C0MIV5!SS!0N OF THE EUROPEAN COMMUNITIES 
Brussels, 14.2.1996 
COM(96) 13 final 
COMMUNICATION FROM THE COMMISSION 
"ACTION PLAN on consumer access to justice and the settlement of 
consumer disputes in the internal market" 

TABLE OF CONTENTS 
Foreword 
PART I: THE PROBLEM STATED 
CONSUMER DISPUTES 
II. OUT-OF-COURT PROCEDURES IN THE MEMBER STATES 
III. NATIONAL INITIATIVES CONCERNING ACCESS TO COURT 
PROCEDURES 
PART II: THE COMMUNITY DIMENSION OF THE PROBLEM 
I. THE COST OF .JUDICIAL FRONTIERS 
II. THE RESULTS OF THE CONSULTATION ON THE GREEN PAPER 
PART HI: THE INITIATIVES PROPOSED 
I. THE PROMOTION OF OUT-OF-COURT PROCEDURES 
II. ACCESS TO COURT PROCEDURES 
III. PERSPECTIVES 
Annex I: 
Annex II: 
Annex III: Schedule of envisaged initiatives 
Working outline for a Recommendation laying down criteria for the 
establishment of out-of-court procedures applicable to consumer 
disputes 
Draft form for the settlement of intra-Community consumer disputes 
(provisional version) 
FOREWORD 
This Communication is a follow-up to the Green Paper on the access of consumers to 
justice and the settlement of consumer disputes in the single market (COM(93) 576 of 
16 November 1993). 
The problems of access to justice demand a concerted response on the part of several 
institutions at local, national and European level. In consonance notably with the 
provisions of Article 129a and the principle of subsidiarity, Community measures will of 
necessity be restricted. 
However, in view of the cross-border dimension of the problem, certain objectives can 
only be realised at Community level: in particular, the objective of creating an 
environment favourable to the settlement of intra-Community consumer disputes 
necessarily involves - bearing in mind the dimensions of the envisaged measure -
initiatives designed to coordinate certain aspects of national and local policies. 
The following measures have been proposed or have already been initiated: 
- à proposal for a Directive on the coordination of the laws, regulations and 
administrative provisions of the Member States relating to actions for an 
injunction, which the Commission adopted on 24 January 1996; 
- the initiatives envisaged in this action plan; 
- other actions and pilot projects already in operation or about to be launched. 
In consonance with the third paragraph of Article 3b of the Treaty establishing the 
European Community, the initiatives presented in this action plan do not go beyond what 
is necessary to achieve the objectives set out in Article 129a of the Treaty, but they are 
not of an exhaustive nature: 
- on the one hand, they are supplementary to the proposal for a Directive adopted 
by the Commission on 24/1/1996 concerning actions for an injunction; 
- on the other hand, they must be underpinned by additional support for the pilot 
projects designed to ensure consumer access to law and to justice1 as well as better 
distribution of information needed to access existing national procedures in other 
Member States2. 
As regards this latter requirement, priority action was required in order to ensure greater 
familiarity with national legal aid systems. The consultations on the Green Paper did 
indeed confirm that legal aid is of crucial importance to the most disadvantaged citizens 
As described in the Green Paper, and notably chapters I.B.I and IV.E, with subsequent follow-up 
on the same lines. 
Council Resolution of 13 July 1992 on future priorities for the development of consumer protection 
policy (OJ No C 294, 22.11.1989, p. 1): paragraph 4, last indent of the Annex. 
- and all the more so when they are involved in an intra-Community dispute. With a view 
to making good the absence of information at European level, the Commission intends 
to publish a "Guide to Legal Aid in the European Union". This Guide, whose text has 
already been drafted in cooperation with the Council of the Bars and Law Societies of 
the European Community, will be sent free of charge to the multipliers who can pass this 
information on to interested citizens (solicitors, courts, local or regional information 
agencies, consumer associations). 
Other similar publications could be prepared in cooperation with the bodies concerned, 
hence developing a policy of partnership between the Community institutions and the 
legal professions, at the service of the citizen. 
PART I: THE PROBLEM STATED 
I. CONSUMER DISPUTES 
The hallmark of a typical consumer dispute is the disproportion between the economic 
sum at stake and the cost of its legal resolution. 
For any rule-of-law State this disproportion raises the question of how to reconcile the 
requirement that justice be rendered without discrimination3 with the constraints of the 
budget for the administration of justice - a budget that in many cases cannot meet the 
demand. 
The way this question is answered also determines the magnitude of the gap between the 
theoretical construct designed by the legislator and voters' day-to-day lives: it is the small 
disputes of everyday life that give ordinary citizens an opportunity to gauge the 
effectiveness of the law - and not the headline-making court cases, which rarely concern 
them. 
In most developed countries, consumer disputes have received particular attention in 
recent decades4, also in the context of with the principle of "equality of arms"5 and in 
consequence certain specific schemes have been introduced - examples include Article 
5 of the Rome Convention on the law applicable to contractual obligations6 and Section 
4 of Title II of the Brussels Convention on jurisdiction and the enforcement of judgments 
in civil and commercial matters7. In particular, Articles 13 to 15 of the Brussels 
Convention introduce a special scheme governing contracts concluded with consumers 
stipulating that, under certain conditions, actions brought against consumers may only be 
brought before the courts of the country in which the consumer is domiciled.8 In Shearson 
Lehman Hutton9, the Court of Justice of the European Communities held that this scheme 
Article 6 of the European Convention on Human Rights: "In the determination of his civil rights 
and obligations ... everyone is entitled to a fair and public hearing within a reasonable time by an 
independent and impartial tribunal established by law". 
