such as the injunction to act in France) is available for consumers 
seeking performance of a contract. 
The "summary procedure" device opens the way to interim measures in the event of urgency 
or orders pertaining to debts, pending judgment on the merits. 
2. Out-of-court procedures 
Apart from ordinary arbitration (whose cost is normally disproportionate to the sums at issue 
in consumer claims) there are no out-of-court procedures which are legally binding on the 
professional. 
3. Representative actions 
Consumer associations may bring an action to protect collective interests against unfair 
terms (Act of 25.8.1983, Article 5) and unfair commercial practices (Act of 27.11.1986, 
Article 21). These actions are reserved for "consumers' associations represented at the Price 
Committee" of the Grand Duchy of Luxembourg. 
42 
NETHERLANDS 
1. Court procedures 
On 30 December 1991, a new procedure was introduced before the Kantongerecht 
(Subdistrict Court of first instance) which has jurisdiction in the case of: 
a) claims not exceeding HFL 5 000 (2 284 ECU approx.) 
b) claims concerning rent of housing or hire-purchase, regardless of amount. 
Under the new procedure, the writ of summons can be sent to the defendant as a registered 
letter (to his end, the plaintiff has to fill out a form) instead of being served by the bailiff. 
The defendant may choose to defend himself orally before the Court or to file a written reply 
(legal representation is not required); if the defendant does not reply, the-claim will be 
awarded unless it is unsubstantiated. 
The judge can also try to effect conciliation (if so requested, or even on his own initiative); 
to this end, he can order the appearance of the parties in person ("comparitie": 19, Code of 
Civil Procedure). 
A special provision concerning consumer complaints has been introduced, according to 
which a consumer can initiate the procedure before the Court of the place where he lives 
(Article 98, par. 3 Code of Civil Procedure); a choice of jurisdiction is permitted only after 
the dispute has arisen (Article 100 CCP). A possibility of obtaining a provisional judgement 
(in urgent cases) is given by Article 116 CCP. 
2. Out-of-Court procedures 
The so-called "Ombudsmen" which have been created in some sectors (life insurance 
ombudsman, savings banks ombudsman and so on) cannot actually settle disputes: their 
"advice" is not binding. 
Howeverthe "geschillencommissies"can issue binding recommendations ("bindendadvies ") 
which have the force of a contractual obligation: once the parties agree to submit a dispute 
to such a Commission, non-compliance with its "recommendation" is regarded as a breach 
of contract. 
The "geschillencommissies" must be formally recognised by the Minister of Economic 
Affairs, who checks that they satisfy certain conditions such as procedural guarantees and 
impartiality. 
Almost all of them adhere to an umbrella Foundation which was set up jointly by the 
business branch organisations and the Consumentenbond (consumer association). 
A geschillencomissie is composed of one consumer representative, one representative of the 
business branch organisation and one impartial chairman; the consumer (who must have 
43 
tried to settle the dispute with the supplier before initiating the procedure), has to pay a fee 
varying from HFL 27.5 (approx. 12 55 ECU), to HFL 150 (approx. 69 ECU); the procedure 
is mainly written, but a hearing may take place if so requested by one of the parties. 
In 1991, the geschillencommissies belonging to the Foundation received 5 162 complaints, 
(1 867 of which were filed with the geschillencommissie on travel); the average duration of 
the procedure was 4.2 months. 
A similar binding recommendation can be issued by some disciplinary boards, including the 
Supervisory Boards of the Dutch Lawyers' Association, the Royal Notary Brotherhood and 
the Medical Disciplinary Board (which are regulated by statute) and the Arbitration Institute 
of the building societies (which is not). 
As far as advertising is concerned, a foundation called "STICHTING RECLAME CODE" 
was established in 1964 and includes leading advertisers, consumer organisations and media 
(except TV broadcasting, which is vetted by a special public body). It runs the "RECLAME 
CODE COMMISSIE", whose decisions may be appealed before the "college van beroep": 
the self-regulatory system has therefore developed a two-tier scheme. 
3. Protection of collective interests 
Consumer organisations have a general right to sue in defence of consumer interests. Until 
now, this right was mainly based on case law, but a draft regulation (Bill 22.486) is intended 
to give it a statutory basis. 
Under present case law, consumer organisations can only ask for an injunction or prohibition 
and they must be "representative" (this somewhat vague condition may pose difficulties for 
the court). The right to ask for a prohibition or rectification of misleading advertising is 
granted to consumer organisations under Article 6/196 of the Civil Code; actions against 
misleading advertising are subsidised by the Government. 
A similar action is regulated by Article 6/240 with respect to "general conditions which are 
used or are destined to be used in contracts with persons whose interest are entrusted to a 
legal person". 
44 
PORTUGAL 
1. Simplified court procedures 
The Portuguese Code of Civil Procedure (Articles 793c et seq.) provides for a simplified 
procedure for "small claims" ("processo sumarissimo"). 
This type of procedure covers not only so-called consumer disputes, but also all disputes of 
a civil character below a specific ceiling (corresponding to 250 000 Escudos,+/-ECU 1 333) 
and concern payments under contract, compensation for damages and the delivery of 
moveable goods (Article 462(1)). 
A lawyer's assistance is not required and legal costs are paid by the losing party (including 
the winning party's lawyers' fees, where relevant). 
In 1990 the Ministry of Justice launched a programme entitled "Citizens and Justice" 
(Citadâo e Justiça) designed to improve transparency in relations with the administration, 
and to promote information, training and citizen participation, as well as access to the law 
and to the courts; consumer protection is one aspect of the access of citizens to justice. 
In the context of this programme, Decree-Law No 211 of 14 June 1991 created a sort of 
simplified procedure consisting of a joint submission by the parties and involving fewer 
formalities, shorter time limits and lower costs. 
The Organic Law on the Legal System (Act No 38 of 1987, amended by Act No 24/92 of 
20 August 1992) provided for the creation of "lower instance courts", also called "small 
claims courts" (Decree No 446 of 8 July 1988 and preamble to the Decree No 214 of 17 July 
1986 governing the Organic Law on the Legal System). The establishment of these courts 
requires implementing regulations currently in preparation. 
An attempt to effect conciliation "may take place at any time during the procedure if the 
court considers it opportune, but the parties cannot be convene d more than once to this end" 
(Code of Civil Procedure Article 509(4)). 
However, this step is not obligatory, except in the case of the "small claims" procedure, 
where it takes place at the start of the hearing (Code of Civil Procedure, Article 796/3). For 
other forms of the normal procedure this is done at the preparatory hearing but only when 
the judge considers it possible to settle the dispute without handing down a judgment (Code 
of Civil Procedure, Articles 508 and 787). 
Provisional enforcement of the j udgment: 
In general, provisional enforcement is possible, since appeals do not have staying 
effect (Code of Civil Procedure, Article 47/1, Article 693/2 and Article 740). 
Urgent measures: 
45 
The Code of Civil Procedure provides for a series of urgent measures prior to the 
main proceedings (Code of Civil Procedure, Article 38Iff). 
Penalties for dilatory tactics: 
Dilatory tactics during the trial are considered as evidence of bad faith and the court 
may fine the party concerned and order him to pay damages (Code of Civil 
Procedure, Article 456/1 and 2). 
Legal protection for foreign nationals: 
Legal aid, which may include both waiving of expenses and free assistance for 
persons of insufficient means, is governed by Decree-Law No 387-B/87 of 29 
December 1987 and applies to foreign nationals in application of the constitutional 
principle by virtue of which whoever "lives or resides in Portugal enjoys the same 
rights and is subject to the same obligations as the Portuguese citizen" (Constitution, 
Article 15(1), cf. also Decree-Law No 391/88 of 26 October 1988, Article 1). 
Even if he is not domiciled in Portugal, the Community national benefits from this 
aid, provided he lives there. 
This aid is one of the forms of legal protection provided by the legal advice centres 
located throughout the country under the agreements signed by the Ministry of 
Justice and the Law Society (Decree-Law No 391/88). 
2. Out-of-court procedures and pilot projects 
Some large firms and public bodies have already unilaterally appointed "ombudsmen" whose 
task it is to receive and amicably settle claims by clients or to improve services. Examples 
include the Portuguese Post and Telecommunications Organisation and the municipality of 
Lisbon. 
The trend in Portugal is to create broad-based voluntary arbitration bodies to deal with 
consumer disputes. 
These institutions are still experimental, although the Lisbon ombudsman has been in 
existence for approximately four years; hence we discuss mem under the rubric "pilot 
projects". 
Apart from these general arbitration bodies, a few private sectoral arbitration mechanisms 
are making a timid debut, for example in the domain of car repairs. 
46 
a) The Lisbon pilot project 
The Municipality of Lisbon, the INDC (National Institute for Protection of the Consumer), 
the Lisbon Union of Traders and the DECO (Portuguese Consumer Protection Association) 
signed an agreement on 28 October 1988 concerning the creation, on an experimental basis, 
of an arbitration centre for consumer disputes. 
The INDC, the Municipality of Lisbon and the Commission of the European Communities 
provided the initial funding. 
Circular (Despacho) No 155/90 of 23.2.1990 of the Ministry of Justice authorises the 
creation of an arbitration centre and Circular No 103/91 of 8.3.1991, also from the Ministry 
of Justice, totally waives legal fees for arbitration decisions under this project. 
This experiment was possible thanks to close cooperation between the different participants 
(government, municipality, Association of Traders, Association of Consumers, European 
Communities). The centre (which has its own headquarters at the municipality of Lisbon), 
has the following structure: 
a host service staffed by two lawyers; 
a director; 
an arbiter-judge appointed by the Superior Council of the Bench. 
The host service hears consumer complaints; when these appear prima facie admissible, they 
are entered in special forms together with supporting evidence. 
Finally, me centre invites the two parties in writing with a view to conciliation. The 
agreement, in the form of a document drafted by the service's lawyer, is subsequently 
approved by the judge-arbiter and has the same status as a judgment. 
If conciliation fails, the case is submitted to the arbites-judge, accompanied by the trader's 
defence and documentary evidence. 
After examining the evidence, the judge immediate hands down a judgment, unless expert 
opinions and examinations are needed. Witnesses are normally summoned by the parties. 
Pursuant to Act No 31/86 of 29.8.1986 (Article 26), the arbiter's decision is enforceable just 
like court of first instance decisions and it is this court that is also entitled to issue any 
appropriate injunctions. 
The arbiter's jurisdiction concerns consumer disputes not exceeding 500 000 Escudos (+/-
ECU 2 665) and covers the Lisbon area (i.e. the contract must have been concluded in 
Lisbon). The service is free and swift irrespective of the stage at which it is invoked. 
From 20 November 1989 (date of opening of the centre) to 19 November 1992, the centre 
dealt with 3 160 dossiers (mainly just inquiries); 600 cases were settled through medjatipn 
and conciliation, 390 gave rise to an arbitration ruling. Only 6% of the parties convened for 
the conciliation and arbitration phase failed to show up. On average, 40 days elapsed 
between submission of the request and the judgment. 
47 
A new agreement was signed on 15 march 1991, and the arbitration centre is now recognised 
as a permanent arbitration centre for consumer disputes. Recently it was transformed into 
an association, and so it now has a legal personality and administrative and financial 
independence, its funding being guaranteed under a new protocol concluded with the 
ministries. 
On 11 March 1992 an agreement was signed between the municipalities of Lisbon and 
Madrid. Pursuant to this agreement, consumers living in Madrid may submit a claim for 
purchases effected or Lisbon, and vice-versa; the claim is forwarded to the competent 
instance (Junta Arbitral de Madrid, Lisbon arbitration centre) of the place of purchase and 
the consumer (to avoid travel costs) may be represented by a consumer organisation. 
b) Coim bra pilot project 
The Coimbra arbitration court/arbitration centre was created under a protocol signed on 15 
April 1992 between the Ministry of Justice, the National Institute for Protection of the 
Consumer, the Municipality of Coimbra, the Portuguese Association of Consumer Law and 
the Coimbra Commercial and Industrial Association. Since then other consumer 
organisations and professional bodies have joined and the system is now fully operative. 
