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Evaluation of the E-Consumer Protection: The EU Experience

Sarah Alshahrani*

ABSTRACT

The use of e-commerce has significantly increased. However, the nature of practicing e-

commerce differs from the nature of practicing traditional commerce. Differences such as

the absence of direct interaction between seller and buyer, the absence of direct

observation of the sold item by the customer, and cross-border transactions in e-commerce

can result in many legal challenges. These challenges can extend to adequate consumer

protection and impact consumer confidence in e-commerce. This paper critically evaluates

the legal protection of e-consumers in Europe. It is argued that although the EU has

successfully achieved its goal of establishing a common e-commerce market, its success in

establishing an effective e-consumer protection framework and enhancing consumer

confidence is still a concern.

KEYWORDS: Electronic commerce, Markets, Consumers, Legislation, European Union.

*

Assistant Professor of International Trade Law, College of Law, Taibah University, Saudi Arabia.

ORCID: https://orcid.org/0009-0002-1996-1234. E-mail: sshahrani@taibahu.edu.sa

Recibido: 26/07/2024 Aceptado: 02/09/2024

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Evaluación de la protección del consumidor electrónico: La experiencia de

la Unión Europea

RESUMEN

El uso del comercio electrónico ha aumentado significativamente. Sin embargo, la

naturaleza de la práctica del comercio electrónico difiere de la naturaleza de la práctica del

comercio tradicional. Diferencias como la ausencia de interacción directa entre el vendedor

y el comprador, la ausencia de observación directa del artículo vendido por parte del cliente

y las transacciones transfronterizas en el comercio electrónico pueden dar lugar a muchos

desafíos legales. Estos desafíos pueden extenderse a la protección adecuada del consumidor

y afectar la confianza del consumidor en el comercio electrónico. Este documento evalúa

críticamente la protección legal de los consumidores electrónicos en Europa. Se sostiene

que, si bien la UE ha logrado con éxito su objetivo de establecer un mercado común de

comercio electrónico, su éxito en el establecimiento de un marco eficaz de protección del

consumidor electrónico y la mejora de la confianza del consumidor sigue siendo motivo de

preocupación.

PALABRAS CLAVE: Comercio electrónico, Mercado, Consumidor, Legislación, Unión

Europea.

Introduccion

The use of e-commerce has significantly increased. However, the nature of practicing

e-commerce differs from the nature of practicing traditional commerce. Differences such as

the absence of direct interaction between seller and buyer, the absence of direct

observation of the sold item by the customer, and cross-border transactions in e-commerce

can result in many legal challenges. These challenges can extend to adequate consumer

protection and impact consumer confidence in e-commerce. To critically evaluate the legal

protection of e-consumers in Europe, the two concepts of evolution should be defined. E-

commerce can be defined as ‘any form of business transaction in which the parties interact

electronically rather than by physical or direct physical contact (Alboukrek, 2003).

Although consumer protection has a changeable and broad definition, the traditional

definition of it is ‘shielding consumers from harm that might be done to them’(McKee,

1

999).

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Although the EU has successfully achieved its goal of establishing a common e-

commerce market between different EU states, and this market has become the second-

largest e-market after the US (Saraf et al., 2013), the EU’s success in establishing an

effective e-consumer protection framework and enhancing consumer confidence is still

questionable. This is due to three issues: firstly, the level of unity in consumer protection

between member states; secondly, the lack of sufficient dispute-resolution mechanisms;

and thirdly, the need for cross-border enforcement. Therefore, this article will critically

evaluate the impacts of these issues on EU e-consumer protection and confidence.

The first section of this paper starts by generally highlighting the advantage of

harmonisation, and then explaining whether the EU should adopt an approach of full or

minimum harmonisation. After that, the paper points out that choosing one of these

approaches is not the sole resolution, as some issues of consumer protection justify full

harmonization, while others justify minimum harmonization. Finally, the first section

analyses the suggestion of shifting to regulation from directives.

The second section of this paper highlights the need for sufficient alternative dispute

regulation mechanisms to deal with cross-border online transactions and then illustrates

the impacts of the new regulation for Online Dispute Resolution (ODR) for consumer

disputes and the directive on Alternative Dispute Resolution (ADR) on the development of

e-commerce. Finally, it highlights the need for sufficient enforcement cooperation

mechanisms.

Although European Union (EU) Member States have adopted several directives

regarding e-consumer protection, European e-consumers still enjoy different levels of

consumer protection. This variation results from the transposition of directives into

member states’ national laws. For example, the Distance Selling Directive provides a

minimum cancellation period of seven days, while Article 14 allows member states to obtain

a higher level of protection. This approach results in differences in the cancellation period

from seven working days in the UK and Spain while German consumers enjoy 14 days.

