The European Parliament and Council adopted the following two instruments to support European consumers in case of cross-border disputes, linked to the desire to promote out-of-court settlements of their disputes:

  • Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes (“consumer ADR”) and amending Regulation (CE) No. 2006/2004 and Directive 2009/22/EC (the “Directive”), and
  • Regulation (EU) 524/2013 of the European Parliament and of the Council of 21 May 2013 on online resolution of consumer disputes (“consumer ODR”) and amending Regulation (CE) No. 2006/2004 and Directive 2009/22/EC (the “Regulation”).

Applicable since 9 January 2016, the Regulation is the Directive’s operational component, but within in the Regulation’s more restricted scope, thus in the context of online sales or service contracts offered to consumers.

The Regulation provides for the establishment of the ODR platform developed by the European Commission (the “Platform“), and provides details on the related complaint mechanisms.

In particular, the Regulation requires that e-commerce merchants established in the UE indicate the Platform’s existence to consumers by having a link to it on their Internet sites (Article 14).

Grand Duchy legislators have transposed the Directive by passing the Law of 17 February 2016 introducing consumer alternative dispute resolution in the Consumer Code and amending other Consumer Code provisions, which was published in the legislative journal, the Mémorial A, no. 60 of 14 April 2016 (the “Law”).

Apart from the sectorial ADR entities in the Grand Duchy, such as the Luxembourg Consumers’ Union (Union Luxembourgeoise des Consommateurs, ULC), the Financial Sector Supervisory Commission (Commission de surveillance du secteur financier, CSSF) for financial services, banks and FSPs, the Luxembourg Telecommunications Regulation Institute (Institut luxembourgeois de régulation, ILR) for telecommunications, energy and postal services, of the Grand Duchy Mechanics Federation, (Fédération des Garagistes du Grand-Duché de Luxembourg, Fegarlux) and the Luxembourg Automobile Distributors Association (Association des Distributeurs Automobiles Luxembourgeois, Adal), the latter of which each have their own internal commissions dedicated to resolving disputes between mechanics and consumers, the Law establishes a Consumer Ombudsman under the Ministry of the Economy’s authority.

The Law also adds a Book IV to the Consumer Code entitled “Consumer Alternative Dispute Resolution”, thus establishing this new residual ADR entity (according to the Directive), the Consumer Ombudsman, which will serve to receive all consumer ADR petitions and, as applicable, transmit them to a qualified entity competent to resolve the matter.

Moreover, on 12 April 2016, the Government Council adopted a draft Grand-Ducal Regulation amending the Consumer Code’s regulation section. The Grand-Ducal Regulation will cover the professional qualifications required of natural persons charged with alternative dispute resolution between a consumer and a trader/businessperson.

A “qualified” entity is an ADR body accredited by the Ministry based on the criteria in the Consumer Code (Article L.431-1 et seq.).

The Ministry of the Economy would then be responsible for transmitting to the Commission a list of the accredited ADR entities so they can be put on the list accessible on the Platform.

At this time, no Luxembourg ADR entity appears on the Platform, thus the resolution of a complaint would be subject to examination by the non-Luxembourg ADR entity chosen by the petitioner, which could potentially refuse to handle the file pursuant to its own rules of procedure (see Article 5.4 of the Directive).