22
Ius Comparatum – Global Studies in Comparative Law Hans-W. Micklitz · Geneviève Saumier Editors Enforcement and Effectiveness of Consumer Law
Ius Comparatum – Global Studies in Comparative Law
Hans-W. Micklitz · Geneviève Saumier
Editors
Enforcement
and Eff ectiveness
of Consumer Law
awareness of consumer rights as well as trust that their enforcement is worth the
effort.
Acknowledgement The research leading to this publication was financed by the National Science
Centre (Narodowe Centrum Nauki) in Poland on the basis of decision no. DEC-2015/19/N/HS5/
01557.
References
Advertising Council (2014a) Complaint handling rules. Advertising Council, Warsaw
Advertising Council (2014b) Code of ethics in advertising. Advertising Council, Warsaw
Bednarek M (2013) Kontrola incydentalna. In: Ledowska E (ed) System Prawa Prywatnego. Prawo
zobowiązań – część ogólna. C.H. Beck, Warsaw, pp 792–795
Bernatt M (2013) W sprawie kontroli sądowej postępowania przed Prezesem UOKiK. Państwo i
Prawo 3:89–99
CBOS (2012) Oceny instytucji publicznych. CBOS, Warsaw, p 14
Gajda-Roszczynialska K (2011) Sprawy o ochronę indywidualnych interesów konsumentów
w postępowaniu cywilnym. Wolters Kluwer, Warsaw, pp 216–287
Grzegorczyk P (2016) Komentarz do Art. 61. In: Ereciński T (ed) Kodeks postępowania cywilnego.
Komentarz. Wolters Kluwer, Warsaw, pp 383–393
Jaroszyński K (2014) Organizacja ochrony konkurencji i konsumentów. In: Skoczny T (ed) Ustawa
o ochronie konkurencji i konsumentów. C.H. Beck, Warsaw, p 845
Łętowska E (2002) Prawo umów konsumenckich. C.H. Beck, Warsaw, pp 2–10
Miąsik D (2014) Komentarz do Art. 24. In: Skoczny T (ed) Ustawa o ochronie konkurencji i
konsumentów. C.H. Beck, Warsaw, pp 746–780
Olejniczak A (2014) Komentarz do Art. 3851. In: Kidyba A (ed) Kodeks cywilny. Komentarz.
Zobowiązania. Część ogólna. Wolters Kluwer, Warsaw, pp 253–263
Piszcz A, Namysłowska M (eds) (2016) Ustawa o zmianie ustawy o ochronie konkurencji i
konsumentów z 5.8.2015 r. Komentarz. C.H. Beck, Warsaw
Sieradzka M (2015) Dochodzenie roszczeń w postępowaniu grupowym. Komentarz. Wolters
Kluwer, Warsaw
Sroczyński J (2016) Misselling: nowy rodzaj zakazanej praktyki naruszającej zbiorowe interesy
konsumentów. Przegląd Ustawodawstwa Gospodarczego 4:26–31
Szwaja J, Kubiak-Cyrul A (2016) Komentarz do Art. 1. In: Szwaja J (ed) Ustawa o zwalczaniu
nieuczciwej konkurencji. Komentarz. C.H. Beck, Warsaw, p 54
Tischner A (2014) Przedmiot i cele regulacji. In: Kępiński M (ed) System Prawa Prywatnego.
Prawo konkurencji. C.H. Beck, Warsaw, pp 103–104
Turno B (2012) Model sądowej kontroli decyzji Prezesa Urzędu Ochrony Konkurencji i
Konsumentów. Państwo i Prawo 10:33–47
UOKiK (2009) Znajomość praw konsumenckich oraz analiza barier utrudniających konsumentom
bezpieczne i satysfakcjonujące uczestnictwo w rynku – raport z badań. UOKiK, Warsaw
UOKiK (2014) Polityka konsumencka na lata 2014–2018. UOKiK, Warsaw
UOKiK (2015) Sprawozdanie z działalności Inspekcji Handlowej w 2014 r. UOKiK, Warsaw, pp
55–57
UOKiK (2016) Sprawozdanie z działalności powiatowych (miejskich) rzeczników konsumentów
w roku 2014. UOKiK, Warsaw, p 3
Enforcement and Effectiveness of Consumer Law in Poland 455
Enforcement and Effectivenessof Consumer Law in Portugal: Fillingthe Gap Between the Law on the Booksand the Law in Action
António Pinto Monteiro, Sandra Passinhas, and Maria Raquel Guimarães
1 Introduction: The Portuguese Legal Framework
for Consumer Protection
Portugal, being a small European country, with a population of less than 10,500,000habitants,1 and a member of the European Union (EU) since 1986, has beenprofoundly influenced by the European movement of consumer protection.
However, the national concern with consumer protection began years beforePortugal joined the EU, then EEC. The first Constitution of the democratic era,that started with the 25 April 1974 Revolution (the Carnation Revolution), wasapproved in 19762 and already listed the consumer protection as one of the Statepriority tasks.3
The author wants to thank the collaboration of Pedro Sousa, Assistant Professor, and FernandoPereira, Lecturer, both at the Faculty of Law, University of Porto and researchers at CIJE/FDUP.110374822, year 2014, INE—Instituto Nacional de Estatística (Statistics Portugal), in<http://www.ine.pt> (12.05.2016).2Decreto of 10/04/1976.3See Article 81(m) Incumbências prioritárias do Estado/State priority tasks, Constitution of thePortuguese Republic (CRP), Decreto of 10/04/1976. The Article stated in its original version that
A. Pinto Monteiro (*) · S. PassinhasUniversity of Coimbra, Coimbra, Portugale-mail: [email protected]; [email protected]
M. R. GuimarãesUniversity of Porto, Porto, Portugale-mail: [email protected]
© Springer International Publishing AG, part of Springer Nature 2018H.-W. Micklitz, G. Saumier (eds.), Enforcement and Effectiveness of Consumer Law,Ius Comparatum – Global Studies in Comparative Law 27,https://doi.org/10.1007/978-3-319-78431-1_19
457
With the first Constitutional revision,4 consumer rights were displayed in aseparate provision (Article 110), under the Economical Constitution Title. Article110/1 specifically mentioned consumer rights to education and information, protec-tion of health and safety, protection of economic interests, and the right to claim fordamages,5 clearly influenced by the European Council Resolution on a preliminaryprogramme of the European Economic Community for a consumer protection andinformation policy.6Afterwards, as a result of the second Constitutional revision thattook place in 1989,7 consumer rights were erected as Fundamental rights by Article60, undoubtedly as a result of the increasing importance of consumer protection bothnationally and in the EU.8 Today, the Constitution of the Portuguese Republicrecognizes consumer’s rights as constitutional or fundamental rights and states:
Article 60
(Consumer rights)
1. Consumers have the right to the good quality of the goods and services consumed, totraining and information, to the protection of health, safety and their economic interests, andto reparation for damages.