Therefore, harmonization can be considered an ongoing challenge to achieve the same

level of protection in business-to-consumer (hereafter B2C) online transactions throughout

Europe. This harmonization may result in legal certainty, which seems to play an important

role in increasing consumer protection and confidence. Mak pointed out that legal certainty

in e-commerce means that consumers can buy confidently from cross-border e-shops with

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the belief that their rights will be protected (Mak, 2011). However, the current variation of

e-consumer legal rules and their effectiveness between EU Member States can be an

obstacle to achieving the desirable harmonization and legal certainty. As an example of this

variation, some EU countries have strict national laws in favour of consumers, while other

countries have weaker national laws in terms of consumer protection (Calliess, 2013). In

addition, some countries enact exclusive legalization for e-commerce, while other countries

regulate e-commerce through general consumer rules such as contract law ( OECD, 2013);

it is important to mention that national law has been criticized for being inappropriate to

deal with e-commerce, as it may offer a lower legal certainty in consumer protection rules

than international directives( Lehamann, 2001). The reason for this assumption is that

national laws ‘would result in legal harmonization at the lowest common denominator and

equate to commercial law dumping’( Lehamann, 2001). However, this assumption might be

not always true, as some national laws may offer a higher level of protection than directives,

as in the German example above. Even so, it can be argued that the European Commission

enacting one legal framework aims to ensure that consumers enjoy the same level of

protection throughout Europe. This aim cannot be achieved unless directives include more

adequate standards to ensure higher levels of consumer protection than private laws offer

(

Mak, 2010).

However, harmonization imposes mandatory legal protection for consumers as a weak

party (Calliess, 2013) to ensure that national laws reach the required level of consumer

protection (Reidenberg, 2001). These results increase consumer confidence as consumer

rights are regulated by one well-defined regulatory legal framework (Mak, 2010). For

instance, this approach of harmonizing consumer laws has achieved particularly important

advantages; rights such as the right to exchange or return faulty products may not be

achieved without harmonization, especially in those countries with a low level of consumer

protection (Twigg-Flesner, 2010). In 2000, the Electronic Commerce Directive (E-

Commerce Directive) was implemented to harmonize the principle of electronic contracts

in EU Member States that aim to enhance the certainty and reliability of e-commerce

contracts (Stylianou, 2008).

However, although it is widely accepted that harmonization has a considerable impact

on providing legal certainty to B2C online transactions (Twigg-Flesner, 2010), a great

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debate has occurred about whether the EU should implement full or minimum

harmonization. On the one hand, those who argue for minimum harmonization claim that

the aim of the current EU directives is not to provide full harmonization by enacting strict

and specific rules, since minimum harmonization fulfills the nature of the EU legal

framework with ‘unity in diversity’ (Mak, 2010). In addition, minimum harmonization

leaves room for national laws to enact a higher level of protection than given in directives

(

Mak, 2009). However, the current approach of minimum harmonization has been

criticized for not achieving the required consistency and coherence of consumer protection

Mak, 2009). For example, consumers, especially in EU countries with a high level of

(

protection, lack confidence in receiving the same level of protection when engaging in

cross-border transactions as minimum harmonization does not guarantee the same level of

protection between member states (Loos, 2010).

In addition, the EC Consumer Law Compendium and Database Project shows that the

current minimum harmonization of consumer protection could not ensure harmonization

of consumer protection in Europe. This project analysed the interpretation of eight

consumer directives in twenty-seven member states’ national laws. This project shows the

inappropriate implementation of directives, as it suffers from a lack of coherence and

incompletion that results from the disparity between national consumer laws (Twigg-

Flesner, 2010). As a result of this project and other reports such as the ‘Green Paper on the

Review of the Consumer Acquis in 2007’ that argue in favour of full harmonization, the EU

shifted to maximal harmonization. However, Loos criticized the methodology of the Green

Paper in obtaining its findings as it relied only on a questionnaire about whether the

participants agreed with the pros of maximal harmonization. Loos argued that empirical

research rather than such a questionnaire would lead to more reliable outcomes (Loos,

2

010).

Moreover, some authors have concluded that minimum harmonization may not

achieve the purpose of EU legislation, as they do not provide certainty to e-commerce.

Bacon argued that minimum harmonization by itself may hardly achieve certainty due to

the urgent need for a mutual recognition mechanism in areas that are not covered by any

directives. Bacon also concluded that minimum harmonization without mutual recognition

clauses may create more obstacles and difficulties, like the minimum harmonization in the

cancelation period, which could impose not just inadequate protection but could create a

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new obstacle (Calliess, 2013). However, the debate about the adoption of one kind of

harmonization, either minimum or full, may not be the core discussion since adopting both

kinds might be required.

It has been argued that the distinguishing element between full and minimum

harmonization should consider the different aspects of e-commerce protection, which

means some areas of e-commerce justify full harmonization while others do not. For

instance, Howells and Schulze highlighted the differences between unfair commercial

practices and contracts. The nature of unfair commercial practices, having clear rules about

the required obligation, means it is appropriate to have maximal harmonization, whereas

contracts should not be fully harmonized as their obligations are not straightforward

(

Howells and Schultze, 2009). In addition, regarding contract rules, there are some rules

justifying full harmonization while others justify minimum. For example, in the Directive

on Consumer Rights (2011/83/EC), the main information duets such as the identity of the

contracted parties (Article 5(1)(b) pCRD) and the right of withdrawal are suitable for

strict harmonization, while other information noted in Article 5 pCRD, such as prices or

delivery, should be delegated to national authorities (Howells and Schultze, 2009).

