E-commerce and duties relating to the Online Dispute Resolution: are penalties coming?

In order to foster the growth of the e-commerce, without taking aside the need of affording a specific protection to consumers, the EU introduced the ODR. The acronym means Online Dispute Resolution that is an instrument of alternative dispute resolution (hereinafter: “ADR”) specifically designed for disputes arising from contracts of sale an purchase or provision of services concluded online between traders and consumers.

The mechanism introduced by the EU Regulation 524/13, is applicable if the consumer and the trader reside in a Member State. But there is no need for the parties to reside in the same Country because the ODR operates for both national and international disputes.

The system works through a platform developed by the EU that enables consumers to submit a compliant directly to an ADR entity. In the intention of the EU, the mechanism, running since February 2016, apart form diminishing the number of cases before courts, represents a fast mean of dispute resolution and it is also easy to access for consumers.

In the specific aim of making the ODR known to consumers, article 14 of the Regulation imposes the professionals to provide on their website the link to the ODR platform. Moreover, according to the aforementioned provision both that link and the trader e-mail address have to be easily accessible to consumers.

If the traders are, instead, committed or obliged to use one or more ADR entities to resolve disputes with consumers, they shall, pursuant to paragraph 2 of the aforementioned article, inform the consumers about the existence of the ODR platform and the possibility of using it in order to resolve their disputes. Where the offer is made through e-mail, the message has to contain the link to the ODR platform. The same link shall also be contained in the general terms and conditions.

According to article 18 of the Regulation, the infringements of such duties should determine the application of penalties. However, in spite of the fact, that the most part of the ODR Regulation is now contained in the Italian Consumer Code, no Italian provision about penalties can be found there.

This particular circumstance is probably to be recognised as the reason standing behind the data recently observed by the EU Commission. In its report of last December, the EU Institution noticed that Italian e-commerce traders have a very low level of compliance, 12%.

Although it is true that, at the state of art, no penalties are provided by law, in its report of Justice in 2017, the Italian Minister of Justice clarified that the further implementation of D. Lgs. N. 130 of 2016 on ADR, is in phase of drafting. Thus, this new legislative intervention is well susceptible of providing the now lacking penalties.