Procedure regulations

Rules of procedure of the National service of the Mediator of consumption

1. The National service of the Mediator of consumption
2. The tasks of the National service of the Mediator of consumption
3. The competence of the Mediator of consumption
4. Costs
5. Filing of an application for alternative resolution of a consumer dispute
6. Amicable settlement
7. Confidentiality and data protection
8. Recourse to the courts
9. Impartiality
10. Suspension of limitation periods
11. Representation of the parties

Article 1.  The National service of the Mediator of consumption

1. The National service of the Mediator of consumption (Service national du Médiateur de la consommation) is a neutral and independent body which makes available to consumers and traders a voluntary and confidential procedure designed to resolve consumer disputes, that is to say disputes deriving from a sale contract or a service contract entered into between a consumer and a trader, on an amicable basis.
2. The Mediator of consumption may serve as an impartial intermediary in order to facilitate dialogue between the parties and support them in their joint search for an amicable solution.  If the parties do not reach an amicable agreement, the Mediator of consumption may suggest a solution to them, which they are free to accept or reject.

Article 2.  The tasks of the National service of the Mediator of consumption

1. The National service of the Mediator of consumption is a service set up under the authority of the Minister of the Economy and it appears on the list of qualified entities for alternative resolution of consumer disputes drawn up by the Minister.
2. The Mediator of consumption is entrusted with the following tasks:
       (a) to inform consumers and traders regarding the possibilities of alternative resolution of disputes in Luxembourg between consumers and traders;
       (b) to receive any application for alternative resolution of a consumer dispute and, if there is another qualified entity with competence in the field concerned, to forward it to that entity;
       (c) to intervene personally in any application for alternative resolution of a consumer dispute for which no other qualified entity is competent.

Article 3.  The competence of the Mediator of consumption

(1) The Mediator of consumption may be contacted if the following conditions are fulfilled:

    (a) there must be a dispute between a consumer and a trader deriving from a sale contract or a service contract. The consumer and the trader may bring the matter before the Mediator of consumption;

    (b) any consumer residing in Luxembourg or in another country of the European Union may file an application in respect of a dispute with a trader established in Luxembourg;

    (c) any trader established in Luxembourg may file an application in respect of a dispute with a consumer residing in Luxembourg;

    (d) the dispute must not fall within the competence of another qualified entity in the economic sector in question;

    (e) the dispute must not concern any of the following areas:

• health services
• non-economic services of general interest
• disputes between consumers
• disputes between traders
• public provision of further or higher education.

(2) The Mediator of consumption may refuse to deal with an application in the following cases:

    (a) the applicant has not submitted a complaint to the other party with a view to reaching an amicable solution of the dispute;

    (b) the dispute is abusive, delusional or vexatious;

    (c) the dispute is being or has been examined by another alternative dispute-resolution entity, an arbitration tribunal or a court in Luxembourg or abroad;

    (d) the application is filed more than one year after the date on which the applicant submitted a complaint to the other party;

    (e) processing of the application would seriously hamper the effective functioning of the Mediator of consumption;

    (f) the dispute is not a consumer dispute.

Article 4.  Costs

(1) The procedure before the Mediator of consumption is free of charge.

(2) The costs incurred by the parties, such as lawyer’s fees, travelling expenses or costs of experts’ reports are to be borne by the party who incurred them, unless otherwise agreed.

Article 5.  Filing of an application for alternative resolution of a consumer dispute

(1) An application for alternative resolution may be submitted to the Mediator of consumption in writing

• by letter: 6, rue du Palais de Justice, L-1841 Luxembourg;
• by fax: No 46 36 03;
• by email (info@mediateurconsommation.lu) or
• by completing the form available on the  Mediator of consumption’s website (www.mediateurconsommation.lu).

(2) The application may be filed in Luxembourgish, French, German or English.  The procedure may be conducted in Luxembourgish, French or German.