Furthermore, the ‘Green Paper on the Review of the Consumer Acquis’ discussed

whether full harmonization should be limited for cross-border transactions and distance

selling or should cover all aspects of consumer transactions (Twigg-Flesner, 2010).

Nevertheless, the approach of adopting directives to harmonize consumer protection

rules throughout Europe can be downplayed. Avoiding the ineffectiveness of such

directives in harmonizing consumer protection in e-commerce cross-border transactions

can be achieved by regulations instead of directives (Twigg-Flesner, 2011). Even though

consumer directives in Europe could have a significant impact as a first step to ‘the

development of a European Contract Code or even of a European Civil Code’ (Loos, 2010),

the current unstable situation of EU directives is a leading concern. These concerns mainly

appear due to two reasons: the language gap between member states and the issues

uncovered by directives. The differences in implementing the directives occur due to the

requirement to transpose directives into national laws, causing diversity between national

laws (Osuji, 2011). For instance, differences in the translation of Article 5 pCRD occur

between England and Germany.

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According to the English version of this Article the trader has to give the necessary

information ‘if not already apparent from the context’. In the contract German version

extends the trader’s duties: he should disclose information that does not ‘unmittelbar’

(

directly) arise from the circumstances. (Howells and Schultze, 2009, p.322).

It can be seen from the example above that one particular rule can be applied

differently in translation to another language. Thus, despite the aim of the directive to

harmonize e-consumer laws throughout Europe, differences in levels of protection may

occur. In addition, besides the language barrier, difficulty in determining some fundamental

terms in directives can lead to confusion for national courts. This discretion might occur

because national laws can freely determine the key concepts of the directives, as directives

are not required to be implemented literally (Howells and Schultze, 2009). This discretion

may occur due to limitations on the role of the European Court of Justice in clarifying the

ambiguity of rules in directives. Therefore, the level of consumer protection may continue

to vary between member states (Twigg-Flesner, 2010). However, to overcome the problem

of interpretation, creating clear guidance to interpret the keywords of directives could be

considered a satisfactory way to ensure consistency between member states. For instance,

the Directive on Unfair Commercial Practices provides a clear explanation of its

fundamental terms by giving a specific definition to ensure full implementation by national

courts (Collins, 2010). Therefore, it can be seen that focusing on creating directives may not

be the sole resolution; more consideration of the mechanism for the efficient

implementation of directives should be taken into account. Furthermore, another obstacle

facing directives is that there are some uncovered areas, which will be regulated by national

laws such as ‘pre-contractual information duties’ (Twigg-Flesner, 2010) and issues

regarding intangible digital content products (OECD, 2013), while the impacts of breaches

of these rules are regulated by national laws (Loos, 2010). Therefore, ‘it would still be

necessary to identify the law applicable to the [consumer] contract – both the national law

to be applied and the specific legal provisions of national law which would be relevant’

(

Twigg-Flesner, 2011). Such issues may significantly prevent the creation of a single

framework and may negatively affect consumer confidence when engaging in cross-border

online transactions. These shortcomings of directives raise the idea of the adoption of full

harmonization of consumer protection by regulation. However, regulation can be

considered as having advantages and disadvantages. The main advantage of regulation is

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that it ‘would establish the “single and coherent” set of legal rules’ that would be easier to

interpret and apply by national courts and would avoid the transposition of directives

(

Twigg-Flesner, 2012). The approach of adopting regulations can overcome the

shortcomings of directives, as member states must adopt them instead of applying national

laws. However, although such regulations can provide strict rules to unify the level of

consumer protection throughout Europe, it might prevent national governments from

enacting laws with a higher level of protection than that in the regulations. For instance, in

the UK, the right of rejection of non-conforming products would be removed when the

proposed Consumer Rights Directive (the Directive) is adopted (Collins, 2010). In addition,

choosing a standard on which regulation will be based might be a challenging task. This is

due to the differences in culture and legal systems between member states. For example, in

terms of cultural differences, some Scandinavian countries have a lower level of consumer

protection regarding banning pornography on the internet (Lehamnn, 2000). Such a

standard might not comply with other member states’ cultures. Thus, it should not be the

European standard (Lehamnn, 2000). In terms of legal systems, the age of majority differs

between member states, which might be an obstacle to unifying certain rules regarding

banning websites from selling or advertising certain products to certain ages. Furthermore,

Twigg-Flesner argues it has been argued that regulations should be limited to dealing only

with cross-border transactions, which would mean that domestic transactions would not

be covered by the regulations. However, to differentiate between non-domestic and

domestic transactions is another obstacle facing regulations (Twigg-Flesner, 2012).