2. Advertising shall be disciplined by law and all forms of concealed, indirect or fraudulentadvertising are prohibited.
3. Consumers’ associations and consumer cooperatives have the right, as laid down by law,to receive support from the state and to be consulted in relation to consumer-protectionissues, and are accorded legitimatio ad causam in defence of their members or of collectiveor general interests.9
The first national initiative for consumer protection has been Law 29/81, of22 August.10 The protection of the consumer was assumed as a national assignment,and the Instituto Nacional de Defesa do Consumidor (National Institute for theConsumer Protection) was created. This law was repealed by Law 24/96, of31 July, still the actual Portuguese Consumer Protection Act in force, despite severalalterations and amendments suffered during the years.
consumer protection should be achieved namely through the support to the creation of consumerassociations and cooperatives.4Constitutional Law 1/82, of 30 September.5Article 110/2 prohibited deceptive and false advertising and No. 3 established the State support toconsumer associations and cooperatives and recognised their right to be consulted in consumerissues.6OJ C 92, 25 April 1975.7Constitutional Law 1/89, of 8 July.8Gomes Canotilho and Moreira (2007), p. 780, consider this an “evident promotion” of consumerrights, that emerge as “third generation rights”.9See the English version of the Portuguese Constitution in <http://www.en.parlamento.pt/Legislation/CRP/Constitution7th.pdf> (26.05.2016).10A few days before the 25 April 1974 there was a proposal for a new law on consumer protectionthat was discharged in the revolutionary process. For further developments on consumer protectionbefore 1974, see Ferreira de Almeida (1982), pp. 39–43.
458 A. Pinto Monteiro et al.
The Portuguese Consumer Protection Act opens with a definition of “consumer”as any person to whom a service or a good is provided for non-professionalpurposes.11 This means that the notion of “consumer” adopted in Portuguese lawis wider than the common core that can be found in EU legislation. A “consumer” isa “non-professional”, including—according to some legal writers—legal persons, ifthey are either acquiring goods or services for private use. Despite not being a clearunanimous doctrinal position, the fact is that the letter of the law allows thisinterpretation. This and other disparities prompts the national legislator to define“consumer” separately in each transposing act, in areas covered by fullharmonisation, in order to comply with EU directives. That means that in additionto the definition of “consumer” included on Article 2 of the Portuguese ConsumerProtection Act, there are several other different definitions, resulting of the numeroussingle acts originated by EU directives, leaving the wider notion of consumer emptyof content.12
In short, the Portuguese legal framework for consumer protection is todaygrounded on the Portuguese Consumer Protection Act of 1996, that develops theconsumer constitutional rights, and particularly on the single acts that, during theyears, have implemented European directives into national legislation and havereduced significantly the scope and the object of the first.
Consequently, the national legislation on consumer protection is more the resultof the government reaction to the European initiatives than the outcome of a plannedaction or of a strategic plan designed for consumer protection. Still, in specific areas,like the one of standard form contracts or adhesion contracts, Portugal has actedahead the European initiative, approving Decree-Law 446/85, of 25 October [Abu-sive Terms Act], several years before the Council Directive 93/13/EEC of 5 April1993. This 1985 act, though, is not exclusively consumer oriented, ruling all thecontractual terms which have not been individually negotiated either in consumercontracts or contracts between professionals.
On the 15 March 2006 a new project for a Consumer Code was presented, after10 years of intensive work of an academics and experts commission led by PintoMonteiro.13 This project had as major goals not only to compile in one single andindependent legal act most of consumer oriented laws, but mainly to create a Code,meaning a systematically and rationally organized group of rules. The project for aConsumer Code proposed to repeal implementation of several European Directivesfrom the 1980s, 1990s and early 2000s and intended to harmonise and consolidate
11See Article 2/1, Law 24/96.12For a definition of “consumer” in the Portuguese law see Ferreira de Almeida (1982),pp. 217–223, and more recently Pinto Monteiro (2014), pp. 376–379, and Morais Carvalho(2016), pp. 17–23.13For more details about the work of this commission and its members, see Comissão do Código doConsumidor (2006), pp. 7–11, and Pinto Monteiro (2006), pp. 190–196. The project can beaccessed on-line in <http://www.oa.pt/upl/{074a0e26-88f3-4958-b06b-a07ecb04a19d}.pdf>(23.05.2016).
Enforcement and Effectiveness of Consumer Law in Portugal: Filling the. . . 459
their regulation. The project for a Consumer Code was dropped after a politicalturnover and the work was neither resumed, modified nor implemented.
Without a consolidated legal framework, the Portuguese consumer protectionrules can be found in several independent leis (laws) or decretos-lei (decree-laws),approved to the rhythm of the European directives.
Nevertheless, consumer protection has always deserved the attention of Portu-guese governments through the years. Lately, Law 7-B/2016, of 31 March, approvedthe Major Planning Options for 2016–2019, defined by the Portuguese Parliament,and outlined the promotion of the quality of consumer protection as one of the maingovernment’ goals. It reads as follows:
The Government will focus its activities in order to ensure a high level of consumerprotection in all areas subject to public policy, in particular by reviewing and strengtheningthe legislative framework and other initiatives likely to ensure effective and adequateprotection of consumers, considering in particular the most vulnerable, such as children,young people and senior.14
To pursue this objective, three main areas of activity were appointed:
(a) Strengthening of the available information to consumers;(b) Strengthening the protection of the consumer in the Portuguese legal system,
namely by reviewing and strengthening the existing legal framework;(c) Cooperation and networking.15
2 Number and Characteristics of Consumer Complaints
and Disputes
In Portugal, there is data about consumer complaints and disputes, and throughseveral means, consumers can get information about their rights. There is even anorganized website maintained by the Portuguese government (Portal doConsumidor, ‘Consumer Portal’, supervised by the ‘General-Direction of Con-sumer’).16 According to the European Commission (2013), knowledge of consumerrights appears to make consumers more likely to identify problems with productsthey buy.17
According to a 2012 survey whose results were published in a FlashEurobarometer (No. 358, published in 2013 by the European Commission), 20%of Portuguese respondents said that they have had legitimate cause for complain inthe last 12 months. Among those people who identified problems, 87% did takeactions to solve it. Actions consisted in: (1) complaints to the retailer/provider (73%in Portugal, very similar to the European Union, 72%); (2) complaints to the
14Diário da República, Series I, No. 63, 31 March 2016, p. 40.15Ibid.16See http://www.consumidor.pt.17European Commission (2013).