The articles of association, structure and functioning of this institution are much the same 
as the Lisbon centre, though the two centres differ in that the jurisdiction of the Coimbra 
centre may be extended to neighbouring municipalities, and one of them - Figueira daFoz -
has already decided to opt in. Consequently, responsibility for dealing with and informing 
consumers and, where relevant, conciliation, lies with existing local services at municipal 
level (CI AC). These are a sort of first instance and have links with the common arbitration 
court, which is responsible for endorsing agreements or (if conciliation fails) settling 
disputes. As in the case of Lisbon, the agreement approved by the judge-arbiter or his 
decision are binding. 
The arbitration court has jurisdiction over disputes for sums of up to 500 000 Escudos, the 
value being adjusted annually in line with the general consumer price index. 
As with Lisbon, the Coimbra project is partly funded by the Commission of the European 
Communities. 
c) The pilot project of Porto and the A ve Valley (Vale do A ve) 
The Porto arbitration centre for consumer disputes at was set up under an identical protocol, 
signed on 14 September 1992, and is due to open soon. 
Its jurisdiction, which is initially limited to the city of Porto, may be extended to the 
metropolitan zone (hence covering neighbouring municipalities in the metropolitan area). 
The Porto arbitration centre draws its inspiration from the two other centres. Like Lisbon, 
it has a central office for welcoming and providing legal information to consumers, while 
like Coimbra its activities may be extended beyond the city as such. Finally, the Porto centre 
has a unit mat provides consumers with general information on the market, and not just legal 
information. 
48 
The consumer disputes arbitration centre of the Ave Valley, based in Guimarâes, was created 
under a protocol dated 15 March 1993, and involves the same central and local bodies 
(Association of Municipalities of the Ave Valley) and local associations representing 
consumers and suppliers. Its jurisdiction is intermunicipal, comprising in principle all 
municipalities of the Ave Valley. 
3. Representative actions 
Act No 29 of 22 August 1981 (Articles 12 and 14) confers rights on Portuguese consumer 
associations. And although under the Act (Articles 13(h) and 10/3 combined) associations 
may bring civil actions to defend collective interests - as assistants to the Ministry of Public 
Order - the structure of the procedure does not appear to give the holders of these interests 
(whether they are identified or not) the right to appear by proxy. 
According to the National Consumer Protection Institute, this is "an omission which should 
be expressly remedied so as to bring procedural law (notably as regards "ad causam" 
legitimacy) in line with this positive law". 
Portuguese law does not provide for collective action to enjoin cessation of misleading 
advertising. Hence there are no measures of the kind envisaged in Article 4(a) of Council 
Directive 84/450/EEC of 10 September 1984. 
"Popular action" is provided for in Article 52 of the Constitution and a bill to implement this 
principle is currently being drafted. 
49 
UNITED KINGDOM 
1. Court procedures 
UK is divided into three different jurisdictions: England and Wales, Scotland, Northern 
Ireland. 
In each of them a small claim procedure has been created, which can be summarised as 
follows: 
a) England and Wales: a small claim is a claim for UKL 1 000 (1 285 ECU approx.) or 
less made through a County Court. 
Small claims can be filed without the help of a lawyer: special forms and information 
leaflets have been produced by the Lord Chancellor's Department which are simple 
and user-friendly; the fee depends on the amount which is claimed40. The Court will 
post a copy of the summons and a reply form to the defendant, who has 14 days to 
reply. 
If the defendant does not reply, the Court can be asked to send him an order to pay 
(judgment by default). If the defendant disputes the claim, the case will be 
automatically referred for hearing by the District Judge. 
The county Court Rules 1981 state that the hearing "shall be informal and the strict 
rules of evidence shall not apply"', legal representation is permitted but is 
discouraged by the rules on costs, which provide that the successful party is normally 
not entitled to recover his costs of representation41. Lay representation has been 
permitted by the Lay Representatives (Right of Audience) Order 1992. It has been 
estimated that in 1989, some 12 500 consumer disputes were handled by the small 
claims procedure. 
b) Scotland: a small claims procedure was introduced by the Act of Sederunt (Small 
Claims Rules) 1988 and the Small Claims (Scotland) Order 1988, which took into 
account the results of an EC pilot project in Dundee. 
A small claim is a claim for UKL 750 (965 ECU approx.) or less made before a 
Sheriff Court (all actions within the definition must be brought under the small 
claims procedures, unlike England and Wales, where some choice is available); the 
procedure can also be used for higher amounts provided both parties agree. 
40 
41 10 pence for every pound up to UKL 500; 60 pounds fixed fee for claims between UKL 500 and 
UKL 1 000). 
However, the District Court has discretion to award such costs if the opponent has acted 
unreasonably. 
50 
The procedure is quite similar to the English one. 
c) Northern Ireland: a small claims procedure was introduced in 1979 (Judicature NI 
Act 1978, Section 97). 
A small claim is a claim for UKL 1 000 (1 285 ECU approx.) or less made before a 
County Court. 
Unlike Scotland, there is no preliminary hearing in the Northern Ireland procedure: 
as a result, 98% of cases are dealt with within 12 weeks of being lodged in the Court 
Office. 
Another specific feature is the possibility of using the facilities of an "Enforcement 
of Judgments Office". 
2. Out-of-Court procedures 
A very wide range of alternative redress mechanisms have been created, most of which are 
tailor-made for a particular sector. 
Roughly speaking, they can be divided into three groups: 
a) Conciliation and arbitration schemes 
The Consumer Arbitration Agreements Act 1988 gave consumers the choice to elect 
for arbitration as an alternative to using the courts. In order to guarantee a free 
choice, this Act stated that an agreement in a contract cannot deprive consumers of 
their right to go to court. 
Most consumer arbitrations take place as a result of arbitration schemes contained 
in codes of practice drawn up by trade associations in consultation with the Office 
of Fair Trading: under section (124(3) of the Fair Trading Act 1973, the Director 
General of Fair Trading has a duty "to encourage relevant associations to prepare, 
and to disseminate to their members, codes of practice for guidance in safeguarding 
and promoting the interests of consumers in the United Kingdom". 
Since 1974,29 such codes have been drawn up in consultation with the OFT, which 
has established a model procedure for complaints handling. 
In addition to the schemes approved by the OFT, a number of other low-cost 
arbitration schemes have been set up. The main problem of these schemes is 
ignorance of their existence; a major exception is the scheme set up by the 
Association of British Travel Agents (756 arbitrations in 1989). 
If conciliation by the trade association does not achieve a satisfactory settlement, 
most of the codes give the consumer the option of referring the dispute to 
independent arbitration; in the case, a registration fee must be paid, which is 
subsidised and lower than the usual fee for arbitrations and will be refunded if the 
51 
consumer wins the case. The decision of the arbitrator is binding on both parties and 
conducted on a documents only basis (no oral hearings). 
Some arbitration schemes have been set up in the financial services sector following 
the Financial Services Act 1986, which requires any self-regulation body or 
recognised professional body to have "effective complaint handling procedures". 
b) Private sector "ombudsman" schemes 
The private sector "ombudsman" schemes vary in detail, but it is possible to identify 
some common factors. Generally speaking, the "ombudsman" is an independent 
person whose function is to settle a dispute between a company and its customer, 
ideally through mediation or conciliation, but ultimately by making a decision. This 
decision is normally binding for the company (insurance ombudsman, banking 
ombudsman) where membership is voluntary: where membership is compulsory 
(building societies ombudsman, legal service ombudsmen) the Ombudsman decision 
is not binding. 
Unlike the arbitration scheme, the Ombudsman scheme never binds the consumer: 
if dissatisfied with the decision, the consumer may always resort to legal action. 
Another difference is that the consumer does not have to pay any fees: the only 
condition is that the complaints mechanisms of the member organisation must have 
been exhausted. 
These features probably explain the increasing success of the scheme (10 215 
enquiries received by the insurance ombudsman in 1989, 3 915 by the banking 
ombudsman in the same period). The Office of Fair Trading, in order to prevent 
possible abuses of the "title", recently called for "minimum standards"Tor admission 
to the profession. 
c) Public utility schemes 
Most public utilities have been privatised recently. To protect the interests of 
consumers, the statutes authorising privatisation created a public official with the 
title Director General whose role is to act as the industry regulator. 
Nevertheless, a majority of these public officials have no power to enforce their 
decision (an exception is the Director General of Electricity Supply): the recent 
"citizens' charter" indicated there would be further legislation to improve the 
situation. 
3. Protection of collective interests 
The Fair Trading Act 1973 created the post of Director General of Fair Trading, who is 
required to protect consumers by making sure that trading practices are as fair as possible 
and by encouraging competition among businesses. His office (OFT: Office of Fair Trading) 
has operated since 1974, working closely with the Department of Trade and Industry, with 
local authority trading standards departments and with self-regulating bodies. 
52 
The OFT is independent and does not form part of any ministry. Its Consumer Affairs 
Division has the fundamental aim of promoting and safeguarding the interests of consumers: 
in its regulatory role it administers certain provisions of the Consumer Credit Act 1974, the 
Estate Agents Act 1979 and the Control of Misleading Advertisements Regulations 1988; 
it proposes and promotes changes in the law and practice where the interests of consumers 
are being harmed; it provides information, primarily in the form of advisory leaflets. 
According to the Fair Trading Act, sections 35 and 38, the Director General of Fair Trading 
can bring proceedings before the Restrictive Practices Court against the person (or the 
corporate body) which has (in the course of his business) "persisted in a course of conduct 
which is (a) detrimental to the interests of consumers in the United Kingdom, whether those 
interests are economic interests or interests in respect of health, safety or other matters, and 
(b) is to be regarded as unfair to consumers", in accordance with the provisions of section 
34. Before taking the Court action, the Director "shall use his best endeavours to obtain a 
satisfactory written assurance" that the trader will refrain from continuing that course of 
conduct and from carrying on any similar course of conduct in the course of that business: 
the action can be taken in so far as the Director is unable to obtain such a written assurance 
or the written assurance has not been observed. "Unfair conduct" is defined as conduct 
involving breaches of the criminal law and/or breaches of the civil law (other than a 
contractual duty). Consumer complaints must be taken into account in deciding whether to 
pursue this course of action (section 34(4) Fair Trading Act). Such complaints form the basis 
of evidence enabling the Director to take action. The powers conferred on the Director under 
the Fair Trading Act are not such as to result in individual redress for a consumer. 
Consumer organisations cannot at present, under UK law, themselves take action on behalf 
of individual consumers. 
4. Pilot projects 
An EC-funded pilot project was run in Dundee (Scotland) and has already been described 
in the Commission's first Communication on consumer redress (COM(84) 692). This project 
has been given a strong follow up and was taken into account by the Small Claims Order 
1988 mentioned in § 1 (creation of a small claims procedure in Scotland). 
53 
III. THE COMMUNITY DIMENSION OF THE PROBLEM 
ÏII.A Protection of individual rights 
III.A. 1 The existing procedures 
A "comparative" analysis of current procedures in the Member States shows that attempts 
to improve the settlement of individual disputes have followed one of two tracks: 
simplification of court procedures applicable to "small disputes" (as part of a more 
general reform or in the context of "targeted" measures, as will be seen below); 
alternatively, the creation of out-of-court procedures (conciliation, mediation, 
arbitration) specifically devoted to consumer disputes (at the initiative of the public 
authorities or, more often, industry). 
In one country, the law now allows a third alternative in the shape of a joint representation 
action: consumer organisations may sue on behalf of consumers who have "suffered 
individual harm caused by an act of one and the same professional and having a common 
origin" (France: Act 92/60 of 18 January 1992, Article 8). 