However, surprisingly, it has been argued that such variation of consumer rules has

not been proven harmful to consumers in cross-border online transactions (European

Commission, 2010). This assumption is supported by the European Commission, which

conducted a report showing an increasing number of European citizens shopping online

from the US, as it is more developed than the European market. For example, those who

shop at US online shops are not afraid that their domestic credit cards will be refused, as

happens with EU online shops (European Commission, 2010). Therefore, it can be seen that

the differences between legal frameworks are not an essential factor in protecting

consumers from cross-border online transactions (Loos, 2010). However, the discussion of

whether harmonization is more appropriate for e-consumers than various national laws is a

controversial issue. The rights and obligations of European e-consumers should be codified

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and explained simply understandably and transparently, such as in an online platform

similar to eYou Guide (European Commission, 2010). In addition, increasing e-consumer

confidence with a single legal framework and a high level of consumer protection cannot be

achieved without regulations.

In October 2011, the EU passed the Consumer Rights Directive (the Directive), which

will come into force on 27 September 2026 (Gov UK, 2013). The Directive replaces four

existing directives: the Doorstep Selling Directive (85/577/EEC), the Unfair Terms Directive

(

93/13/EEC), the Distance Dealing Directive (97/7/EC), and the Consumer Sales Directive

99/44/EC). The purpose of the Directive is to remove inconsistencies in the existing

legislation, such as the cooling-off period, which is to be 14 days in all member states

Steennot, 2012). Steennot argues that the Directive strives for full harmonization, and

(

while it has been heavily criticized even before its implementation, it seems to have learned

the lessons of a long history of directives (Loos, 2010). However, although the Directive has

great advantages in regulating issues not covered before by any EU regulations, such as

rules regarding the use of default boxes and regarding fees for using payment cards,

(

Howells and Watson, 2012) there are some issues not covered. For example, under Article

(4), the Directive does not cover pre-contractual information between the consumer and

5

trader. By leaving such rules to be regulated by national laws, the aim of full harmonization

is therefore not achieved (Loos, 2010).

1

. Alternative Disputes Mechanism

Access to justice is an important right for consumers (Benöhr, 2012) regardless of

whether they buy from online shops or offline shops. The United Nations Guidelines for

Consumers states that governments should promote a clear provision that allows

consumers to obtain cheap, accessible, and fair regress. However, Benöhr argues, in practice,

there are major barriers facing e-consumers in enforcing their rights, such as the possible

financial costs of litigating, the conflicts of laws, and the length of court cases.

Resolving cross-border online disputes can be considered one of the greatest

challenges facing the expansion of e-commerce (Alboukrek, 2003). These challenges affect

confidence in purchasing online since cross-border, online dispute resolution lacks legal

certainty (Petrauskas and Kybartiene , 2011). This legal uncertainty may occur due to

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differences between the legal systems of the consumer’s country and the traders. These

differences may hamper cross-border transactions as both parties may lack knowledge of

other laws, which mainly affects the confidence of consumers (Twigg-Flesner, 2010).

According to a survey conducted by the European Commission, 57% of the respondents

expressed their concern regarding the possible difficulties with resolving disputes when

engaging in online cross-border transactions (EC Press Release, 2007). These potential

difficulties can become more challenging when the claim has a small value, as there is a high

probability that the expenses of the resolution, either by the court or alternative dispute

resolution mechanisms, exceed the recovery amount (Cortes, 2010) Hence, although, some

countries, such as France, that have low court costs, it is still insufficient to attract

consumer claims (Hodges et.al, 2010).

The nature of cross-border, online transaction disputes having two different

jurisdictions might make them hard to resolve by courts. In comparing the two approaches

to resolving online disputes, the traditional court is often not appropriate, as it lacks fast

procedure and experience of the technical issues of online transactions (Crawford,2001)

whereas Alternative Dispute Resolution (ADR) can be considered a more sufficient

mechanism in solving online cross-border transaction disputes since it eliminates delays

and the high cost of traditional courts (Hang, 2000). In addition, ADR can help avoid

conflicts of laws, as it allows parties to choose the applicable law and to set jurisdiction

(

Santos, 2013).

However, despite these advantages of ADR, no reliable or skillful research has been

conducted to prove that ADR overrides traditional courts in terms of B2C online

transactions (Betancourt and Zlatanska, 2013). It has been argued that traditional methods

of ADR such as arbitration have been proven as non-helpful methods for dealing with

complications inherent in court judgments of online transaction disputes (Dell et al, 2012).

