Public and Private Enforcement of Consumer Law - Insights for Luxembourg

Name: Public and Private Enforcement of Consumer Law - Insights for Luxembourg
Brand: Nomos
Price: 140.0 EUR
Availability: OnlineOnly

Stephanie Law Vincent Richard(Herausgeber*in)

Nomos (Verlag)

1. Auflage

Erschienen am 14. September 2021

504 Seiten

E-Book

PDF mit Adobe-DRM

Systemvoraussetzungen

978-3-7489-2988-8 (ISBN)

140,00 €inkl. 7% MwSt.

Systemvoraussetzungen

für PDF mit Adobe-DRM

E-Book Einzellizenz

Als Download verfügbar

Beschreibung

Weitere Details

Weitere Ausgaben

Inhalt

Cover
Luxembourg Comparative Study on Consumer Law Enforcement
I. Introduction and Background to the Project
II. Added Value of Comparative Analysis
a. National Report-based Methodology and Legal Orders Chosen
b. Workshop of 13 December 2019
III. Challenges Identified from the Comparative Analysis: Cross-cutting Challenges and Member State-specific Challenges
a. Fragmentation and Complexity of Consumer Law in National Legal Systems
b. The (In)adequacy of Judicial Enforcement
IV. What Solutions Can be Identified?
a. What can we learn from the diverse approaches adopted in different Member States?
b. Compensation of damages suffered by consumers through private enforcement
c. Collective Redress
d. Public Enforcement
e. The Rise of Consumer Mediation
V. Conclusion
Public and Private Enforcement of Consumer Law in France
I. Legal framework for the enforcement of consumer law
1. Where are the substantive rules on consumer protection established in your Member State?
1.1. E.g. a distinct legal act or code, part of an act covering another area of EU law, part of the civil code, or code of civil procedure?
2. Where are the procedural rules on consumer protection established in your Member State?
2.1. E.g. a distinct legal act or code, part of an act covering another area of EU law, part of the civil code, or code of civil procedure?
3. What are the distinguishable features of the national legal framework for consumer protection?
3.1. E.g. Is consumer protection established as a fundamental or constitutional right? What is the primary influential regulatory model (EU law, international law etc.)? Is it characterised by fragmentation or coherence?
Constitutional or Fundamental Right:
Influence of EU Law:
Coherence:
4. Is there an identifiable policy of consumer protection in your Member State?
4.1. What are the current key focal points of consumer policy?
4.2. What shifts (if any) have occurred in consumer policy during the past fifteen years?
II. General questions of institutional design - Public and private enforcement
1. Which authorities are - in theory - primarily responsible (designated as such) for the enforcement of consumer law?
The Ministry of Consumers/Economy:
1.1. Judicial mechanisms (i.e. before a court)?
1.2. Administrative mechanisms (i.e. before administrative bodies or tribunals)?
1.3. Alternative mechanisms (i.e. mechanisms of ADR or ODR, or any other mechanism not mentioned)?
Consumer Mediation Evaluation and Control Commission (Commission d'évaluation et de contrôle de la médiation de la consommation, CECMC):
2. What model of consumer law enforcement is dominant in practice - does this depend on the particular sector of consumer protection?
2.1. Judicial mechanisms (i.e. before a court)?
2.2. Administrative mechanisms (i.e. before administrative bodies or tribunals)?
2.3. Alternative mechanisms (i.e. mechanisms of ADR or ODR, or any other mechanism not mentioned)?
3. Do specific enforcement mechanisms exist for particular sectors (e.g. energy, telecommunications, food safety, financial protection etc)?
3.1. If so, in what sectors?
3.2. What mechanisms have been established?
3.3. Why have specific enforcement mechanisms been established in these sectors?
III. Public enforcement - Institutional framework for domestic administrative enforcement
1. Which administrative authorities are designated primarily responsible for the enforcement of consumer law?
General Directorate for Competition Policy, Consumer Affairs and Fraud Control (DGCCRF):
National Consumers Institute (INC):
Unfair terms commission (CCA):
National Consumers Council (CNC):
Consumer mediation evaluation and control commission (CECMC):
2. Do these authorities differ depending on the field of consumer law? I.e. are the administrative authorities sector-specific?
Financial Market Regulator (AMF):
Prudential Supervision and Resolution Authority (ACPR):
Energy Regulator (CRE):
Competition Regulator:
National Council of Food (CNA):
Agency for Food, Environmental and Occupational Health & Safety (ANSES):
National Agency for the Safety of Health Products (ANSM):
National Laboratory of Metrology and Testing (LNE):
Electronic Communication and Postal Services Regulator (ARCEP):
Advertising Regulation Authority (ARPP)
Commission on Information Technology and Liberties (CNIL):
Superior Council of Broadcasting (CSA):
3. Are these authorities also responsible for other areas of law beyond consumer protection (e.g. competition, environmental law)?
4. What is the legal basis of this authority/each of these authorities?
5. What is the structure of the authority?
5.1. Is it/are they independent?
Financial Market Regulator (AMF):
Unfair terms commission (CCA):
Electronic communication and postal services Regulator (ARCEP):
Energy Regulator (CRE):
Competition Regulator:
Agency for Food, Environmental and Occupational Health & Safety (ANSES):
National Agency for the Safety of Health Products (ANSM):
Advertising Regulation Authority (ARPP):
Superior Council of the Audiovisual (CSA):
5.2. How is it/are they constituted? Who are its/their members?
General Directorate for Competition Policy, Consumer Affairs and Fraud Control (DGCCRF):
National Consumers Institute (INC):
Unfair Terms Commission (CCA):
National Consumers Council (CNC):
Consumer Mediation Evaluation and Control Commission (CECMC):
Financial Market Regulator (AMF):
Prudential Supervision and Resolution Authority (ACPR):
Energy Regulator (CRE):
Competition Regulator:
National Council of Food (CNA):
Agency for Food, Environmental and Occupational Health & Safety (ANSES):
National Agency for the Safety of Health Products (ANSM):
National Laboratory of Metrology and Testing (LNE):
Electronic Communication and Postal Services Regulator (ARCEP):
Advertising Regulation authority (ARPP):
Commission on Information Technology and Liberties (CNIL):
Superior Council of Broadcasting (CSA):
6. How are issues of consumer law brought before these authorities?
7. What competences/powers do they have?
7.1. Do they have powers to investigate? And compel testimony, documents etc?
7.2. Can they adopt preliminary measures?
7.3. What remedies are available if a breach of consumer law is identified?
7.4. What sanctions can be imposed if a breach of consumer law is identified? (e.g. fines, prohibition of business activities?)
7.5. Are other outcomes available (e.g. commitments by traders)?
7.6. Can they initiate civil law claims on behalf of consumers?
7.7. Can they investigate and prosecute breaches of consumer law?
General Directorate for Competition Policy, Consumer Affairs and Fraud Control (DGCCRF):
Financial Market Regulator (AMF):
Competition Regulator:
Prudential Supervision and Resolution Authority (ACPR):
National Agency for the Safety of Health Products (ANSM):
Commission on Information Technology and Liberties (CNIL):
Superior Council of the Broadcasting (CSA):
8. Are the same administrative authorities responsible for cross-border enforcement of consumer law under the CPC Regulation?
9. What are their powers in cross-border violations of consumer law? Are they equivalent to a domestic situation?
10. How do they cooperate with authorities in the same Member State? How is this cooperation established (e.g. by an MoU?)
11. How do they cooperate with authorities in other Member States? How is this cooperation established (e.g. by an MoU?)
12. Are the remedies, sanctions and other outcomes available considered to be adequate?
13. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
IV. Private enforcement - Institutional framework for national judicial enforcement
1. What court(s) are competent for consumer dispute resolution?
1.1. Is it a court with general jurisdiction?
1.2. Is there a specialised court or tribunal for consumer disputes?
2. Is there a specialised procedure to deal with consumer law claims?