This principle knows no exceptions as regards the value of the issue at stake, and applies also to 
what are considered as small disputes (by the administration of justice, but not by the citizens 
concerned). 
For the purposes of this Communication, "consumer dispute" means any dispute involving a natural 
person, acting outside his trade or profession and a natural or legal person acting in the course of 
business. As regards the notion of "consumer", see Articles 153 and 155 of the Report on the 
accession agreement of Denmark, Ireland and the United Kingdom to the Brussels Convention on 
jurisdiction and the enforcement of judgments in civil and commercial matters (the Report is 
published in OJ No C 59, 5 March 1979, pp 71 ff). 
As regards the principle of "equality of arms" before the courts, see also the case law of the 
European Court of Human Rights, notably cases Neumeister v. Austria (1968), Bônisch v. Austria 
(1985), Feldbrugge v. the Netherlands (1986). 
6 OJ No L 266, 9.10.1980, p. 1 . 
7 Codified version: OJ No C 189, 28.7.1990, p. 2 g 
When the conditions mentioned in Article 13 are satisfied, Article 14 provides in addition that actions 
brought by consumers against the other party to the contract may be heard either before the courts of the 
country in which the defendant is domiciled or those of the consumer's country of domicile. 
9 Judgment of 19 January 1993, case C-89/91 (ECR 1-139). 
"... derived from a concern to protect the consumer as the party to the contract who was 
considered to be economically weaker and less experienced in the law than his co-
contractor". 
A summary description of the replies given by the Member States to the problem 
regarding consumer disputes allows us to categorize these replies into two strands10: 
- the establishment of out-of-court procedures specifically devoted to consumer 
disputes; 
- the establishment of simplified procedures and/or simplified modalities for 
instituting proceedings, for claims up to a specified ceiling. 
II. OUT-OF-COURT PROCEDURES IN THE MEMBER STATES 
In Denmark, Sweden and Finland, most consumer disputes are handled by "consumer 
complaints commissions" created during the 70s; these commissions11, are a kind of 
administrative authority and make their decisions on the basis of a written procedure 
whose details are regulated by statute. 
In the Netherlands the "Geschillencommissies" (dispute commissions)12 play a similar role 
in what is basically a written procedure. They deliver a binding opinion ("bindend 
advies") which must be complied with by the parties. The Geschillencommissies are 
subject to an approval procedure designed to ensure that certain conditions are met and 
are members of a Foundation set up in 1970. 
More recently, Geschillencommissies/ Commissions des litiges were created in Belgium 
as well. 
In Portugal a free conciliation and arbitration procedure for consumer disputes was 
established in Lisbon in the context of a pilot project backed by the Commission and the 
Portuguese authorities, whose very positive results13 have lead to the opening of other 
similar centres. 
In Spain a "sistema arbitral del consumo" was established by Royal Decree of 30 April 
1993; in the framework of this system, each arbitration commission consists of a chairman 
(representing the administration), a consumer representative and a representative of the 
professionals14. 
In several countries a mediator (known as "private ombudsman" in the United Kingdom 
and Ireland) has been created in certain economic sectors (most commonly banking and 
insurance)15. The British and Irish Ombudsman Association has recently drawn up 
10 The two approaches are complementary, in most Member States - for example, the United 
Kingdom has developed both simultaneously. 
Chaired by a lawyer and made up of representatives of consumers and professional circles. For 
example, in the 1993-94 financial year the Swedish commissions received 6 327 complaints. 
Consisting of a consumer representative, a representative of the professional organisation of the 
sector concerned, and an independent chairman. In 1994 the Geschillencommissies registered 7 167 
cases (as opposed to 6 594 in 1993 and 6 027 in 1992 - the annual growth rate is over 8%). 
Almost 2 000 cases settled within 40 days. 
Since their creation, the "Juntas arbitrales" have registered over 14 992 complaints. 
The task of these mediators is to deal with consumer disputes through mediation, conciliation and 
(in certain cases) they may deliver a decision which is binding on the professional. For example, 
minimum criteria binding on its members; in the case of mediators created for certain 
public services these criteria are normally established by statute. 
In other Member States a similar role is played by the Chambers of Commerce (Germany 
and, more recently, Italy). 
III. NATIONAL INITIATIVES CONCERNING ACCESS TO COURT 
PROCEDURES 
In France a simplified procedure was established by Decree No 88-209 which facilitates 
the introduction of claims of up to FF 13 000 before the courts: the "declaration au 
greffe" (indicating the identity of the parties and the nature of the claim, as well as a 
summary of the grounds) is standardised in a simplified form which is binding on the 
defendant when submitted to him by the registrar; likewise, the defendant is provided 
with a simplified form for setting out his comments. 
In England a "simplified summons" may be used for all claims of up to UKL 3 000 in 
the County Courts. This is a simplified form (of exemplary clarity) which is filled in by 
the complainant and a copy of which is sent by the court to the defendant, together with 
a reply form (which is just as clear as the first one). 
If the defendant does not respond within 14 days, the complainant may request the court 
to issue a payment order; if the defendant contests the grounds the case is referred to a 
hearing. The "County Court Rules" (1981) specify that the hearing shall be informal and 
strict rules of evidence shall not be applicable. 
