After period of seasonal sales and discounts, you may have had the need to make a consumer claim on one of the purchased items. It is very likely that you have had the opportunity to face a merchant who refuses to act in favor on your complaint – for example, for a newly purchased pair of shoes, claiming that you used the shoes “inadequately”.
You probably wonder how you can protect your consumer rights in front of an “unscrupulous” trader, and most often you think about reporting him to the competent trade inspection. However, the job of an inspector is not to force the trader to act in favor of your complaint, but only to determine whether the trader has fulfilled all the formal steps in the decision-making process required by law (did he receive your complaint request, did he issue you proof of complaint reception, did he complied with the legal deadline of 8 days to respond to your complaint, and did he comply with the deadline proposed in his decision and within the legal framework to resolve your complaint). The justification of the complaint, however, is not in the domain of a trade inspector.
Initiating court proceedings a priori seems to be an expensive and time-consuming option, and you will most often give up on it, bearing in mind the cost of the actual purchase and the need to actually use the goods you bought, and the prospect of expensive and time-consuming court proceedings, in which you do not know whether you will have enough evidence to justify your complaint.
Is there any other way to resolve this situation, with as little expense as possible?
The Law on Consumer Protection (“Official Gazette of the RS”, No. 88/2021- „Law“), introduced another opportunity which consumer may use to resolve this situation.
This is a legally regulated mediation procedure – out-of-court settlement of consumer disputes, which is initiated and conducted before the alternative consumer- dispute resolution entity (ADR). Namely, according to the law, the merchant is obliged to participate in this procedure, and he is additionally obliged to inform each consumer of this obligation before concluding the sale contract, and especially in the written decision rejecting the consumer’s complaint.
How and within what time frame should this procedure be initiated?
The consumer, who has previously submitted a complaint to the trader, within one year frame, may initiate this procedure in a form of written proposal that has the mandatory content prescribed by Article 159 of the Law and can be submitted electronically or in paper form to the Ministry of Internal and Foreign Trade. The Ministry then submits the proposal to the ADR according to the consumer’s place of residence. The submission moment is relevant as the procedure initiation and from that moment the 90 days period, during which the procedure can be completed, begins. A significant novelty in this segment is the possibility of conducting the procedure electronically, which enables faster action and decision-making.
The course and possible effects of the initiated ADR procedure
In the ADR procedure, the competent body is obliged to adhere to the principles of equality, impartiality, confidentiality and urgency.
The ADR body submits an orderly consumer proposal to the merchant, who is obliged to declare whether he accepts or disputes the proposal. If he disputes the proposal, the merchant must state the facts and evidences to prove his allegations.
The ADR procedure can be completed in the following ways:
• by a recommendation on how to resolve the consumer dispute;
• by concluding an agreement on dispute resolution;
• by the body’s decision to suspend the procedure, because the further conduct of the procedure is not expedient (eg complexity of the procedure, etc.).
If the parties do not reach an agreement, the body can issue a recommendation on how to resolve the dispute, if it deems it expedient. The recommendation is made in written form and delivered to the parties. The recommendation does not bind the parties.
Although not binding, the recommendation may influence the parties by highlighting possible solutions.
Another way to end the procedure is to conclude an agreement between the participants. The content of the agreement achieved through ADR procedure is determined by the parties. An agreement concluded in an ADR procedure can have the force of an enforceable document if it contains traders statement agreeing that the consumer, after the due date of fulfillment of the obligation, can initiate enforcement proceedings (enforceability clause) and if the agreement is signed by both parties.
Initiating and conducting the ADR procedure does not affect the possibility of initiating court proceedings on the same topic.
Disclaimer: This text is written for informational purposes only as well as to give general information and understanding of the law, not to provide specific legal advice. For any additional information feel free to contact us.