460 A. Pinto Monteiro et al.
manufacturer (12% in the EU); (3) complaints to a public authority (4%); (4) sub-missions to Alternative Dispute Resolution (4% in the EU); (5) submissions to court(2% in the EU). At the European Union level, a relative majority of those whocomplained to a public authority were satisfied with the achieved solution.18
Since 2005, Portuguese dissatisfied consumers can formally submit a complaintusing a document (Livro de Reclamações, ‘complaints book’). Then, complaints arecollected and managed by several (23) legally competent entities.
According to annual official reports,19 in 2015 consumers submitted 303,548complaints, 21.25% more than previous year (2014: 250,356 complaints). In fact,numbers have been increasing each year: 148,784 in 2011; 206,146 in 2012; and222,434 in 2013. Therefore, in the last 3 years, in Portugal an amount of 776,338complaints were submitted, using the formal document that is available in allservices and goods suppliers. Complaints have been concentrated in a few numberof entities (and economic sectors): in 2015, 92% of the complaints were related tofive entities—ASAE (common goods and services sector, including restaurants):155,612 (51.26%); ERS (health sector): 52,215 (17.2%); ANACOM (communica-tions and Internet suppliers): 49,764 (16.31%); ERSE (electricity and other ener-gies): 13,644 (4.49%); and BdP (banking sector): 8752 (2.88%).20 The relativeimportance of those entities has not varied in the last years.
There is no clear and significant evidence that justifies this strong increase in thenumber of complaints. However, it could be a signal of a more informed populationabout consumer rights that react more when reasons exist to complain and/or whenan higher likelihood of success of pursuing a complaint is perceived. The increaserecently recorded in the number of complaints could also be the natural evolution ofa country that in 2009 showed one of the lowest percentage of consumers who hadalready made any kind of formal complaint.21
Portuguese consumers can also apply to the European Consumer Centres (ECCs)that were established by the European Commission in coordination with nationalgovernments of the European Union (EU). In these ECCs, the most representedsubjects of the Portuguese complaints have been the following: (1) transports (52%);(2) recreation and culture (19%); (3) restaurants, hotels and accommodation (7%);(4) communication services (4%); and (5) furnishings, household equipment androutine household maintenance (4%).22 At the European level, surveys conducted in
18Ibid.19Portuguese Government, Livro de Reclamações - Dados Estatísticos, Portuguese EconomyMinistry, 2011, 2012, 2013, 2014, 2015, 2016.20ASAE: Autoridade de Segurança Alimentar e Económica; ERS: Entidade Reguladora da Saúde;ANACOM: Autoridade Nacional de Comunicações; ERSE: Entidade Reguladora dos ServiçosEnergéticos; BdP: Banco de Portugal.21European Commission (2009).22European Commission (2015).
Enforcement and Effectiveness of Consumer Law in Portugal: Filling the. . . 461
2006 revealed that telephone and Internet services were among those that had thehighest levels of complaints.23
Several complaints result in consumer disputes. According to the Direcção-Geraldo Consumidor, in 2015, 6322 consumer disputes have been initiated and in thesame year 4860 disputes have been solved. In the last 2 years, 9499 consumerdisputes were resolved and 12,445 new disputes were initiated. In the last 8 years,new consumer disputes summed a total of 37,749 cases. A consumer disputetypically takes an average of 60 days to be solved in Portugal.24
Consumer disputes solutions are achieved in the Court system or using thealternative dispute resolution (ADR) means available.
3 The Enforcement of Consumer Law: The Judicial
Mechanisms
3.1 Judicial Resolution Mechanisms
According to Article 9 CPR and Article 29 of the Judiciary Organization Act(JOA),25 in Portuguese law there are the following categories of courts: the Consti-tutional Court, courts, administrative and tax courts, the court of auditors, and theremight be arbitration courts and justices of the peace. Thus, we need to consider thecategory of courts, which have a residual power within the domestic legal system,26
being divided into three bodies. The courts of first instance include extendedterritorial jurisdiction courts27 and the district courts.28
On the other hand, district courts have general jurisdiction and expertise,unfolding in central instances (that integrate expertise sections) and local authorities
23Ibid.24The report available at: <http://ec.europa.eu/consumers/eu_consumer_policy/consumer_consultative_group/national_consumer_organisations/index_en.htm> gives evidence that conflicts aresolved in a shorter period.25Law 62/2013, of 26 August.26Within these courts the competence is divided according to material, value, hierarchy and territorycriteria. The Courts of First Instance and the Courts of Appeal have a purview, value that is used tolimit the possibility of appeal.27The courts of extended territorial jurisdictions are courts of first instance with jurisdiction to morethan one district or on particular areas mentioned in the law. They are courts of expertise and trycertain matters, whatever the form of procedure applicable.28The districts are territorial divisions that are used for the allocation of jurisdiction of the courts offirst instance. The country is divided into 23 districts. In each of the districts there is a court of firstinstance, appointed by the district name where it is installed. As a rule, the courts of first instance arethe district courts and are designated by the name of the district in which they are installed. Thesecourts are competent to prepare and try cases related to claims not within the jurisdiction of othercourts.
462 A. Pinto Monteiro et al.
(which are part of general jurisdiction sections29 and proximity sections)30 In thecentral instances the following sections of expertise can be created: civil, criminal,criminal investigation, family and juvenile, labour, trade and enforcement.31
There is no judicial tribunal with expertise in consumer disputes. Thus, withoutprejudice to other distribution of competence criteria, jurisdiction for the trial of suchdisputes belong, as appropriate, to the general jurisdiction sections of the localauthority or the civil expertise of the central instance.
On the other hand, (singular) declaratory action does not provide for special rulesin the case of a consumer dispute,32 or special rules regarding the possibility of aconsumer to turn to a court of law.33 If the consumer is in a situation of economicneed the rules to be applied are those that result in general of Law 34/2004, of29 July (Access to Law and the Courts Act).34 Under Article 8 of this law, those whoare in economic failure situation, having no objective conditions (given their income,wealth and on-going expense of the household), can benefit from legal aid topunctually bear the costs of proceedings.35
However, one should mention the existence of two collective actions that can beimportant on consumer disputes: the popular action (regulated by Law 83/95, of31 August, the Collective Redress Act) and the inhibitory action (Articles 10 and
29These sections (general jurisdiction sections of local instances) can still unfold in civil sections, incriminal sections and small crime sections where the volume or complexity of the service justifies it(Article 81(3) JOA). General jurisdiction sections of the local instances have, as the name implies, aresidual jurisdiction.30The latter (the proximity sections) are not sections competent to deal with disputes, but rathersections of support. Their functions are described in Article 130(4) of JOA).31In the central sections and where the procedural volume justifies it, instances of mixed expertisecan be created (Article 81(4) JOA).
