The Role of ADR in the Materialisation of Consumer Access to Justice

Abstract

In many initiatives regarding the development of consumer alternative dispute resolution (hereinafter referred to “as the “ADR”), EU legislator emphasises the significance of those methods for the facilitation of consumer access to justice. These initiatives depict the visible change of the EU policy in relation to consumer law, consisting in gradual withdrawal from exercising the policy based on the materialisation of the substantial law-related regulations towards undertaking measures aiming at the development of procedural guarantees which facilitate consumer access to justice. It seems to be obvious that substantial norms of consumer law remain meaningless if they cannot be enforced or if this process remains difficult, for example, due to the high operating costs. Hence, it remains a challenge for a legislator to ensure such mechanism which enables effective consumer redress, especially in relation to the disputes arising out of or in connection with transnational consumer contracts. Efficiency of the guarantees granted to the consumers on the internal market depends primarily on the effective consumer access to justice. Consumers purchasing goods or services from foreign entities running business in the other Member States face many problems which prevent them from benefiting from the substantial-law protection. As far as the transactional contracts are concerned, these problems arise out of language barriers, potentially high costs of procedure or differences in the legal systems of relevant Member States. The discussion included in the foregoing is based on the assumption that ADR as an instrument for the realisation of consumer access to justice may be scrutinised from the substantial law- and procedural law-related perspective. The first approach makes it possible for us to analyse whether the use of ADR may contribute to achieving justice in the substantial law sense, or in other words, whether the outcomes of the disputes issued by ADR entities are fair. In view of the fact that the analysis grounded in the substantial law perspective would exceed the scope of this paper, in the discussion that follows I concentrate on the second dimension of ADR, that is the formal and legal meaning of this concept as the right to effective legal protection. Analysing the research area, as specified above, I will try to answer the question, whether it is possible to establish consumer ADR system without prejudice to the consumer right to court protection, as set forth in Article 47 of the Charter of Fundamental Rights of the European Union (hereinafter referred to as the “CFR”). Pursuing to answer this question I reconstruct the doctrinal concept of the right of access to court which is followed by the reconstruction of interpretation of the principle of effective judicial protection made by the Court of Justice of the European Union (hereinafter referred as the “CJEU”). The secondary references include relevant provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms(hereinafter referred to as the “ECHR”) as well as the selected case law of the European Court for Human Rights (hereinafter referred to as the “ECHR”).

The following paper constitutes a part of the research conducted within the framework of the project funded by the grant no. UMO-2018/28/C/HS5/00083, ‘Consumer collective redress in the group proceedings in the Polish legal system in the light of the European Union law standards- achievements and challenges’, financed by the National Science Centre of Poland.