This action is founded on an express warrant, which must be given in writing by each 
consumer concerned: it is not an action to protect a collective interest but rather the 
collective exercise of individual rights of action. 
The joined cases facility, foreseen in the legislation of most Member States, is partly a 
response to the same requirement (to avoid a multiplicity of decisions, possibly 
irreconcilable, when several suits are filed against one and the same defendant and relate to 
the same petitum et causa petendi). 
Nevertheless, the joined cases facility is a simple option (for the judge ) and occurs ex post: 
by contrast, a joint representation action means that a cluster of suits can be grouped 
together, filed and judged in one go, ex ante, in a single case (the writs, etc. concerning the 
parties are addressed, from the start, to the association that has been given power of 
attorney). 
III. A. la COURT PROCEDURES 
As regards the simplification of court procedures, the legislative amendments may be 
classified as: 
I. reform of the Code of Civil Procedure, designed not only to simplify the settlement 
of "small claims" but also to streamline procedures in general and eliminate the 
backlog of pending cases (Belgium: Act of 3 August 1992; Italy: Acts 353 of 26 
November 1990 and 374 of 21 November 1991 ; Germany: Act of 11 January 1993); 
II. creation of "simplified" procedures (a term whose meaning will be fleshed out 
below) for disputes of a civil character below a certain sum (France: Decree No 
88/209 of 4 March 1988; Netherlands: Act of 30 December 1991; Portugal: Decree 
54 
No2il/91 of 14 June 1991; United Kingdom: Act of Sederunt-Small Claims Rules 
- 1988); 
III. creation of a (simplified and) special procedure solely available to consumers for 
disputes whose value does not exceed a specific sum (Ireland: District Court - Small 
Claims Procedure - Rules, 1991). 
So far we have used the term "simplified procedure'Very broadly, meaning the goal 
legislators have in mind rather than the technical details of the simplified procedure as such. 
Indeed, while the proclaimed objective is almost always the same (efficiency of procedures, 
better access of citizens to justice, removal of the backlog of cases), how it is achieved will 
vary with the Member States' legal traditions. 
In all Member States, disputes below a certain value38 are governed by a specific procedure 
whose common features are: 
1. simplified procedures for bringing an action (simplified referral - a registered letter, 
or a simple declaration recorded by the judge or a clerk of the court) and 
2. the fact that a lawyer's assistance is not required and 
3. a prior attempt to effect conciliation (which is mandatory in most countries) by the 
presiding judge. 
The main variable is the "quantification" of the value below which this procedure is 
triggered. 
Points 1, 2 and 3 are common to the following procedures up to the sum indicated in each 
39 
case : 
Belgium: 
Denmark: 
Germany: 
Greece: 
Netherlands: 
Portugal: 
United Kingdom: 
Northern Ireland: 
Scotland: 
Spain: 
France: 
Ireland: 
Italy*: Juge de paix 
Byret 
Amstgericht 
Juge de paix 
Kantongerecht 
Processo sumarissimo 
Small claims scheme 
Small claims scheme 
Small claims scheme 
Juge de paix 
Saisine simplifiée 
Small claims scheme 
Juge de paix BFR 75 000 
DKR 500 000 
DM10 000 
DR 60 000 
HFL 5 000 
ESC 250 000 
UKL1 000 
UKL 1000 
UKL 750 
PTA 80 000 
FF 13 000 
IRL 500 
LIT 5 000 000 ECU 1 871 
ECU 66 836 
ECU 5 121 
ECU 227 
ECU 2 284 
ECU 1 333 
ECU 1 285 
ECU 1 285 
ECU 965 
ECU 519 
ECU 1 973 
ECU 625 
ECU 2 789 
38 In seven Member States this sum corresponds to the court's ratione summae; in the others it is 
equivalent to a ceiling which triggers application of a simplified procedure for courts of first 
instance. 
39 Conversion into ECU was carried out on the basis of the standard rate applied by the Commission 
in June 1993. 
55 
* (a lawyer's assistance is required if the value of the dispute exceeds LIT 1 000 000) 
Thus the ceiling for "small claims" varies enormously. However, a general principle seems 
to be emerging in all the Member States. Briefly: the cost of a procedure (court costs, 
lawyer's fees, expert's fees) should not be out of proportion to the value at issue. 
This principle should brook no derogations except when the complexity of the case justifies 
them clearly - indeed the European Court of Human Rights has developed a principle which 
is quite similar, concerning the interpretation of "reasonable delay", required by Article 6 
of the European Convention on Human Rights. 
This is a principle which does not tend to favour one party (plaintiff or defendant) or one 
category of parties: the procedural formalities are reduced so that the cost of the procedure 
is "reasonable" (taking into account the value at issue) for all parties concerned (firm and 
consumer, plaintiff and defendant) as well as for the administration of justice. 
This principle gives due consideration both to equity and national budgetary constraints. 
The role of "conciliation" in these procedures is a crucial one: in many countries this is 
highlighted by the "name" given to the competent judge (justice of the peace in Belgium, in 
Greece, in Italy and Spain; in France also the courts of first instance have assumed the 
functions which were formerly those of the justice of the peace). 
The likelihood of successful conciliation is in fact greater when it is initiated by the same 
judge who (if conciliation fails) will have to hand down the judgment; moreover, this 
conciliator's credibility is underpinned by his independent and impartial status. 
Apart from this "common denominator", disparities between "ordinary" procedures are very 
great. The procedures for introducing the action, calculating the time limits, the costs of the 
procedure, recovery of experts' fees, the role of the judge in the production of proof, 
conditions for the award of legal aid (in a nutshell, the structure of the case) are the product 
of country-specific traditions: rules of procedure as a whole represent a delicate balance and 
can only be harmonised gradually and with the utmost caution. 
An emerging trend in the Member States concerns the provisional enforcement of the 
judgment of first instance. In the countries which have adopted this approach (such as Italy), 
the measure is designed to dissuade "dilatory appeals" (appeals whose only goal is to 
prolong the dispute. Indeed in some countries, such as Belgium, such appeals may be subject 
to penalties). 
56 
However, the length of ordinary procedures varies enormously from one Member State to 
another: in 1991, for a civil case valued at between ECU 3 000 and ECU 4 000, the average 
time lag between the institution of proceedings and the judgment was 4.3 months in France 
(courts of first instance) and 38.9 months (1 166 days) in Italy (Tribunali)40. 
In a rule of law Community the principle of equality of treatment should also apply to 
citizens who invoke, before the national courts, compliance with a given Community rule. 
III. A. 1 b OUT-OF-COURT PROCEDURES 
Besides court procedures, a number of specific out-of-court procedures for the settlement 
of consumer disputes have been established at national level. These procedures were 
summarised in Part II (national chapters). 
Such procedures are sometimes an alternative to going to court (arbitration of consumer 
disputes)41 but more often they are complementary or pre-litigation procedures (mediation 
and/or conciliation)42. 
As regards the disputes covered by these procedures, most Member States have adopted a 
sectoral approach. Normally, initiatives are taken in a specific economic sector (banks, 
insurance, telecommunications, etc.). Sometimes it is the public administration43 that sets 
up the structure, sometimes they are established unilaterally, and sometimes after 
"negotiation" with consumer organisations. 
In certain Member States the body responsible for dealing with the disputes is a public 
authority (example: Consumer Complaints Board in Denmark), but in most countries it is 
a private body (permanent or temporary, consisting of one or several members). 
Other differences concern how the body is designated (in the case of collegiate bodies, 
consumer organisations and businesses are normally represented) as well as the legal status 
of membership on the part of professionals (normally, membership is on a case-by-case 
basis, but in some case candidate firms may have to commit themselves to accepting the 
system "a priori"). 
40 
41 
42 
43 Source: official statistics of the Ministries of Justice of France and Italy. 
Juntas arbitrales in Spain, consumer arbitration centres in Portugal, Geschillencommissie in the 
Netherlands. 
Sometimes both types are combined: the parties may submit their questions to arbitration after 
having tried to effect conciliation. 
Example: United Kingdom. 
57 
As regards the legal effects of the procedure, the differences are also considerable, ranging 
from a simple recommendation (in the case of most private ombudsmen), to a decision 
binding on the professional but not the consumer (example: bank ombudsman in most 
Member States), or to a decision binding on the two parties (arbitration). 
This multiplicity of initiatives (and the welcome many of them have received) proves that 
the "demand" for justice, as regards consumer disputes, is not "satisfied" in certain Member 
States by the existing court procedures. 
From the point of view of "users" (both consumers and industry), the cost and duration of 
a court procedure is very often disproportionate to the value at dispute. This explains the 
development of alternative (or supplementary) instruments for settling disputes alongside 
(or upstream of) court procedures. 
This trend, in the absence of measures designed to facilitate "public" access to justice, is 
likely to continue. From the economic viewpoint, it corresponds to a "demand". 
However, there is also the question as to the extent to which the guarantees of independence 
(or at least impartiality), which in rule-of-law states are invested in the judiciary, can be 
assured by the new "judges" who are increasingly being called on to setde disputes outside 
the framework of the courts proper.44 
IL A. 2 "Transfrontier" disputes 
III.A.2.a SPECIFIC AND SUPPLEMENTARY BARRIERS 
Chapter I.B.2 discussed cases in which transactions between professionals and consumers 
are increasingly likely to give rise to a "transfrontier" problem. It was here that the notion 
of "transfrontier disputes" was aired. 
In the context of this Green Paper, and without wishing to rule out more stringent 
definitions, the expression "transfrontier dispute" is employed whenever: 
t|he plaintiff (natural person) is domiciled in a country other than the one in which 
the defendant (professional) is legally established or 
the plaintiff (professional) is legally established in a country other than the one in 
which the defendant (natural person) is domiciled45. 
44 
45 See also Chapter IV.D. 
In the definition proposed here, we have used the notions ("domicile" and "establishment") 
contained in the Brussels Convention. However, the terminology used in the international 
conventions is not consistent: 
as regards physical persons, mention is sometimes made of the "domicile" (Article 13 of 
the Brussels Convention), and sometimes of the "habitual residence" (Rome Convention, 
Article 5, and The Hague Convention on the law applicable to products liability of 1973), 
or again the "place in which the person is located" (The Hague Convention on civil 
procedure of 1954); 
58 
By comparison with similar disputes of an "internal" nature, settlement of a transfrontier 
dispute is compounded by a number of specific and supplementary difficulties. 
In general these "complications" arise from: 
1. the question of the law applicable to the substance (lex causae) and procedure (lex 
fori) of the dispute (for at least one of the parties it will always be a "foreign" law, 
hence the necessity to have recourse to a lawyer, even where this is not theoretically 
required by law); 
2. the competent court (for at least one of the parties it will always be a "foreign" court 
- hence the need to engage a second lawyer practising at the court in question); 
3. submission of the documents (which must always "cross" a frontier - hence the 
application of formalities and time limits which may be far more critical than when 
submitting documents within a given country); 
4. translation of the documents (those emanating from the party domiciled in a country 
other than the country of the competent court - hence the supplementary fees for this 
party); 
5. the court documents (to the extent that these may be required in a country other than 
the one of the court handling the case - hence additional delays connected with the 
sending of letters rogatory"); 
6. enforcement of the judgment (if the losing party is domiciled in a country other than 
the one in which the court has handed down its decision, enforcement must be 
preceded by what is called "recognition" of the foreign decision). 
To sum up, these are supplementary and specific "barriers" which, on top of the existing 
"barriers" applying to national disputes (cost, duration and complexity of the procedure as 
well as the psychological reluctance which results from this) may seriously hinder access 
to justice, at least for private individuals - in the face of all these barriers, the average citizen 
will often dispense with invoking his rights. 