Jurisdiction:
Simplified procedure:
Standard of proof:
Role of the judge:
Expedited procedure for uncontested claims:
3. Are normal civil law remedies available for consumer law claims?
4. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
V. Private enforcement - Enforcement through collective redress
1. Does a mechanism for judicial collective redress exist?
2. What model of judicial collective redress has been adopted?
2.1. How is the class constituted? (i.e. opt in or opt out)?
Consumers' collective redress (Law of 2014):
Simplified collective redress:
2.2. Can individuals initiate collective redress?
2.3. How are collective redress actions funded?
3. If only certain entities can initiate collective redress, how are they identified - by mandatory conditions or can any organisation constitute such an entity?
3.1. What are the requirements for entities to be recognised as such? (e.g. independence, impartiality, funding etc?)
Art. R811-1:
Art. R811-7:
3.2. Can you provide some examples of such entities?
4. How do collective redress and individual proceedings relate to each other?
4.1. Are there rules on pendency?
5. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
VI. The role of consumer organisations in enforcement
1. What consumer organisation(s) exist in your Member State?
2. How are consumer organisations established?
2.1. Are there requirements that have to be satisfied in order for consumer organisations to be established as such?
2.2. If so, what are they? (e.g. independence, impartiality, funding etc?)
3. What competences do consumer organisations have in the enforcement of consumer law?
3.1. Do they work with administrative authorities? Can they report violations to such authorities?
3.2. Can they bring collective redress actions before courts?
3.3. Can they represent individual consumers before courts?
Joint representative action:
Consumer collective interests' actions:
4. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
VII. Alternative enforcement - ADR and ODR
1. What forms of ADR mechanism exist for the enforcement of consumer protection? (conciliation, mediation, arbitration, ombudsperson, etc?)
Arbitration:
Ombudsperson:
Conciliation
Mediation
Consumer Mediation Evaluation and Control Commission (CECMC):
2. Are there requirements that have to be satisfied in order for ADR entities to be established as such? If so, what are they? (e.g. independence, impartiality, funding etc?)
3. How are the ADR mechanisms established and run? By legislation (i.e. by the state)? Or by the trader? Private or public?
Public mediators
Private Mediators
Mediators belonging to a federation or an organisation
Organisations or societies of mediators
Collegial mediators
4. How do ADR mechanisms operate in a cross-border context?
5. Can collective claims be dealt with via ADR?
6. Are ADR mechanisms considered to be effective?
7. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
Best practices:
Obstacles:
VIII. Relationship between different models of enforcement
1. What is the relationship between administrative remedies and sanctions and civil law remedies in individual actions?
2. Taking into consideration the Enforcement and Modernisation of Consumer Law "Omnibus" Directive (not yet published in the Official Journal), how is it anticipated that this Directive will be implemented in your Member State? The Directive updated four existing consumer law directives, and makes provision for sanctions to be implemented for the violation of these directives. In particular, it introduces a new penalty regime with fines of up to 4 % of turnover of a trader's business for violati
3. What is the relationship between administrative remedies and sanctions and civil law remedies in collective actions?
4. What is the relationship with an individual judicial action and administrative enforcement?
4.1. Are there rules on pendency if simultaneous actions are launched?
5. How do collective redress and administrative proceedings relate to each other?
5.1. Are there rules on pendency?
6. How do ADR mechanisms relate to judicial and administrative enforcement?
7. How is the institutional framework designed to ensure that with sequentiality, even if mandatory, that access to court is not precluded? So as to be compatible with Art 47?
IX. Open responses
X. Statistics
1. How many judgements of a consumer protection-related nature were rendered by courts in 2015-2018?
2. How many disputes of a consumer protection-related nature were dealt with by public (administrative) enforcement agencies between 2015-2018?
3. How many disputes of a consumer protection-related nature were dealt with by ADR bodies between 2015-2018?
XI. Objective legal analysis of example case studies - public and private enforcement.
Volkswagen:
Unfair terms by Banks
Public and Private Enforcement of Consumer Law in Belgium
I. Legal framework for the enforcement of consumer law
1. Where are the substantive rules on consumer protection established in your Member State?
1.1. E.g. a distinct legal act or code, part of an act covering another area of EU law, part of the civil code, or code of civil procedure?
2. Where are the procedural rules on consumer protection established in your Member State?
2.1. E.g. a distinct legal act or code, part of an act covering another area of EU law, part of the civil code, or code of civil procedure?
3. What are the distinguishable features of the national legal framework for consumer protection?
3.1. E.g. Is consumer protection established as a fundamental or constitutional right? What is the primary influential regulatory model (EU law, international law etc.)? Is it characterised by fragmentation or coherence?
No constitutional right
EU law influence
Lack of coherence
4. Is there an identifiable policy of consumer protection in your Member State?
4.1. What are the current key focal points of consumer policy?
4.2. What shifts (if any) have occurred in consumer policy during the past fifteen years?
II. General questions of institutional design - Public and private enforcement
1. Which authorities are - in theory - primarily responsible (designated as such) for the enforcement of consumer law?
1.1. Judicial mechanisms (i.e. before a court)?
1.2. Administrative mechanisms (i.e. before administrative bodies or tribunals)?
1.3. Alternative mechanisms (i.e. mechanisms of ADR or ODR, or any other mechanism not mentioned)?
2. What model of consumer law enforcement is dominant in practice - does this depend on the particular sector of consumer protection?
2.1. Judicial mechanisms (i.e. before a court)?
2.2. Administrative mechanisms (i.e. before administrative bodies or tribunals)?
2.3. Alternative mechanisms (i.e. mechanisms of ADR or ODR, or any other mechanism not mentioned)?
3. Do specific enforcement mechanisms exist for particular sectors (e.g. energy, telecommunications, food safety, financial protection etc)?
3.1. If so, in what sectors?
3.2. What mechanisms have been established?
3.3. Why have specific enforcement mechanisms been established in these sectors?
III. Public enforcement - Institutional framework for domestic administrative enforcement
1. Which administrative authorities are designated primarily responsible for the enforcement of consumer law?
Federal Public Service of Economy, SME's, Self-employed and Energy - Directorate General of Economic Inspection (DG EI)
Belgian Competition Authority (BCA)
Belgian Institute for Postal Services and Telecommunications (BIPT)
Data Protection Authority (DPA)
Energy market
Federal Agency for Medicines and Health Products (FAMHP)
Federal Agency for the Safety of the Food Chain (FASFC)
Financial services and markets authority (FSMA)
Media regulators
Water (market price regulation: price control and dispute settlement)
2. Do these authorities differ depending on the field of consumer law? I.e. are the administrative authorities sector-specific?
3. Are these authorities also responsible for other areas of law beyond consumer protection (e.g. competition, environmental law)?
4. What is the legal basis of this authority/each of these authorities?
5. What is the structure of the authority?
5.1. Is it/are they independent?
Independent authorities
Fully autonomous authorities
Quasi-autonomous authorities
Semi-autonomous authorities
Limited autonomous authorities
Operationally autonomous authorities
Authorities within the ministry