(3) The application must contain at least the following information or documents:

    (a) the name, address and contact details of the applicant and of the other party;

    (b) a detailed and chronological account of the facts and of the steps already taken by the applicant;

    (c) supporting documents (for example, purchase order, photos, witness statements);

    (d) the written statement which the applicant has previously sent, without success, to the other party with the aim of resolving the problem directly with that party;

    (e) a written declaration that the dispute has not been referred to another alternative dispute resolution entity, an arbitration tribunal or a court, in Luxembourg or abroad;

    (f) express authorisation for the Mediator of consumption to contact the other party or third parties;

    (g) a copy of a valid identity document of an applicant who is a natural person or, where the applicant is a legal person, relating to the natural person representing the legal person;

    (h) the present rules of procedure, dated and signed.

Article 6.  Amicable settlement

(1) On receiving an application for alternative resolution of a consumer dispute, the Mediator of consumption will acknowledge receipt thereof in writing, by email or using another durable medium. It shall inform the applicant that he may withdraw at any time from the amicable settlement proceedings, that he does not need a lawyer or a legal adviser, but that he may obtain independent advice and arrange to be represented or assisted by a third party and, finally, that the amicable settlement procedure is confidential and not public.

The acknowledgement of receipt does not give any decision as to the admissibility of the application.

(2) If there is another qualified entity specialising in the sector concerned, the Mediator of consumption will forward the application to it without delay and inform the applicant of that fact, providing the contact details of the other entity. He shall also inform the applicant that the forwarding of the application does not automatically mean that the other entity will agree to process it.

(3) If there is no other qualified entity in the relevant sector, the Mediator of consumption will deal with the case, unless another entity exists in the sector in question which the applicant wishes to use rather than the Mediator of consumption. If he wishes to bring the matter before the Mediator of consumption, the latter is obliged to deal with the file. If, on the contrary, he prefers to refer his dispute to the other entity, the Mediator of consumption is then not obliged to forward the application to that entity.

(4) The Mediator of consumption may ask the applicant to provide all documents or information which he considers to be of importance in the dispute, within a time limit set by him, which may be up to 15 calendar days. This time limit may exceptionally be extended by the Mediator of consumption or in response to a reasoned request but the extension of the time limit may not exceed 10 calendar days.

If the applicant does not provide him with the information or documents within that time limit, or where the applicant does not convincingly explain why he is unable to provide such information or documents, the Mediator of consumption shall inform him, in writing or using another durable medium, that he is no longer going to proceed with the examination of the application.

(5) After receiving the application and, if appropriate, any further information requested, the Mediator of consumption will forward the application to the other party and ask that party whether he agrees to participate in an alternative dispute resolution procedure.  He shall also ask the other party whether he considers that the application is inadmissible for any reason in the case at hand and to give his views on the application.

He shall inform him that he may withdraw at any time from the amicable settlement procedure, that he does not need a lawyer or a legal adviser, but that he may obtain independent advice and arrange to be represented or assisted by a third party and, finally, that the amicable settlement procedure is confidential and not public.

He shall give notice that failure to respond will be regarded as an implicit refusal which will bring the present amicable settlement procedure to an end.

The Mediator of consumption shall grant him a period of 15 calendar days to reply.  That period may exceptionally be extended by the Mediator of consumption or in response to a reasoned request, but the extension of the time limit may not exceed 10 calendar days.

(6) If the other party refuses to participate in the amicable settlement procedure or does not respond to the invitation from the National service of the Mediator of consumption to participate in it, the procedure will be terminated.  The Mediator of consumption shall record the failure of the amicable settlement proceedings in minutes notified to the parties.

(7) As soon as the Mediator of consumption has received the views of the other party, he shall inform the parties of the receipt of the complete application and the date on which it was received. The date of receipt marks the start of a time limit of 90 days for attempts to resolve the dispute amicably. That time limit may be extended if the dispute is extremely complex. No later than three weeks after receipt of the complete application, the Mediator of consumption shall inform the parties in writing or using another durable medium whether the application is admissible. If he considers that the application is not admissible, he shall inform the parties of the relevant grounds.  This assessment may be revised in the event of new information emerging.

