Consumers who encounter a problem with a professional are not required to go to court to have it resolved. They may consult a specialised body to try to reach an amicable agreement. In doing so, the consumer can be sure that their problem will be resolved out-of-court through a quick, simple and inexpensive process.
The entities authorised to seek the amicable settlement of disputes between consumers and professionals must be independent, efficient and competent. The Ministry of the Economy ascertains whether these bodies meet these conditions. If they do, they are added to a list maintained by the Ministry of the Economy. The bodies on the list are allowed to publicise the fact that they are listed.
If the dispute concerns a matter for which there is no specialised office that meets the legal requirements, the consumer may refer the matter to a general department called the Mediator of consumption.
Recourse to out-of-court dispute resolution is discretional: consumers are under no obligation to try to settle problems out of court. They can go directly to court to obtain a ruling.
Who is concerned
- natural person;
- residing in Luxembourg or in another EU Member State;
- who has an issue with a professional (natural or legal person) established in Luxembourg.
The dispute must be in connection with a sales or service contract.
Any professional (involved in a commercial, industrial or artisanal activity, or exercising one of the liberal professions), whether a natural person or legal entity, may also refer a contractual dispute with a consumer residing in Luxembourg to an out-of-court dispute resolution body, if permitted by this body.
Claims by a consumer against another consumer, or by a professional against another professional are excluded.
Contracts not covered by the rules on out-of-court resolution of consumer disputes
The rules on out-of-court resolution of consumer disputes do not apply to:
- out-of-court settlement procedures if the natural persons tasked with resolving the dispute are employed or paid exclusively by the professional concerned;
- claims processing systems managed directly by the professional;
- non-economic services of general interest provided by the State or other public authorities;
- disputes between professionals;
- direct negotiations between consumers and professionals;
- attempts made by a court to settle a dispute in the course of legal proceedings;
- healthcare services provided by healthcare professionals (doctors, hospitals, etc.) to patients to assess, maintain or restore their state of health, including the prescription, administration and provision of medication and medical devices;
- public providers of post-secondary or higher education.
These rules must be established so as not to substantially impede consumer access to out-of-court resolution procedures for consumer disputes.
Grounds on which a case may be refused
Out-of-court dispute resolution bodies may refuse to handle a case for one of the following reasons:
1. the claimant has not attempted to contact the other party to discuss the claim and try to resolve the problem directly;
2. the dispute has no justification, real, abusive, offensive or otherwise;
3. the dispute has been or is being processed by another out-of-court dispute resolution body, an arbitration court or a judicial court, whether in Luxembourg or abroad;
4. the claim concerns an amount that is less or greater than a predetermined financial threshold; this threshold must not substantially impede consumer access to out-of-court resolution procedures for consumer disputes;
5. the claimant has not lodged their claim with the body within the time frame set by this entity; this time frame must be a period of at least one year from the date on which the claim was made to the other party;
6. processing the problem would severely impede the operations of the out-of-court dispute resolution body;
7. the claim does not involve a dispute between a consumer and a professional.
Within three weeks of their receiving the full claim, the body must inform the parties whether it has accepted or refused to handle the case. This information must be provided in writing or on another durable medium (e.g. by email). If the case is refused, the body must explain the reasons for their refusal.
The consumer and the professional must have enough time to express their point of view and to submit their documents.
The body has 90 days to help the parties reach an amicable solution to their dispute, or to propose an alternative solution. It must inform the parties of that solution in writing or on another durable medium (e.g. by email). If the body decides that the problem is particularly complicated, the 90-day period may be exceeded. In this case, it must inform the parties of the new time frame.
Referring cases to out-of-court settlement bodies is free of charge or subject to minimal costs.
How to proceed
Each body follows its own specific set of procedures. Information should therefore be sought from the body concerned.