The shortcomings of ADR can be seen in dealing with cross-border online transaction

disputes; according to a consultation paper published by the European Commission, only

62% of the current ADR schemes accept claims from consumers living in other EU Member

States (Benöhr, 2012). Thus, it can be seen that national online disputes are often less

complicated than cross-border disputes. As a result of the limitations of ADR in dealing

with cross-border disputes, there is a need for a new mechanism to contribute to

overcoming this problem by relying more on online platforms. Thus, ADR has been

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significantly improved since it is supported by ‘information and communications

technology’ (ICT) because it is faster, cheaper, and most importantly does not require

traveling (Cortes, 2011). ODR is a form of combination between ADR and ICT as it means a

‘

form of alternative dispute resolution (ADR) that incorporates the use of the Internet’

(

Mission et al, 2002).

ODR can provide benefits to disputants regarding the flexibility to communicate their

claims by sending an email any time they wish 24 hours and 7 days a week without the

need to travel a long distance (Hang, 2000). However, unfortunately, these advantages of

ODR are not available for all ADR schemes in the EU, as among about 750 ADR schemes

(

Knudsen, 2013) only 50% of them are using ICT to allow consumers to submit their

complaints online and fewer than this percentage can deal with all dispute processes online

EC, 2010). As a result of this report, the draft Regulation on Consumer ODR has been

(

proposed (Benöhr, 2012). In 2013, the European Council adopted the Regulation on Online

Dispute Resolution (ODR) for consumer disputes (EU Regulation No 524/2013). In the

same year, a directive on Alternative Dispute Resolution (ADR) was adopted by the

European Council (EC, 2011). This combination of ODR Regulation and ADR Directive

seems to be a comprehensive resolution for B2C cross-border transactions since it makes it

easier to achieve out-of-court settlements (Benöhr, 2012).

ADR aims to enhance the quality and availability of ADR schemes in the EU; for

example, the dispute should be resolved within 90 days and the procedures are free or with

moderate costs (Benöhr, 2012), which should overcome the previous problems with ADR in

dealing with disputes with small value as indicated above. In addition, ADR aims to

increase consumer awareness of ADR schemes by requiring businesses to inform consumers

about the competent type of ADR processes regarding their complaints (Cortes, 2013).

Furthermore, besides this task of enabling access to justice, ADR raises market standards

and promotes enforcement by identifying illegal and emerging activities using aggregated

data (Hodges and Creutzfeldt, 2013).

However, according to Cortes, although online businesses are required by ADR to

offer clear information about ADR schemes on their websites, not all of them participate in

ADR schemes, in particular, those that are not required by national laws, which leaves

consumers with two options: either sue the trader in court or give up the complaint. In

addition, he argues that, those who participate in ADR schemes may refuse to accept

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consumer complaints; in such situations, the consequences would differ depending on the

type of ADR scheme. For instance, in arbitration, contractual agreements give the power to

the consumer to pursue a case, while in mediation, the contractual agreement can only be

enforced by a court, which may be difficult for a claim with a low value(Cortes, 2013).

On the other hand, the main purpose of ODR is to enhance consumer trust in e-

commerce by overcoming legal uncertainty regarding resolving potential disputes. An ODR

platform helps to achieve this purpose by providing an online platform where consumers

can easily submit their complaints in their language, and they can get help in choosing the

adequate ADR entity (Cortes, 2013).

Nevertheless, although it has been argued that ODR is the best instrument for

enhancing consumers redress (OECD, 2009), the European Commission indicated that

ODR’s ‘full potential has not yet been realised as their growth lags behind e-commerce’ (EC

Staff Working Paper, 2011, p.1408). ODR has some flexibility to improve to ensure that it

plays an adequate role in enhancing e-consumer trust and establishing a single internal

market. These main criticisms are that it should play a role in the prevention of disputes,

not only after a dispute arises. In addition, the requirement for all commerce websites to

provide a link to an ODR platform might mislead consumers. Finally, online

communication is insufficient, as real interaction is needed.

According to Cortes, the ODR platform should not only be a ‘referral website’ when

disputes arise. The role of ODR should not be limited to resolving disputes; trying to

prevent such disputes can be an important feature to enhance consumer protection. These

roles include online conflict prevention and negotiation (Corets, 2013). Online conflict

prevention should play a sufficient role in ODR schemes by preventing potential disputes

(

Smith and Martinez, 2009). This prevention can occur when complaint information is

used by regulators and businesses to address market problems (Corets, 2013). In fact, this

approach has been used by eBay, resulting in more than 80% of disputes having been

automatically handled and new rules being created to resolve possible new disputes (Rule,

2

008). Furthermore, online negotiation through electronic means allows the buyer and

trader to exchange proposals, and information and to negotiate a binding settlement

Rogers and Duca, 2010). Online negotiation can help in the early settlement of disputes

(

arising from online transactions and in dealing directly with businesses without the need

for a third party(Corets, 2013).

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In addition, ODR requires all online businesses, even those that are not required to do

so by national law, to provide a link to an ODR platform on their website, even if

businesses are not participating in any ADR process. This information may mislead

consumers, as it might give reliability to such websites (Corets, 2013). Providing such a link

can be an indication to some consumers that this website has approved ADR schemes,

while it does not.

Although using an online platform to communicate instead of doing so face-to-face is

one of the important features of ODR (Schmitz, 2010) this approach has been criticized.