5.2. How is it/are they constituted? Who are its/their members?
Federal level
Directorate General of Economic Inspection
Belgian Competition Authority
Belgian Institute for Postal services and Telecommunications
Data Protection Authority
Federal Agency for Medicines and Health Products
Federal Agency for the Safety of the Food Chain
Federal Commission for Energy and Gas Regulation
Financial Services and Markets Authority
Brussels-Capital Region
Commission for the Regulation of the Electricity and Gas Market (Brugel)
Brussels Media Regulator: BIPT
Brussels (drinking water supply): Brugel
Flemish Community
Flemish Regulatory Authority for the Electricity and Gas Market (VREG)
Flemish Media Regulator (VRM)
Flemish Environmental Agency (FEA)
French Speaking Community
High Council for Audio-visual Services
German Speaking Community
Media Council
Walloon Region
Walloon Commission for Energy
Concluding remark on independence
6. How are issues of consumer law brought before these authorities?
7. What competences/powers do they have?
7.1. Do they have powers to investigate? And compel testimony, documents etc?
Economic Inspection
Belgian Competition Authority
Belgian Institute for Postal Services and Telecommunication
Data Protection Authority
Federal Commission for Energy and Gas Regulation
Federal Agency for Medicines and Health Products
Federal Agency for the Safety of the Food Chain
Financial Services and Markets Authority
Flemish media regulator
High Council for Audio-visual Services
Media Council
7.2. Can they adopt preliminary measures?
Economic Inspection
Belgian Competition Authority
Belgian Institute for Postal Services and Telecommunication
Data Protection Authority
Federal Agency for Medicines and Health Products
Federal Agency for the Safety of the Food Chain
Financial Services and Markets Authority
Flemish Media Regulator
High Council for Audio-visual Services
Media Council
7.3. What remedies are available if a breach of consumer law is identified?
7.4. What sanctions can be imposed if a breach of consumer law is identified? (e.g. fines, prohibition of business activities?)
Economic Inspection
Belgian Competition Authority
Belgian Institute for Postal Services and Telecommunication
Data Protection Authority
Brugel
Flemish Regulatory Authority for the Electricity and Gas Market
Walloon Commission for Energy
Federal Agency for Medicines and Health Products
Federal Agency for the Safety of the Food Chain
Financial Services and Markets Authority
Flemish Media Regulator
High Council for Audio-visual Services
Media Council
7.5. Are other outcomes available (e.g. commitments by traders)?
Belgian Competition Authority
Data Protection Authority
Federal Agency for Medicines and Health Products
Economic Inspection
7.6. Can they initiate civil law claims on behalf of consumers?
Economic Inspection
Financial Services and Markets Authority
7.7. Can they investigate and prosecute breaches of consumer law?
Economic Inspection
Data Protection Authority
Financial Services and Markets Authority
Federal Agency for Medicines and Health Products
8. Are the same administrative authorities responsible for cross-border enforcement of consumer law under the CPC Regulation?
9. What are their powers in cross-border violations of consumer law? Are they equivalent to a domestic situation?
Data Protection Authority
Belgian Institute for Postal services and Telecommunications in its capacity as media regulator of bi-communitarian mediaservices in the Region of Brussels-Capital
Flemish Media Regulator
Financial Services and Markets Authority
10. How do they cooperate with authorities in the same Member State? How is this cooperation established (e.g. by an MoU?)
Examples of an explicit legal basis
Belgian Institute for Postal services and Telecommunications
Financial Services and Markets Authority
High Council for Audio-visual Services
Examples of implicit legal bases
Brugel
Example: Cooperation in energy matters between the Federal Energy Ombudsperson and the energy regulators in matters of dispute settlement
11. How do they cooperate with authorities in other Member States? How is this cooperation established (e.g. by an MoU?)
12. Are the remedies, sanctions and other outcomes available considered to be adequate?
13. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
IV. Private enforcement - Institutional framework for national judicial enforcement
1. What court(s) are competent for consumer dispute resolution?
1.1. Is it a court with general jurisdiction?
1.2. Is there a specialised court or tribunal for consumer disputes?
2. Is there a specialised procedure to deal with consumer law claims?
3. Are normal civil law remedies available for consumer law claims?
4. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
V. Private enforcement - Enforcement through collective redress
1. Does a mechanism for judicial collective redress exist?
2. What model of judicial collective redress has been adopted?
2.1. How is the class constituted? (i.e. opt in or opt out)?
2.2. Can individuals initiate collective redress?
2.3. How are collective redress actions funded?
Legal provisions on funding
Practice
3. If only certain entities can initiate collective redress, how are they identified - by mandatory conditions or can any organisation constitute such an entity?
3.1. What are the requirements for entities to be recognised as such? (e.g. independence, impartiality, funding etc?)
There are four categories of qualified entities that can bring an action for collective redress:
When the association is established in Belgium:
When the association is established abroad:
3.2. Can you provide some examples of such entities?
On the basis of Article XVII.39, 1° ELC:
On the basis of Article XVII.39, 2° ELC:
4. How do collective redress and individual proceedings relate to each other?
4.1. Are there rules on pendency?
5. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
VI. The role of consumer organisations in enforcement
1. What consumer organisation(s) exist in your Member State?
2. How are consumer organisations established?
2.1. Are there requirements that have to be satisfied in order for consumer organisations to be established as such?
Currently, a transitionary phase is in place:
2.2. If so, what are they? (e.g. independence, impartiality, funding etc?)
3. What competences do consumer organisations have in the enforcement of consumer law?
3.1. Do they work with administrative authorities? Can they report violations to such authorities?
3.2. Can they bring collective redress actions before courts?
3.3. Can they represent individual consumers before courts?
4. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
VII. Alternative enforcement - ADR and ODR
1. What forms of ADR mechanism exist for the enforcement of consumer protection? (conciliation, mediation, arbitration, ombudsperson, etc?)
Defining ADR
Pre-ADR
ADR proper
State organised or state recognised ADR mechanisms
Public entities:
Private entities:
Private ADR initiatives
Alternative dispute settlement by the regulator
Professional bodies
Conclusion
2. Are there requirements that have to be satisfied in order for ADR entities to be established as such? If so, what are they? (e.g. independence, impartiality, funding etc?)
3. How are the ADR mechanisms established and run? By legislation (i.e. by the state)? Or by the trader? Private or public?
4. How do ADR mechanisms operate in a cross-border context?
5. Can collective claims be dealt with via ADR?
6. Are ADR mechanisms considered to be effective?
7. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
VIII. Relationship between different models of enforcement
1. What is the relationship between administrative remedies and sanctions and civil law remedies in individual actions?
2. What is the relationship between administrative remedies and sanctions and civil law remedies in collective actions?
3. What is the relationship with an individual judicial action and administrative enforcement?
3.1. Are there rules on pendency if simultaneous actions are launched?
4. How do collective redress and administrative proceedings relate to each other?
4.1. Are there rules on pendency?
5. How do ADR mechanisms relate to judicial and administrative enforcement?
Relationship between consumer ADR and consumer collective redress
Relationship between consumer ADR and individual consumer litigation