III.A.2.b THE INTERNATIONAL CONVENTIONS 
With a view to improving the above-mentioned situation, several conventions have been 
signed by the Member States either in a Community context (Article 220 of the Treaty) or 
in the context of The Hague Conference on Private International Law. 
At present however, none of these conventions are in force in all the Member States: 
as regards legal persons, mention may be made of the seat (Brussels Convention, Article 
16.2) or the main establishment (The Hague Convention of 1973, Article 4), or again 
"other establishment" (Brussels Convention, Articles 5 and 13). 
59 
the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement 
of judgments in civil and commercial matters, whose extension to Spain and Portugal 
has been delayed because four of the signatory states have not yet ratified it; 
the Rome Convention of 19 June 1980 on the law applicable to contractual 
obligations, whose extension to Spain and Portugal has been delayed because the 
Netherlands is the only Member State that has ratified it to date; 
The Hague Convention of 15 November 1965 on the service abroad of judicial and 
extrajudicial documents in civil and commercial matters, which was signed by all the 
Member States in the Community, but has not been ratified by any of them. 
The Hague Convention of 10 March 1970 on the taking of evidence abroad in civil 
or commercial matters, which was ratified by eight Member States but not by the 
others. 
Other conventions, such as The Hague Convention of 25 October 1980 designed to facilitate 
international access to the courts, have only been signed by a minority of the Member States. 
As regards the conventions which have been signed by all the Member States one can 
reasonably hope that they will soon be in force throughout the Single Market. This would 
already be a step in the right direction. 
When all the ratifications are in, "infra-Community" disputes should pose fewer problems 
than other "transfrontier" disputes, and intra-Community trade can only but benefit. 
However, the need for legal "certainty" in the marketplace means that certain problems 
which have not been resolved by the existing conventions must be looked at more closely. 
III.A.2.C OUTSTANDING PROBLEMS 
Firstly, as regards the law applicable, the Convention of Rome applies only to contractual 
obligations (and there are many exceptions - see Article 1). Hence, cases of non-contractual 
liability are thus governed by the private international law of the Member States, which may 
lead to conflicting solutions. 
For example product liability46 law has been partially harmonised (Directive 85/374/EEC), 
but important differences still remain with regard to: 
the "ceiling" as regards damages resulting from death or personal injury (Article 16) 
the exclusion of agricultural products (Article 15a) 
development risks, which may be invoked as a defence (Article 15b) 
40 In the TMCS case (C-26/91, ECR 1-3967) concerning a direct action by a subsequent purchaser 
against a seller, the Court of Justice of the European Communities recently confirmed the non­
contractual nature of the action, for the purposes of classifying the action with a view to 
determining the competent court 
60 
compensation for non-material damages (ninth recital). 
Consequently, there will be big differences depending on which law is applied; since neither 
the Directive nor the Rome Convention tell us which law applies, a Convention on this issue 
was signed in The Hague on 2 October 1973, but only four of the Member States have 
ratified it. 
Secondly, the signature of the Agreement on the European Economic Area was preceded by 
a Convention (Lugano 1988) which will enable the Convention of Brussels to be extended 
to the EFTA Member States, but no extension has been provided for in the case of the 
Convention of Rome.47 Consequently, determining the law applicable to relations between 
EC nationals and EFTA nationals may depend on 72 (12 by 6) combinations of bilateral 
conventions and/or rules of private international law. 
On the other hand the Brussels Convention establishes what one might call the "free 
movement of judgments". However, the five cases in which judgments are not recognised 
provided for in Article 27 (and in particular the first and second cases) amount to a 
supplementary control by the presiding court. For example, Article 27(2) of the Convention 
requires the court to examine whether the documents were served "in sufficient time" even 
when the court of the state of origin has already decided, in a separate trial, that the 
document was in order: the court to which a request for recognition has been submitted is 
not therefore bound by the opinion of the court of the state of origin48. 
Moreover, uncertainties in application result from reference to national systems as regards 
the notion of referral. Both in the cases of lis pendens (Article 21 )49 and in the case of related 
actions (Article 22) it is the "court first seized" that matters. However, the "point of 
departure" of the procedure is not defined by the Convention, and so the risk of conflicts of 
jurisdiction exists (in certain countries, the dispute is held to be pending from the date the 
document instituting the proceedings is served to the defendant; in other countries, the case 
must have been registered with the clerk of the court; in one country lis pendens is triggered 
by admission of the claim, while in yet another the relevant date is that on which the clerk 
of the court sends the document to the defendant). 
III.A.2.d SMALL CLAIMS 
All this goes to show that transfrontier disputes can be exceedingly complex, even in the 
case of an infra-Community dispute. The barriers listed above (points 1-6) become de facto 
47 
48 
49 An initial discussion of the problem has been started in the context of European Political 
Cooperation. 
As the Court of Justice has consistently held (see inter alia the judgment of 16 June 1981, Klamps 
v. Michel, ECR 1981, 1.593). 
CJEC, Case 144/86, Guais Maschinenfabrik v. Palumbo (1987), ECR 4861 and Case C-351/89, 
Overseas Union Insurance v. New Hampshire Insurance (1991), ECR 1-3317. 
61 
unsurmountable if the sum at issue does not justify the additional costs that arise from the 
transfrontier (or intra-Community) nature of the case. 
Indeed the simplified procedures introduced in the Member States (Chapter I.B) are very 
difficult to apply when the complainant is domiciled in a Member State other than that of 
the defendant: 
the "short" time limits cannot be applied50; 
the freedom not to engage a lawyer (a freedom which is somewhat theoretical even 
in the context of "national" procedures) is pure fantasy given the complexity of the 
problems (both in regard to substance and procedure) associated with "transnational" 
cases; 
attempts to effect conciliation, because they presume the attendance of the parties 
in person, imply (at least for one of the parties) travel expenses which are often in 
excess of the value at issue. 
Attempts to simplify procedures applicable to "small claims" which have been applied at 
national level in all the Member States cannot therefore be effective beyond the legal 
frontiers. But in the absence of a procedure that is "proportionate" to the value of the dispute, 
the private individual is deprived of his remedies: at this moment there are probably no 
"small" transfrontier claims in the Single Market. But then, in the medium term, there will 
no longer be any transfrontier consumers - the equation "no disputes = no problems" is 
specious because consumers who have "abandoned" a transfrontier dispute will also soon 
"abandon" all transfrontier transactions. 
From the consumer viewpoint the notion of "small" dispute is misleading: a dispute that is 
relatively small for a firm may not necessarily be so for private individuals - the ceilings set 
by Member States for triggering a simplified procedure (arithmetic mean: approximately 
ECU 1 800) often exceed a normal monthly salary. For the average citizen, this dispute is 
hence just as "small" as a month's turnover is for a firm51. 
From the point of view of business, "small" disputes may in aggregate be non-trivial 
economically. Since any transaction may give rise to a dispute (indeed, forward studies try 
to assess the likely percentage), the importance of procedures for settling disputes - even 
"small" ones - is vital for businesses as well as for consumers. In the absence of effective 
procedures, there will be no legal certainty and no economic certainty. 
From the point of view of the administration of justice, the notion (ratione summae) of 
"small dispute" is behind a "simplification" of procedures whose goal is to "reconcile" a duty 
50 
51 The Civil Codes provide for a longer time limit when documents have to be served abroad; the 
court documents must follow the so-called "letters rogatory" procedure and the case documents 
must be translated. 
Moreover, lawyers' fees, court fees and expertise fees, in the case of a transfrontier dispute will 
be far higher than in a similar domestic case. There is no "legal protection", these expenses will 
have to be advanced by the individual who will often be strapped for funds. 
62 
(to render justice) and a budgetary requirement (the cost of the procedure). If the dispute is 
"transfrontier", reconciling the two objectives is more difficult.52. 
From the point of view of a Community based on the rule of law , it is hard to see why 
private individuals, as well as professionals, should be subject to discrimination arising from 
the "intra-Community" nature of their business dealings. After all if they have done business, 
it is because they have taken at face value the promise of a "space without frontiers" (Article 
8a of the Treaty). 
The complexity of the treatment of intra-Community disputes is partly due to the (legal and 
judicial) frontiers which still exist. 
Although lowering of these frontiers may be the subject of other conventions, the costs of 
processing intra-Community disputes will still remain very high, both for the administration 
of justice and for the parties concerned.53 
Hence the question is to see whether other instruments exist and to what extent they could 
be applied to transfrontier disputes. 
The notion of "class action" (a collective action brought by an individual, group of 
individuals or an organisation acting on behalf of a category) has been introduced into most 
of the "common law" countries but does not belong to the legal traditions of most of the 
Member States of the Community. 
The joint representation action (which is based on an express - not an implicit - warrant 
from persons who have been injured through the behaviour of a defendant) seems to be far 
closer to the general procedural principles common to the Member States, but so far has 
been introduced only in one Member State (France). 
The simple joining up of connected cases, in the case of transfrontier disputes, poses 
technical problems already discussed in this chapter (notion of the "court of first seizure"). 
In Chapters III.B.l and III.B.2 we therefore examine another category of procedures -
instruments which enable the prevention or enjoin the cessation of unlawful acts54 rather than 
(and before) having to "calculate the damages"55. 
52 
53 
54 
55 To the "normal" cost of a court procedure one must add translation costs, costs of serving the 
documents, letters rogatory and above all the time devoted to all these operations by clerks of the 
court, bailiffs and sometimes even the judge himself. 
Legal aid (both as regards counselling and aid before the courts) is dealt with in Chapter U.C. 
Order for an injunction in the collective interest. 
Individual or collective action for damages. 
63 
III.B Protection of collective interests 
III.B. 1 The existing procedures 
The relatively new notion of collective interest was introduced into national legislations in 
the course of the last century. Member States have adopted a variety of measures for its legal 
protection. 
All the national legislations examined now recognise the existence of a category of interests 
whose scope is: 
wider than that of individual interests (which are defended via the right of individual 
action) but 
more limited than that of the general interest (whose defence lies with the Ministry 
of Public Order). 
The unprecedented nature of the interest protected by the legislators (substantive law) made 
it necessary to adapt existing legal procedures or to create new ones. 
To accommodate the collective interests of consumers, statutory amendments to the relevant 
procedural rules were introduced in all the Member States of the Community in recent years. 
The most significant difference in legislative technique does not concern the existence of a 
"representative action" as such (which makes it possible to invoke the protected interest 
before the courts) but rather the criteria defining who is entitled to bring an action: in certain 
Member States, protection of collective interests has been accorded to the social groups 
(organisations of consumers and firms), whereas in other Member States it is the task of a 
public authority. The survey of national legislations may be summarised as follows: 
In three Member States, the protection of collective interests has been confided to an 
autonomous or independent administrative authority (Director General of Fair Trading in the 
United Kingdom, Fair Trading Act, 1973; Consumer Ombudsman in Denmark, Marketing 
Practices Act 1975; Director of Consumer Affairs in Ireland, Consumer Information Act, 
1978). 
In eight Member States consumer organisations have been recognised as having a locus 
standi (Germany: Gesetz gegen den unlauteren Wettbewerb 1909, amended in 1965 and the 
Act of 9 December 1976 concerning unfair terms; Greece: Act No 2000 of 24 December 
1991; Spain: Act No 3 of 10 January 1991; France: Act No 14 of 5 January 1988 and Act 
No 60 of 18 January 1992; Italy: Act No 287 of 10 October 1990 and Legislative Decree No 
74 of 25 January 1992; Luxembourg, the Acts of 21 August 1983 and 27 November 1986; 
Netherlands: Articles 6/196 and 6/240 of the new Civil Code; Portugal: Act No 29 of 22 
August 1981). 
In one country, legal protection of collective interests may be undertaken both by consumer 
organisations and by an administrative authority (Belgium: Act of 14 July 1991 on 
commercial practices, Articles 95 and 98 and Act of 12 June 1991 on consumer credit). 