Such criticism has mainly emphasized the importance of negotiation being face-to-face and

not by other means, such as email. It also argued that there is a need for face-to-face

interaction, which can happen rapidly and spontaneously, often on a non-verbal level

(

Betancourt and Zlatanska, 2013). In addition, It is widely agreed that mediation is most

effective when the parties involved in the dispute are physically present with the mediator

D’Zurilla 1997). However, providing video communication can overcome this problem.

(

2. Enforcement Cooperation

Cross-border recognition and enforcement is a major problem facing e-consumers.

Although e-consumers can sue a trader in their home forum, the need to seek enforcement

in the trader’s country is required (Alboukrek, 2003).

Nevertheless, although ODR provides an easy process to raise a claim, enforcement

dispute resolution downplays the advantages of ODR. This is because e-consumers still

have to attend a court physically to obtain a judgment (Schultz, 2003). As is widely known,

mediation and negotiation agreements need to be enforced by a court. Schultz states that to

overcome these issues, two solutions have been suggested: The first solution is providing an

online court that easily produces a required judgment. He further argues that such a

solution can maintain the purpose of ODR by providing both complaint procedures and

enforcement through online means. Secondly, establish a court-based mediation process

that produces judicial settlement agreements. With this, e-consumers will be provided

with an easy approach to enforcement. This is because judicial settlement agreements are

easier than extra-judicial agreements as it is an enforcement instrument by themselves

(

Schultz, 2003). In addition, it has been suggested that to help national courts and ADR

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mechanisms, a chamber of the European Court should be established which specializes in

cross-border consumer disputes (Twigg-Flesner, 2012).

Therefore, enforcement cooperation is an important factor in enhancing consumer

protection. Cortes argues that the need for cooperation between ODR and regulators

should be taken into consideration. He says that such cooperation can help to identify

market failure when traders do not respond to consumers’ complaints and help to ensure a

quick response (Cortes, 2013). More importantly, enforcement of foreign judgments may

face difficulty due to language differences (Osuji, 2011). These differences may lead to

inappropriate translation of foreign judgments.

Conclusion

The EU aims to establish a single market for e-commerce by enhancing consumer trust

in cross-border online transactions. Therefore, an increased number of directives has been

enacted to regulate B2C online transactions. However, the debate over whether full or

minimum harmonization is needed continues. The current approach of the EU in adopting

directives with minimum harmonization has been criticized as lacking legal certainty and

failing to unify protection for European consumers. This is because directives need to be

transposed into national laws. This transposition may vary between member states due to

language and culture barriers. In addition, directives could not cover all issues of B2C

online transactions, leaving that to national laws. Such an approach creates variation and

inconsistency in e-consumer rules, which results in a decrease in consumer trust and an

increase in the concern over losing their home country’s protection. Therefore, the aim of a

directive may not be achieved unless a higher standard of consumer protection is adopted

than national laws offer, and there is a shift to full harmonization to create a single, well-

defined framework.

On the other hand, although adopting full harmonization by regulation may overcome

the problem of uncovered issues and differences in translating directives into national laws,

it might prevent member states from adopting a higher level of consumer protection. In

addition, choosing standards that comply with all the differences of member states, either

in language or culture, might be hard. However, adopting full harmonization may create

strict rules for issues that justify minimum harmonization, not full. Therefore, it has been

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argued that distinguishing these should take into consideration differences between those

issues justifying full harmonization and those justifying minimum.

Harmonization should expand to dispute resolutions, especially in cross-border

transactions, as consumers might be subject to foreign jurisdiction. Such an obstacle may

hamper consumers from engaging in cross-border transactions. Overcoming this problem

using ADR mechanisms might be easier and more appropriate for resolving such disputes

than traditional courts, as the latter lacks fast procedures and experiences technical issues.

Therefore, to enhance e-consumer confidence in buying from cross-border online shops.

The EU has adopted ODR and ADR. ODR contributes to improving ADR by using ICT. All

e-shops in member states are obligated to provide a link to an ODR platform, where e-

consumers can process their complaints online. However, although such an approach

represents a significant improvement for e-consumer protection rules, some issues may

limit its effectiveness. First, providing a link to an ODR platform can give the wrong

impression to some consumers that the website has approved ADR schemes while it does

not. Second, using online means in mediation, for example, instead of face-to-face can affect

the results. Finally, ADR has been criticized as being inadequate due to insufficient

enforcement mechanisms. Therefore, although e-consumers can easily make complaints

online, they still need to seek enforcement, especially in mediation and negotiation

agreements. This weakness should be resolved to achieve the aim of the EU by providing a

single, secure market. For example, an online court can be established to provide required

judgments or to create court-based mediation that produces judicial settlement agreements

that are enforcement instruments by themselves.