Relationship between consumer ADR and regulatory dispute settlement
Relationship between consumer ADR and regulatory compliance procedures
6. How is the institutional framework designed to ensure that with sequentiality, even if mandatory, that access to court is not precluded? So as to be compatible with Art 47?
Access to the ADR system is sequential
ADR and courts: non-sequential
IX. Open responses
X. Statistics
1. How many judgements of a consumer protection-related nature were rendered by courts in 2015-2018?
2. How many disputes of a consumer protection-related nature were dealt with by public (administrative) enforcement agencies between 2015-2018?
It is difficult to compile these statistics for the following reasons:
3. How many disputes of a consumer protection-related nature were dealt with by ADR bodies between 2015-2018?
XI. Objective legal analysis of example case studies - public and private enforcement
Public and Private Enforcement of Consumer Law in Estonia
I. Legal framework for the enforcement of consumer law
1. Where are the substantive rules on consumer protection established in your Member State?
1.1. E.g. a distinct legal act or code, part of an act covering another area of EU law, part of the civil code, or code of civil procedure?
2. Where are the procedural rules on consumer protection established in your Member State?
2.1. E.g. a distinct legal act or code, part of an act covering another area of EU law, part of the civil code, or code of civil procedure?
3. What are the distinguishable features of the national legal framework for consumer protection?
3.1. E.g. Is consumer protection established as a fundamental or constitutional right? What is the primary influential regulatory model (EU law, international law etc.)? Is it characterised by fragmentation or coherence?
4. Is there an identifiable policy of consumer protection in your Member State?
4.1. What are the current key focal points of consumer policy?
4.2. What shifts (if any) have occurred in consumer policy during the past fifteen years?
II. General questions of institutional design - Public and private enforcement
1. Which authorities are - in theory - primarily responsible (designated as such) for the enforcement of consumer law?
1.1. Judicial mechanisms (i.e. before a court)?
1.2. Administrative mechanisms (i.e. before administrative bodies or tribunals)?
1.3. Alternative mechanisms (i.e. mechanisms of ADR or ODR, or any other mechanism not mentioned)?
2. What model of consumer law enforcement is dominant in practice - does this depend on the particular sector of consumer protection?
2.1. Judicial mechanisms (i.e. before a court)?
2.2. Administrative mechanisms (i.e. before administrative bodies or tribunals)?
2.3. Alternative mechanisms (i.e. mechanisms of ADR or ODR, or any other mechanism not mentioned)?
3. Do specific enforcement mechanisms exist for particular sectors (e.g. energy, telecommunications, food safety, financial protection etc)?
3.1. If so, in what sectors?
3.2. What mechanisms have been established?
3.3. Why have specific enforcement mechanisms been established in these sectors?
III. Public enforcement - Institutional framework for domestic administrative enforcement
1. Which administrative authorities are designated primarily responsible for the enforcement of consumer law?
2. Do these authorities differ depending on the field of consumer law? I.e. are the administrative authorities sector-specific?
3. Are these authorities also responsible for other areas of law beyond consumer protection (e.g. competition, environmental law)?
4. What is the legal basis of this authority/each of these authorities?
5. What is the structure of the authority?
5.1. Is it/are they independent?
5.2. How is it/are they constituted? Who are its/their members?
6. How are issues of consumer law brought before these authorities?
7. What competences/powers do they have?
7.1. Do they have powers to investigate? And compel testimony, documents etc?
7.2. Can they adopt preliminary measures?
7.3. What remedies are available if a breach of consumer law is identified?
7.4. What sanctions can be imposed if a breach of consumer law is identified? (e.g. fines, prohibition of business activities?)
7.5. Are other outcomes available (e.g. commitments by traders)?
7.6. Can they initiate civil law claims on behalf of consumers?
7.7. Can they investigate and prosecute breaches of consumer law?
8. Are the same administrative authorities responsible for cross-border enforcement of consumer law under the CPC Regulation?
9. What are their powers in cross-border violations of consumer law? Are they equivalent to a domestic situation?
10. How do they cooperate with authorities in the same Member State? How is this cooperation established (e.g. by an MoU?)
11. How do they cooperate with authorities in other Member States? How is this cooperation established (e.g. by an MoU?)
12. Are the remedies, sanctions and other outcomes available considered to be adequate?
13. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
IV. Private enforcement - Institutional framework for national judicial enforcement
1. What court(s) are competent for consumer dispute resolution?
1.1. Is it a court with general jurisdiction?
1.2. Is there a specialised court or tribunal for consumer disputes?
2. Is there a specialised procedure to deal with consumer law claims?
3. Are normal civil law remedies available for consumer law claims?
4. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
V. Private enforcement - Enforcement through collective redress
1. Does a mechanism for judicial collective redress exist?
2. What model of judicial collective redress has been adopted?
2.1. How is the class constituted? (i.e. opt in or opt out)?
2.2. Can individuals initiate collective redress?
2.3. How are collective redress actions funded?
3. If only certain entities can initiate collective redress, how are they identified - by mandatory conditions or can any organisation constitute such an entity?
3.1. What are the requirements for entities to be recognised as such? (e.g. independence, impartiality, funding etc?)
3.2. Can you provide some examples of such entities?
4. How do collective redress and individual proceedings relate to each other?
4.1. Are there rules on pendency?
5. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
VI. The role of consumer organisations in enforcement
1. What consumer organisation(s) exist in your Member State?
2. How are consumer organisations established?
2.1. Are there requirements that have to be satisfied in order for consumer organisations to be established as such?
2.2. If so, what are they? (e.g. independence, impartiality, funding etc?)
3. What competences do consumer organisations have in the enforcement of consumer law?
3.1. Do they work with administrative authorities? Can they report violations to such authorities?
3.2. Can they bring collective redress actions before courts?
3.3. Can they represent individual consumers before courts?
According to § 19 Consumer Protection Act, consumer associations have the right to:
4. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
VII. Alternative enforcement - ADR and ODR
1. What forms of ADR mechanism exist for the enforcement of consumer protection? (conciliation, mediation, arbitration, ombudsperson, etc?)
2. Are there requirements that have to be satisfied in order for ADR entities to be established as such? If so, what are they? (e.g. independence, impartiality, funding etc?)
3. How are the ADR mechanisms established and run? By legislation (i.e. by the state)? Or by the trader? Private or public?
4. How do ADR mechanisms operate in a cross-border context?
5. Can collective claims be dealt with via ADR?
6. Are ADR mechanisms considered to be effective?
7. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
VIII. Relationship between different models of enforcement
1. What is the relationship between administrative remedies and sanctions and civil law remedies in individual actions?
2. Taking into consideration the Enforcement and Modernisation of Consumer Law "Omnibus" Directive (not yet published in the Official Journal), how is it anticipated that this Directive will be implemented in your Member State? The Directive updated four existing consumer law directives, and makes provision for sanctions to be implemented for the violation of these directives. In particular, it introduces a new penalty regime with fines of up to 4 % of turnover of a trader's business for violati