As regards the object of the action (petitum), all the Member States allow organisations or 
the competent authority to obtain an injunction or prohibition order in respect of forbidden 
64 
or unfair commercial practices (irrespective of the civil, penal or administrative nature of the 
infringement). 
As regards the definition of a commercial practice as "unlawful" or "unfair" (causapetendi), 
certain countries have introduced a "general clause" (normally accompanied by an indicative 
list) whereas others have opted for an exhaustive "inventory" (examples: misleading 
advertising, unfair terms, abuse of a dominant position). 
But the point to note is that actions for an injunction are provided for in all the Member 
States, in respect of certain commercial practices which can "prejudice" the good functioning 
of the market. This is a "regulator" which enables both consumers and business competitors 
to prevent - rather than cure - the consequences of certain abuses. 
The preventive function of the action for an injunction is assured through specific procedural 
rules: the action is prepared and introduced in the form of summary jurisdiction (accelerated 
procedure) and the judgment is normally enforced on a provisional basis56. -
Unfortunately, this "regulatory mechanism" was conceived by each Member State from its 
own national perspective. 
In the Single Market, while commercial practices may move freely, the rules of procedure 
stop at the frontiers, which (still) correspond to the limits of jurisdiction of each state - the 
lex fori. 
III.B. 2 Difficulties in applying the existing procedures in the case of transfrontier 
commercial practices 
Pursuant to the Fair Trading Act (sections 35 and 38) the Director General of Fair Trading 
exercises his powers in respect of any practice "which is detrimental to the interests of 
consumers in the United Kingdom". 
If Danish consumers get mailshot "solicitations" from an English firm and this 
solicitation is considered "unfair" both under the Fair Trading Act and Danish law, 
the Director of Fair Trading will not be able to exercise his powers (since to do so 
would put him ultra vires) and it will be very difficult for the Danish Consumer 
Ombudsman to exercise his (unless he orders the opening of all mail coming from 
the United Kingdom - which might clash with other legal provisions). 
If English consumers are victims of timeshare scams in Spain or frauds connected 
with the purchase of alcoholic beverages in Calais, all the Director of Fair Trading 
can do about it is contact his Spanish or French equivalent (if there is one) or 
address consumer organisations in these countries; however, the latter will not be 
able to demonstrate an "interest in bringing an action" before the national courts. 
56 In certain countries, the action for an injunction may be accompanied by a fine and/or publication 
of the decision. 
65 
If French consumers, having borrowed money from an English bank, are victims of 
an infringement of the 1974 Consumer Credit Act, there is nothing either French or 
English organisations can do for them (in the United Kingdom the locus standi lies 
only with the Director of Fair Trading). 
The representative actions provided for in Luxembourg legislation can only be brought by 
an "association of consumers represented at the price commission" of the Grand Duchy (and 
in effect there is only one consumer organisation represented at this commission). 
If a misleading television advertisement broadcast from Luxembourg is addressed 
(solely) to Belgian viewers, associations in neither Belgium nor Luxembourg can 
demand the discontinuation of this advertising. Belgian associations cannot do so 
because they are not represented at the Grand Duchy's price commission, whereas 
the Luxembourg association does not have any "interest in bringing an action" in the 
legal sense. 
If the general contractual conditions applied by Luxembourg banks contain unfair 
terms, German savers with current accounts in Luxembourg can only turn to the 
above-mentioned Luxembourg association (since German associations are not 
represented at the Luxembourg price commission) and if certain terms apply only to 
"foreign" clients, this association will not have an interest in bringing an action (in 
the legal sense of course). 
If French consumers are victims of an unlawful commercial practice (both under 
Luxembourg law and French law) emanating from Luxembourg, their organisations 
will not be able to bring an action before the tribunals of the Grand Duchy, while the 
Luxembourg association will not be able to justify an interest in bringing an action 
in accordance with the lex fori. 
The representative actions provided for in French legislation are reserved for "registered 
associations provided they have been approved to this end". However, this approval, 
required for bringing an action, is reserved for French associations (Decree No 88-586 of 6 
May 1988). 
If German consumers are harmed by a commercial practice which is unlawful 
(according to French law) and has taken place in France, the German consumer 
organisation will not be able to refer the matter to the French courts; if the 
commercial practice (for example distance selling by a French firm) took place in 
Germany and is illegal according to German law, the organisation would be able to 
sue before a German court and consequently demand enforcement of the judgment 
in France, but the "accelerated" nature of the procedure would be completely 
frustrated. 
If Italian consumers have been victims of the same commercial practice in Italy, they 
will not even have this option: Italian law does not provide for collective action 
except in cases of misleading advertising. 
These examples could be multiplied. 
66 
And yet, an action for an injunction often makes it possible to avoid a multiplicity of 
(individual) actions with a view to obtaining damages: it plays both a "preventive" role and 
is a source of considerable "savings" in the administration of justice. 
In a Single Market, where goods and services circulate freely, the principle of "free 
movement" should also apply to legal instruments designed to ensure the discontinuation of 
unlawful practices. 
Article 24 of the Brussels Convention provides that "application may be made to the courts 
of a contracting state for such provisional, including protective, measures as may be 
available under the law of that state, even if, under this Convention, the courts of another 
contracting state have jurisdiction as to the substance of the matter". 
Hence, in urgent cases the appellant may in principle address himself to the court of the 
place where the measure is to be enforced; this principle (of proximity and effectiveness) 
might be a formidable instrument if the "court of the place where the measure was to be 
enforced" could be seized by the organisations (or authority) of the place where the damage 
has occurred57. 
At present, we are faced with the following paradox: 
the organisations/authorities of the place where the harm occurs do not have the 
capacity to act (the locus standi being reserved under the lex fori to the "national" 
organisations); 
the organisations/authorities of the place where the measure is to be enforced do not 
have an interest (in the legal sense) in bringing an action (the interests of "national" 
consumers are not affected by a practice addressed to "foreign" consumers). 
Rebus sic stantibus, it is enough to shift the locus of unlawful practices beyond the border 
represented by the lex fori, to be virtually out of reach of any action for an injunction. The 
purpose of the Brussels Convention (Article 24) is perverted and the principle of non­
discrimination (Article 7 of the Treaty) would appear to be jeopardised, in so far as the lex 
fori reserves the right of action to "national" organisations. 
At any rate it is hard to see how the Single Market can work properly in these 
circumstances.58 
57 
58 The Commission has received a total of 42 complaints concerning misleading advertising 
addressed by a German firm (Homevertrieb) to clients domiciled exclusively outside of Germany 
(mainly in France). 
Several decisions were handed down in 1989 by the French courts condemning this firm, but to 
date it has not been possible to enforce any of them. A request deposited on 29 January was 
rejected by the clerk of the competent German court, on the grounds that the defence had changed 
address and could not be contacted. In the meantime a firm called "Chance Vertrieb" (which uses 
the same post office box as "Homevertrieb") took its turn to address to French consumers 
advertising which was very similar to that already condemned by the French courts. 
See Chapter IV.A. 
67 
III.C Aid for legal advice and legal aid 
III C.I A id for legal advice 
The pilot projects prompted by the Commission (see in particular the ongoing projects in 
Ireland, Italy and Greece) show that a very large percentage of consumer disputes can be 
settled without going to court at all, provided a counselling service is made available to 
consumers (this service must be free of charge or at least its price must be "accessible" to 
the consumer). 
In the United Kingdom, the local authorities finance almost 1 000 "Citizen Advice 
Bureaux", where advice is provided largely by volunteers. 
In France, Act 91-67 of 10 July 1991 introduced, alongside legal aid, aid for legal 
advice, which enables the beneficiary to obtain information as to his rights and 
duties, advice on how to invoke his rights, and assistance with a view to preparing 
court documents. 
These are just some examples (by no means exhaustive) which might be considered when 
discussing the limits of "classical" legal aid, which is reserved exclusively for disputes 
before the courts, while all the citizen may need is a simple piece of advice (something 
which is not provided for in the vast majority of the existing systems).59 
III.C.2 Legal cad 
Member State rules on legal aid vary enormously, with regard to: 
the conditions for eligibility (level of income and sometimes wealth, accompanied 
in certain countries by a summary assessment of the "well-foundedness" of the 
contemplated action); 
the domain covered by the system (out-of-court procedures, such as arbitration and 
administrative procedures are not covered in most Member States); 
the way it is exercised (and, notably, the possibility of choosing one's lawyer). 
59 In this connection, see Recommendations R (93)1 on effective access to the law and to justice for 
the very poor, adopted by the Council of Europe on 8 January 1993. 
In the context of the Commission's Medium-Term Action Programme to combat exclusion and 
promote solidarity (1994-1999), the discussion on effective access to justice, to out-of-court 
conflict settlements and to the courts for the least privileged is also mentioned. The following 
measures deserve consideration: 
the development and funding of citizen-friendly legal services or centres 
recourse to mediation and conciliation 
access to the courts 
possibility for non-profitmaking non-governmental organisations to institute proceedings 
in order to protect the rights of persons who cannot defend themselves because of their 
being in a position of dependency. 
68 
Legal aid is a critical factor in transfrontier disputes: the cost of these disputes is often higher 
than the cost of similar dispute of a domestic nature (see Chapter III. A.2) and, given the 
complexity of the legal issues, there is no way of dispensing with a lawyer's assistance even 
where it is not theoretically required (small claim procedures, justice of the peace). 
The eligibility conditions, and notably the income levels to which entitlement to legal aid 
is linked, ignore this dimension. The blunt facts are that someone who could normally afford 
the lawyers' fees or bring an action personally "in an ordinary dispute" is often unable to pay 
the costs (or bring an action himself) in the case of a similar dispute of a transfrontier 
nature.60 
Taking these points into account, and in order to learn more about the existing situation, the 
Commission commissioned the Conseil des barreaux de la Communauté européenne to carry 
out a research project. The Conseil des barreaux has since produced: 
A. a draft "Guide to Legal Aid" 
B. a report for the Commission on the provisions governing legal aid in the Member 
States. 
This study should also provide food for thought on the topic of legal aid in transfrontier 
disputes; in this connection, the question of eligibility of non-profitmaking associations 
should also be broached. 
In the Cowan Case, the Court of Justice ruled that "the prohibition of discrimination laid down 
in particular in Article 7 of the EEC Treaty must be interpreted as meaning that in respect of 
persons whose freedom to travel to a Member State, in particular as recipients of services, is 
guaranteed by Community law that State may not make the award of State compensation for harm 
caused in that State to the victim of an assault resulting in physical injury subject to the condition 
that he hold a residence permit or be a national of a country which has entered into a reciprocal 
agreement with that Member State" (Grounds, 20, Judgment of 2 February 1989, ECR, p. 122). 
69 
III.D Community law and remedies 
III.D. 1 The link between substantive law and remedies 
In its judgment of 19 November 1991 (joint cases C-6/90 and C-9/90; ECR 1991, p. 5357) 
the Court of Justice of the European Communities confirmed that "it has been consistently 
held that the national courts whose task it is to apply the provisions of Community law in 
the areas within their jurisdiction must ensure that those rules take full effect and must 
protect the rights which they confer on individuals. [ ] The full effectiveness of 
Community rules would be impaired and the protection of the rights which they grant would 
be weakened if individuals were unable to obtain redress when their rights are infringed by 
a breach of Community law". 
Hence the link between substantive law and remedies ("ubi jus, ibi remedium") has been 
affirmed very clearly in this judgment of the Court of Justice: if it is not possible to obtain 
redress when rights recognised in Community law are infringed, the very effectiveness of 
Community law itself is jeopardised. 
