56 tal-2017 (adrresidwa)

L.N. 56 of 2017

CONSUMER AFFAIRS ACT

(CAP. 378)

Consumer Alternative Dispute Resolution

(Residual ADR) Regulations, 2017

IN the exercise of the powers conferred by article 7 of the

Consumer Affairs Act, the Minister responsible for Social Dialogue,

Consumer Affairs and Civil Liberties, after consultation with the

Consumer Affairs Council, has made the following regulations:-

PART I

Preliminary

The title of these regulations is the Consumer Alternative

Dispute Resolution (Residual ADR) Regulations, 2017.

(1)

Any reference in these regulations to the "Act" is a

reference to the Consumer Affairs Act, and the provisions of articles

2 and 43A of the said Act shall apply to these regulations provided

that the definitions contained in sub-regulation (2) shall in all

instances for the purposes of these regulations prevail.

(2) In these regulations, unless the context otherwise requires

"ADR" means alternative dispute resolution;

"ADR entity" means any entity, however named or referred to,

which is established on a durable basis and offers the resolution of a

dispute through an ADR procedure and that is listed in accordance

with regulation 20 of the Consumer Alternative Dispute Resolution

(General) Regulations;

"ADR officer" means a natural person in charge of the ADR

process;

"ADR procedure" means a procedure, as referred to in

regulation 3 of the Consumer Alternative Dispute Resolution

(General) Regulations, which complies with the requirements set out

under the aforementioned regulations and is carried out by an ADR

entity;

"Board" means the Board of Governors established under article

8 of the Malta Competition and Consumer Affairs Authority Act;

"CCD" means the Complaints and Conciliation Directorate

established under the Fourth Schedule of the Malta Competition and Cap. 510.

Consumer Affairs Authority Act;

"Chairman" means the Chairman of the Board and of the Malta

Competition and Consumer Affairs Authority appointed in terms of

article 9(1) of the Malta Competition and Consumer Affairs Authority Cap. 510.

Act;

"conflict of interest" means that situation in which ADR officers

have private or personal interests sufficient to influence or appear to

influence their independence or impartiality;

"Council" means the Consumer Affairs Council established

under Part II of the Consumer Affairs Act;

"cross-border dispute" means a contractual dispute arising from

a sales or services contract where, at the time the consumer orders the

goods or services, the consumer is resident in a Member State other

than the Member State in which the trader is established;

"Director General (Consumer Affairs)" means the person so

appointed by virtue of article 16(2) of the Malta Competition and Cap. 510.

Consumer Affairs Authority Act;

"domestic dispute" means a contractual dispute arising from a

sales or service contract where, at the time the consumer orders the

goods or services, the consumer is resident in the same Member State

as that in which the trader is established;

"ODR Platform" means the online dispute resolution platform

established under Regulation (EU) No 524/2013 of the European

Parliament and of the Council of 21 May 2013 on online dispute

resolution for consumer disputes and amending Regulation (EC) No

2006/2004 and Directive 2009/22/EC (Regulation on consumer

ODR);

"residual ADR entity" means any such entity as the Minister

may, after consultation with the Council, designate to deal with any

disputes that consumers may have with traders in relation to which

there is no existing ADR entity in place competent to deal with such

disputes;

"trader" means any natural person or any legal person,

irrespective of whether privately or publicly owned, who is acting,

including through any other person acting in his name or on his

behalf, for purposes relating to his trade, business, craft or profession.

(3) A trader is established

(a)

if the trader is a natural person where he has his

place of business; and

(b)

if the trader is a company or other legal person or

association of natural or legal persons, where it has its statutory

seat, central administration or place of business, including a

branch, agency or any other establishment.

(4) An ADR entity is established

(a)

if it is operated by a natural person, at the place

where it carries out ADR activities; or

(b)

if the entity is operated by a legal person or

association of natural or legal persons, at the place where that

legal person or association of natural or legal persons carries out

ADR activities or has its statutory seat; or

(c)

if it is operated by an authority or other public

body, at the place where the authority or other public body has

The CCD shall be the public entity designated to perform

the functions of a residual ADR entity.

The CCD shall take cognizance of domestic and

cross-border disputes concerning contractual obligations resulting

from sales contracts or service contracts between a trader established

in the European Union and a consumer resident in the European

Union and shall intervene to bring the parties together with the aim of

facilitating or proposing a solution.

(2) The CCD shall not take cognizance of disputes in relation

(a)

non-economic services of general interest;

(b)

disputes between traders;

(c)

direct negotiation between the consumer and the

(d)

procedures initiated by a trader against a consumer;

(e)

health services provided by health professionals to

patients to assess, maintain or restore their state of health,

including the prescription, dispensation and provision of

medicinal products and medical devices; and

(f)

the public provision of further or higher education;

(1)

Is-CCD għandu jieħu konjizzjoni ta’ tilwim li Tilwim li

jikkonċerna obbligi kuntrattwali domestiċi u transkonfini li għandu

konjizzjoni

jirriżultaw minn kuntratti ta’ bejgħ jew kuntratti ta’ servizz bejn tiegħu is-CCD.

negozjant imwaqqaf fl-Unjoni Ewropea u konsumatur residenti fl-

Unjoni u għandu jintervjeni biex ilaqqa’ lill-partijiet flimkien bi l-

għan li jiffaċilita soluzzjoni bonarja jew jipproponi soluzzjoni.