It should be noted that the civil expertise sections have jurisdiction, among other things, to carryout the preparation and trial of civil declaratory actions of common process of over € 50,000.32Article 14(3) of the Portuguese Consumer Protection Act provides for a cost-free for consumerauthor, whenever he wants protection of interests or rights, conviction for breach of the supplier orservice provider, or repair of loss and damage arising from unlawful acts or set strict liability underthe law, provided that the share price does not exceed the sphere of the judicial court of 1st instance(this sphere corresponds under Article 44(1) JOA, to € 5000). However, this standard will have beenrepealed by Article 25(1) of Decree-Law 34/2008 of 26 February (this diploma approves theRegulation of Procedural Costs (Exemptions of fees are repealed provided for in any law, regulationor ordinance and granted to any public or private entities, which are not provided for in this decree-law), since the Regulation does not foresee a similar exemption (see Article 4 of the Regulation).33There are no special requirements for the use of the courts. It should only be noted that obtaining acredit decision is dependent upon verification of respective procedural constraints.34It should be noted that this scheme is extended to processes that take place in Justices of the Peace.35The Portuguese Supreme Court (in 18.01.2000, Case 99A1015, Judge Aragão Seia, <http://www.dgsi.pt>) clarified that legal aid does not apply to the jurisdiction of arbitral tribunals.“Arbitration is contractual in its origin, private in nature, and because the State broke the monopolyof the exercise of the judicial function to recognize their public, judicial use in their public serviceand in its outcome”.
Enforcement and Effectiveness of Consumer Law in Portugal: Filling the. . . 463
11 of the Portuguese Consumer Protection Act, and Articles 25 et seq. of thePortuguese Abusive Terms Act).
3.2 The Popular Action and the Inhibitory Action
In what concerns the first (actio popularis)—which, among other things, is aimed atthe defence of diffuse, collective or homogeneous individual interests of collectiveentities—Article 1(2) of the Portuguese Collective Redress Act provides that, amongothers, it is an interest protected by this law to protect the consumption of goods andservices. It is an action for which every citizen has active legitimacy in the enjoy-ment of civil and political rights (beyond the defenders associations and foundationsof their interests and other entities),36 and expenses exemption is provided in (Article4(1)(b) of the Litigation Cost Regulation). On the other hand, and in relation to theinhibitory action provided for in Article 10 of the Consumer Protection Act, the rightto inhibitory action to prevent, correct or stop harmful practices of consumer rights isguaranteed, enshrined in the respective law, which (inter alia) threatens the healthand physical safety of the consumer, to be reflected in the use of standard contractualclauses, or consisting of trade practices expressly prohibited by law. The possibilityof a judgment in this type of action to be accompanied by penalty provided for inArticle 829-A Portuguese Civil Code (regardless of the compensation that wouldtake place) is also foreseen.
3.3 Alternative Dispute Resolution (ADR) in Consumer
Disputes
In addition to judicial courts, the resolution of a civil dispute may, in general, takeplace before an arbitration court or a Justice of the Peace. The justices of the peace(regulated by Law 78/2001, of 13 July [Justices of the Peace Act]) are alternativemeans of dispute resolution, with jurisdiction for declaratory action in proceedingsnot exceeding € 15,000 and within a set of matters listed in Article 9 of that law(in particular: contractual liability actions, and actions that respect the breach ofcontract). These courts are characterized by being a part of the public mediationservice, supporting proceedings that occur in two moments: the pre-mediation andthe mediation (always voluntary),37 and a judicial phase—which takes place in casethe parties (or some of them) rule out the possibility of mediation, or the latter is
36Articles 2 and 3 of Portuguese Collective Redress Act.37The law provides for the existence of a pre-mediation stage (designed to explain to parties whatmediation is and ascertain their willingness to reach an agreement there), and a mediation phase. Inaccordance, however, to Article 49 of Justices of the Peace Act, pre-mediation only takes place if
464 A. Pinto Monteiro et al.
unsuccessful. The decision of the justice of the peace has court order value.38 In thejustices of the peace there is place to payment of costs, and that table is approved byorder of the Government member responsible for the area of justice (Article 5), andthe general rules on legal aid (Article 40) are applied. The mediation phase isperformed by a professional with specific training, and must respect the principlesand rules laid down in Law 29/2013 of 19 April (Mediation Act).
Article 14(1) of the Portuguese Consumer Protection Act made responsible theagencies and departments of the Public Administration to promote the creation andsupport arbitration centres in order to settle consumer disputes (institutionalizedarbitration centres). However, Law 144/2015, of 8 September, which transposed intoPortuguese law the Directive 2013/11/EU of the European Parliament and of theCouncil, of 21 May 2013, regularized court settlement procedures of national andinternational disputes promoted by an alternative dispute resolution (ADR)39 entityregarding consumer disputes. By “ADR procedures” one means mediation, concil-iation and arbitration (Article 3(i)). ADR entities have a set of obligations laid downin Article 6 of Law 144/2015, while the Direcção-Geral do Consumidor organizesthe registration and disclosure of ADR entities list, and evaluates compliance withthe obligations set out in that Article. In turn, Article 12(1) provides a set ofguarantees of ADR procedures (equality, adversarial, duty to state reasons, etc.),resulting from paragraph 2 of that Article the possibility that the parties can give upat any time the procedure and the requirement for them to be informed (before theyaccept, refuse or adopt the proposed solution) that participation in the ADR proce-dure does not prevent recourse to the competent court to resolve the dispute, and thatthe solution proposed by the ADR entity may be different from a solution obtainedby court applying the provisions in force.40
It should be emphasized that in accordance with Article 13(1), agreements madebetween consumers and suppliers of goods or service providers in order to resort toan ADR entity, entered into before the dispute has arisen and through in writing,cannot deprive consumers of their right to refer the dispute to the appreciation anddecision of a court of law (justices of the peace should be included here).41
either or both of the parties have not previously removed that possibility. This meets up the principleof voluntariness, provided for in Article 4 of the Mediation Act.38According to Article 62 of Justices of the Peace Act, decisions in cases whose value exceeds halfof the value of the purview of the 1st instance court may be challenged by way of appeal to bring tothe relevant section of the district court where the Justices of the Peace is based.39An ADR entity is an entity that is based in Portugal and that, regardless of classification, allowsthe resolution of disputes covered by the relevant law, through one of the ADR procedures, and isregistered in the ADR entities list.40Conversely, Article 11 of Law 144/2015 provides that ADR entities may maintain or adoptprocedural rules which enable them to refuse treatment of a dispute in certain cases, being one ofthese cases the fact that the dispute is pending or it has already been decided by another ADR entityor a court of law.41In this sense, Carvalho and Carvalho (2016), p. 7. The authors bring attention to the fact thatjeopardising consumer access to demand a professional in a state court would be contrary to Article10(1) of Directive 2013/11/EU, according to which “Member States shall ensure that agreements