According to the Court of Justice, implementing these remedies is a genuine obligation for 
the Member States, which "is to be found in Article 5 of the Treaty, in which the Member 
States are required to take all appropriate measures, whether general or particular, to ensure 
fulfilment of their obligations under Community law" because "among these is the 
obligation to nullify the unlawful consequences of breach of Community law (see, in relation 
to the analogous provision of Article 86 of the ECSC Treaty, the judgment in Case 6/60, 
Humblet v Belgium [1960] ECR 559)." 
Is this obligation satisfied by simply providing a remedy, irrespective of its content and 
procedural rules? 
According to the Court of Justice, this is not so: even if "[I]n the absence of Community 
legislation it is for the internal legal order of each Member State to designate the competent 
courts and lay down the detailed procedural rules for legal proceedings", nevertheless "the 
substantive and procedural conditions for reparation of loss and damage laid down by the 
national law of the Member States must not be less favourable than those relating to similar 
domestic claims and must not be so framed as to make it virtually impossible or excessively 
difficult to obtain reparation"; at any rate the procedural rules should "fully safeguard the 
rights which the individuals derive from Community law". 
Hence, even in the absence of a Community rule, the procedural rules for access to justice 
are also covered by an obligation under Community law. This is confirmed by the Court's 
judgment of 9 November 1983, 199/82 (ECR p. 3595) concerning a Member State whose 
redress procedures concerning the repayment of taxes levied in breach of Community law 
are such as to render obtaining reparation "excessively difficult". 
The case law of the Court of Justice in this domain (and notably the judgments of 
19 November 1991 and 9 November 1983) may be summarised as follows: 
70 
recognition of a substantive right on the part of the Community legal order always 
implies recognition of a right to bring an action (otherwise the "full effect" of 
Community law will not be assured): the existence of appropriate remedies is thus 
required under Community law; 
the implementation of these remedies by the Member States is a genuine obligation, 
which is founded in Article 5 of the Treaty: it is an obligation to "nullify the 
unlawful consequences of a breach of Community law"; 
the procedural rules of access to justice do not depend on the arbitrary will of the 
Member States. Even in the absence of a Community rule, the substantive and 
procedural conditions laid down by national legislations may not: 
be less favourable than those which concern similar domestic claims or 
make it virtually impossible or excessively difficult to obtain reparation; 
and they must 
fully safeguard the rights which individuals derive from Community law. 
It is up to the Commission, as the "guardian" of Community law (Article 155 of the Treaty 
of Rome) to ensure compliance with these conditions and to require (where relevant on the 
basis of Article 169 of the Treaty) that the Member States take the necessary measures. 
III.D.2 Remedies in Community legislation 
"In the absence of Community legislation, it is for the internal legal order of each Member 
State to designate the competent courts and to lay down the detailed procedural rules for 
legal proceedings".61 Hence the Court of Justice does not exclude a Community rule which 
would designate the competent court or lay down the detailed procedural rules for a specific 
domain, in the context, for example, of a directive. 
Here, Community legislation already provides several examples. 
1) Council Directive 92/13/EEC of 25 February 1992 
Legal basis: Article 100a 
This Directive (coordinating the laws, regulations and administrative provisions relating to 
the application of Community rules on the procurement procedures of entities operating in 
the water, energy, transport and telecommunications sectors) is almost entirely devoted to 
the creation of "appropriate review procedures... made available to suppliers or contractors 
in the event of infringement of the relevant Community law or national rules implementing 
that law". 
61 CJEC, Judgment of 19 November 1991, cited above (ECR 1991, p. 5357). 
71 
The Community has not merely made it incumbent on Member States to create an 
appropriate review procedure, but it has also regulated procedures concerning: 
the interest in bringing an action (Article 1, paragraph 3); 
interim measures, including suspension (Article 2, paragraph 1, point a); 
setting aside of decisions taken unlawfully (Article 2, paragraph 1, point b); 
"other measures", such as an order for the payment of a particular sum (Article 1, 
point c); 
award of damages (Article 2, paragraph 1, point d); 
burden of proof (Article 2, paragraph 7); 
"effective" enforcement of the provision (Article 2, paragraph 8); 
grounds for the decision (Article 2, paragraph 9); 
means of appeal (Article 2, paragraph ); 
and even a conciliation procedure which the Directive regulates in great detail (Articles 9 
toll). 
It goes without saying that a Directive like this, even if the goal concerns substantive law 
(transparency of the markets and guarantee of non-discrimination), goes to the very core of 
the judicial law of the Member States. Indeed there was no alternative - it was the only way 
to ensure the full effect of the measures envisaged. 
Moreover, the recitals clearly justify the instrument selected in the light of the objective in 
question: 
"Whereas Council Directive 90/531/EEC ... lays down rules for procurement 
procedures to ensure that potential suppliers and contractors have a fair opportunity 
to secure the award of contracts, but does not have any specific provisions ensuring 
its effective application"; 
"Whereas the existing arrangements at both national and Community level for 
ensuring its application are not always adequate"; 
"Whereas the absence of effective remedies or the inadequacy of existing remedies 
could deter Community undertakings from submitting tenders"; 
"Whereas the opening of procurement in the sectors concerned to Community 
competition implies that provisions must be adopted to ensure that appropriate 
review procedures are made available to suppliers or contractors in the event of 
infringement of the relevant Community law or national rules implementing that 
law"; 
"Whereas it is necessary to provide for a substantial increase in the guarantees of 
transparency and non-discrimination and whereas, for it to have tangible effects, 
effective and rapid remedies must be available". 
2) Council Directive 89/665/EEC of 21 December 1989 
Legal basis: Article 100a 
72 
Within the domain of public contracts, similar provisions (although less detailed) were 
introduced by Directive 89/65 5/EEC on the "coordination of the laws, regulations and 
administrative provisions relating to the application of review procedures to the award of 
public supply and public works contracts" (in this case the words "review procedure" 
actually figure in the Directive's title). 
Here also the legal basis chosen by the Council was Article 100a, even if the (main) 
objective of the Directive was the creation of a review procedure. 
This legal basis is no other than the one which establishes the goals pursued by the Treaty: 
in so far as provisions of substantive law were not sufficient to attain this objective, the 
"procedural" provisions are mandated in just the same way. 
3) Council Directives 84/450/EEC of 10 September 1984 (legal basis: Article 100) and 
92/28/EEC of 31 March 1992 (legal basis: Article 100a) 
Directive 84/450/EEC (relating to the approximation of the laws, regulations and 
administrative provisions of the Member States concerning misleading advertising) adopts 
a similar approach as regards the link between a protected interest and review procedures. 
This Directive provides for the implementation of "adequate and effective means ... for the 
control of misleading advertising in the interests of consumers as well as competitors and 
the general public" (Article 4, paragraph 1). 
In effect, the second paragraph of Article 4 confers upon the courts (or the administrative 
authorities) powers enabling them to order (or to institute appropriate legal proceedings to 
this end): 
the cessation of misleading advertising; 
the prohibition of misleading advertising which has not yet been published but 
whose publication is imminent. Moreover, these measures must be taken under an 
accelerated procedure, and Article 6 provides for a reversal of the burden of proof 
concerning the "accuracy of factual claims in advertising". 
An identical provision is contained in Article 12 Directive 92/28/EEC on the advertising of 
medicinal products for human use. 
Directive 93/13/EEC on unfair terms in consumer contracts more recently confirmed this 
approach, since it contains "procedural" arrangements (Article 7) with innovatory features 
vis-à-vis the domestic law of certain Member States. 
In all three cases (as in the domain of public contracts), the establishment of review 
procedures, as well as the definition of certain procedural rules, has been the subject of 
Community rules to ensure that the interests at stake are protected as fully as possible 
(transparency and non-discrimination in the award of public contracts; protection of 
consumers and competitors with regard to misleading advertising or unfair terms). 
4) Council Directive 89/552/EEC of 3 October 1989 
Legal basis: Articles 57 (paragraph 2) and 66 
73 
Council Directive 89/522/EEC concerning "coordination of certain provisions laid down by 
law, regulation or administration action in Member States concerning the pursuit of 
television broadcasting activities". 
In the context of this coordination, Article 23 introduces a "right of reply" in favour of "any 
natural or legal person, regardless of nationality, whose legitimate interests, in particular 
reputation and good name, have been damaged by an assertion of incorrect facts". 
This is a genuine remedy which the Community legal order has created with a view to 
safeguarding a protected substantive right. 
The obligation on the Member States to establish an effective right of reply to television 
broadcasting bodies is set out in Article 23(3) of the Directive, which runs: "Member States 
shall adopt the measures needed to establish the right of reply or the equivalent remedies and 
shall determine the procedure to be followed for the exercise thereof. In particular, they shall 
ensure that a sufficient time span is allowed and that the procedures are such that the-right 
or equivalent remedies can be exercised appropriately by natural or legal persons resident 
or established in other Member States". 
Finally, judicial monitoring of the right of reply is provided for in Article 23(5) of the same 
Directive: "Provision shall be made for procedures whereby disputes as to the exercise of 
the right of reply or the equivalent remedies can be subject to judicial review". 
5) Council Directive 93/7/EEC of 15 March 1993 
Legal basis: Article 100a 
Following the adoption of Council Regulation (EEC) No 3911/92 of 9 December 1992 on 
the export of cultural goods, Council Directive 93/7/EEC of 15 March 1993 provides for 
"proceedings ... with the aim of securing the return of a cultural object which has been 
unlawfully removed" from the territory of a Member State (Article 5). 
These proceedings may be brought by the Member State from which the object was 
unlawfully removed (the plaintiff Member State) against the possessor (or failing him, the 
holder) before the competent court of the Member State on whose territory the cultural 
object is located (the requested Member State). 
The time limit for these "return proceedings" for all Member States is set out in the Directive 
itself (Article 7), which also specifies the circumstances under which return proceedings may 
not be brought (Article 7.2), compensation which must be awarded to the possessor who has 
"exercised due care" in acquiring the object (Article 9), cases of donation or succession 
(Article 9, paragraph 3), and expenditure incurred in implementing a decision (Article 10). 
Pursuant to Article 4.6 of the Directive, the competent authorities of the requested Member 
States may, without prejudice to Article 5, first "facilitate the implementation of an 
arbitration procedure, in accordance with the national legislation of the requested state and 
provided that the requesting state and the possessor or holder give their formal approval". 
In effect this directive (legal basis: Article 100a) recognises a genuine right to bring an 
action (locus standi) not on the part of the owner of the object but on the part of the entity 
74 
which represents the "general" interest which has been infringed through the (unlawful) 
export of the object. 
In this connection it should be noted that the requesting Member State, whose interest and 
capacity to bring proceedings before the courts of the requested Member State is recognised 
by the Directive, is not necessarily the owner of the cultural object (most of the objects 
belong to private collections): the right to bring proceedings is not linked to the holding of 
a substantive right (property of the object) but to the representativeness of the general 
interest (protection of the cultural heritage). 
This example yet again confirms the link that exists between a protected interest and a 
remedy (right to bring proceedings), whose absence would vitiate the protection afforded by 
substantive law: this is very well put by the common law maxim "ubi remedium, ibi ius". 
SOME CONCLUSIONS 
The "contributions" of the Community legislator in the field of judicial law were motivated 
by: 
a) the need to "guarantee the effective application" of Community law (Directives 
92/13/EEC and 89/665/EEC) i.e. its "effectiveness" (Directives 92/28/EEC and 
84/450/EEC). 
b) the opportunity for "any person whose legitimate interests have been damaged ... to 
effectively exercise such right or remedy" (Directive 89/552/EEC). 
c) the link between the representativeness of an interest protected by a legal order and 
the right to bring proceedings, which enables a person to "react" to the infringement 
of a rule protecting the interest (Directive 93/7/EEC). 
The last example serves to remind us that: 
1. the Community legal order protects only individual interests; 
2. the link between the interest protected by the legislator and the remedy (which must 
ensure that protection is effective) implies that a right of redress may be exercised 
by the entity that represents the protected interest (which is not always an 
individual). 
