Introduction: The Aims of the ADR Directive

The Alternative Dispute Resolution Directive (the ADR Directive) aims to increase the consumer's access to justice. This is of course an honourable aim. The EU has a vast track record of creating directives which oblige Member States to offer a certain minimum level of consumer protection. Recently, it has moved to adopt consumer directives that introduce full harmonization as well as directly applicable regulations. This should ensure an identical level of consumer protection for consumers throughout the EU. When the mechanisms available to enforce these rights are not available to consumers because of high cost or complicated procedures, these consumers’ rights however remain highly theoretical. In the past, the EU already tried to overcome this problem through the Injunctions Directive under which Member States need to appoint institutions or organisations capable of bringing actions aimed at the cessation of illegal conduct towards consumers. However, these cessation actions only have a preventative aim: preventing future illegal conduct towards consumers. They provide no solution for the ex post resolution of disputes between an individual seller and an individual consumer.

In this context, the ADR Directive aims to provide individuals and traders with access to a simple, fast and low-cost method of dispute resolution. This should result in a high level of consumer protection boosting consumers’ confidence in the internal market and should contribute to the proper functioning thereof. Whether it will reach these aims remains to be seen. Some of the weaknesses of the ADR Directive will be discussed below.

The Weaknesses of the ADR Directive

A first weakness of the ADR Directive is that it leaves it to the Member States to determine whether the participation of traders in ADR procedures is mandatory. This has the potential to undermine the envisaged level playing field for traders and is not conducive for consumer confidence in cross-border trade, which may ultimately be harmful for the internal market, contrary to the aims of the Directive.

Secondly, the ADR Directive allows Member States to choose between ADR entities which propose or impose a solution or bring parties together with the aim of facilitating an amicable solution or a combination of these mechanisms. This too may lead to an uneven level playing field within the internal market.