(2) Is-CCD m’għandux jieħu konjizzjoni ta’ tilwim fir-rigward

(a)

servizzi mhux ekonomiċi ta’ interess ġenerali;

(b)

tilwim bejn negozjanti;

(ċ)

negozjanti

diretti

bejn

il-konsumatur

u

n-

negozjant;

(d)

proċeduri

mibdija

minn

negozjant

kontra

konsumatur;

(e)

servizzi tas-saħħa mogħtija minn professjonisti tas-

saħħa lill-pazjenti biex ikun evalwat, miżmum jew imreġġa’

lura l-istat ta’ saħħithom, li jinkludu wkoll il-preskrizzjoni, il-

preparazzjoni u l-forniment ta’ prodotti mediċinali u tagħmir

mediku; u

(f)

fornituri pubbliċi ta’ edukazzjoni ulterjuri jew

għolja.

(1)

The CCD may refuse to accept a given dispute on Grounds on

which the

the ground that

residual ADR

entity may

refuse to deal

(a)

the consumer did not attempt to contact the trader

with a given

concerned in order to discuss his compliant and seek, as a first

dispute.

step, to resolve the matters directly with the trader;

(b)

the dispute is frivolous or vexatious;

(c)

the dispute is being or has previously been

considered by another ADR entity or by a competent court or

tribunal;

(d)

the consumer has not submitted the complaint to

the CCD within two (2) years from the date upon which the

consumer submitted the complaint to the trader;

(e)

dealing with such a dispute would otherwise

seriously impair the effective operation of the CCD.

(2) For the purposes of paragraphs (a) and (d), the CCD may

require the consumer to prove by adequate means that he had, prior to

lodging his complaint with the CCD, attempted to resolve the matter

directly with the trader.

(3) Without prejudice to the provisions of sub-regulation (1),

where the CCD is unable to consider a dispute that has been

submitted to it, it shall provide all the parties to the dispute with a

reasoned written explanation of the grounds for not considering the

dispute within three (3) weeks of receiving the complaint.

(4) Under no circumstances shall the ADR process prevent

any person from exercising the right of access to the judicial system.

Unless stated otherwise in these regulations, if any Relationship

provision of these regulations conflicts with a provision laid down in with

national

any other national law, the provisions of these regulations shall legislation.

prevail.

PART II

The ADR officers

(1)

The ADR officers in charge of the ADR shall

possess the necessary knowledge and skills in the field of alternative

or judicial resolution of consumer disputes, as well as a general

understanding of law.

(2) The terms and conditions of employment of the ADR

officers, including their remuneration shall be established, and their

appointment shall be made in accordance with Part X of the Malta

Competition and Consumer Affairs Authority Act

Provided that the ADR officers shall not be appointed for a

period shorter than three (3) years and shall be eligible to be re-

appointed for a further term or terms of not less than three (3) years.

(3) The ADR officers shall not be subject to any instructions

from either party or their representatives.

(4) The ADR officers shall assist the parties to reach a

resolution that is timely, fair and cost-effective.

(5) The ADR officers may, in conducting the ADR process,

refer to codes of conduct, legal provisions and relevant jurisprudence,

and may use as a basis for the dispute resolution, considerations of

equity and fairness.

(6) The ADR officer in charge of the ADR process shall

disclose to the CCD any circumstances that may or may be seen to

affect his independence and impartiality or give rise to a conflict of

interest with either party to the dispute he is asked to resolve. The

obligation to disclose such circumstances shall be a continuing

obligation throughout the ADR procedure

Provided that the ADR officer shall be allowed to continue

the ADR process if the parties have not objected after they have been

duly informed of the circumstances and their right to object.

(7) Without prejudice to the provisions of the preceding sub-

regulation, an ADR officer shall abstain from assisting the parties to

reach a resolution to their dispute

(a)

if he is the spouse of any of the parties or if he is

related to any of the parties by consanguinity or affinity in the

direct line up to any degree or in the collateral line up to the

degree of cousin inclusively;

(b)

if he is the tutor, curator, or presumptive heir of any

of the parties;

(c)

if he is or has been the agent of any of the parties;

(d)

if he is the administrator of any establishment or

partnership involved in the ADR process; or

(e)

if he has or might have a personal interest in the

outcome of the ADR process.