Clearly, and taking into account the subsidiarity principle, the Community legislator's rules 
pertaining to remedies cannot but be exceptional - in principle, recognition of a subjective 
right (or a collective interest) by the Community legal order does not imply the creation of 
any remedy (or procedure) over and above those which are supposed to exist in each 
Member States anyhow. 
Nonetheless, in the above-mentioned cases, the harmonisation of certain procedural rules 
(or the creation of a specific remedy) would seem necessary whenever existing national 
procedures cannot guarantee the effective (and non-discriminatory) application of the 
provisions in question. 
75 
As to the Council, it has drawn on the following legal bases: 
Article 100 (Directive 84/450/EEC of 10 September 1984); 
Articles 57 and 66 (Directive 89/552/EEC of 3 October 1989); 
Article 100a (Directives 89/665/EEC of 21 December 1989, 92/13/EEC of 
25 February 1992, 92/28/EEC of 31 March 1992, 93/7/EEC of 15 March 1993 and 
93/13/EEC of 5 April 1993). 
76 
IV. THEMES FOR DISCUSSION 
ÏV.A The free movement of actions for an injunction 
Competition law and consumer law are the two essentials of a properly functioning market 
economy, which allow it to achieve its basic objective - free access to the market for firms 
and freedom of choice for consumers62. 
In all the Member States these freedoms are assured by two types of rules: 
the first level (substantive law) aims at establishing the minimum "rules of the game" 
(in the absence of which the less scrupulous player, not the better one, comes out on 
top)63; 
a second level (procedural law) which establishes a "regulator" and procedures 
which make it possible to prevent and/or penalise the infringement of the 
above-mentioned rules64. 
As regards the first level, there has been an "approximation" of national provisions within 
the Community - minimum "rules of the game" exist and have made it possible to create the 
internal market, but their practical enforcement (i.e. the functioning of the market) hinges 
on a multiplicity of national procedures and "regulators". 
In Chapters III.A.2 and III.B.2 we examined the problems of "movement" between the 
existing national procedures and the possible consequences. 
Partly to avoid a situation like this, in competition law a "dual level" of Community rules 
was enshrined in the Treaty from the outset: the rules of the game were established by 
Articles 85 and 86, while Article 87 provides for the adoption of "any appropriate 
regulations or directives to give effect" to these principles. This has made it possible to adopt 
a series of rules of procedure65. 
62 
63 
64 
65 The interdependency of these two freedoms is also enshrined in Articles 85 and 86 of the Treaty. 
In many Member States, the monitoring authority is however one and the same: the Office of Fair 
Trading in the United Kingdom; the Direction Générale de la Concurrence, de la Consommation 
et de la Répression des fraudes in France; the Ministère des Affaires Economiques in Belgium; 
Autorité Garante délia Concorrenza e del Mercato in Italy. 
From the point of view of firms that respect the rules of the game, the infringement of consumer 
law also distorts competition in favour of the firm that is responsible. Misleading advertising is 
an example. 
In the Member States these procedures may be invoked either by consumer organisations or by 
organisations of firms, or by the public authority responsible for the smooth functioning of the 
market. 
Council Regulation No 17/62 of 6 February 1962, Commission Regulation No 27/62 of 3 May 
1962, Commission Regulation No 99/63 of 25 July 1963, Council Regulation No 19/65 of 
2 March 1965 and others. In this domain not only is the procedure a Community one but the 
"regulator" is also a Community regulator. 
77 
As regards the other domains where substantive law has been approximated, procedural rules 
were sometimes introduced on the basis of Article 100a (the directives which follow this 
approach were discussed in Chapter III.B.2) - indeed Article 100a was introduced by the 
Single European Act with a view to facilitating (qualified majority instead of unanimity 
provided for Article 100) the "approximation of the provisions laid down by law, regulation 
or administrative action in Member States which have as their object the establishment66 and 
functioning67" of the Single Market. 
As the national legislations show, no market can work properly without a "regulator" and 
a "procedure" for enforcing the rules of the game (since otherwise these rules would be 
ignored) in the interests of consumers and business alike. 
As regards unlawful commercial practices (such as misleading advertising or unfair terms), 
national procedures are ineffective (and the national regulators cannot exercise their role) 
when the unlawful practice has its origin in another Member State (typical examples were 
discussed in Chapter III.B.2); moreover, the existing situation sometimes gives rise to 
discrimination68. 
Bearing this in mind, the good functioning of the Single Market requires that the principle 
of free movement also be applied to measures designed to ensure the discontinuation of 
unlawful (transfrontier) practices. 
To achieve this end, there are only three solutions: 
either there is a Community "regulator", who applies a Community procedure69; 
or a Community procedure is made available to the national regulators 
(harmonisation of actions for an injunction); 
66 
67 
68 
69 Substantive law. 
Since the good functioning of the Single Market depends on a wide range of procedures, the 
procedural barriers fall fully within the ambit of Article 100a, first paragraph; this is also clear 
from the second paragraph of the same article, according to which "Paragraph 1 shall not apply 
to fiscal provisions, to those relating to the free movement of persons nor to those relating to 
rights and interests of employed persons". The procedural provisions are not mentioned among 
the "excluded material". 
Member States that allow actions to protect collective interests reserve them exclusively for 
national organisations (see Chapters III.B. 1 and III.B.2). Article 7 of the Treaty prohibits "any 
discrimination on grounds of nationality" (first paragraph) and provides (second paragraph) that 
"the Council may, on a proposal from the Commission and after consulting the Assembly adopt, 
by a qualified majority, rules designed to prohibit such discrimination". 
This is the approach in competition law. The Sutherland Report considered a similar solution by 
proposing the establishment of an "ombudsman responsible for examining problems raised by 
consumers". 
78 
*- or one simply allows the existing national procedures (without harmonising them) 
to exercise the effects for which they were designed (mutual recognition of the 
"locus standi"). 
These different solutions must be examined in the light of the subsidiarity principle, 
according to which the Community, in areas which do not fall within its exclusive 
competence, just take action "if and in so far as the objectives of the proposed action cannot 
be sufficiently achieved by the Member States and can therefore, by reason of the scale or 
effects of the proposed action, be better achieved by the Community" (article 3 B, paragraph 
2 of the Treaty on European Union). 
Concretely, this means that the need for any new Community action must be demonstrated. 
In order to do mat, three questions must be answered : 
What is the european dimension of the problem ? 
What is the most effective solution, taking into account the means at the disposal of 
the Community ? 
Which added-value does the Community action give in comparison to isolated 
actions by the Member States ? 
Besides the test of need, the Treaty on European Union establishes that any action by the 
Community, falling or not within its exclusive competence, shall not go beyond what is 
necessary to achieve its objectives (article 3 B, paragraph 3). 
By this point of view, the intensity of Community action should leave Member States the 
greatest "manoeuvring margin" for this application. 
To sum up, the subsidiarity principle requires that the intervention of the Community 
legislator (the Council and the Parliament) be confined to the essentials. 
In this case, the Commission considers that the first solution mentioned above (creation of 
a "community regulator") is not justified at this stage. 
Indeed, the multitude and richness of mechanisms existing in Member States, both at 
national and local level, do not allow the conclusion that the addition of a "regulator" at 
Community level as such would constitute a concret added-value to the existing situation. 
On the other hand, the second and the third solutions (harmonisation of actions for an 
induction and mutual recognition of the "locus standi") deserve to be examined; this 
examination will be restricted, according to the proportionnality principle, to barriers which 
currently prevent the "tree movement of procedures". 
In the light of the above, the candidate options may be summarised as follows : 
Option 1 : "Minimum" harmonisation with respect to the conditions70 governing actions 
for an injunction which, in each Member State, may be initiated by the 
bodies representing71 the interest injured by an unlawful commercial practice. 
70 
71 In most of the Member States, these conditions may be summed up by the notion of "interest in 
bringing an action". 
Consumer organisations as well as organisations of firms. 
79 
This measure should be accompanied by mutual recognition by the Member 
States of the organisations' right to bring proceedings72. 
Option 2: Mutual recognition of existing actions for an injunction, meaning recognition 
of a right to bring an action on the part of the bodies representing the injured 
interest identical to the one already recognised to "national" entities (under 
the lex fori)13. 
In both cases - in line with the subsidiarity principle - the definition of the criteria of 
"representativeness" (capacity to bring proceedings) is a matter for the Member States -
depending on the legal traditions of each country, it might involve an administrative 
procedure (recognition) or, again, application by the courts of general criteria concerning 
representativeness. 
The entity representing the injured party in a Member State would hence be empowered to 
bring proceedings against an unlawful commercial practice before the court of the country 
in which the decision is to be enforced. This is the proximity criterion set out in Article 24 
of the Brussels Convention (see chapter III.B.2) which allows "urgent" measures to take 
effect (the exequatur procedure was not designed for this type of decision; if not enforced 
immediately, an action for an injunction is pointless). 
Hence actions for an injunction could be employed in a preventive capacity (this being their 
recognised purpose), no matter what country the unlawful practice originated in, and 
enforcement of the Brussels Convention (Article 24) would be facilitated. The good 
functioning of the Single Market means that a swift decision is required74. 
72 
73 
74 A German organisation (representing the interests of consumers or firms according to German case 
law) could initiate an action for an injunction in France, if the unlawful practice had its origin in 
that country, while an approved French organisation (according to French law) could bring an 
action in Germany against practices originating in Germany. 
For example, the Danish consumer ombudsman (or a Danish organisation of firms) could initiate 
an action for an injunction in the United Kingdom under the terms of English law against an 
unlawful commercial practice addressed to Danish consumers but originating in the United 
Kingdom. By the same token, the Danish consumer ombudsman would have access to the French 
Courts whenever an unlawful commercial practice originating in France is addressed to Danish 
consumers) and "approved" organisations would have access to United Kingdom courts (whenever 
an unlawful practice originating in the United Kingdom is addressed to French consumers). 
The Sutherland Report also (page 33, Recommendation No 22) suggests "Member States could 
provide better (and non-discriminatory) rights at court to consumer associations". 
80 
IV.B Legal aid 
The experience gained in the Member States shows that it is illusory to provide for a right 
to bring proceedings if the holder lacks the resources required to exercise it. This applies to 
natural persons and legal persons alike. 
Although the action for an injunction does not provide for compensation for damages, the 
association which brings the action has to foot the bill (lawyer's fees, expert report, justice) 
and in transfrontier cases these costs will probably be prohibitive (quite apart from the risk 
of losing the case). 
Often consumer organisations do not even have enough resources to bring actions against 
unlawful practices originating in their own country, let alone abroad. 
This problem will have to be tackled at the same time and in the context of the discussion 
referred to under point 1, if the right to bring proceedings is not be a purely symbolic one. 
As regards legal aid to private individuals, the Commission is currently examining the 
Report which has been prepared by the Conseil des barreaux de la Communauté européenne 
(see Chapter III.C.2); this report could be the topic of an in-depth discussion. 
IV.C Simplified settiement of transfrontier disputes 
The deterrent role of actions for an injunction will surely help reduce the number of 
"individual" disputes, but it would be Utopian to expect them to wither away altogether. 
The complexity of settling transfrontier disputes could seriously frustrate the Single Market; 
the specific and supplementary barriers to the settlement of these disputes (see Chapter 
III.A.2) could dissuade consumers as well as small and medium-sized firms from making 
the most of free movement. 
The Eurobarometer survey (38.1 of 23 December 1992) clearly shows what the European 
citizen wants from the Community institutions; To the question "Do you think that consumer 
protection should be the same in all the Member States of the European Community", 88.9% 
of respondents answered yes (as opposed to 5.2% no and 5.9% indifferent). This is a 
formidable figure: if for other Community policies opinions are divided and vary with the 
Member State, Community protection of consumers is desired by a clear majority (84 to 
92.8% of the respondents) in all the Member States75. 