In Ireland a similar mechanism was introduced three years ago for small claims by 
consumers. This procedure, initially introduced for claims of up to 500 punts, now applies 
to claims of up to 600 punts and it is planned to raise the ceiling to 1000 punts. The 
court registrar helps the consumer fill in the form which - after entry in the register - is 
sent to the defendant; all he has to do is to fill in the special form created for this 
purpose. If the defendant contests the application, the registrar attempts to reconcile the 
parties; to this end he may allow them to put their case and/or invite them to negotiate 
a solution. 
In other Member States, such as Germany, equivalent forms exist for certain categories 
of disputes. In Belgium, forms have been drafted to make it easier for to institute 
proceedings before justices of the peace. 
In Sweden and Finland, simplified forms have been prepared for bringing complaints to 
the attention of the "Consumers Complaints Committees". 
The forms mentioned above exist only in the national language of the legal orders 
concerned. 
in 1993 in the United Kingdom 8 133 complaints were registered by the Insurance Ombudsman 
and 9 578 by the Banking Ombudsman. 
PART II: THE COMMUNITY DIMENSION OF THE PROBLEM 
I. THE COST OF "JUDICIAL*' FRONTIERS 
In the context of a single market created against a background of different legal traditions 
and commercial practices it is only natural that a certain number of transactions should 
give rise to certain difficulties in interpretation or indeed in the performance of 
obligations linked to the transaction, creating disputes between the parties. 
The possibility of rapidly and fairly settling these disputes at a reasonable cost was 
highlighted by all the parties concerned during the consultations on the Green Paper as 
a sine qua non for the development of intra-Community transactions and, hence, for the 
success of the internal market. 
The implementation of appropriate procedures is indispensable, given that not all the 
operators concerned have a "legal service" specialised in the very complex issues of 
dispute resolution when the parties are domiciled in different countries: few firms (below 
a certain size) and even fewer consumers are able to navigate the maze of private 
international law (whose application in a Union of 15 Member States give rise to 210 
different potential combinations), the existing conventions (none of which is yet 
applicable throughout the European Union in its entirety) and the national procedural rules 
(which have in no way been approximated). 
The fear of "complications" as well as the cost of finding one's way through the "maze" 
exercise a strong dissuasive effect on transactions involving consumers: since consumers 
(taken singly) do not normally possess large sums of money, the costs of hiring a lawyer 
will often be quite out of proportion with the value of a potential claim. In certain 
countries this dissuasive effect is compounded by the sluggishness of the legal procedures 
and in others by rules governing the payment of lawyer's fees: in several Member States 
the party who "wins" the case can only recover a small part of the costs incurred - and 
in consumer disputes this means that the plaintiff is certain to bear costs over and above 
the damage suffered, in the uncertain perspective of obtaining a "favourable" ruling 
awarding a sum which may be less than the cost of "winning" the case. 
The specific and supplementary barriers which complicate the settlement of intra-
Community consumer disputes may thus hinder the smooth functioning of the internal 
market, on the same lines as technical and tax barriers. 
In order to verify the truth of this hypothesis, the Community employed an independent 
research institute to conduct an in-depth study on the "Cost of legal barriers to consumers 
in the single market". The results of this study - which covers the 15 Member States and 
was conducted in 1995 - may be summarised as follows: 
20 The average cost16 of in-court settlement of an intra-Community dispute17 over an 
amount equivalent to ECU 2 000 corresponds in the best conceivable 
circumstances (see below) to approximately ECU 2 500 for the plaintiff. 
This cost (which hence represents the "minimal" average cost) does not include: 
VAT on lawyer's fees (which private individuals, as opposed to firms, 
cannot recuperate); 
experts' fees; 
costs of travelling abroad (when the parties have to attend court in person); 
reimbursement of witnesses' fees; 
the cost of notifying and serving judicial documents. 
The average duration of a case before a lower court for the same intra-Community 
dispute is between 23.518 and 29.219 months for the European Union as a whole, 
and in certain combinations of countries it exceeds 40 months, while at national 
level it is normally under 20 months. 
In other words the backlog of pending court cases in certain Member States has 
a "cumulative" effect and this affects the nationals of other Member States even 
if they seem to be protected at national level 20. 
It should be noted that the above-mentioned periods relate to the courts of first 
instance and assume a dispute which is free of technical "complications" (no 
expert reports, no letters rogatory) and procedural difficulties (no counterclaims) 
and assume that the court decision is not appealed to a higher court and that the 
case is not referred to the European Court of Justice for a preliminary ruling. Like 
the estimate concerning costs, this is in some way the "best" hypothesis. 
Summarising in cost/benefit terms the perspectives of a "standard" court case, the 
study shows that for a "simple" inter-Community dispute the situation is as 
follows: 
a party who has suffered damage in the amount of ECU 2 000 must, in 
order to have "access to justice", first pay an "entrance fee" of ECU 2 500 
(court cost + lawyer's fees, exclusive of VAT), in the (uncertain) 
perspective of recovering his loss within 12 to 64 months (depending on 
court costs + lawyer's fees 
For the purposes of this study we use the notion already employed in the Green Paper of a "dispute 
between two parties domiciled in two different Member States". 
For an action brought in the country in which the defendant is domiciled. 
For an action brought in the parties in which the plaintiff is domiciled, followed by the recognition 
and exequatur procedures in the defendant's country. However, it should be noted that in two 
Member States the duration of this second stage alone exceeds 20 months and in four other 
Member States it is equal to or greater than 10 months. 
The average duration of a procedure brought in one Member State and followed 
by enforcement of the decision in another Member State in conformity with the 
Brussels Convention may be as long as 72 months in certain countries, according 
to the results of the study. 
the country) - all this on the assumption that the defendant will (still) be 
solvent when the court makes its decision. 