Enforcement and Effectiveness of Consumer Law in Portugal: Filling the. . . 465
3.4 Arbitration in Essential Public Services
Article 15(1) of Law 23/96 (as amended by Law 6/2011) provides that “consumerdisputes in the context of essential public services42 are subject to compulsoryarbitration when, by express option from individual users, are submitted to theappreciation of arbitral tribunal of the legally authorized consumer disputes arbitra-tion centres”. These centres are necessarily ADR entities.43 We are not dealing herewith a mandatory arbitration case (imposed by law), but only with a case where thelaw replaces the company’ statement.44 The consumer statement is always necessary(consumer’s right to resort to arbitration, or compulsory arbitration only for thecompany).45 In case of the latter to take the initiative to bring a lawsuit for debtcollection, from a court of law (or a Justice of the Peace) several authors defend thatthe consumer should be allowed to commence arbitration, provided that he expressesthis will before his first intervention in the process.46
3.5 Advantages for Consumer to Use an ADR Procedure
Article 10 of Law 144/2015 establishes a set of rules to ensure the effectiveness andaccessibility of alternative dispute resolution procedures for consumer disputes.Under paragraph 1, ADR entities shall ensure that ADR procedures are effective,available and easily accessible, both online as by conventional means, for bothparties, regardless of where they are. Furthermore, ADR entities should also ensurethat the parties do not have to resort to a lawyer and may be accompanied orrepresented by third parties at any stage of the procedure (paragraph 2).47
between consumers and traders in order to pursue an ADR entity are not binding on the consumer ifthey have been concluded before the occurrence of the dispute and have the effect of deprivingconsumers of their right to bring an action in court for resolution of the dispute”.42Article 1(2) of Law 23/96 lists (exhaustively—in that sense, Carvalho and Carvalho (2016), p. 12)what is meant by essential public service. So (say the authors), the arbitration provided for in Article15(1) shall apply to the provision of water services, the supply of electricity services, the supply ofnatural gas and petroleum liquefied gas services, electronic communications services (internet,television, telephone, etc.), postal services, the collection and wastewater treatment services andsolid waste management services.43Carvalho and Carvalho (2016), p. 12.44Ibid., p. 12.45Ibid., pp. 13–14. Without prejudice to cases where the law provides that the ADR entity refuses toaccept the dispute (Article 11 of Law 144/2015).46Ibid., p. 16.47Carvalho and Carvalho (2016), pp. 16 et seq. draw attention to the fact that the provisions of Law144/2015 have a mandatory content, overriding even the agreement of the parties. Article 10(2) provides that, contrary to what happens in state courts, representation by a lawyer cannot beimposed, regardless of the share value. A clause imposing compulsory representation by a lawyer
466 A. Pinto Monteiro et al.
The rule in Article 10(3) is very important, according to which ADR entities shallensure that ADR procedures are free or available for consumers against paying alow rate.
It should be noted that, in accordance with paragraph 5 of Article 10, ADRprocedures must be decided within 90 days from the date on which the ADR entityhas received the full complaint process (and this period can, in accordance withparagraph 6 of that Article, be extended at most twice for equal periods, by the ADRentity if the dispute reveals particular complexity).
Finally, it should be commented that in Portuguese law there are no courtsespecially designed for the resolution of consumer disputes, nor the existence ofprocedural rules in civil declaratory action aimed at consumer protection. However,the legislator has set up alternative dispute resolution bodies of consumer disputes,which should be easily accessible to consumers, and should provide a potentiallyfree and speedy resolution of the dispute. Contrary to what results from VoluntaryArbitration Act, where the normal period for decision making by the tribunal is12 months starting from the last arbitrator acceptance, it is envisaged in Law144/2015 a (normal) period resolution of 90 days.
The disadvantages associated with this form of dispute resolution are those thatresult from inherent lessening of the jurisdiction (subject to the procedural guaran-tees provided by law). Perhaps being aware of it, the legislator intended that theconsumer would not be bound by the resource agreement to an ADR mechanism,concluded before the occurrence of a dispute, keeping unchanged the possibility ofrecourse to a court of law.
4 Specialised Agencies and the Enforcement
of Consumer Law
4.1 The Administrative Mechanisms: The Direcção-Geral do
Consumidor
The Portuguese Consumer Protection Act of 96 has created two new bodies: theInstituto do Consumidor and the Conselho Nacional do Consumo.48 With Decree-Law n 126-C/2011, 29 December,49 the Instituto do Consumidor was replaced in itscompetences—which were, mainly, to promote consumer rights, information and
inserted in a centre arbitration rules (according to the authors) would be invalid (for being contraryto the law) and could not be applied.48See Articles 21 and 22 of the first version of Law 24/96.49Article 13. See also the last revision of the Portuguese Consumer Act, by Law 47/2014, of 28 July,namely, on Articles 21 and 22.
Enforcement and Effectiveness of Consumer Law in Portugal: Filling the. . . 467
education and to support consumer organization—for Direcção-Geral doConsumidor, an administrative service with reinforced capabilities.50
The Direcção-Geral do Consumidor is an administrative authority, part of theMinistry of Economy,51 and has as special aims to take part on the national andEuropean legislative process, to promote the security of goods and services, toeducate and inform the consumers, to enforce mechanisms of consumer protectionand to supervise commercial and institutional advertising, specially on the internet.In this last field, this authority has special powers to apply fines and othersanctions.52
As a central body of direct public administration, the Direcção-Geral doConsumidor’s internal structure is established by law and comprises three directions:the Direction for Consumer Law (12 workers), the Direction for Consumer Com-munication (13 workers), the Direction for International Affairs (8 workers); onedivision: the Division for Advertising (8 workers), and a support core: the Direction’Support Group (8 workers).
The Direcção-Geral do Consumidor has been designated as the Portugueseauthority and the liaison office responsible for the application of Regulation(EC) No. 2006/2004 of the European Parliament and of the Council of 27 October2004 on cooperation between national authorities responsible for the enforcement ofconsumer protection laws. This Direcção-Geral is also in charge of the PortugueseECC—European Consumer Center, part of the European Consumer Center Net-work53 co-financed by the European Commission and national governments.54
The Conselho Nacional do Consumo (National Consumer Council) is an inde-pendent consultative council that aims to have a pedagogical approach and take apreventive action in all matters consumer related. No less than 50% of its membersare consumers.55 This Council is supported technically and administratively byDirecção-Geral do Consumidor.