References

Alboukrek K. (2003) ‘Adapting to a new world of E-Commerce: The need for uniform

consumer protection in the international electronic marketplace’ 35(2) Geo Wash Int'l L

Rev.425

Benöhr I. (20120), 'Consumer Dispute Resolution after The Lisbon Treaty: Collective

Actions and Alternative Procedures' 36 Journal of Consumer Policy 87

Betancourt JC and Zlatanska E. (2013) , 'Online Dispute Resolution (ODR): What Is It,

and Is It the Way Forward?' 97(3) International Journal of Arbitration, Mediation and

Dispute Management 256

525

REVISTA DE LA UNIVERSIDAD DEL ZULIA. 3ª época. Año 15, N° 44, 2024

DOI: https://doi.org/10.5281/zenodo.13765524

Sarah Alshahrani// Evaluation of the E-Consumer Protection: The EU Experience, 511-529

Calliess G. (2003) ‘Coherence and consistency in European Consumer Contract Law: a

Progress Report’ 4(4) German Law Journal 333

Colin V and Del Duca L.(2010), ‘Designing a Global Consumer Online Dispute Resolution

(

4

ODR) System for Cross-Border Small Value - High Volume Claims - OAS Developments’

2(3)Uniform Commercial Code Law Journal 221

Collins H. (2010) ‘Harmonisation by Example: European Laws Against Unfair Commercial

Practices’ 73(1) The Modern Law Review 89

Commission (EC) (2010), ‘The European Consumer Centres' Network Annual Report’

<

http://ec.europa.eu/consumers/ecc/news_en.htm >

Cortes P. (2010) ‘Developing Online Dispute Resolution for Consumers in the EU: A

Proposal for the Regulation of Accredited Providers’ 19 (1) International Journal of Law and

Information Technology 1

Cortes P. (2011) Online Dispute Resolution for Consumers in the European Union (Taylor & Francis)

Cortes P. (2013) 'A New Regulatory Framework for Extra-Judicial Consumer Redress:

Where We Are and How to Move Forward' University of Leicester School of Law Research

Paper No. 13-02 < http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2324945 >

Crawford V. C. (2001) ‘A Proposal to Use Alternative Dispute Resolution as a Foundation

to Build an Independent Global Cyber Law Jurisdiction Using Business to Consumer

Transaction as a Model’ 25 (1) Hastings International and Comparative Law Review 389

D’Zurilla W. (1997) ‘Alternative Dispute Resolution’, The Angeles Business Journal, 45(1) 352

EC Consumer Law Compendium, < http://www.eu-consumer-law.org/>

European Commission Press Release, ‘SME Retailers Take to E-commerce but It is Strictly

National’ (IP/07/165 08/02/2007) available at <http://europa.eu/rapid/press-release_IP-07-

1

65_en.htm>.

European Commission Staff Working Paper, (2011) ‘Impact Assessment Accompanying the

document of the Proposal for a Directive on Alternative Dispute Resolution for Consumer

Disputes and the Proposal for a Regulation on Online Dispute Resolution for Consumer

Disputes’ SEC 1408

European Commission, A Digital Agenda for Europe, Communication from the Commission

to the European Parliament, the Council, the European Economic and Social Committee

and the Committee of the Regions of 19 May 2010, COM (2010) 245, 10

<

http://www.epractice.eu/en/library/320051>

Gov UK, (2013) ‘Providing better information and protection for consumers’ (13 December

013) <https://www.gov.uk/government/policies/providing-better-information-and-

protection-for-consumers/supporting-pages/implementing-the-consumer-rights-directive-

011-83-eu>

2

526

REVISTA DE LA UNIVERSIDAD DEL ZULIA. 3ª época. Año 15, N° 44, 2024

DOI: https://doi.org/10.5281/zenodo.13765524

Sarah Alshahrani// Evaluation of the E-Consumer Protection: The EU Experience, 511-529

Hang LQ. (2000) 'Online Dispute Resolution Systems: The Future of Cyberspace Law' 41(3)

Santa Clara L Rev 837

Hodges S and Tulibacka M. (2010) The Costs and Funding of Civil Litigation (Hart Publishing)

Howells G and Schultze R. ( 2009) Modernising and Harmonising Consumer Contract Law (Sellier

European Law Publisher)

Howells H and Watson J. (2012) ‘The Consumer Rights Directive – An Assessment of its

Contribution to the Development of European Consumer Contract Law’ 8(2) ERCL 139

Knudsen F. (2013) 'Guidelines for the establishment of a consumer cross-border

organization in the EU, Iceland and Norway' 9 (25) European Scientific Journal 132

Lehamann M. (2001) ‘Electronic Commerce and Consumer Protection in Europe' 17(1) Santa

Clara Computer & High Tech LJ 101

Lehamnn M. (2000) ‘Electronic Commerce and Consumer Protection in Europe’ in

Stanford-Smith Brian and Paul T. Kidd (eds) E-business: key issues, applications and

technologies (IOS press)

