Chapter 11: Access to justice and dispute resolution53
(1) Everyone whose rights and freedoms that are guaranteed by European legislation, have been violated has the right to an effective remedy before a tribunal.
The Charter of Fundamental Rights of the European Union provides that "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article; is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law; and shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice".54 This includes consumers acceding to and using online services.
Online consumers in the EU have a right to sue and be sued in matters related to a consumer contract in a court where the consumer is domiciled if the trader is commercially or professionally active in, or directs such activities towards, the Member State of the consumer's domicile.55
In this situation online consumers can benefit from the protection of the laws of the country of residence. The parties may also, based on freedom of choice, apply another law, as long as it provides the same level of protection to the consumer as that of his/her country of residence.56
(2) Consumers also have the possibility to resolve a dispute concerning an online transaction out of court through the intervention of alternative dispute resolution ('ADR') entities, where such entities exist. (In the context of the Digital Agenda, an EU-wide online dispute resolution platform will be established and will be directly accessible online by consumers and traders in order to help them resolve their contractual disputes arising from online transactions through the intervention of an ADR entity).57
For the settlement of disputes concerning payment transactions in particular, online consumers have access to the special out-of-court redress procedures that exist in all Member States.58
In relation to the provision of electronic communications networks and services, consumers must have access to transparent, non-discriminatory, simple and inexpensive out-of-court procedures put at their disposal by Member States for dealing with unresolved disputes with the service providers and relating to the contractual conditions and/or performance of the contract.59
(3) In cross-border cases online consumers are encouraged to take recourse to a mediation process that will remain confidential and ensure that parties can request that the content of their settlement agreement is declared enforceable. Where an attempt to settle a dispute by mediation fails, the consumer is not prevented from initiating court proceedings due to the expiration of limitation and prescription periods.60
(4) In cross-border cases, online consumers in the EU can use the European Small Claims Procedure61 . This is a speedy and cost-efficient alternative to traditional court procedures. It is available for claims of up to € 2000 in civil and commercial cases, including online transactions. The procedure can be launched by the claimant on the basis of standard forms.62