4.2 The Direcção-Geral do Consumidor (DGC)
and the Portuguese Consumer Protection System
Since Direcção-Geral do Consumidor (DGC) is in charge of endorsing the Portu-guese Consumer Protection System and of the co-ordination of the activities
50See Article 21, in its current version, and Decree-Law 11/2014, of 22 January.51Articles 4 and 12, Decree-Law 11/2014, of 22 January. See Decreto Regulamentar 38/2012, of10 April.52See Article 12(2)(f) of Decree-Law 11/2014, of 22 January.53“ECC-Net” is a network of 30 offices in the 28 EU Member States, Norway and Iceland, which
main aim is to provide free help and advice to consumers on cross-border contracts.54See <http://cec.consumidor.pt>.55See Article 22 Portuguese Consumer Protection Act.
468 A. Pinto Monteiro et al.
developed by public and private entities integrated in this system, it is in charge ofmonitoring the activity of consumer associations, arbitration centers and othernon-judicial mechanisms for the resolution of consumer disputes and also of munic-ipal information centers (CIAC).56
Direcção-Geral do Consumidor has been working very closely with arbitrationcenters, especially in the last 5 years, providing them with technical and economicalsupport through a Consumer Fund.
Local authorities are also privileged partners of this body, having their owncompetences in what concerns consumer information and counselling.57 Theselocal authorities usually perform their duties through municipal information centers(CIAC), currently more than 70 around the country.58
The Regulators are also part of the Portuguese Consumer Protection System sincethey have special duties in defending the interests of consumers in the respectiveeconomical area, providing information to consumers and receiving, analyzing andresponding to consumer complaints. They also play an important role in the promo-tion of alternative resolution of disputes. There are several institutionalized regula-tors in Portugal, covering different areas of the economy: communications,competition, health, banking and financial services, media, data protection, con-struction, transportation, energy, aviation, tourism, insurance, etc.59
There are also monitoring bodies responsible for exercising control over partic-ular areas of activity relevant to consumers as Food and Economic Safety Authority(ASAE).60 Generally, these authorities have their own consumer support services,providing information and receiving complaints.
In some cases, they have special powers, being competent to investigate andinstruct criminal processes, particularly in the context of protecting public health, asis the case of ASAE.
5 The Role of Consumer Organizations in Enforcement
of Consumer Law
According to Article 17 of the Portuguese Consumer Protection Act, consumerassociations are non-profit organizations, aiming at protecting the rights and interestsof consumers in general and of their members, in particular. They may be national,regional or local, depending on their area of activity, and on the number of theirmembers (3000, 500 or 100, respectively). As regards their scope, consumer orga-nizations may be specific (if they aim at protecting consumers of specific goods
56See Article 2(2)(c) Decreto Regulamentar 38/2012 of 10 April.57See Article 7(1)(b) Portuguese Consumer Protection Act.58See all the existing CIACs in <http://www.consumidor.pt/>.59See all the existing Regulators in <http://www.consumidor.pt/>.60Article 13, Decree-Law 11/2014, of 22 January.
Enforcement and Effectiveness of Consumer Law in Portugal: Filling the. . . 469
and/or services) or generic (if they have the purpose of protecting rights of con-sumers concerning the acquisition of goods and services in general). In both cases,consumer associations are real associations61; consequently, their bodies are freelyelected by universal and secret vote of their members.
DECO, the Portuguese Association for Consumer Protection, is the largestconsumer association in Portugal. It is present through a nationwide networkcomprising six regional offices. DECO is an independent non-profit consumerassociation, and holds a public utility status. It closely works with similar organiza-tions in Spain, Italy, Belgium and Brazil. It is also a member of BEUC (BureauEuropéen des Unions de Consommateurs), CI (Consumers International), and ICRT(International Consumer Research & Testing).
It should be underlined that, since enter into force of the above mentionedDirective 2013/11/EU62 on alternative dispute resolution for consumer disputes(Directive on consumer ADR), Member States shall encourage relevant consumerorganisations and business associations to make publicly available on their websites,and by any other means they consider appropriate, the list of Alternative DisputeResolution entities. The Commission and Member States shall also ensure appro-priate dissemination of information on how consumers can access ADR proceduresfor resolving disputes covered by the Directive, and shall take accompanyingmeasures to encourage consumer organisations and professional organisations, atUnion and at national level, to raise awareness of ADR entities and their proceduresand to promote ADR take-up by traders and consumers. Those bodies shall also beencouraged to provide consumers with information about competent ADR entitieswhen they receive complaints from consumers. In Portugal, these provisions wereimplemented by Article 19(2) of Law 144/2015, of 8 September (the PortugueseConsumer ADR Act).
6 Private Regulation and Enforcement of Consumer Law
In 1991, advertisers, agencies and media created the Civil Institute for Self-Regulation of Commercial Communication, ICAP (Instituto Civil de Autodisciplinada Publicidade), a non-profit entity, responsible for implementing a self-regulationsystem promoting legal, honest, truthful and decent advertising. ICAP has a Code of
61Article 17, number 4, of the Portuguese Consumer Protection Act, also refers to consumercooperatives; they are subject to the same legal regime as consumer associations.62Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 onalternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR).
470 A. Pinto Monteiro et al.
Conduct; revised in 2010 and incorporating the provisions of the Consolidated ICCCode of 2006.63
As respects dispute resolution, ICAP provides an adjudicative body and a medi-ation service. The Jury (Júri de Ética) is the complaints adjudicative body. It isdivided into two Sections and an Appeal Commitee. ICAP also provides a mediationservice, i.e., a forum for the parties to meet and reach agreement about a contestedadvertisement.
7 Enforcement Through Collective Redress
According to Article 52(3) of the CRP,
Everyone is granted the right of actio popularis, including the right to apply for theapplicable compensation for an aggrieved party or parties, in the cases and under theterms provided for by law, either personally or via associations that purport to defend theinterests in question. The said right may particularly be exercised in order to: (a) Promote theprevention, cessation or judicial prosecution of offences against public health, consumerrights, the quality of life or the preservation of the environment and the cultural heritage;(b) Safeguard the property of the state, the autonomous regions and local authorities.
In Portugal, the general regulation for collective redress mechanisms is providedby Law 83/95, of 31 August, as mentioned in paragraph 3. Therein several types ofpopular action can be found: preventive popular action, popular action to contestadministrative decisions, and popular action for compensation of damages, includingcollective redress.
According to Article 18, No. 1, (l), and Article 13, (a) (b) and (c) of thePortuguese Consumer Protection Act, consumers and consumer organizations havestanding rights, regardless of whether they have a direct interest in the claim.Standing is also granted to the Public Prosecutor (Ministério Público) and tothe DGC.