Loos M. 'Full Harmonisation as a Regulatory Concept and Its Consequences for the

National Legal Orders: The Example of the Consumer Rights Directive' (2010) Centre for

the Study of European Contract Law Working Paper Series No. 2010/03

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1639436

Louis D, Colin D, and Loebl R.( 2012) ‘Facilitating Expansion of Cross-Border E-Commerce

-

Developing a Global Online Dispute Resolution System “Lessons Derived from Existing

ODR Systems – Work of the United Nations Commission on International Trade Law”’ 1(1)

JLIA 59

Mak V. (2009) ‘The Degree of Harmonisation in The Proposed Consumer Right Directive: A

Review in Light of Liability for Product’ in Geraint Howells and Reiner Schulze (eds)

Modernising and Harmonising Consumer Contract Law (European Law Publisher)

Mak V. (2010) ‘Standards of Protection: In Search of the ‘Average Consumer’ of EU Law in

the Proposal for a Consumer Rights Directive’ 18 European Review of Private Law, TISCO

and

Services

No.

04/2010

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1626115

Mak V. (2012) ‘Policy choices in European consumer law: Regulation through ‘Targeted

Differentiation’ 7(2) European Review of Contract Law 257

McKee M. (1999) ‘Direct to Consumer Advertising of Prescription Drugs’ 318 British

Medical Journal 1301

Mission T and Taxonom B. (2002) ‘Addressing Disputes in Electronic Commerce: Final

Recommendations and Report’) 58 Bus Law 415

527

REVISTA DE LA UNIVERSIDAD DEL ZULIA. 3ª época. Año 15, N° 44, 2024

DOI: https://doi.org/10.5281/zenodo.13765524

Sarah Alshahrani// Evaluation of the E-Consumer Protection: The EU Experience, 511-529

OECD Conference on Empowering E-consumers Strengthening Consumer Protection in

the Internet Economy, Background Report DSTI/CP(2009)20/FINAL, Washington DC,

available at http://www.oecd.org/ict/econsumerconference/>.

OECD, ‘Empowering and Protecting Consumers in the Internet Economy’, (2013) No. 216,

OECD Digital Economy Papers, OECD Publishing <http://dx.doi.org/10.1787/5k4c6tbcvvq2-en>

Osuji O. (2011) ‘Business-to-Consumer Harassment, Unfair Commercial Practices Directive

and the UK—A Distorted Picture of Uniform Harmonization?’ 34 (4) Journal of Consumer

Policy 437

Regulation (EU) No 524/2013 on online dispute resolution for consumer disputes and

amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC [2013] OJ L165/1

Reidenberg J. ‘E-Commerce and Trans-Atlantic Privacy’ (2001) 38 House Law Review Hous L

Rev 717

Rule C. ‘Making Peace on eBay: Resolving disputes in the world's largest marketplace, (fall

2

008) available at <http://colinrule.com/writing/acr2008.pdf>

Santos R. (2013) 'International Private Law: An Anachronic Model to the Solution of the

Conflict of Law Within Cyberspace' 1(1) World Citizen Magazine 1

Saraf B, Ashraf U. Sarah Kazi, (2013) ‘Analysing the application of Brussels I in regulating e-

commerce jurisdiction in the European Union e Success, deficiencies and proposed changes’

2

9(2) Computer Law & Security Review 127

Schmitz A. (2010) ‘Drive-Thru Arbitration in the Digital Age: Empowering Consumers

through Binding ODR’ 62 (1) Baylor L Rev 178

Schultz T. ‘An Essay on the Role of Government for ODR: Theoretical Considerations

Working

Paper

8

<

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=896678>

Smith S and Martinez J, (2009) ‘An Analytical Framework for Dispute System Design’ 14(4)

Harv Negot L Rev 1401

Steennot R. (2012) ‘The right of withdrawal under the Consumer Rights Directive as a tool

to protect consumers concluding a distance contract’ 29(2) Computer Law & Security

Review 105

Stylianou P. (2008) ‘Online Dispute Resolution: The Case For a Treaty Between The

United States and The European Union in Resolving Cross-Border E-commerce Dispute’

3

6(1) Syracuse Journal of International Law and Commerce 117

Twigg-Flesner C. (2010) ‘Time to Do the Job Properly -The Case for a New Approach to

EU Consumer Legislation’ 33(4) J Consum Policy 355

528

REVISTA DE LA UNIVERSIDAD DEL ZULIA. 3ª época. Año 15, N° 44, 2024

DOI: https://doi.org/10.5281/zenodo.13765524

Sarah Alshahrani// Evaluation of the E-Consumer Protection: The EU Experience, 511-529

Twigg-Flesner C. (2011) ‘Good-Bye Harmonisation by Directives, Hello Cross-Border Only

Regulation?’ – A Way Forward for EU Consumer Contract Law’ 7(2) European Review of

Contract Law 235

Twigg-Flesner C. (2012), A Cross-Border-Only Regulation for Consumer Transactions in the EU: A

Fresh Approach to EU Consumer Law (Springer)

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profesional las herramientas tecnológicas asociadas a la generación del conocimiento.

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