3. What is the relationship between administrative remedies and sanctions and civil law remedies in collective actions?
4. What is the relationship with an individual judicial action and administrative enforcement?
4.1. Are there rules on pendency if simultaneous actions are launched?
5. How do collective redress and administrative proceedings relate to each other?
5.1. Are there rules on pendency?
6. How do ADR mechanisms relate to judicial and administrative enforcement?
7. How is the institutional framework designed to ensure that with sequentiality, even if mandatory, that access to court is not precluded? So as to be compatible with Art 47?
IX. Open responses
X. Statistics
1. How many judgements of a consumer protection-related nature were rendered by courts in 2015-2018?
2. How many disputes of a consumer protection-related nature were dealt with by public (administrative) enforcement agencies between 2015-2018?
3. How many disputes of a consumer protection-related nature were dealt with by ADR bodies between 2015-2018?
XI. Objective legal analysis of example case studies - public and private enforcement
Volkswagen scandal
Use of unfair terms by banks
Public and Private Enforcement of Consumer Law in England and Wales
I. Legal framework for the enforcement of consumer law
1. Where are the substantive rules on consumer protection established in your Member State?
1.1. E.g. a distinct legal act or code, part of an act covering another area of EU law, part of the civil code, or code of civil procedure?
2. Where are the procedural rules on consumer protection established in your Member State?
2.1. E.g. a distinct legal act or code, part of an act covering another area of EU law, part of the civil code, or code of civil procedure?
3. What are the distinguishable features of the national legal framework for consumer protection?
3.1. E.g. Is consumer protection established as a fundamental or constitutional right? What is the primary influential regulatory model (EU law, international law etc.)? Is it characterised by fragmentation or coherence?
4. Is there an identifiable policy of consumer protection in your Member State?
4.1. What are the current key focal points of consumer policy?
4.2. What shifts (if any) have occurred in consumer policy during the past fifteen years?
II. General questions of institutional design - Public and private enforcement
1. Which authorities are - in theory - primarily responsible (designated as such) for the enforcement of consumer law?
1.1. Judicial mechanisms (i.e. before a court)?
1.2. Administrative mechanisms (i.e. before administrative bodies or tribunals)?
1.3. Alternative mechanisms (i.e. mechanisms of ADR or ODR, or any other mechanism not mentioned)?
2. What model of consumer law enforcement is dominant in practice - does this depend on the particular sector of consumer protection?
2.1. Judicial mechanisms (i.e. before a court)?
2.2. Administrative mechanisms (i.e. before administrative bodies or tribunals)?
2.3. Alternative mechanisms (i.e. mechanisms of ADR or ODR, or any other mechanism not mentioned)?
III. Public enforcement - Institutional framework for domestic administrative enforcement
1. Which administrative authorities are designated primarily responsible for the enforcement of consumer law?
A. Citizens Advice Bureau (CAB):
B. Which?
C. Resolver
A. Sector-specific Ombudspersons:
B. Chartered Trading Standards Institute and Local Authority Trading Standards Services
C. Competition and Markets Authority (CMA) and Financial Conduct Authority (FCA)
1. Do these authorities differ depending on the field of consumer law? I.e. are the administrative authorities sector-specific?
2. Are these authorities also responsible for other areas of law beyond consumer protection (e.g. competition, environmental law)?
3. What is the legal basis of this authority/each of these authorities?
4. What is the structure of the authority?
4.1. Is it/are they independent?
4.2. How is it/are they constituted? Who are its/their members?
TSSs:
CMA:
FCA:
5. How are issues of consumer law brought before these authorities?
TSSs:
CMA:
FCA:
6. What competences/powers do they have?
6.1. Do they have powers to investigate? And compel testimony, documents etc?
6.2. Can they adopt preliminary measures?
6.3. What remedies are available if a breach of consumer law is identified?
6.4. What sanctions can be imposed if a breach of consumer law is identified? (e.g. fines, prohibition of business activities?)
6.5. Are other outcomes available (e.g. commitments by traders)?
6.6. Can they initiate civil law claims on behalf of consumers?
6.7. Can they investigate and prosecute breaches of consumer law?
TSS:
FCA:
CMA:
7. Are the same administrative authorities responsible for cross-border enforcement of consumer law under the CPC Regulation?
8. What are their powers in cross-border violations of consumer law? Are they equivalent to a domestic situation?
9. How do they cooperate with authorities in the same Member State? How is this cooperation established (e.g. by an MoU?)
10. How do they cooperate with authorities in other Member States? How is this cooperation established (e.g. by an MoU?)
11. Are the remedies, sanctions and other outcomes available considered to be adequate?
IV. Private enforcement - Institutional framework for national judicial enforcement
1. What court(s) are competent for consumer dispute resolution?
1.1. Is it a court with general jurisdiction?
1.2. Is there a specialised court or tribunal for consumer disputes?
2. Is there a specialised procedure to deal with consumer law claims?
3. Are normal civil law remedies available for consumer law claims?
4. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
V. Private enforcement - Enforcement through collective redress
1. Does a mechanism for judicial collective redress exist?
The Representative Action
The Group Litigation Order
Competition Damages Claims
2. What model of judicial collective redress has been adopted?
2.1. How is the class constituted? (i.e. opt in or opt out)?
2.2. Can individuals initiate collective redress?
2.3. How are collective redress actions funded?
3. If only certain entities can initiate collective redress, how are they identified - by mandatory conditions or can any organisation constitute such an entity?
3.1. What are the requirements for entities to be recognised as such? (e.g. independence, impartiality, funding etc?)
3.2. Can you provide some examples of such entities?
4. How do collective redress and individual proceedings relate to each other?
4.1. Are there rules on pendency?
5. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
VI. The role of consumer organisations in enforcement
1. What consumer organisation(s) exist in your Member State?
2. How are consumer organisations established?
2.1. Are there requirements that have to be satisfied in order for consumer organisations to be established as such?
2.2. If so, what are they? (e.g. independence, impartiality, funding etc?)
3. What competences do consumer organisations have in the enforcement of consumer law?
3.1. Do they work with administrative authorities? Can they report violations to such authorities?
3.2. Can they bring collective redress actions before courts?
3.3. Can they represent individual consumers before courts?
4. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
VII. Alternative enforcement - ADR and ODR
1. What forms of ADR mechanism exist for the enforcement of consumer protection? (conciliation, mediation, arbitration, ombudsperson, etc?)
2. Are there requirements that have to be satisfied in order for ADR entities to be established as such? If so, what are they? (e.g. independence, impartiality, funding etc?)
3. How are the ADR mechanisms established and run? By legislation (i.e. by the state)? Or by the trader? Private or public?
4. How do ADR mechanisms operate in a cross-border context?
5. Can collective claims be dealt with via ADR?
6. Are ADR mechanisms considered to be effective?
7. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
VIII. Relationship between different models of enforcement
1. What is the relationship between administrative remedies and sanctions and civil law remedies in individual actions?