PART III

Procedure relative to the ADR process

(1)

In the absence of an agreement to the contrary, the Liberty.

participation of both the consumer and the trader in the ADR process

shall be on a voluntary basis

Provided that any agreement between a consumer and a

trader to submit complaints to the CCD is not binding on the

consumer if it was concluded before the dispute has materialised and

if it has the effect of depriving the consumer of his right to bring an

action before the competent courts or tribunals for the settlement of

the dispute.

(2) The parties may withdraw from the ADR procedure at any

stage and for any reason whatsoever, including if they are dissatisfied

with the performance or the operation of the procedure and the ADR

officer shall, prior to commencing the ADR procedure inform the

parties of such right.

The CCD shall offer the ADR free of charge.

Fees.

The CCD shall allow complaints to be submitted, and shall Language.

conduct the ADR process in either the Maltese or English language

Provided that where any party does not understand the

language in which the ADR process is being conducted, such process

shall be interpreted to him by the ADR officer.

The CCD shall ensure that the ADR procedure is available Accessibility.

and easily accessible online and offline.

The parties shall not be obliged to retain a lawyer or a legal Representation

advisor, but they may seek independent advice or to be represented or and assistance.

assisted by a third party at any stage of the procedure.

(1)

The CCD shall upon receiving all the documents

which include the relevant information relating to the complaint

notify the parties to the dispute with the date, time and place for the

first ADR session.

(2) Without prejudice to the provisions of the preceding

regulation, the parties or their representatives shall appear on the date

and time and at the place indicated in the notification

Provided that in the case of disputes referred through the

ODR Platform, the physical presence of the parties or their

representatives shall not be required.

(3) The outcome of the ADR shall be made available to the

parties by means of a report formulated by the ADR officer

conducting the ADR process and which shall contain

(a)

a summary of the events which gave rise to the

dispute;

(b)

a copy of the documents received which include

the relevant information relating to the dispute;

(c)

the minutes of each ADR session forming part of

the ADR process; and

(d)

the outcome in the form of a proposed solution to

the dispute;

(e)

a statement of the grounds on which the outcome is

based.

(4)

The outcome of the ADR procedure shall be made

available to the parties within a period of ninety (90) calendar days

from the date on which the CCD has received the complete complaint

file

Provided that in the case of highly complex disputes, the

CCD may, at its own discretion, extend the ninety (90) calendar day’s

time period, in which case, the parties shall be informed of any

extension of that period and of the expected length of time that will be

needed for the conclusion of the dispute.

Any agreement relating to the ADR process shall be made

in writing in the presence of an ADR officer and shall, for all intents

and purposes of the law be considered a private writing.

(1)

The CCD shall ensure that throughout the ADR

process

(a)

the parties have the possibility, within a reasonable

period of time, of expressing their point of view and of

submitting evidence including documents and opinions of

experts in so far as relevant to the dispute and to be provided

with the arguments, evidence, documents and facts put forward

by the other party or parties, any statements made and opinions

given by experts and of being able to comment on them;

(b)

the parties are informed that they are not obliged to

retain a lawyer or a legal advisor, but they may seek

independent advice or to be represented or assisted by a third

party at any stage of the procedure;

(c)

the parties are provided with a report on the

outcome of the ADR in writing or on a durable medium, which

shall contain a statement of the grounds on which the outcome

is based.

(2) The parties, before agreeing to a proposed solution shall be

informed that

(a)

they have the choice as to whether or not to agree

to or follow the proposed solution;

(b)

participation in the procedure does not preclude the

possibility of seeking redress through proceedings in a

competent court or tribunal;

(c)

the proposed solution may be different from an

outcome determined by a competent court or tribunal applying

legal rules.

(3) The parties, before agreeing to or following a proposed

solution or an amicable solution, should be informed of the legal

effects of agreeing to or following such a proposed solution.

(4) The parties, shall, before expressing their written consent

to the proposed solution, be allowed a period of not less than three (3)

days to reflect.

(5) In establishing the period of time referred to in the

preceding sub-regulation, regard shall be had to the specific nature

and circumstances of the dispute.

The participation in the ADR process shall not prevent the Prescription.

parties from initiating judicial proceedings in relation to that dispute

as a result of the expiry of limitation or prescription periods as

provided under any provision of national law during the ADR

procedure

Provided that this regulation shall be without prejudice to

provisions on limitation or prescription contained in international

agreements to which Malta is a party.

Any communication or discussion made during the ADR

process as well as the content of the agreement resulting from the

ADR process shall be treated as confidential

Provided that disclosure of the content of the agreement

resulting from the ADR process shall be permitted

(a)

where this is

necessary

for

overriding

considerations of public policy;

(b)

where such disclosure is necessary in order to

implement or enforce the agreement resulting from the ADR

process;

(c)

where the existence of the agreement or a term or

clause therein is being denied by the other party;

(d)

where all parties expressly agree in writing to the

disclosure of the content of the agreement resulting from the

ADR process; or

(e)

where this is required by an authority, court or

competent tribunal of a Member State.

€0.81