ODR Platform and new responsibilities for on-line markets

On 15 February 2016, the European Commission inaugurated the Online Dispute Resolution Platform. Its goal is to help consumers and traders from EU member states resolve their disputes resulting from on-line transactions out of court.

The platform, enabling users to resolve their disputes in a simple, effective, quick and economical manner, is intended as a particularly significant tool for cross-border e-commerce.

The legal basis for creating the ODR Platform is Regulation of the European Parliament and of the Council 524/2013 of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC, in short Regulation on consumer ODR.

The ODR Platform is available at https://webgate.ec.europa.eu/odr in all 23 official languages of the EU. Complaints can be lodged using an electronic form. Then, they are examined by a dispute resolution body agreed on by both parties. The arbitral proceeding is free of charge and should last no longer than 90 days from the date on which the complaint is submitted to the respective body (so-called ADR).

What is important is that on-line dispute resolution is not obligatory for traders. Consequently, they can refuse to take part in the proceedings – in such cases, the consumer can only seek redress in court.

The Regulation on consumer ODR is applicable as of 9 January 2016. Starting from this date, traders who conclude on-line sales or service contracts, as well as online intermediaries established within the Union, have new responsibilities as regards providing information.

Pursuant to Article 14 Paragraph 1 of the Regulation, their websites should provide the link to the ODR platform. The link should be easily accessible for consumers. Traders established within the Union who conclude online sales or service contracts are also obliged to provide their e-mail address.

What is more, traders who are obligated or who commit to use one or more ADR entity to resolve disputes with consumers must inform consumers about the ODR platform and about the possibility of using it in order to resolve disputes. They also provide an electronic link to the ODR platform on their websites; if their offer is made via e-mail, the link should be provided in the message. This information, where applicable, shall also be included in the general terms and conditions of concluding online sales and service contracts.

The above responsibilities are also imposed on Polish e-commerce websites, given that EU regulations are immediately enforceable as law in all member states.

Nevertheless, at present, Polish consumers are still unable to use the ADR (alternative dispute resolution) entities due to the fact that Directive of the European Parliament and of the Council 2013/11/EU of 21 May 2013 on alternative dispute resolution for consumer disputes has not yet been transposed into Polish law.

Although the deadline for its implementation lapsed on 9 July 2015, in Poland the work on the act on out-of-court resolution of consumer disputes has only reached the stage of adopting legislation guidelines by the Council of Ministers on 31 March 2015.

It will not be until the new act is passed that it will be established in detail which traders will be legally obligated to use the ADR system, and how traders will be able to join ADR voluntarily (accepting the ADR jurisdiction by, for example, becoming a member of a given industry organization or by including an agreement to accept it in templates of contracts concluded with consumers). In other cases, agreeing to an alternative method of dispute resolution will be voluntary.

The fact that the directive has not as yet been implemented in Polish law is a legislative omission which makes it impossible for consumers to exercise their right to alternative dispute resolution. Currently it is unknown how long this state will continue or when the act will be passed.