Scope for review by courts of decisions of administrative bodies:
Forum for such review:
Examples of appeal and review:
The procedure is set out in the CPRs (Part 54):
2. What is the relationship between administrative remedies and sanctions and civil law remedies in collective actions?
3. Taking into consideration the Enforcement and Modernisation of Consumer Law "Omnibus" Directive (not yet published in the Official Journal), how is it anticipated that this Directive will be implemented in your Member State? The Directive updated four existing consumer law directives, and makes provision for sanctions to be implemented for the violation of these directives. In particular, it introduces a new penalty regime with fines of up to 4 % of turnover of a trader's business for violati
4. What is the relationship with an individual judicial action and administrative enforcement?
4.1. Are there rules on pendency if simultaneous actions are launched?
5. How do collective redress and administrative proceedings relate to each other?
5.1. Are there rules on pendency?
6. How do ADR mechanisms relate to judicial and administrative enforcement?
ADR and judicial actions:
7. How is the institutional framework designed to ensure that with sequentiality, even if mandatory, that access to court is not precluded? So as to be compatible with Art 47?
IX. Open responses
X. Statistics
1. How many judgements of a consumer protection-related nature were rendered by courts in 2015-2018?
2. How many disputes of a consumer protection-related nature were dealt with by public (administrative) enforcement agencies between 2015-2018?
3. How many disputes (complaints) of a consumer protection-related nature were dealt with by ADR bodies between 2015-2018?
XI. Objective legal analysis of example case studies - public and private enforcement
Volkswagen emissions scandal
Funding
Governmental action
Unfair contract terms - judicial actions, ADR and administrative regimes
Unfair contract terms - judicial actions
Public and Private Enforcement of Consumer Law in Luxembourg
I. Legal framework for the enforcement of consumer law
1. Where are the substantive rules on consumer protection established in your Member State?
1.1. E.g. a distinct legal act or code, part of an act covering another area of EU law, part of the civil code, or code of civil procedure?
2. Where are the procedural rules on consumer protection established in your Member State?
2.1. E.g. a distinct legal act or code, part of an act covering another area of EU law, part of the civil code, or code of civil procedure?
3. What are the distinguishable features of the national legal framework for consumer protection?
3.1. E.g. Is consumer protection established as a fundamental or constitutional right? What is the primary influential regulatory model (EU law, international law etc.)? Is it characterised by fragmentation or coherence?
Constitutional Right or Fundamental Right:
Influence of EU Law:
4. Is there an identifiable policy of consumer protection in your Member State?
4.1. What are the current key focal points of consumer policy?
4.2. What shifts (if any) have occurred in consumer policy during the past fifteen years?
II. General questions of institutional design - Public and private enforcement
1. Which authorities are - in theory - primarily responsible (designated as such) for the enforcement of consumer law?
1.1. Judicial mechanisms (i.e. before a court)?
1.2. Administrative mechanisms (i.e. before administrative bodies or tribunals)?
1.3. Alternative mechanisms (i.e. mechanisms of ADR or ODR, or any other mechanism not mentioned)?
2. What model of consumer law enforcement is dominant in practice - does this depend on the particular sector of consumer protection?
2.1. Judicial mechanisms (i.e. before a court)?
2.2. Administrative mechanisms (i.e. before administrative bodies or tribunals)?
2.3. Alternative mechanisms (i.e. mechanisms of ADR or ODR, or any other mechanism not mentioned)?
3. Do specific enforcement mechanisms exist for particular sectors (e.g. energy, telecommunications, food safety, financial protection etc)?
3.1. If so, in what sectors?
3.2. What mechanisms have been established?
3.3. Why have specific enforcement mechanisms been established in these sectors?
III. Public enforcement - Institutional framework for domestic administrative enforcement
1. Which administrative authorities are designated primarily responsible for the enforcement of consumer law?
2. Do these authorities differ depending on the field of consumer law? I.e. are the administrative authorities sector-specific?
3. Are these authorities also responsible for other areas of law beyond consumer protection (e.g. competition, environmental law)?
4. What is the legal basis of this authority/each of these authorities?
5. What is the structure of the authority?
5.1. Is it/are they independent?
5.2. How is it/are they constituted? Who are its/their members?
6. How are issues of consumer law brought before these authorities?
Ministry for Consumer Protection
Commission of Surveillance of the Financial Sector (Commission de Surveillance du Secteur Financier, CSSF):
Insurance Commissioner (Commissariat aux assurances), CAA):
The National Commission for Data Protection (La Commission nationale pour la protection des données, CNPD):
Independent Audiovisual Authority of Luxembourg (Autorité luxembourgeoise indépendante de l'audiovisuel, ALIA):
Competition Council (Conseil de la concurrence):
Luxembourg Regulation Institute, (Institut Luxembourgeois de Régulation, ILR):
7. What competences/powers do they have?
7.1. Do they have powers to investigate? And compel testimony, documents etc?
7.2. Can they adopt preliminary measures?
7.3. What remedies are available if a breach of consumer law is identified?
7.4. What sanctions can be imposed if a breach of consumer law is identified? (e.g. fines, prohibition of business activities?)
7.5. Are other outcomes available (e.g. commitments by traders)?
7.6. Can they initiate civil law claims on behalf of consumers?
7.7. Can they investigate and prosecute breaches of consumer law?
8. Are the same administrative authorities responsible for cross-border enforcement of consumer law under the Consumer protection cooperation Regulation?
9. What are their powers in cross-border violations of consumer law? Are they equivalent to a domestic situation?
10. How do they cooperate with authorities in the same Member State? How is this cooperation established (e.g. by an MoU?)
11. How do they cooperate with authorities in other Member States? How is this cooperation established (e.g. by an MoU?)
12. Are the remedies, sanctions and other outcomes available considered to be adequate?
13. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
IV. Private enforcement - Institutional framework for national judicial enforcement
1. What court(s) are competent for consumer dispute resolution?
1.1. Is it a court with general jurisdiction?
1.2. Is there a specialised court or tribunal for consumer disputes?
2. Is there a specialised procedure to deal with consumer law claims?
Conditional Payment Order (Ordonnance conditionnelle de paiement - Articles 129 and following of the NCPC):
European order for payment (Injonction européenne de payer, Articles 49 to 49-6 NCPC and EC Regulation No 1896/2006:
European Small Claims Procedure ESCP (Regulation n°861/2007 and Articles 143-1 and 143-2 NCPC):
Burden and standard of proof in consumer law:
3. Are normal civil law remedies available for consumer law claims?
Injunctive relief ("action en cessation")
4. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
V. Private enforcement - Enforcement through collective redress
1. Does a mechanism for judicial collective redress exist?
2. What model of judicial collective redress has been adopted?
2.1. How is the class constituted? (i.e. opt in or opt out)?
2.2. Can individuals initiate collective redress?
2.3. How are collective redress actions funded?
3. If only certain entities can initiate collective redress, how are they identified - by mandatory conditions or can any organisation constitute such an entity?
3.1. What are the requirements for entities to be recognised as such? (e.g. independence, impartiality, funding etc?)
3.2. Can you provide some examples of such entities?
4. How do collective redress and individual proceedings relate to each other?