(8) The Mediator of consumption shall forward the views expressed by the other party to the applicant and grant him a period within which to reply; this period may not exceed 15 calendar days. It may exceptionally be extended by the Mediator of consumption or in response to a reasoned request, but the extension of the time limit may not exceed 10 calendar days.

(9) The Mediator of consumption may contact the parties with a view to facilitating an amicable solution.  He may, at any time during the amicable proceedings, ask the parties for any information or documents which he considers useful, hear their views and hear the views of third parties and, in general, gather all information that he needs.

(10) The physical presence of the parties is not required, but they may ask to be heard.  The amicable settlement proceedings may be conducted orally or in writing.

(11) In the event that no amicable solution has been found, the Mediator of consumption may invite the parties to meet on the premises of the National service of the Mediator of consumption to discuss the dispute.

(12) If the parties do not reach an amicable agreement, the Mediator of consumption may propose a solution to them in writing or using another durable medium.  He shall inform them that they may accept, reject or go along with the solution proposed, that participation in the procedures does not exclude the possibility of resorting to court proceedings, that the solution proposed may be different from the decision of a court applying legal provisions and on any legal consequences connected with the fact of accepting or going along with that solution.

The parties shall have a period of reflection which may extend to 21 calendar days to indicate whether or not they accept the solution proposed.

Where the parties accept the solution or where they reach an amicable agreement, they shall inform the Mediator of consumption thereof within the time limit set, and he shall record the end of the amicable settlement proceedings in minutes notified to the parties.

(13) Where the parties do not accept the proposal or do not reach an agreement or where one of them does not react to the proposal, the Mediator of consumption shall record the failure of the amicable proceedings in a document notified to the parties.

(14) The Mediator of consumption may also reach the conclusion that the positions of the parties are irreconcilable or not verifiable. The Mediator of consumption shall then record the failure of the amicable proceedings in a document notified to the parties.

(15) Each party may withdraw from the amicable settlement proceedings at any time without having to give any reasons. That party must inform the other party and the Mediator of consumption in writing, by email or using another durable medium. The Mediator of consumption shall record the failure of the amicable settlement proceedings in minutes notified to the parties.

Article 7.  Confidentiality and data protection

The parties to the procedure and the Mediator of consumption shall commit themselves to keeping the documents and communications exchanged during the procedure confidential.

The Mediator of consumption and any other person contributing to the procedure shall be bound by professional secrecy.

The Mediator of consumption shall ensure protection of personal data, in accordance with the Law of 2 August 2002 on the protection of persons with regard to the processing of personal data, as amended.

Article 8.  Recourse to the courts

Participation in a procedure before the Mediator of consumption does not prevent the parties from commencing court proceedings.

Article 9.  Impartiality

(1) Any persons dealing with alternative dispute resolution shall, without delay, notify the Mediator of consumption of any circumstance liable to affect or capable of affecting their independence or their impartiality or liable to give rise to a conflict of interest with either party to a dispute of which they have been asked to facilitate resolution.

(2) Another person within the Mediator of consumption’s office will then be instructed to resolve the dispute; or, if that is not possible, the Mediator of consumption shall suggest to the parties that the dispute be referred to another competent entity; or, if that is not possible, the Mediator of consumption shall inform the parties that they may oppose continuation of the procedure by the person concerned.

Article 10.  Suspension of limitation periods

Limitation periods under the general law shall be suspended as from the date of receipt of the complete application.

The suspension shall continue until the Mediator of consumption informs the parties:

(a) that processing of the application has been refused,

(b) of the result of the amicable settlement.

The suspension shall also come to an end on the day when either of the parties informs the other that he wishes to bring the amicable settlement proceedings to an end.

Article 11.  Representation of the parties

The parties do not need a lawyer or a legal adviser.  They may however obtain independent advice if they wish to do so and arrange to be represented or assisted by a third party at all stages of the procedure.

 

Luxembourg, 26 October 2016