Consumer (Alternative Dispute Resolution) Regulations 2015


Published: 2015-07-09

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I ASSENT Consumer Protection (EU Cooperation) CONSUMER (ALTERNATIVE DISPUTE RESOLUTION)
REGULATIONS 2015

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2007-34 Subsidiary 2015/107

Subsidiary Legislation made under s. 8 of the Consumer Protection (EU
Cooperation) Act 2007 as read with section 23(g)(i) of the Interpretation
and General Clauses Act and upon the Government by section 23(g)(ii) of
the Interpretation and General Clauses Act.


CONSUMER (ALTERNATIVE DISPUTE RESOLUTION)
REGULATIONS 2015

(LN. 2015/107)
Commencement 9.7.2015
Amending
enactments
Relevant current
provisions
Commencement
date

LN. 2016/008 rr. 3, 6(2), (3), (5), 7(b)(iv), 9, 16,
24A, 24C. 24D, 24E, 24F, 24G, 24H

14.1.2016

Transposing:
Directive 2009/22/EC
Directive 2013/11/EU
Regulation (EC) No 2006/2004
Regulation (EU) No 524/2013

EU Legislation/International Agreements involved:
_______________________

ARRANGEMENT OF REGULATIONS.


Regulation
1. Title.
2. Commencement.
3. Interpretation.
4. Where a trader is established.
5. Where an ADR entity is established.
6. Scope.
7. Relationship with other legislation.
8. Competent authority.
9. Information to Commission.

ADR entities
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10. Residual ADR entity.
11. Application to become an ADR entity.
12. Listing of ADR entities.
13. Report.
14. Ongoing information obligations of an ADR entity.
15. Ongoing assessment of an ADR entity.
16. Removal of approval.

ADR entities - miscellaneous

17. Training.
18. Liberty.
19. Consumer information by traders.
20. Assistance for consumers.
21. General Information.
22. Cooperation and exchanges of experience between ADR entities.
23. Cooperation between ADR entities and consumer protection
authorities.
24. Penalties.
24A. Duty deemed to be discharged - unable to consider a complain.
24B. Duty deemed to be discharged - able to consider a complaint.

Online dispute resolution
24C. ODR network.
24D. Use of ODR platform.
24E. Resolution of ODR dispute.
24F. Consumer information.
24G. Penalties.
24H. Appeals.
Amendments

25. Amendment to the Limitation Act.

SCHEDULE 1
INFORMATION AN ADR APPLICANT SHALL SUPPLY

SCHEDULE 2
REQUIREMENTS AN ADR ENTITY SHALL MEET

SCHEDULE 3
INFORMATION TO BE INCLUDED IN THE LIST MAINTAINED BY A
COMPETENT AUTHORITY

SCHEDULE 4
ADR ENTITY’S ANNUAL ACTIVITY REPORT
Consumer Protection (EU Cooperation) CONSUMER (ALTERNATIVE DISPUTE RESOLUTION)
REGULATIONS 2015

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Consumer Protection (EU Cooperation) CONSUMER (ALTERNATIVE DISPUTE RESOLUTION)
REGULATIONS 2015

© Government of Gibraltar (www.gibraltarlaws.gov.gi)
2007-34 Subsidiary 2015/107

In exercise of the powers conferred upon him by section 8 of the Consumer
Protection (EU Cooperation) Act 2007 as read with section 23(g)(i) of the
Interpretation and General Clauses Act and upon the Government by
section 23(g)(ii) of the Interpretation and General Clauses Act and all other
enabling powers, and in order to implement Directive 2013/11/EU of the
European Parliament and of the Council of 21 May 2013 on alternate
dispute resolution for consumer disputes and amending Regulation (EC) No
2006/2004 and Directive 2009/22/EC and, in part, Regulation (EU) No
524/2013 of the European Parliament and of the Council of 21 May 2013
on online dispute resolution for consumer disputes and amending
Regulation (EC) No 2006/2004 and Directive 2009/22/EC, the Minister and
the Government have made the following Regulations–

Title.

1. These Regulations may be cited as the Consumer (Alternative Dispute
Resolution) Regulations 2015.

Commencement.

2. These Regulations come into operation on 9 July 2015.

Interpretation.

