The Fake Implementation of a Fake Consumers’ ADR Directive? A Case Study on Rights’ Enforcement by Regulatory Powers in Italy

by Nicola Scannicchio

This paper considers the ADR Directive 2013/11 within the recent EU framework which entrusts enforcement of individual rights to regulatory powers of standardization and certification, administered by public and private bodies, under the supervision of European Authorities. Such ‘regulatory private law’ should circumvent the difficulties in creating a European uniform law of contract. The essay moves from the CJEU decision C-75/16 as the basis of a common interpretation to consider certification of Consumer ADR entities as a general condition for application of the entire directive, included the procedural and substantive rights of the parties. The Italian model of (strict) mandatory ADR shows that the outcome of this approach, as to rules’ harmonization, rights’ enforcement and competition’s protection, is deeply negative at least in the case of compulsory mediation. It is submitted that there is no statement in the decision that allows the mainstream interpretation. The CJEU reached its conclusions about the consumers’ rights to withdraw and self-defense on constitutional grounds well different and separated from those allowing compulsory consumer mediation and the registration pre-requirement. The resulting findings seem to show that some conclusions about ‘regulatory private law’, namely the attitude of the new trend to ensure administrative enforcement of individual interests sub specie of private rights of consumers, should be reconsidered.

DOI 10.23815/2421-2156.ITALJ           ISSN 2421-2156

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