4.1. Are there rules on pendency?
5. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
VI. The role of consumer organisations in enforcement
1. What consumer organisation(s) exist in your Member State?
Union luxembourgeoise des consommateurs (ULC):
Automobile Club du Grand-Duché de Luxembourg a.s.b.l.
European Consumer Centre Luxembourg (ECC):
2. How are consumer organisations established?
2.1. Are there requirements that have to be satisfied in order for consumer organisations to be established as such?
2.2. If so, what are they? (e.g. independence, impartiality, funding etc?)
3. What competences do consumer organisations have in the enforcement of consumer law?
3.1. Do they work with administrative authorities? Can they report violations to such authorities?
3.2. Can they bring collective redress actions before courts?
3.3. Can they represent individual consumers before courts?
4. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
VII. Alternative enforcement - ADR and ODR
1. What forms of ADR mechanism exist for the enforcement of consumer protection? (conciliation, mediation, arbitration, ombudsperson, etc?)
2. Are there requirements that have to be satisfied in order for ADR entities to be established as such? If so, what are they? (e.g. independence, impartiality, funding etc?)
3. How are the ADR mechanisms established and run? By legislation (i.e. by the state)? Or by the trader? Private or public?
4. How do ADR mechanisms operate in a cross-border context?
5. Can collective claims be dealt with via ADR?
6. Are ADR mechanisms considered to be effective?
7. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
List of qualified ADR entities in consumer law:
Other ADR entities that are not considered as qualified entities in consumer law
Legal rules applicable to mediation in general:
Cross-border aspects of mediation:
Enforceability of the mediation agreement
Scope of consumer mediation:
VIII. Relationship between different models of enforcement
1. What is the relationship between administrative remedies and sanctions and civil law remedies in individual actions?
2. Taking into consideration the Enforcement and Modernisation of Consumer Law "Omnibus" Directive (not yet published in the Official Journal), how is it anticipated that this Directive will be implemented in your Member State? The Directive updated four existing consumer law directives, and makes provision for sanctions to be implemented for the violation of these directives. In particular, it introduces a new penalty regime with fines of up to 4 % of turnover of a trader's business for violati
3. What is the relationship between administrative remedies and sanctions and civil law remedies in collective actions?
4. What is the relationship with an individual judicial action and administrative enforcement?
4.1. Are there rules on pendency if simultaneous actions are launched?
5. How do collective redress and administrative proceedings relate to each other?
5.1. Are there rules on pendency?
6. How do ADR mechanisms relate to judicial and administrative enforcement?
7. How is the institutional framework designed to ensure that with sequentiality, even if mandatory, that access to court is not precluded? So as to be compatible with Art 47?
IX. Statistics
1. How many judgements of a consumer protection-related nature were rendered by courts in 2015-2018?
2. How many disputes of a consumer protection-related nature were dealt with by public (administrative) enforcement agencies between 2015-2018?
3. How many disputes of a consumer protection-related nature were dealt with by ADR bodies between 2015-2018?
4. cases were closed, 51 of them with an agreement.
Notes on cross-border ADR:
Public and Private Enforcement of Consumer Law in Germany
I. Legal framework for the enforcement of consumer law
1. Where are the substantive rules on consumer protection established in your Member State?
1.1. E.g. a distinct legal act or code, part of an act covering another area of EU law, part of the civil code, or code of civil procedure?
2. Where are the procedural rules on consumer protection established in your Member State?
2.1. E.g. a distinct legal act or code, part of an act covering another area of EU law, part of the civil code, or code of civil procedure?
3. What are the distinguishable features of the national legal framework for consumer protection?
3.1. E.g. Is consumer protection established as a fundamental or constitutional right? What is the primary influential regulatory model (EU law, international law etc.)? Is it characterised by fragmentation or coherence?
4. Is there an identifiable policy of consumer protection in your Member State?
4.1. What are the current key focal points of consumer policy?
4.2. What shifts (if any) have occurred in consumer policy during the past fifteen years?
II. General questions of institutional design - Public and private enforcement
1. Which authorities are - in theory - primarily responsible (designated as such) for the enforcement of consumer law?
1.1. Judicial mechanisms (i.e. before a court)?
1.2. Administrative mechanisms (i.e. before administrative bodies or tribunals)?
1.3. Alternative mechanisms (i.e. mechanisms of ADR or ODR, or any other mechanism not mentioned)?
2. What model of consumer law enforcement is dominant in practice - does this depend on the particular sector of consumer protection?
2.1. Judicial mechanisms (i.e. before a court)?
2.2. Administrative mechanisms (i.e. before administrative bodies or tribunals)?
2.3. Alternative mechanisms (i.e. mechanisms of ADR or ODR, or any other mechanism not mentioned)?
3. Do specific enforcement mechanisms exist for particular sectors (e.g. energy, telecommunications, food safety, financial protection etc)?
3.1. If so, in what sectors?
3.2. What mechanisms have been established?
3.3. Why have specific enforcement mechanisms been established in these sectors?
III. Public enforcement - Institutional framework for domestic administrative enforcement
1. Which administrative authorities are designated primarily responsible for the enforcement of consumer law?
The Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht - BaFin)
The Federal Network Agency (Bundesnetzagentur)
The Federal Cartel Office (Bundeskartellamt)
Public Prosecutors (Staatsanwaltschaften)
Other Federal Authorities
Regional Authorities (Landesbehörden)
2. Are these authorities also responsible for other areas of law beyond consumer protection (e.g. competition, environmental law)?
3. What is the legal basis of this authority/each of these authorities?
4. What is the structure of the authority?
4.1. Is it/are they independent?
4.2. How is it/are they constituted? Who are its/their members?
5. How are issues of consumer law brought before these authorities?
Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht)
Federal Network Agency (Bundesnetzagentur)
Federal Cartel Office (Bundeskartellamt), the national competition agency
Public Prosecutor's Office (Staatsanwaltschaft)
Regional Authorities (Landesbehörden)
Other Authorities
6. What competences/powers do they have?
6.1. Do they have powers to investigate? And compel testimony, documents etc?
6.2. Can they adopt preliminary measures?
6.3. What remedies are available if a breach of consumer law is identified?
6.4. What sanctions can be imposed if a breach of consumer law is identified? (e.g. fines, prohibition of business activities?)
6.5. Are other outcomes available (e.g. commitments by traders)?
6.6. Can they initiate civil law claims on behalf of consumers?
6.7. Can they investigate and prosecute breaches of consumer law?
7. Are the same administrative authorities responsible for cross-border enforcement of consumer law under the CPC Regulation?
8. What are their powers in cross-border violations of consumer law? Are they equivalent to a domestic situation?
9. How do they cooperate with authorities in the same Member State? How is this cooperation established (e.g. by a Memorandum of Understanding?)
10. How do they cooperate with authorities in other Member States? How is this cooperation established (e.g. by an MoU?)
11. Are the remedies, sanctions and other outcomes available considered to be adequate?
12. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
IV. Private enforcement - Institutional framework for national judicial enforcement
1. What court(s) are competent for consumer dispute resolution?