3. In these Regulations–

“ADR” means alternate dispute resolution;

“ADR applicant” means a person who is applying under regulation 11 to
become an ADR entity;

“ADR entity” means an entity, however named or referred to, which is
established on a durable basis and offers the resolution of a dispute
through an ADR procedure and that is listed in accordance with
regulation 12;

“ADR official” means a natural persons in charge of ADR procedures;

“ADR procedure” means a procedure, as referred to in regulation 6,
which complies with the requirements set out in these regulations
and is carried out by an ADR entity;

“competent authority” means–

Consumer Protection (EU Cooperation) CONSUMER (ALTERNATIVE DISPUTE RESOLUTION)
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(a) the competent authority for Gibraltar established under
regulation 8; or

(b) a public authority designated by a Member State for the
purposes of the Directive and established at nation, regional or
local level;

“complainant party” means the consumer who has submitted a complaint
through the ODR platform;

“consumer” means a natural person who is acting for purposes which are
outside his trade, business, craft or profession;

“cross-border dispute” means a contractual dispute arising from a sales or
service contract where, at the time the consumer orders the goods
or services and–

(a) the consumer is resident in Gibraltar and the trader is
established in a Member State; or

(b) the consumer is resident in a Member State and the trader is
established in Gibraltar;

“Directive” means Directive 2013/11/EU of the European Parliament and
of the Council of 21 May 2013 on alternate dispute resolution for
consumer disputes and amending Regulation (EC) No 2006/2004
and Directive 2009/22/EC, as the same may be amended from time
to time;

“domestic dispute” means a contractual dispute arising from a sales or
service contract where, at the time the consumer orders the goods
or services, the consumer is resident and the trader is established in
Gibraltar;

“electronic means” means electronic equipment for the processing
(including digital compression) and storage of data which is
entirely transmitted, conveyed and received by wire, by radio, by
optical means or by other electromagnetic means;

“EU Regulation” means Regulation (EU) No 524/2013 of the European
Parliament and of the Council of 21 May 2013 on online dispute
resolution for consumer disputes and amending Regulation (EC)
No 2006/2004 and Directive 2009/22/EC, as the same may be
amended from time to time;

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“habitual residence” means habitual residence as defined in Regulation
(EC) No 593/2008, and “habitually resident” shall be construed
accordingly;

“ODR” means online dispute resolution;

“ODR platform” means the electronic program established under article
5 of the EU Regulation;

“Ombudsman for Public Services” means the Ombudsman appointed
under section 3 of the Public Services Ombudsman Act 1998;

“online marketplace” means a service provider, as defined in point (b) of
article 2 of Directive 2000/31/EC of the European Parliament and
of the Council of 8 June 2000 on certain legal aspects of
information society services, in particular electronic commerce, in
the Internal Market (‘Directive on electronic commerce’), which
allows consumers and traders to conclude online sales and service
contracts on the online marketplace’s website;

“online sales or service contract” means a sales or service contract where
the trader, or the trader’s intermediary, has offered goods or
services on a website or by other electronic means and the
consumer has ordered such goods or services on that website or by
other electronic means;

“sales contract” means a contract under which the trader transfers or
undertakes to transfer the ownership of goods to the consumer and
the consumer pays or undertakes to pay the price thereof, including
a contract having as its object both goods and services;

“service contract” means a contract other than a sales contract under
which the trader supplies or undertakes to supply a service to the
consumer and the consumer pays or undertakes to pay the price
thereof; and

“trader” means a natural person or any legal person, irrespective of
whether privately or publicly owned, who is acting, including
through a person acting in his name or on his behalf, for purposes
relating to his trade, business, craft or profession.

Where a trader is established.

4.(1) Where a trader is a natural person he is established where he has his
place of business.

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(2) Where a trader is not a natural person it is established where it has its
statutory seat, central administration or place of business, including a
branch, agency or other establishment.
Where an ADR entity is established.

5.(1) Where an ADR entity is operated by a natural person it is established
where it carries out ADR activities.

(2) Where an ADR entity is not a natural person it is established where it
carries out ADR activities or has its statutory seat.

(3) Where an ADR entity is an authority or other public body it is
established where it has its seat.

Scope.

6.(1) These Regulations shall apply to procedures for the out-of-court
resolution of domestic and cross-border disputes.

(2) The disputes referred to in subregulation (1) are the contractual
obligations stemming from sales contracts or service contracts between a
trader, established in the European Union, and a consumer, resident in the
European Union, whether the contract was concluded online or otherwise.

(3) The disputes referred to in subregulation (1) shall be resolved by an
ADR entity established in the European Union and the ADR entity shall
propose or impose a solution or bring the parties together, with or without
the use of the ODR platform, with the aim of facilitating an amicable
solution.

(4) These Regulations shall not apply to–

(a) procedures before consumer complaint-handling systems
operated by the trader;

(b) non-economic services of general interest;

(c) disputes between traders;

(d) direct negotiation between the consumer and the trader;

(e) attempts made by a judge to settle a dispute in the course of a
judicial proceeding concerning that dispute;

(f) procedures initiated by a trader against a consumer;

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(g) health services provided by health professionals to patients to
assess, maintain or restore their state of health, including the
prescription, dispensation and provision of medicinal products
and medical devices;

(h) public providers of further or higher education.

(5) These Regulations are without prejudice to the EU Regulation.

Relationship with other legislation.