If the second condition is not (or no longer) met at the time of judgment, 
the plaintiff (while "winning" the case) will have lost ECU 4 500 (his 
initial loss + expenses). 
If the condition is met, and if the court finds for the plaintiff, he will be 
awarded damages; in most of the Member States (11 out of 15 according 
to the study) he will however recover only a part of his outgoings (in 
addition, certain legal orders simply rule out compensation for the fees 
charged by "foreign" lawyers). 
Since these costs amount to ECU 2 500 on average, the plaintiffs 
"balance" (damages minus non-reimbursed outgoings) will often be close 
to zero if not indeed negative. 
4 Bearing the above points in mind, the study's fourth conclusion is hardly 
surprising: very few intra-Community disputes involving consumers come to court. 
Quite apart from the fundamental problems posed by such a situation in a rule-of-
law state or community21 it remained to be seen whether (in regard to out-of-court 
mechanisms) the problem's dimensions could be quantified in some manner. To 
this end, the Commission launched two initiatives whose results provide an initial 
answer to the question: 
I) One of the conclusions of the Green Paper concerned the "creation of a mechanism to 
follow up cross-border disputes with a view to inventorising the problems encountered 
in practice". Here the reactions to the Green Paper were unanimous. 
On an experimental basis, and drawing on a limited sample of border sides, the 
Commission thus began to collect useful information and particulars (quantity, origin and 
classification of complaints) so as to get a better idea of the magnitude of the problem: 
in eight border regions, organisations and/or bodies whose mission is to inform consumers 
collected complaints against professionals established in a Member State other than that 
of the consumer ("intra-Community" complaints). From December 1994 to September 
1995 2 615 complaints of this kind were registered for a total value of ECU 39 492 315. 
II) Eurobarometer survey 43.0, conducted in spring 1995, also offers two significant 
indexes: 
- 24% of the interviewees (3 799 out of 15 800) conducted at least one intra-
Community transaction in the past 12 months, but only 3.2% purchased durable 
goods (this last percentage is indeed lower than the figure for 1992); 
8,7% of persons who conducted an intra-Community transaction (332 out of 
3 799) encountered problems. 
21 Issues of principle irrespective of the number of concrete cases 
10 
In the second part of the studied mentioned above, the authors estimate that the above-
mentioned legal barriers create an atmosphere of uncertainty whose macroeconomic costs 
partly explain the "foregone profits" of the internal market (in other words the difference 
between the forecasts and the real benefits of the internal market). 
According to the study's conclusions: 
"That legal uncertainty (or judicial barriers) impede economic growth and stability in an 
economy is a central hypothesis in development economics as well as in the political 
economy of transformation in Eastern European reform countries. On the contrary, this 
aspect has hardly been recognised in the research on European integration. It has not been 
considered in the planning of the European Union that economic integration induces an 
increase in legal uncertainty (...) that can destroy or at least reduce the expected positive 
effects of an internal market programme and also of a European economic and monetary 
Union". 
Among the effects of legal uncertainty, the study notably indicates that: 
"Even expected transaction costs let consumers shy away from buying abroad. The reason 
is that, when regarding the higher transaction costs, foreign goods have lower utility for 
the potential buyers even at the same or at a lower market price for those goods compared 
with home goods. The same is valid for producers. The risk of having to use higher 
transaction costs to get payment for delivered goods reduces the profit or incentive for 
selling abroad" (...) "Another static effect refers to a concentration process that is 
produced by transborder legal uncertainty. As transborder legal uncertainty is relatively 
more important for small enterprises than for big ones, small enterprises tend to be 
outcompeted". 
The study's authors emphasise that a quantitative estimate of the macro-economic costs 
is very difficult; however, in their conclusions they estimate that: 
"By far the highest costs are caused by consumers not making use of price differentials 
within the European Union due to legal uncertainty (...) Adding up the direct static costs 
leads to costs in the range of 7 230 to 73 790 million ECU. The sum of the hypothetical 
average scenarios we regarded as plausible is 27 530 million ECU". 
II, THE RESULTS OF THE CONSULTATION ON THE GREEN PAPER 
The Green Paper was the subject of very extensive consultations whose results confirmed 
the necessity for as well as the urgency of a Community initiative. 
The European Parliament (Resolution of 22 April 1994)22, the Committee of the Regions 
(opinion of 17 May 1994)23, the Economic and Social Committee (opinion of 1 June 
1994)24 as well as a large majority of organisations representing the interests concerned 
(consumers, business and the legal professions) have come out clearly in favour of such 
an initiative. 
In all the Commission received 110 written reactions representing all the interests 
concerned from all over the European Union; all parties who responded by a specified 
OJEC NoC 128, 9.5.94, p. 459 
23 OJEC NoC 217, 6.8.94. p. 29 
24 OJEC No C 295 of 22.10.94, p. 1 
deadline (3Î May 1994) were invited to a hearing which took place on 22 July 1994. A 
certain number of options derived from the replies received by the Commission were also 
discussed at the first European Consumer Forum (4 October 1994), which hosted almost 
350 participants from 19 countries and representing all circles concerned. 
In the summary report on the internal market presented on 9 December 1994 to the Essen 
European Council, the Commission confirmed it would "base its measures on the 
consultations in the context of the Green Paper". 
