The definitive impetus for access to justice: Mandatory consumer arbitration in Spain
| DOI | 10.1177/1023263X211073509 |
| Published date | 01 April 2022 |
| Date | 01 April 2022 |
| Subject Matter | Articles |
The definitive impetus for access
to justice: Mandatory consumer
arbitration in Spain
Mariló Gramunt Fombuena
1,2
and
Rosa Barceló Compte
3
Abstract
The purpose of the following paper is to address the relevance of consumer arbitration as an
effective procedural justice mechanism within the EU internal market. Thus, the article focuses
on the possibility of introducing a mandatory consumer arbitration system in Spain that allows
consumers to exercise their rights recognized by the rules in a fast, efficient and free way.
For this purpose, the Portuguese consumer arbitration system and its evolution up to the
establishment of a mandatory arbitration procedure for consumer disputes below a certain
amount is also analysed.
Keywords
Consumer arbitration, compulsory consumer arbitration, ADR, mediation, consumer, consumer
relationship
1. Introduction
Full and effective consumer protection requires procedural rules that allow the consumer to exer-
cise, in an agile manner and without excessive costs, the substantive rights that are recognized
by law.
In the Communication from the European Commission, COM (2020) 696 final, concerning the
‘New Consumer Agenda’, the Commission raises the need to reinforce and modernize existing
alternative dispute resolution and online dispute resolution tools. Thanks to alternative dispute
1
Private Law, Faculty of Law of the University of Barcelona, Barcelona, Spain
2
Catalonian Consumer Arbitration Court, Barcelona, Spain
3
Private Law, University of Barcelona, Faculty of Law, Barcelona
Corresponding author:
Mariló Gramunt, Private Law, Faculty of Law of the University of Barcelona, Avinguda Diagonal, 684, 08034,
Barcelona, Spain.
Email: marilo.gramunt@ub.edu
Article
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(2) 229–244
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X211073509
maastrichtjournal.sagepub.com
resolution and online dispute resolution, consumers have access to simple, fast and fair procedures
to settle their domestic and cross-border disputes with traders without having to go to court. One of
the Commission’s main goals is that consumers should be able to find and quickly use these tools to
resolve disputes.
We can therefore state that recognizing a catalogue of consumer rights (that is, adequate protec-
tion from the substantive standpoint) is not sufficient. It is essential to establish suitable channels so
that consumers can enforce the rights they are recognized to have.
The statistics published by the General Council of the Spanish Judiciary (2020) show a notable
increase in litigation, which has led to an increase in pendency rates and backlogs in the settlement
of litigation, in spite of the increase in the resolution rate. Furthermore, the average duration of a
proceeding in the courts of first instance in Catalonia is 7 months in 2020.
1
In the following sections we examine the potential of alternative dispute resolution systems and,
in particular, consumer arbitration, as an effective mechanism for the protection of consumer
rights.
2
It is not sufficient to recognize a catalogue of consumer rights. Rather, it is essential that
suitable channels be established for consumers to be able to enforce the rights recognized to
them. The possibility of establishing a mandatory consumer arbitration system in Spain is based
on the need to provide consumers with a quick, simple and free mechanism that will allow them
to exercise their rights, without the need to take the matter to court.
2. Protection of the weaker party to the contract: substantive
and procedural justice
An adequate consumer protection in the digital environment has now become indispensable for the
development of the internal market.
3
Article 114 TFEU serves as the legal basis for the harmoniza-
tion measures intended to establish this market. In turn, Article 169 TFEU provides the basis for a
whole series of measures in the field of consumer protection. With regard to the latter, and in accord-
ance with its competence in this area, the EU has adopted Directives such as Council Directive (EU)
93/13/EEC of 5 April 1993, on unfair terms in consumer contracts, and Directive (EU) 2011/83 of
the European Parliament and of the Council of 25 October 2011, on consumer rights.
The substantive rules recognized in the aforementioned laws must be accompanied by an effi-
cient system to make them effective. If this is not the case, the many regulations to protect consu-
mers are meaningless as they would remain a mere theoretical framework, without practical
significance, thus failing the EU’s objective of guaranteeing a high level of consumer protection
within the European single market.
4
For all these reasons, together with the substantive body of consumer protection legislation, the
EU has developed a set of legislative and non-legislative instruments intended precisely to improve
the effectiveness of the system for protecting consumer rights in the Member States. Thus,
1. See that information in ‘Indicadores Clave’, Poder Judicial España, www.poderjudicial.es/cgpj/es/Temas/
Estadistica-Judicial/Estudios-e-Informes/Indicadores-Clave/.
2. ‘Consumer rights are only as effective as their enforcement’, S. Wrbka, European Consumer Access to Justice Revisited
(Cambridge University Press, 2015), p. 29.
3. Thus, R. Schulze and A. De Franceschi, ‘New Challenges and Perspectives’, in R. Schulze and A. De Franceschi (eds.),
Digital Revolution –New Challenges for Law (Nomos –C.H. Beck, 2019), p. 4.
4. J. Morais Carvalho and J. Campos Carvalho, ‘Online Dispute Resolution Platform: Making European Contract Law
More Effective’, in A. De Franceschi (ed.), European Contract Law and the Digital Single Market: The Implications
of the Digital Revolution (Intersentia, 2017), p. 245.
230 Maastricht Journal of European and Comparative Law 29(2)
To continue reading
Request your trial