Popular action may follow any of the procedures established by the Civil Proce-dure Code, and it is an opt-out system for collective redress. Therefore, judicialdecisions have general effectiveness, except for individuals who have opted-out.
When actio popularis is used for collective redress, the remedies are, mainly,civil liability for the compensation of damages. This liability may be based on fault,but also can be effective regardless of fault, when provided by Law. According toArticle 22 of Law 83/95, subjects are entitled to receive compensation under thegeneral liability rules within 3 years after the judgment.64
63The latest code revision included a Portuguese translation of the ICC Code, an exhaustiveconsultation process with external stakeholders and a working group which adapted the Code tothe Portuguese situation.64The unclaimed amounts will be allocated to the Ministry of Justice.
Enforcement and Effectiveness of Consumer Law in Portugal: Filling the. . . 471
8 Sanctions for Breach of Consumer Law
There are no specific general rules on sanctions for breach of Consumer Law. Article12 of the Portuguese Consumer Protection Act provides that the consumer has theright to receive compensation for patrimonial damage or non-patrimonial damagecaused by defective products or services.
Most of the provisions granting consumer rights are mandatory; therefore, anyagreement against those rules is void. Similarly, any preliminary statement by theconsumer waving rights and guarantees is not enforceable.
It should also be emphasized that failure to comply with legislation on consumerprotection might be considered an administrative infraction, punishable with a fineand other accessory sanctions, as prohibitions of professions or activities, confisca-tion of property, suspension of administrative licences or authorisations for no morethan 2 years, according to Article 21 of Decree-Law 433/82, of 27 October. Publicitymay be given to the above-mentioned sanctions.
9 Alternative Mechanisms for the Resolution of Consumer
Disputes
There are a number of different structures in Portugal to settle consumer disputesoutside the courts. As mentioned above, in Portugal, the out-of-court settlement ofdisputes can be undertaken through mediation, conciliation and arbitration, applyingto the resolution of consumer disputes between consumers and suppliers who areboth located in Portugal as well as consumers and suppliers located in differentMember States. All disputes resulting from a legal relationship which the parties canterminate through negotiation, even renouncing the rights arising from their agree-ment, and which are not reserved by law to the judicial courts, can be settled byAlternative Dispute Resolution mechanisms.
Although of a judiciary nature, conciliation is an alternative to Court adjudica-tion. Under this process, the judge or the arbitrator65 invites parties to discuss thematter on which they disagree and helps them to reach a voluntary agreement.66 Incomparison with a mediator, the conciliator takes a more active stance, steeringnegotiations and putting forward solutions and platforms of mutual agreement thatmay bring about an agreement between parties. Since the conciliator has the powerto adjudicate the dispute, the dynamic of conciliation is quite different from the oneof mediation, under Portuguese law.
If the parties reach an agreement in the conciliation phase, it is recorded in theminutes and endorsed by the judge or the arbitrator.
65Conciliation is also provided by arbitration centers, it is generally used as a preliminary stage ofthe proceedings.66Articles 591-A, 594 and 604 CCP.
472 A. Pinto Monteiro et al.
Mediation is an alternative means of resolving disputes which is confidential andvoluntary in nature.67 The responsibility for coming up with the decisions to be takenresides with the parties involved. In general, mediation is informal in nature. In thistype of resolution process, the parties in dispute, helped by an impartial and neutralthird party, try to reach an agreement settling their dispute—the empowerment of theparties is what distinguishes mediation. Unlike a judge or an arbitrator, the mediatordoes not make any decision regarding the result of the argument. Instead, themediator guides the parties, establishing contacts between them and enabling thedialogue in such a way that the parties themselves can come up with the basis for anagreement ending the dispute.68
In what respects consumer ADR, mediation is regulated in general by thePortuguese Mediation, but it is also specifically envisaged in the above mentionedthe Portuguese Consumer ADR Act. In Portugal, entities providing mediation areconsumer associations; consumer information centers (CIAC) of various municipal-ities; regulators (ERS—Health Regulator; and CMVM—Securities Market Com-mission); and arbitration centers.
The agreement reached by mediation is made in writing and may be ratified by thejudge or the arbitrator.69 The enforcement of a mediation agreement is a matter forthe Court of First Instance, under the conditions laid down in the Code of CivilProcedure.70
Arbitration is also a regular means of settling disputes and is regulated, inPortugal, by Voluntary Arbitration Act (Law 63/2011, of 14 December). Voluntaryarbitration is a private method of settling disputes in which the parties, on their owninitiative, choose people known to be arbitrators, who come up with a decisionwhich is binding on the parties in settling their differences. Therefore, arbitration isthe process bearing most similarities to judicial proceedings, and the arbitrator is
67The European Commission recommendation 2001/301/EC of 4 April already set the followingprinciples of mediation: impartiality, transparency, effectiveness and equality.68In ADR procedures which aim at resolving the dispute by proposing a solution, according toArticle 12, 2, of the Portuguese Consumer ADR Act (implementing Directive on consumer ADR),the parties have the possibility of withdrawing from the procedure at any stage if they aredissatisfied with the performance or the operation of the procedure. They shall be informed ofthat right before the procedure commences. Where national rules provide for mandatory participa-tion by the trader in ADR procedures, this point shall apply only to the consumer. The parties,before agreeing or following a proposed solution, are informed that: they have the choice as towhether or not to agree to or follow the proposed solution; participation in the procedure does notpreclude the possibility of seeking redress through court proceedings; the proposed solution may bedifferent from an outcome determined by a court applying legal rules. They are also informed of thelegal effect of agreeing to or following such a proposed solution, and, before expressing theirconsent to a proposed solution or amicable agreement, should be allowed a reasonable period oftime to reflect.69Article 273 CCP and Article 14 of Mediation Act.70Article 9 of Mediation Act.