The main rules are as follows:
- the body must have a website informing consumers about its operating rules and procedures. Anyone may submit a request to receive the body's operating rules and procedures on a durable medium (e.g. in writing or by email);
- consumers may contact the office in question via the internet or by other means;
- the parties may communicate by email or by post;
- the parties do not need to engage lawyers. However, they may seek assistance or guidance from a person of their choosing. The out-of-court resolution body must inform them of this right before initiating the procedure.
Terminating an amicable resolution procedure
The parties can withdraw from the procedure at any time. Should they decide to do so, the withdrawing party must inform the other party and the out-of-court resolution body of their decision within a reasonable time frame, in writing or on a durable medium (e.g. by email).
Before the procedure is initiated, the out-of-court resolution body must inform the parties of their right to withdraw from the procedure at any time.
Accepting or refusing a proposal made by an amicable resolution body
Before accepting a solution proposed by the body, the consumer and the professional must be informed:
- that they may accept or decline the proposed solution;
- that they may go to court despite having tried to settle their problem out of court;
- that the solution proposed may be different to a decision made by a court of law;
- of the possible legal implications if they accept the proposal.
The consumer and the professional have a reasonable amount of time for reflection before accepting the proposed solution or an amicable agreement.
All information and documents submitted or received in the course of the settlement are confidential.
Information that the professional must give to the consumer
Obligations of professionals for whom amicable resolution is compulsory, and those of professionals who enter into such procedures voluntarily
Out-of-court resolution of consumer disputes is compulsory for professionals if they belong to an association that provides for this obligation.
Amicable settlement can be opted for voluntarily: this is the case when the professional has decided to use this type of dispute resolution before concluding the contract.
If a professional established in Luxembourg belongs to one of these 2 categories, they must provide the consumer, before the contract is concluded, with information on the out-of-court dispute resolution body that is competent to settle a dispute involving the professional. This information shall include, as a minimum, the website address of the body concerned.
The information on the out-of-court resolution body must be clear and easily understandable for consumers. This information must be readily available on the website of the professional, if such a website exists. If the professional has standard general terms and conditions, the information on the out-of-court resolution body must also feature therein.
For online purchases, consumers must also be informed of the option to use an online dispute resolution platform to settle their disputes with the professional. This platform, which is managed by the European Commission, helps consumers find out-of-court dispute resolution bodies.
The professional must add a link to the platform on their website. If an offer is made by email, it must also specify the address of the platform's website in the email. If the professional has standard terms and conditions, this information must also be included therein.
Obligations of all professionals
If the consumer has directly turned to the professional established in Luxembourg and if the dispute was not solved, the professional has to:
- provide the consumer with information about amicable dispute resolution bodies that are competent in the matter concerned;
- inform the consumer whether or not they agree to refer the case to this body.
This information must be provided on paper or on another durable medium (e.g. by email). This obligation applies to all professionals, even to those that are not required or do not voluntarily use out-of-court dispute settlement bodies.
For online purchases, all professionals and online sales platforms must also display a link on their website to the European platform for online dispute resolution. Consumers must be able to find this link easily. Online retailers must also indicate their email address.
If the consumer complains that the professional failed to communicate information about amicable dispute resolution, it is up to the professional to prove that it gave the consumer the information and that the information is accurate. A clause in the general terms and conditions, or in the contract, obliging the consumer to provide proof shall be regarded as unfair and may therefore be declared void at the consumer's request.
Freedom to settle disputes out of court
The consumer and the professional cannot be forced to settle their disputes out of court.
A professional may not request that consumers commit themselves to using the services of an out-of-court resolution body before any actual disputes materialise, if this rules out the possibility for the consumer to take the matter to court.
However, if the professional is a member of an association that obliges it to refer a dispute to an out-of-court resolution body for consumer disputes, it must agree to submit itself to it if the consumer is in agreement or requests it.
Limitation refers to expiry of a time period at the end of which someone can no longer go to court.
Out-of-court resolution may take some time if a problem is complicated or if the parties do not reach an agreement. During this time, the limitation period is suspended.
In other words, consumers attempting to settle a dispute amicably do not lose their right to go to court.