On 22 December 1994 the French government presented the Council with a 
"Memorandum for an Active Consumer Policy" in which it emphasised that "the problems 
of access to justice have not been resolved and jeopardise the creation of a genuine 
European area. In other words the Green Paper on access to justice is a response to an 
essential and priority need". Other Member States, as well as the EFTA countries, have 
invited the Commission to take concrete initiatives in the field of consumer disputes. 
As regards the objectives of the Community initiative, a significant consensus arose 
during the consultation process around certain strands in the Green Paper, notably: 
I) the coordination of national provisions concerning actions for an injunction which 
may be brought in respect of certain infringements of Community law25: 
II) the promotion of an environment favourable to the out-of-court settlement of 
consumer disputes26; 
HI) the creation of a mechanism for monitoring intra-Community disputes and the 
establishment - in the shape of a pilot project - of coordinated mechanisms for 
instituting cross-border proceedings.27 
As regards the first point (actions for an injunction) a proposal for a Directive was 
presented by the Commission on 24 January 1996. This is a problem which can only be 
resolved by the adoption of a legal instrument at Community level. 
As regards the other points (settlement of disputes) the Commission favours a voluntary 
approach and wants to create better conditions for cross-border cooperation. 
To this end the third part of this plan proposes specific measures which, because of their 
European dimension, may contribute to realising the objectives pursued. These objectives 
concern both the smooth functioning of the internal market (Article 100a of the Treaty) 
and the protection of consumer interests (Article 129a). 
The existence of appropriate procedures for settling consumer disputes favours the 
"spontaneous" respect of obligations arising from the contract and/or the applicable legal 
26 Conclusion No 1 of the Green Paper, paras 13 and 14 of the Resolution of the European 
Parliament 
Conclusions No 4 and 5 of the Green Paper, para. 22 of the Resolution of the European Parliament 
Conclusions No 3 and 6 of the Green Paper, paras 7 to 9 of the Resolution of the European 
Parliament which however are a lot mor far-reaching than the perspectives described in this 
Communication 
12 
provisions; on the other hand, the absence of procedures designed to settle intra-
Community disputes rapidly constitutes an uncertainty factor for the economic players. 
From the micro-economic perspective this factor favours the party who defaults, allowing 
him to profit from his negligence, while the other party bears the loss. 
At macro-economic level, the same factor exercises a dissuasive effect which (by 
gradually "eroding" the economic operators' confidence in the reliability of intra-
Community transactions) may diminish the expected benefits of the internal market for 
the economy as a whole. 
As indicated in the foreword, the initiatives envisaged in Part III are not exhaustive: in 
consonance with the European Parliament's suggestion, the idea is rather to draw up an 
"interim report with a timetable for implementing the necessary measures"28. This 
timetable is reproduced in Annex I to this Communication. 
28 Resolution of 22 April 1994, mentioned above. 
13 
PART III: THE INITIATIVES PROPOSED 
I. THE PROMOTION OF OUT-OF-COURT PROCEDURES 
At Community level the Commission considers that the initial focus must be on out-of-
court procedures, for the following reasons: 
- markets are evolving far more swiftly than legal codes, and infinitely more swiftly 
than the negotiations between 1 5 Member States; 
- the spectacular growth of out-of-court procedures relating to consumer disputes 
may be interpreted either as a response to sluggishness (and difficulties) in the 
adaptation of certain legal codes (adopted at a time when disputes were far less 
numerous and did not cover the typical problems of contemporary society), or as 
a "filter" to be encouraged so as to overcome the court backlog, or as a challenge 
to the principle of the unicity of the courts; but however one may judge its merits 
and demerits, this trend applies to most Member States; 
- the experience gained by several Member States proves that the "selective" 
encouragement of out-of-court procedures for settling disputes - providing certain 
essential criteria are respected - has been welcomed both by consumers and firms 
(by reducing the cost and duration of consumer disputes) and is currently 
supported by all sides concerned. 
In the framework of the internal market, the lessons we can draw from these experiences 
may be invaluable. Given the proliferation of "out-of-court" bodies of all kinds 
(mediators, conciliators, arbitrators) and at all levels (sectoral, national, regional and even 
local) there are two options: Either we ignore the phenomenon, fully aware that for most 
intra-Community consumer disputes the cost of a lawsuit would be disproportionate; or 
we try to establish "benchmarks" to accommodate the "foreign" consumer, on the same 
lines practised by the countries who lead the field in this area (See Chapter II of Part I). 
The experience oi' these countries is that certain out-of-court procedures may play an 
important role in settling consumer disputes whenever certain minimum criteria have been 
established to ensure the transparency of the procedure and the independence of the body 
responsible for dealing with the disputes. 
By contrast, the absence of such criteria goes a long way to explaining consumer distrust 
in certain countries in regard to all forms oi' out-of-court dispute resolution. The results 
of the consultation on the (îreen Paper were revealing in this respect: most of the parties 
involved would welcome minimum criteria at European level, including the professionals 
concerned, as well as the European Parliament and the Economic and Social Committee. 
On the basis of the comments and suggestions received, the Commission is urged to 
define and/or propose a list of minimum criteria, applicable to the treatment of intra-
Community consumer disputes in order to facilitate the creation and/or "networking" of 
out-of-court procedures at internal market level. 
The establishment of such criteria at European level would make it possible to support 
and supplement the policies of the Member States that have chosen to promote a 
"conciliation culture" in the domain of consumer disputes, and should obviously draw 
inspiration from criteria established at national level. 
14 
A draft working outline comprising six minimum criteria is annexed to this 
Communication (Annex II); three stages are envisaged, in line with the timetable featured 
in Annex I. 