1.1. Is it a court with general jurisdiction?
1.2. Is there a specialised court or tribunal for consumer disputes?
2. Is there a specialised procedure to deal with consumer law claims?
3. Are normal civil law remedies available for consumer law claims?
4. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
4.1. Shortcomings in the existing enforcement mechanisms
1) Lack of judgement by the Federal Court of Justice (BGH)
2) Unnecessary commitment of resources in the judiciary
3) Legal uncertainty
4.2. Possible solutions
a) Proposal 1: Authorisation of the Federal Court of Justice (BGH) to deal with abstract legal questions
b) Proposal 2: Introduction of a Model Declaratory Application
c) Assessment of the proposals
V. Private enforcement - Enforcement through collective redress
1. Does a mechanism for judicial collective redress exist?
1.1. The bundling of similar claims for collective enforcement
1.2. Injunctive relief
1.3. Model actions
1.3.1. Capital Markets Model Case Act (KapMuG)
1.3.2. The Model Declaratory Action (Musterfeststellungsklage)
1.4. Representative actions in the field of unfair competition and antitrust law
2. What model of judicial collective redress has been adopted?
2.1. How is the class constituted? (i.e. opt in or opt out)?
2.2. Can individuals initiate collective redress?
2.3. How are collective redress actions funded?
3. If only certain entities can initiate collective redress, how are they identified - by mandatory conditions or can any organisation constitute such an entity?
3.1. What are the requirements for entities to be recognised as such? (e.g. independence, impartiality, funding etc?)
3.2. Can you provide some examples of such entities?
4. How do collective redress and individual proceedings relate to each other?
4.1. Are there rules on pendency?
5. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
5.1. Deficiencies in the law
5.1.1. Third party involvement in the Code of Civil Procedure
5.1.2. Injunction Suits
5.1.3. Capital Markets Model Case Act (KapMuG)
5.1.4. Model Declaratory Action (Musterfeststellungsklage)
5.1.4.1. The necessity of the introduction of the Model Declaratory Action
5.1.4.2. Significant deficiencies
5.1.5. Representative Actions in the field of unfair competition and antitrust law
5.2. Legislative Developments in the European Union
VI. The role of consumer organisations in enforcement
1. What consumer organisation(s) exist in your Member State?
2. How are consumer organisations established?
2.1. Are there requirements that have to be satisfied in order for consumer organisations to be established as such?
2.2. If so, what are they? (e.g. independence, impartiality, funding etc?)
3. What competences do consumer organisations have in the enforcement of consumer law?
3.1. Do they work with administrative authorities? Can they report violations to such authorities?
3.2. Can they bring collective redress actions before courts?
3.3. Can they represent individual consumers before courts?
4. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
VII. Alternative enforcement - ADR and ODR
1. What forms of ADR mechanism exist for the enforcement of consumer protection? (conciliation, mediation, arbitration, ombudsperson, etc?)
1.1. Conciliation
1.1.1. Pre-litigation conciliation as a local prerequisite of litigation
1.1.2. Consumer dispute resolution under the Directive 2013/11/EU
1.1.2.1. Conciliation bodies organised by the private sector
1.1.2.2. Official consumer conciliation bodies
1.1.2.3. The current state of affairs of consumer conciliation bodies in Germany
1.1.2.4. The legal effects of conciliation
1.1.2.5. Online Dispute Resolution (ODR)
1.1.2.6. Conciliation fee
1.1.3. Enforcement of settlements
1.2. Mediation
1.2.1. Judicial mediation
1.2.2. Out of court mediation
1.3. Arbitration
2. Are there requirements that have to be satisfied in order for ADR entities to be established as such? If so, what are they? (e.g. independence, impartiality, funding etc?)
3. How are the ADR mechanisms established and run? By legislation (i.e. by the state)? Or by the trader? Private or public?
4. How do ADR mechanisms operate in a cross-border context?
5. Can collective claims be dealt with via ADR?
6. Are ADR mechanisms considered to be effective?
6.1. Conciliation and the use of ombudspersons
6.2. Mediation
6.3. Arbitration
7. Please provide an assessment of the effectiveness of the enforcement mechanism(s), any obstacles and best practices.
7.1. Conciliation
7.1.1. Recent development of conciliation
7.1.2. Development in the field of public transportation (söp_Schlichtungsstelle für den öffentlichen Personenverkehr e. V.)
7.1.3. General Conciliation Body in Germany (Universalschlichtungsstelle des Bundes)
7.1.4. Fees for conciliation
7.1.5. The relationship between conciliation and the Model Declaratory Action
7.1.5.1. The Model Declaratory Procedure and Conciliation
7.1.5.2. The aftermath of the Model Declaratory Action and Conciliation
7.2. Mediation
7.2.1. In-Court mediation
7.2.2. Out of court mediation
7.3. Arbitration
VIII. Relationship between different models of enforcement
1. What is the relationship between administrative remedies and sanctions and civil law remedies in individual actions?
2. Taking into consideration the Enforcement and Modernisation of Consumer Law "Omnibus" Directive (not yet published in the Official Journal), how is it anticipated that this Directive will be implemented in your Member State? The Directive updated four existing consumer law directives, and makes provision for sanctions to be implemented for the violation of these directives. In particular, it introduces a new penalty regime with fines of up to 4 % of turnover of a trader's business for violati
3. What is the relationship between administrative remedies and sanctions and civil law remedies in collective actions?
4. What is the relationship with an individual judicial action and administrative enforcement?
4.1. Are there rules on pendency if simultaneous actions are launched?
5. How do collective redress and administrative proceedings relate to each other?
5.1. Are there rules on pendency?
6. How do ADR mechanisms relate to judicial and administrative enforcement?
7. How is the institutional framework designed to ensure that with sequentiality, even if mandatory, that access to court is not precluded? So as to be compatible with Art 47?
IX. Statistics
1. How many judgements of a consumer protection-related nature were rendered by courts in 2015-2018?
1.1. Number of actions brought before the ordinary (civil) courts
1.1.1. Local Courts
1.1.2. Regional Courts
1.1.2.1. Regional Courts as courts of first instance
1.1.2.2. Regional Courts as Courts of Appeal
1.1.3. Number of lawsuits settled by conciliation judges in civil matters
1.1.3.1. Pre-Court Conciliation
1.1.3.2. Out of court conciliation
1.2. Mediation
1.2.1. In-Court mediation
1.2.1.1. Conciliation judges (Güterichter) at Local Courts
1.2.1.2. Conciliation judges (Güterichter) at Regional Courts
1.2.1.3. Conciliation judges (Güterichter) at Higher Regional Courts
1.2.2. Out of Court mediation
1.3. Arbitration
2. How many disputes of a consumer protection-related nature were dealt with by public (administrative) enforcement agencies between 2015-2018?
3. How many disputes of a consumer protection-related nature were dealt with by ADR bodies between 2015-2018?
X. Objective legal analysis of example case studies - public and private enforcement
1. Volkswagen emissions scandal
1.1. Individual Civil Law Claims
1.2. The Model Declaratory Action at the Higher Regional Court Brunswick
1.3. Public Law Issues
2. Use of unfair terms by banks
Annex: National Report Template
I. Legal framework for the enforcement of consumer law
II. General questions of institutional design - Public and private enforcement
III. Public enforcement - Institutional framework for domestic administrative enforcement (excluding ADR)
IV. Private enforcement - Institutional framework for national judicial enforcement
V. Private enforcement - Enforcement through collective redress
VI. The role of consumer organisations in enforcement
VII. Alternative enforcement - ADR and ODR
VIII. Relationship between different models of enforcement
IX. Statistics
XI. Objective legal analysis of example case studies - public and private enforcement

Systemvoraussetzungen

Als PDF speichern Als Link merken