75 Belgium 88.2% 
Greece 91.4%; 
Ireland 88.1%; 
Netherlands 92.8%; Denmark 85.5% 
Spain 90.0% 
Italy 92.5% 
Portugal 86.5% Germany 84.0%; 
France 88.9%; 
Luxembourg 85.8%; 
United Kingdom 90.6% 
81 
In its first Communication on consumer redress (COM(84)692), the Commission affirmed 
that "the overall aim remains clear: to ensure consumers throughout the Community enjoy 
a broadly similar standard of redress" (second paragraph of the summary). 
Article 57, paragraph 3, of the Brussels Convention76 provides for the existence of 
"provisions which, in relation to particular matters, govern jurisdiction or the recognition or 
enforcement of judgments and which are or will be contained in acts of the institutions of 
the European Communities": in the particular matters, a Community act could thus lay down 
certain procedural rules (which incidentally is not ruled out by Article K of the Treaty on 
European Union, whose provisions will apply "without prejudice to the powers of the 
European Community" - Article Kl, first paragraph). 
Moreover, the new institutional framework for judicial cooperation allows not only recourse 
to traditional procedures but also new forms of cooperation, such as the adoption of common 
actions. Following the entry into effect of the Treaty on European Union, the Commission 
intends to make the most of the new opportunities offered in the domain of judicial 
cooperation in civil matters under Title VI of the Treaty. 
However, before broaching the question of powers (Community, intergovernmental, or 
national), the preliminary step is to decide what initiatives to develop. 
This is why a follow-up mechanism of transfrontier disputes should be created with a view 
(a) to identifying the problems encountered in practice and (b) to establishing priorities: the 
choice of instruments (powers) should not precede the analysis of the objectives to be 
pursued (harmonisation, mutual recognition, greater cooperation between the Member 
States). 
This follow-up mechanism could consist of judges and independent experts (one or several 
experts from each Member State) commissioned to prepare a report on the functioning of 
procedures for regulating transfrontier disputes in civil matters; on the basis of this report 
the Commission could prepare an agenda (ignoring the question of competences) for 
submission to the Council, the European Parliament and the Economic and Social 
Committee. More generally, the creation of meeting-places for Member State judges is 
indispensable if we are to bring about a European "judicial space". This innovation would 
permit the pooling of useful information for dealing with practical cases and would be 
respond to a key requirment - namely involvement of judges injudicial cooperation, because 
it is they who in all the Member States, day in day out, render justice and will hence be 
called on to put into effect at practical level the results of this cooperation. 
1V.D Self-regulation and the dialogue between consumers and professionals 
The sums at issue in most consumer disputes are too low for a private individual to 
contemplate the cost of a transfrontier court procedure; for firms as well, costs often bear no 
relation to the value of the claim. This hardly stimulates confidence in the internal market. 
Added to Article 25, paragraph 1 of the Accession Convention of 1978. 
82 
Out-of-court procedures can therefore play an important role in the settlement of 
transfrontier disputes. 
However, consumers still place little trust in "self-regulatory" bodies: even in the country 
with the most complete ombudsman framework (United Kingdom) the competent 
department estimates77 that "ombudsman schemes themselves might benefit from having to 
comply with minimum standards"78. 
Serious consideration should be given to the creation of a code of conduct and to what 
exactly is understood by "mediator/ombudsman": according to a study by the National 
Consumer Council79, the majority of respondents80 "said that the internal complaints 
procedures which they had to exhaust before going to the ombudsman were a complete 
waste of time". 
Such a code of conduct is a prerequisite for any kind of "networking" of existing structures, 
with a view to out-of-court settlement of transfrpptiefdisputes. 
This does not necessarily mean more regulation: the minimum conditions to be fulfilled to 
obtain an "ombudsman label" is something consumer organisations and the professional 
sectors concerned could discuss together (possibly, under the aegis of the Commission). 
Examples such as the Lisbon pilot project, the Danish Consumer Complaints Boards and the 
Netherlands Geschillencommissie prove that consumers will trust instances other than the 
court, provided their organisations are represented or (at least) have been involved in 
defining the criteria that ensure the transparency of the procedure. 
Any other approach risks being labelled as "misleading advertising" which in the medium 
term could jeopardise the very idea of "alternative" justice ("alternative disputes 
resolution"). 
As regards transfrontier money transfers, a Recommendation was adopted by the 
Commission on 14 February 199081, whose sixth principle states: 
77 
78 
79 
80 
81 "Consumer redress mechanisms: a report by the Director General of Fair Trading into systems for 
resolving consumer complaints", November 1991. 
Page 10 of the above-mentioned report. 
"Ombudsman Services: Consumers' Views of the Office of the Building Societies Ombudsman and 
Insurance Ombudsman", June 1993. 
1 637 consumers whose claims were treated in 1991 and 1992. 
Commission Recommendation 90/109 of 15 February 1990 on the transparency of banking 
conditions relating to cross-border financial transactions (OJ No L 67 of 15 March 1990, p. 39). 
83 
1. Any institution participating in a cross-border financial transaction should be capable 
of dealing rapidly with complaints lodged by transferor or the transferee in 
connection with the execution of the transaction or with the statement relating to it. 
2. If no action is taken on a complaint or no answer received within three months, the 
complainants may refer the matter to one of the Member States' parties competent 
to deal with complaints from users. The list and addresses of such national bodies 
should be available on request from any institution undertaking cross-border 
financial transactions. 
A similar approach might be adopted by other sectors when the frequency of transfrontier 
transactions justifies Community intervention (taking into account the subsidiarity 
principle): the Recommendation is an instrument which would allow the sectors concerned 
sufficient play to accommodate national idiosyncrasies, while the "sectoral" approach could 
target specific problems associated with certain types of transactions (distance selling, motor 
car sales, package trips). 
IV.E Transfrontier cooperation 
Awareness of the Community dimension of the market lies behind four initiatives designed 
to promote transfrontier cooperation to combat unfair or unlawful commercial practices; two 
of these are pilot projects supported by the Commission. 
It would be a good thing to consolidate these initiatives, so as to cover all the Member States 
(which is not yet the case for any of the four initiatives). 
1. Cooperation between the national authorities in regard to transfrontier commercial 
practices 
An "International Marketing Supervision Network" was recently set up by the national 
authorities responsible for consumer protection in the 20 OECD countries. 
Pursuant to the protocol signed at the London meeting of 26 and 27 October 1992, the main 
obj ecti ve of the network is to encourage practical measures to prevent dishonest cross-border 
marketing practices; it is also designed to protect the consumer's economic interests. 
To this end the network maintains regular contacts (notably via an annual conference) and 
cooperates in preventing dishonest commercial practices; a (rotating) presidency is 
responsible for the secretariat and organises an annual conference. France currently has the 
presidency. 
2. Cooperation between the self-regulatory bodies with regard to transfrontier 
advertising 
The European Advertising Standards Alliance, created with a view to encouraging 
professional self-regulation in advertising at European level, recently established aprocedure 
for dealing with complaints about transfrontier advertising (advertising emanating from a 
broadcaster not residing in the country of reception). 
84 
This procedure is based on mutual acceptance of national codes of conduct, as well as 
decisions taken by the national self-regulatory body in question: complaints are treated by 
the organisation of the country from which the advertising has been broadcast, which 
examines them on the basis of its own rules and applies its own penalties. 
The self-regulatory bodies commit themselves to taking all the decisions required to ensure 
compliance with the decisions taken by their counterparts in the broadcasting countries; in 
the case of simultaneous broadcasting to several countries, each organisation is responsible 
for its own territory, and national cultural idiosyncrasies may justify differentiated decisions 
depending on the source country. 
3. Cooperation between consumer organisations in frontier regions 
A pilot project supported by the Commission was launched at the end of 1991 to promote 
cooperation between consumer organisations in the domain of transfrontier disputes. 
To this end a questionnaire was distributed to identify the most common types of 
transfrontier disputes; on the basis of the results of this survey, a series of bilateral seminars 
were organised between lawyers working for consumer organisations at each frontier site, 
with a view to comparing the legislation and case law in each country governing the subjects 
treated. This training should allow the lawyer-advisers located at "frontier posts" to give 
consumers from their country a certain idea as to the "foreign" law that applies across the 
border. 
These seminars have made it possible to establish, for each frontier site, a package of "legal 
files" dealing with the most commonly encountered problems in the regions concerned; these 
files are placed at the disposal of all interested organisations, notably the European consumer 
information agencies. 
Up to now eight consumer organisations in five Member States have participated in this 
project. 
4. Cooperation between advisory bodies in the field of credit and overindebtedness 
On the basis of a project first launched in Germany (see Germany report point X) software 
has been developed which is now used in several Member States (Belgium, France, Ireland 
and the United Kingdom) with a view to facilitating the work of advisers in the field of 
credit and overindebtedness. 
An identical basic format is adapted and loaded with Member-State specific data (statutes, 
case law, etc.). This software makes it possible to check the well-foundedness and, where 
relevant, the "legality" of requests for reimbursement (in particular the relevant credit rate) 
made to the consumer, so that a debt clearance plan can be proposed to him. The database 
information, which was initially prepared by the Member States, may now be exchanged 
between organisations from different countries. 
85 
V. CONCLUSIONS 
The Commission wishes to trigger a discussion between all the interested parties on the basis 
of the approaches outlined in this Green Paper, which may be summarised as follows: 
1. study of the appropriate legal instrument for implementing Article 24 of the Brussels 
Convention, notably as regards actions for an injunction brought by the authorities 
and/or consumer organisations as well as by professional bodies, in respect of 
unlawful transfrontier commercial practices (see Chapter IV.A); 
2. allocation of financial resources (legal aid, Community or national subsidies, other) 
to help the above-mentioned organisations meet the cost of transfrontier procedures 
(see chapter IV.B); 
3. creation of a follow-up mechanism of transfrontier complaints, with a view to 
recording problems encountered in practice; to this end a survey should be carried 
out among European consumers to learn more about the type of complaints made and 
the degree of "satisfaction" as to how these complaints are handled (see Chapter 
IV.C); 
4. promotion of codes of conduct at Community level, whose minimal criteria might 
be the subject of a Commission recommendation with a view to improving the 
functioning and transparency of the private "Ombudsman" systems (see chapter 
IV.D); 
5. closer contacts between different consumer arbitration bodies with a view to 
exchanging experiences on this subject; in this context, we recommend exploring in 
greater detail the role of certain bodies (such as chambers of commerce and industry) 
in the creation of voluntary arbitration systems, either at sectoral or regional level 
(see chapters concerning the Out-of-Court procedures in Germany, Spain and 
Portugal); 
6. consolidation of existing transfrontier cooperation initiatives so as to include all the 
Member States, and launching of other pilot projects, so as to promote dialogue 
between consumers and professionals in regard to the settlement of consumer 
disputes (see Chapter IV.E); 
The purpose of this Green Paper is to open a debate between all the parties concerned. The 
various options summarised here are not exhaustive, and do not cover all the aspects of what 
is indeed a very vast subject, the settlement of disputes. 
Comments, remarks or contributions sent to the Commission will give us a better 
understanding of what the interested parties expect and where Community action may be 
called for, taking into account the principle of subsidiarity. 
These contributions should be submitted, by 31 may 1994 at the latest, to the following 
address: 
86 
Commission of the European Communities 
Consumer Policy Service 
Director General 
Rue Joseph II, 70 
B-1040 BRUSSELS 
In June 1994 the Commission may organise a meeting with a view to possible formulating 
concrete orientations. The parties who have submitted written comments by the above-
mentioned deadline would be invited to this meeting. 
87 
ISSN 0254-1475 
COM (93) 576 final 
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