ODR obligation for eCommerce

When consumers encounter a problem after making an online purchase, if they want to avoid judgment, they can first try to contact an out-of-court resolution body, more precisely an Alternative Dispute Resolution body (ADR Alternative Dispute Resolution) or, if the resolution procedure is conducted online, ODR (Online Depute Resolution). These procedures are inexpensive, generally the assistance of a lawyer is not necessary, and to encourage their diffusion the European Union has done its utmost with various initiatives, including regulations: in particular in 2013 it issued a directive aimed at promoting them and to standardize the procedures, so as to make the resolution of disputes easier, faster and cheaper not only within the context of the same Member State but also of cross-border ones, i.e. those disputes relating to contractual obligations deriving from a contract of sale or services, within which the consumer, when ordering the goods or services, resides in a Member State of the European Union other than that in which the professional is established.

We are talking about Directive 2013/11/EU, which, in order to be implemented in EU countries, needed to be transposed into national legislation, and which was also accompanied by some Regulations, in particular, as regards here, by the REGULATION (EU ) N. 524/2013 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 21 May 2013 concerning the resolution of online disputes for consumers and amending regulation (EC) n. 2006/2004 and directive 2009/22/EC (regulation on consumer ODR).

The ODR platform
In compliance with the European regulatory provisions briefly referred to above, on 9 January 2016 the Commission launched a new platform (ODR platform) for the alternative resolution of online disputes. Alternative dispute resolution bodies (ADR bodies) notified by Member States can be accredited immediately, while consumers and traders will have access from 15 February 2016.

The platform will allow online dispute resolution (even cross-border ones): consumers and professionals will be able to file a complaint online, and ADR bodies will act as arbiters between the parties to resolve the problem. The use of the platform is optional, but to facilitate its dissemination, Regulation 524/2013 provides that e-commerce sites will have to indicate the link to the procedure.

In fact, as stated in recital 30 of the aforementioned Regulation, in order to ensure broad consumer awareness of the existence of the ODR platform, professionals established in the Union and operating with online sales or service contracts should provide on their sites web an electronic link to the ODR platform. Professionals should also provide their e-mail address so that consumers can have a first point of contact (an obligation already envisaged, indeed, by Article 7 of Legislative Decree 70/03). The obligation to provide an electronic link to the ODR platform should be without prejudice to Article 13 of Directive 2013/11/EU concerning the obligation of traders to inform consumers about the ADR procedures to which traders are subject and the commitment they decide whether or not to resort to ADR procedures (see on the point art. 141 sexies Legislative Decree 206/2005 as amended by Legislative Decree 6 August 2015 n. 130 which provides for a discretionary commitment on the part of professionals) for the resolution of disputes with consumers. Furthermore, this obligation should not affect Article 6(1)(t) and Article 8 of Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights. Article 6, paragraph 1, letter t) of Directive 2011/83/EU (see Article 49 c. 1 letter v of the Consumer Code) establishes that, before the consumer is bound by a distance contract or from a contract negotiated away from business premises, the trader must inform the consumer of the possibility of using an out-of-court complaint and redress mechanism to which the trader is subject and of the conditions for having access to it. Again according to recital 30, for the same reasons of consumer awareness, Member States should encourage consumer associations and business associations to provide an electronic link to the ODR platform.

Consumer information
More specifically, Article 14 of the Regulation, entitled "Consumer information" provides in the first paragraph that professionals established in the Union who operate through online sales contracts or services and online markets established in the Union, provide on their websites a link electronic to the ODR platform. This link must be easily accessible to consumers. Professionals established in the Union operating through online sales or service contracts must also indicate their e-mail addresses (but as mentioned, this obligation was already imposed by Legislative Decree 70/03).

In the second paragraph, on the other hand, this obligation differs from the information obligations imposed on professionals established in the Union, who operate through sales contracts or online services, who have undertaken or are required to resort to one or more ADR bodies for the resolution of disputes with consumers, specifying that there is still an obligation to inform consumers about the existence of the ODR platform and the possibility of using the ODR platform to resolve their disputes. They provide an electronic link to the ODR platform on their websites and, if the offer is made by email, in the email itself. The information is also provided, where appropriate, in the general conditions applicable to online sales and service contracts.

What to do?
In essence, commercial operators are asked, starting from 9 January 2016, to insert the link to the EU Platform dedicated to the ODR on their sites and in such a way that it is easily accessible, and this even if they are not obliged to submit to a system of alternative dispute resolution and even if they have not voluntarily undertaken to submit any disputes to ADR (which, moreover, would imply further information obligations).