STAGE 1: The working outline is sent to the interested parties for consultation, with 
an eye to finalising the definition of the proposed criteria. 
STAGE 2: The criteria adopted, in their definitive version, are the subject of a 
Commission Recommendation. 
This text should stipulate an observation period (three years) during which the existence 
of common criteria could facilitate the creation of "approved" bodies in each Member 
State, on a voluntary basis. 
Moreover, the existence of national bodies employing similar criteria might make it easier 
to manage mechanisms for handling intra-Community complaints on a voluntary basis (for 
example, by creating a single "post office box" to which consumers could direct their 
complaints, hence obviating potentially arduous research when the professional belongs 
to a "foreign" system). 
STAGE 3: At the end of the observation period, the follow-up given to the 
Recommendation would be the subject of an assessment report 
accompanied, where relevant, by a proposal designed to ensure compliance 
with the criteria, in accordance with procedures yet to be determined, and 
after further consultations. 
By way of example, compliance with the criteria could be guaranteed using a scheme 
similar to the one in force in certain Member States (examples: United Kingdom, Ireland, 
Sweden, Finland, Denmark, the Netherlands). 
The purpose of such a scheme would not be to "regulate" intra-Community disputes but 
to help the interested parties establish procedures applicable to such disputes, on the same 
lines as the Office of Fair Trading, for example, in the United Kingdom.29 
II. SIMPLIFIED ACCESS TO COURT PROCEDURES 
The establishment of out-of-court procedures as recommended in Chapter I can only be 
envisaged on a strictly voluntary basis; neither professionals nor consumers can be 
"obliged" to rely on them. 
The situation was aptly summarised by the European Parliament in its Resolution of 
22 April 19°4 on the Green Paper (paragraph 5) : "when all amicable procedures have 
failed, parties must be able to seek legal redress at a cost commensurate with the small 
sums involved". 
29 Under (he Fair Trading Act, (he OFT's (ask is "«> encourage (he relevant associai ions lo prepare and 
to disseminate to their members codes of practice for guidance in safeguarding and promoting the interests 
of consumers in the United Kingdom"; in this Context, a standard procedure has been adopted for handling 
complaints. 
15 
To this end, Parliament considers "that it would be appropriate to harmonise to a certain 
extent the rules governing legal proceedings in the Member States, in order to establish 
a Community procedure, for claims up to a certain amount, for the rapid settlement of 
individual transfrontier consumer disputes" (paragraph 9 of the Resolution). 
I his view is shared by a large number of bodies and organisations that represent users 
and call for harmonisation of the "ceiling" of jurisdiction for courts ol this kind {justices 
de paix, County Courts, Amtsgehcht) as well as the global introduction of simplified 
proceedings (simplified summons, declaration au greffe) in order to ensure a certain 
"parity of treatment" of small disputes in all the Member States30. 
Given the present state of Community law, the suggestions summarised in the preceding 
paragraph must be approached with a fair measure of caution. However, a "Community" 
contribution to solving the problem is conceivable, provided the legal traditions and 
idiosyncrasies of each Member State are fully respected. Such a contribution could in fact 
be based on the existing corpus of national rules (see below), while making it possible 
to improve access to existing national procedures (which for at least one of the parties, 
in the case of an intra-Community dispute, remains a "foreign one"). In this context the 
sample forms mentioned in Part I, Chapter III pay help illustrate the objective in mind. 
Drawing inspiration from these examples the Member States could adopt a simplified 
European form for intra-Community disputes31 with a view to facilitating access to the 
national courts. 
Far from involving harmonisation of procedures, such an initiative would bring them 
closer to users, namely those justiciable, and provide greater transparency at the very first 
stage of gaining access to an essential "public service". 
Forms have been created (or harmonised) at F>uropean level in the context of other 
problems of everyday life - for example the "E 111" form (to enable citizens to draw 
sickness insurance benefits in a country other than their country of residence) and other 
forms adopted in the social security field. Experience shows that these documents, which 
exist in all Community languages, facilitate access for users and also lighten the workload 
of the bodies responsible for handling the dossier in question. 
From this perspective the idea would not be to harmonise procedures but to provide better 
access to the procedures that exist in each country, as they stand at present - hence 
encouraging an approximation of the circumstances facing the parties to an intra-
Community dispute, currently separated by certain specific barriers.32 
The form would be prepared in the 11 Community languages and the "usage instructions" 
could be defined as follows: 
30 In most Member States a "simplified" procedure applies to disputes whose value is less than a 
certain sum; however this sum can vary greatly. For example, a claim for up to 1 500 Ecus is 
considered as a "small dispute" (with a view to applying simplified procedures) in France or in 
Germany, but not in Spain or the United Kingdom. The cost and duration of the "treatment" varies 
as a result, for claims relating to the same amount, depending on the country whose courts have 
jurisdiction. 
By European "form" we mean a form whose basic structure should be "harmonised" (with an eye 
to facilitating the translation as well as the handling of the complaint), but there is nothing to 
prevent Member States from adapting the form to their national traditions and legal orders. 
Green Paper, Chapter III A.2 (page 72) 
I. The claimant would fill in the form in one of the Community languages having 
the status of an official language in the claimant's country of residence33; the 
claim, formulated in this way, would then be transcribed to the equivalent form 
in an official Community language of the addressee's country and sent to the 
latter, via the relays indicated by the Member States; 
II. In the section of the form reserved for him, the addressee could either propose a 
solution as to the substance, or inform the complainant of the existence of an 
instance which could settle the dispute amicably (mediator, conciliation 
commission, etc.); 
Ill If the addressee did not respond within a given period, or rejected the proposed 
solution, the form would be forwarded to the competent authority (which would 
find there the background to the dispute as well as the subject of the complaint 
and the identity of the parties, in the two languages). 