Enforcement and Effectiveness of Consumer Law in Portugal: Filling the. . . 473
responsible for making a decision regarding the dispute.71 The process ends with anarbitration decision which may consist in the ratification of the agreement reachedduring a conciliation phase. This decision carries the weight of a court judgment andis enforceable in the same way as a decision by a Court of First Instance. However,only if parties have agreed on their right of appeal and did not have authorized thearbitrator to reach a judgment grounded on equity, can an appeal be made againstarbitration decisions to the Court of Appeal.72
The possibility of settling disputes through institutionalised arbitration waslegally recognised in 1986,73 and the settling of arbitration centres to solve consumerdisputes has been ongoing ever since. A set of principles and obligations to becomplied with by entities intending to commence proceedings for the out-of-courtsettlement of disputes in this field were first established in 1999. “Institutionalizedarbitration” is the term given to voluntary arbitration carried out by arbitrationcentres (Centros de Arbitragem). The arbitration centres aimed at setting consumerdisputes are set up by non for profit private associations (except in Madeira Auton-omous Region, where the centre was set up by the regional government)representing consumers and professionals. The establishment of a consumer centerrequires the prior approval of the Ministry of Justice and of DGC. These Centres canhave general competence or might be specialized in certain areas. Sector-specificarbitration centres are CASA (Motor Vehicle Sector Arbitration Centre) andCIMPAS—Motor Vehicle Sector Information, Mediation and Arbitration Centre.Most Centres have regional jurisdiction and are only involved in disputes occurringin a certain geographical area. One center—CNIACC—, located in Braga, coversthe remaining territory and can deal with disputes from all over Portugal.74
As a principle, the recourse to out-of-court means to settle disputes is voluntary,and such intervention in a dispute requires the consent of both the consumer and thesupplier/provider of the service. Therefore, also in arbitration, the professional has toaccept recourse to this process. The acceptance, however, can be provided on a caseby case basis—only granted in relation to a specific dispute—or it can be full, theprofessional agrees to recourse to arbitration in all disputes, by adhesion to one orseveral arbitration centres.
71The European Commission Recommendation 98/257/EC, of 30 March, set forth the followingprinciples of arbitration: independence, transparency, adversarial, effectiveness, legality, liberty andrepresentation.72Article 39(4) Voluntary Arbitration Act.73Decree-Law 425/86, of 27 December.74In order to ensure full sectorial and geographical coverage by and access to ADR, Member Statesshould have the possibility to provide for the creation of a residual ADR entity that deals withdisputes for the resolution of which no specific ADR entity is competent. Residual ADR entities areintended to be a safeguard for consumers and traders by ensuring that there are no gaps in access toan ADR entity. See Article 5(3) of Directive on Consumer ADR.
474 A. Pinto Monteiro et al.
Furthermore, in ADR procedures which aim at resolving the dispute by imposinga solution, the solution imposed should be binding on the parties only if they wereinformed of its binding nature in advance and specifically accepted this.75
Arbitration entails simple, informal and swift procedures. According to Article11 of the Portuguese Consumer ADR Act, ADR entities may refuse to deal with agiven dispute on the grounds that: the consumer did not attempt to contact the traderconcerned in order to discuss his complaint and seek, as a first step, to resolve thematter directly with the trader; the dispute is frivolous or vexatious; the dispute isbeing or has previously been considered by another ADR entity or by a court; thevalue of the claim falls below or above a pre-specified monetary threshold; theconsumer has not submitted the complaint to the ADR entity within a pre-specifiedtime limit, which shall not be set at less than 1 year from the date upon which theconsumer submitted the complaint to the trader; dealing with such a type of disputewould otherwise seriously impair the effective operation of the ADR entity. ADRprocedures should be fair so that the parties to a dispute are fully informed abouttheir rights and the consequences of the choices they make in the context of an ADRprocedure. ADR entities should inform consumers of their rights before they agree toor follow a proposed solution. Both parties should also be able to submit theirinformation and evidence without being physically present.
Article 12 of the Portuguese Consumer ADR Act grants the parties the possibility,within a reasonable period of time, of expressing their point of view, of beingprovided by the ADR entity with the arguments, evidence, documents and factsput forward by the other party, any statements made and opinions given by experts,and of being able to comment on them; the parties are informed that they are notobliged to retain a lawyer or a legal advisor, but they may seek independent advice orbe represented or assisted by a third party at any stage of the procedure; the partiesare notified of the outcome of the ADR procedure in writing or on a durable medium,and are given a statement of the grounds on which the outcome is based.
Finally, Regulation (EU) 524/2013, Regulation on consumer ODR, should bementioned.76 It applies to the out-of-court resolution of disputes initiated by con-sumers resident in the Union against traders established in the Union which arecovered by Directive on consumer ADR.
This Regulation aimed to create an ODR platform at Union level, an interactivewebsite offering a single point of entry to consumers and traders seeking to resolvedisputes out-of-court which have arisen from online transactions. The ODR platform
75Specific acceptance by the trader should not be required if national rules provide that suchsolutions are binding on traders. See Sect. 3.4.76Regulation (EU) 524/2013 of the European Parliament and of the Council of 21 May 2013 ononline dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 andDirective 2009/22/EC (Regulation on consumer ODR). See also Commission Implementing Reg-ulation (EU) 2015/1051 of 1 July 2015 on the modalities for the exercise of the functions of theonline dispute resolution platform, on the modalities of the electronic complaint form and on themodalities of the cooperation between contact points provided for in Regulation (EU) No 524/2013of the European Parliament and of the Council on online dispute resolution for consumer disputes.
Enforcement and Effectiveness of Consumer Law in Portugal: Filling the. . . 475
provides general information regarding the out-of-court resolution of contractualdisputes between traders and consumers arising from online sales and servicecontracts. In Portugal, the platform is properly functioning.
10 External Relations and Cooperation of the State,
Enforcers and Consumers Organisations
Portugal is part of the European Union, and most of its Consumer Law is based onEuropean Law, as mentioned above.
In what respects enforcement of Consumer Law, European influence is alsostrong.
Since implementation of Directive 2013/11/EU, Portugal shall ensure that ADRentities cooperate in the resolution of cross-border disputes and conduct regularexchanges of best practices as regards the settlement of both cross-border anddomestic disputes.77
Where a network of ADR entities facilitating the resolution of cross-borderdisputes exists in a sector-specific area within the Union, Member States shallencourage ADR entities that deal with disputes in that area to become a memberof that network. Networks of ADR entities, such as the financial dispute resolutionnetwork ‘FIN-NET’ in the area of financial services, should be strengthened withinthe Union.
The European Consumer Center (Centro Europeu do Consumidor) is the Portu-guese contact point in charge of providing support to the resolution of disputesrelating to complaints submitted through the ODR platform, according to Article 7 ofRegulation 524/2013. It informs the consumer on issues related to the internalmarket; provides legal information and assistance in submitting claims; facilitatesaccess to justice alternative, providing a clear access to the European ADR; providesinformation on EU and national legislation; performs comparative studies on prices,legislation and other matters related to the consumption. It is a member of theEuropean Consumer Center Network “ECC-Net”.
11 Conclusion
In our opinion, the Portuguese system of consumer protection is adequate andeffective. Most of its provisions are implementation of European Law and evenwhen the European regulation was oriented by a minimum harmonization policy,often the Portuguese legislator has established a more favorable regime in order toreinforce the protection granted to consumers.
77Article 21 of Portuguese Consumer ADR Act.
476 A. Pinto Monteiro et al.
