AG Saugmandsgaard Øe issued the first opinion in a case concerning interpretation of the new ADR Directive (2013/11/EU) and its relation to the Mediation Directive (2008/52/EC).
An Italian bank obtained a court order against two consumers for payment of a debt balance owed under a current account credit agreement. Consumers appealed against the payment order, claiming that the bank repeatedly gave them credit to invest in purchasing shares - shares in the bank itself or in other companies belonging to the same group - disregarding the consumers' modest income and presenting the investments as safe. Italian law requires consumers to engage in a mandatory mediation procedure before the appeal becomes admissible, which national provisions the Italian courts consider as compliant with the Mediation Directive but possibly contrary to the new ADR Directive.
First, the AG Saugmandsgaard Øe had to ascertain whether the dispute in this case would be covered by the scope of the ADR Directive, in general. Art. 2(2)(g) of this Directive excludes from its scope complaints and claims brought by a trader against consumers, as the purpose of the Directive is to grant consumers' access to ADR and not to traders. However, in the current case by lodging an appeal and raising claims of improper / invalid credit being given to them, consumers seem to be making new claims, additional to the ones brought by the trader previously, which is ultimately for the national courts to determine. This could qualify this situation as one where consumers' right to benefit from ADR procedures should be safeguarded and thus makes the CJEU competent to look into this case (paras. 41-42).
The AG Saugmandsgaard Øe does not agree with the referring Italian court that in the given case there is necessarily a conflict between provisions of these two directives. However, if such a conflict existed then she concludes Mediation Directive's provisions would prevail, as Recital 19 of ADR Directive constitutes an express derogation, taking into account the already established framework specific for mediation in cross-border disputes (para. 63).
An important observation regards the scope of uniformity of ADR procedures in the Member States. the AG Saugmandsgaard Øe observes that the ADR Directive is a minimum harmonisation measure that aims at establishing certain harmonised quality requirements for the evaluation of consumer complaints against traders. It does, however, not require harmonisation of the whole ADR procedure in all sectors thereof (para. 67). This means, that if in Italy there is a requirement of mandatory mediation for banking and other financial disputes, such a special requirement would not be per se incompatible with the ADR Directive. This assessment is not changed if one considers provisions of Art. 1 and Recital 49 of the ADR Directive, which seem to suggest that mediation should have a voluntary character for the consumer, at least. The AG Saugmandsgaard Øe refers to the interpretation of the voluntary nature of the mediation procedure as established under the Mediation Directive, which means that parties are in control of the procedure and can organise it how they want. This does not prevent Italian law from making such a procedure a pre-requirement to enter into judicial process (paras. 72-74). Moreover, if according to Mediation Directive the use of mediation could be made mandatory for cross-border disputes, but under ADR Directive this would have been prohibited for national disputes - this difference could not be easily justified (para. 77). In order, however, not to restrict consumers' access to judicial dispute resolution, the outcomes of such mandatory mediation procedures should not therefore be binding on the parties and allow for granting provisional measures, in accordance with the conditions previously set out for settlement procedures in Alassini and Others (paras. 82-86).
While the Italian mediation procedure seems to comply with the requirements set so far in EU consumer law for ADR procedures, it does also prescribe a mandatory use of legal services for consumers, which is expressly prohibited by Art. 8(b) of the ADR Directive (para. 89). Moreover, it requires that if parties withdraw from the mediation without valid grounds, they should be penalised. This again does not comply with consumer protection as set out by the ADR Directive, which requires that withdrawal for consumers is free at any stage and can occur on purely subjective grounds (para. 94). In these two regards, it seems that the Italian law will need an adjustment (or flexible interpretation by national courts, e.g. acknowledging that valid grounds may include consumer dissatisfaction).