A provisional version of such a form is annexed to this Communication (Annex III); the 
final version will be established on the basis of wide-ranging consultation with the 
Member States, the legal professions, associations representing potential users, on the 
understanding that recourse to the form by users (consumers and firms) should be optional 
and not rule out other forms of dispute settlement. In introducing the form, two stages 
may be envisaged. 
Stage I: the form is tested in a limited number of border regions 
In order to respect cultural and legal, national and regional particularities, the multipliers 
are selected on the basis of consultations with the Member States and interested parties. 
A group of experts representing the Member States supporting the initiative is in 
responsible for follow-up and drafts recommendations on expiry of an appropriate trial 
period. 
The timetable for prior consultations in the context of implementing the initiative is 
reproduced in Annex I to this Communication. 
Stage II: the final version of the form is presented by the Commission in the context of 
a proposal for a regulation which will also define its "usage instructions" on the basis of 
the results of the trial period. 
In this case the "scope" of the form could be the subject of prior consultations with an 
eye to determining the ceiling for what the Member States consider to be "small claims". 
III. PERSPECTIVES 
In the absence of Community initiatives designed to improve individual access to justice, 
consumer associations and certain Member States suggest that persons who have been 
harmed by the behaviour of a given professional be afforded the opportunity to sue 
collectively. This objective may be achieved in the form of a "class action" as is already 
the case in most of the Common Law countries, or via a series of authorisations granted 
to a representative organisation, on the lines of the "joint representation" action introduced 
in France by the Law of 18 January 1992. 
33 Where relevant, in agreement with the competent authorities of the Member States, the 
form could also be filled in the Community language of the country of origin of the 
consumer. 
17 
However, at present Member States seem far from agreement on this particular option. 
Hence other avenues should be explored and a debate should be launched on the 
possibilities of consolidating related actions, as - for example - when the behaviour of a 
given professional harms several consumers. 
To this end, it should be remembered that provisions already exist in the national 
legislations, applying to "actions... so closely connected that it is expedient to hear and 
determine them together to avoid the risk of irreconcilable judgments resulting from 
separate proceedings" (Article 22, third paragraph, of the Brussels Convention on 
jurisdiction and the enforcement of judgments in civil and commercial matters). 
Application of these provisions is currently stymied by the fact that consolidation operates 
"ex post" in regard to a multiplicity of claims submitted successively (rather than 
simultaneously) to a number of different courts; this poses substantial if not to say 
unsurmountable technical problems in the case of intra-Community disputes34: in the case 
of related actions, the solution adopted by the Brussels Convention refers to the notion 
of "court first seised" but this is not defined by the Convention and gives rise to 
incompatible interpretations in the national legal orders35. 
To get round these problems the Commission might propose that consumers harmed by 
the actions of a given professional could instruct their organisations to group complaints 
"ex ante", hence facilitating the consolidation of related actions: while remaining 
individual cases (in no circumstances would they be equivalent to a "class action") they 
could be lodged at the same time before the same court (normally, the court having 
jurisdiction over the defendant's domicile). 
Writs and notifications concerning persons issuing such an instruction could thus be 
addressed to the authorised association (leading to substantial savings in the administration 
of justice) and lawyers' fees would be considerably reduced (both for consumers who 
"consolidate" their actions and for the professional concerned), by comparison with the 
cost of the same cases if they were treated in isolation36. 
Eventually, the consolidation of related actions" could be proposed as an add-on to the 
policy of promoting out-of-court procedures, in that it would apply only to circumstances 
where an out-of-court mechanism is not available (because it does not exist or because 
the defendant rejects it). In this case the following approach could be adopted: 
36 Green Paper, pages 76 ff. 
See the report drawn up by the Working Party for the approximation of the law on civil procedure: 
in certain Member States, a dispute is considered to be "pending" from the date the defendant is 
notified of the writ; in other countries the case may have to be entered by the court registrar; in 
yet other countries "lis pendens" is born when the claim is admitted, or when it is sent to the 
defendant. 
Instead of having to face a host of procedures being dealt with by different courts (with the 
attendant risk of inconsistent decisions and hence legal uncertainty) the professional concerned 
would also benefit from a single procedure allowing him to plan his costs more reliably and hence, 
if he wished, to negotiate an amicable settlement with an interlocutor acting on behalf of the 
consumers concerned. 
a transitional period could be accorded during which out-of-court procedures for 
settling intra-Community disputes could be established (by the professionals 
concerned) provided they respect the minimum criteria laid down at European 
level (see Chapter I); 
on expiry of the transitional period concrete proposals on the consolidation of 
related actions could be presented and would apply to the disputes which cannot 
be resolved by any of the abovementioned procedures. 
19 
ANNEX I 
Indicative timetable concerning measures to be taken to implement the envisaged 
initiatives 
THE PROMOTION OF OUT OF COURT PROCEDURES 
(Chapter I of Part III of this Communication) 
- Consultation of interested parties concerning the working outline featured in 
Annex II: March - September 1996 
- Adoption of the Recommendation: end 1996 
- Observation period: December 1996 - November 1999 
- Preparation and presentation of an assessment report on the operation of the 
system: December 1999 - May 2000. 
ACCESS TO COURT PROCEDURES (Chapter II of Part III) 
- Consultation of the interested parties on the draft form featuring in Annex III: 
March - September 1996 (Member States, Association europoéenne des 
magistrats, Council of the Bars and Law Societies of the European Community, 
representative associations of users: consumers and firms) 
- Definition of the working outline concerning the procedures for using the form 
and selection of the frontier regions in which the form will be tested: October -
December 1996 (new round of consultation with the Member States) 
- Nomination of the members of the group of experts responsible for following up 
the initiative: March - April 1997 
Trial period: June 1997 - May 2000 
- Recommendations of the group of experts on the follow-up to the trial period: 
June - September 2000 
20 
ANNEX II 
WORKING OUTLINE FOR A RECOMMENDATION ESTABLISHING 
CRITERIA FOR THE CREATION OF OUT-OF-COURT PROCEDURES 
APPLICABLE TO CONSUMER DISPUTES 
FIRST CRITERION 
The impartiality of the body responsible for handling the disputes must be guaranteed 
by all appropriate means and notably: 
- in the case of mediators, by according them adequate guarantees of independence 
in the performance of their tasks; 
- in the case of collegiate bodies, by ensuring joint representation of consumers and 
professionals in the bodies that handle the disputes, as well as the independence 
of the third party that chairs the body, whenever provision is made for such a 
party. 
SECOND CRITERION 
The effectiveness of the procedure must be ensured by measures guaranteeing: 
- the existence of clear and simple forms for submitting claims, available in the 
eleven Community languages; 
- establishment of and compliance with time limits, including preliminary steps 
which may be imposed on the consumer (example: all remedies internal to the 
firm have been exhausted); 
- attribution of appropriate investigatory powers to the body responsible for taking 
the decision; 
THIRD CRITERION 
Adequate publicity must be guaranteed using appropriate means to ensure the 
transparency of the following elements: 
the existence and scope of the procedure; 
the maximum time limit and possible cost of the procedure for the consumer; 
- the criteria governing the "decision" of the body responsible for handling the 
dispute; 
21 
the legal import of this "decision", spelling out whether it is binding on the 
professional or whether it is a mere recommendation; in the first case the sanctions 
for non-compliance must be set out. 
These particulars must always be provided in writing to any consumer who has expressed 
an interest in availing of the procedure. 
The decisions, or at least a summary thereof, must be the subject of an annual report 
accessible to the public. 
All decisions must be reasoned and in writing and must be communicated to the parties 
concerned as soon as possible. 
FOURTH CRITERION 
When the parties are domiciled in different countries, each party must be informed in 
writing, and in a language having the status of official Community language in his/her 
country of residence, of the decision on the dispute, setting out the grounds. 
FIFTH CRITERION 
Application of the codes of conduct must never result in depriving the consumer of 
protection afforded to him/her by the mandatory rules of the law of the country in which 
he/she habitually resides, in conformity with the Rome Convention on the law applicable 
to contractual obligations. 
SIXTH CRITERION 
Terms in a contract which have not been individually negotiated may under no 
circumstances be invoked to prevent consumers from bringing an action before the courts 
having jurisdiction for the judicial resolution of the dispute. 
22 
CLAIM 
(In certain circumstances this document may replace the letter of formal notice) ANNEX III 
ADDRESSEE 
Name: 
First name: . . 
Address: .... 
THE BACKGROUND i<» 
SUBJECT OF THE APPLICATION^ (1) Specify as precisely as 
possible: 
(a) the dates, places and 
conditions of purchase, sale 
or signature of the contract 
(b) problems encountered 
with the product or service 
(2) Specify the precise 
nature of your request 
(examples: amount of 
reimbursement, repair or 
replacement of a product, 
etc.). 
ANNEXES(3) (3) Indicate here all details 
you consider necessary and 
annex all documents 
supporting your request 
Done at .. 
Signature IMPORTANT: 
The Addressee has 15 days to reply from receipt of 
this document. If no reply is received within this 
period, the Sender may lodge a copy of the letter 
of formal notice with the clerk of the court having 
jurisdiction. This submission will be equivalent to 
a declaration before the clerk of the court. 
Note for the sender: 
If the addressee is domiciled abroad, always consult a lawyer or a consumer organisation: they will be able to 
inform you on the law applicable to the dispute, indicate to you the court having jurisdiction and help you at 
all stages of the procedure, in accordance with the rules applicable in each country. 
If the addressee is domiciled in a Member State of the European Union, your claim may be transcribed 
to a form equivalent to this one, which exists in all official languages of the Union. 
23 
- REPLY -
(Failure to reply within the ordained time limit may lead to an action being brought 
before the court having jurisdiction) 
I accept your claim and agree to 
within a period of 
I do not accept your claim because 
and, moreover, request as follows 
I certify that I have received your claim and propose the following: 
(l) Example: partial or full 
reimbursement of the price, 
A) record our agreement on the following solution (1): repair or replacement of the 
product. 
(2) Example: conciliator, 
arbitration, mediation centre. 
Specify clearly: 
- the cost and duration of the 
B) submit the dispute to the body mentioned below (2): procedure, 
- the legal status of the decision 
issued by this body (is it 
binding on the two parties or 
only on the professional or is it 
merely a recommendation?) 
Done at.. 
Signature 
Sender's reply to the proposals: 
concerning proposal A) 
concerning proposal B) 
Signature 
^ 
ISSN 0254-1475 
COM(96) 13 final 
DOCUMENTS 
EN 10 
Catalogue number : CB-CO-96-070-EN-C 
ISBN 92-78-00588-6 
Office for Official Publications of the European Communities 
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