7. These Regulations shall–

(a) prevail, where there is a conflict between these Regulations
and an enactment giving effect to an EU obligation relating to
out-court redress procedures initiated by a consumer against a
trader;

(b) be without prejudice to Directive 2008/52/EC of the European
Parliament and of the Council of 21 May 2008 on certain
aspects of mediation in civil and commercial matters to the
extent that that Directive has been transposed into the law of
Gibraltar by the following enactments–

(i) section 68A of the Equal Opportunities Act 2006;

(ii) section 33A of the Limitation Act;

(iii) Part XIA of the Supreme Court Act; and

(iv) section 83A of the Employment Act).

Competent authority.

8. The Ombudsman for Public Services shall be the competent authority
within Gibraltar for the purposes of these Regulations and that competent
authority shall be the single point of contact within Gibraltar for the
purposes of the Directive.

Information to Commission.

9.(1) The competent authority shall ensure that the Commission is informed
of all the ADR entities established in Gibraltar and shall ensure that the
Commission is kept up-to-date in accordance with article 23 of the
Directive.

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(2) The Ombudsman for Public Services shall be the ODR contact within
Gibraltar for the purposes of implementing the EU Regulation.

ADR entities

Residual ADR entity.

10.(1) The Ombudsman for Public Services and such officers as he may
have appointed, under section 7 of the Public Services Ombudsman Act
1998, shall be the residual ADR entity within Gibraltar for the purposes of
facilitating access by consumers to ADR procedure and to ensure that
disputes referred to in regulation 6 and which involve a trader established in
Gibraltar can be submitted to an ADR entity which complies with the
requirements set out in these Regulations.

(2) The residual ADR entity appointed under subregulation (1) shall be
competent to deal with disputes for the resolution of which no existing ADR
entity is competent.

(3) A trader established in Gibraltar which is also established in 1 or more
Member States and belongs to the same ADR entity may rely on an ADR
entity in a Member State.

Application to become an ADR entity.

11.(1) An ADR applicant may apply to the competent authority to become
an ADR entity.

(2) The ADR applicant shall supply with an application–

(a) the information Schedule 1; and

(b) such other information as the competent authority may require
in order to assess whether the ADR applicant meets the
requirements in Schedule 2.

(3) The information referred to in subregulation (2) must be provided in
such form as the competent authority may require.

(4) Where an application is approved, the competent authority shall as
soon as is reasonably practicable give written notice to the ADR applicant.

(5) Where an application is rejected, the competent authority shall as soon
as is reasonably practicable give written notice to the ADR applicant stating
the grounds on which it has rejected the application.

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Listing of ADR entities.

12.(1) The competent authority shall maintain a consolidated list of the
ADR applicants which have been approved by it to become ADR entities,
under regulation 11, and that list shall include the information in Schedule 3
in respect of each ADR entity.

(2) The competent authority, in its role as single point of contact within
Gibraltar, shall without undue delay following the compilation of the list
referred to in subregulation (1) ensure the list is sent to the Commission.

(3) If under regulation 14(2) the competent authority receives a
notification from an ADR entity containing information which differs from
the information included in relation to the ADR entity in the list maintained
under subregulation (1), the competent authority shall, without undue
delay–

(a) amend the list to reflect the change in that information; and

(b) ensure the updated list is sent to the Commission.

(4) The competent authority shall make the consolidated list of ADR
entities published by the European Commission publically available–

(a) on its website by providing a link to the relevant European
Commission website; and

(b) on a durable medium, when requested by a member of the
public.

Report.

13.(1) The competent authority shall by 9 July 2018 and every four years
thereafter publish and ensure the Commission is sent a report on the
development and functioning of all ADR entities.

(2) The report referred to in subregulation (1) shall, in particular–

(a) identify best practices of ADR entities;

(b) where appropriate, point out the shortcomings, supported by
statistics, that hinder the functioning of ADR entities for both
domestic and cross-border disputes; and

(c) where appropriate, make recommendations on how to improve
the effective and efficient functioning of ADR entities.
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(3) The competent authority may, for the purpose of enabling it to prepare
the report referred to in subregulation (1), require an ADR entity for which
it is competent to provide such information as it may require relating to the
development and functioning of the ADR entity.

(4) The ADR entity shall, if requested by the competent authority under
subregulation (3), provide the requested information in such form and
within such period as may be required by the competent authority.

Ongoing information obligations of an ADR entity.

14.(1) An ADR entity shall comply with the requirements in the Schedules.

(2) Where the information supplied by an ADR entity under regulation 11
changes, the ADR entity shall, without undue delay, inform the competent
authority in writing and provide the new information to the competent
authority.

(3) An ADR entity shall compile and provide the competent authority with
an annual activity report in accordance with Schedule 4.

(4) An ADR entity shall, within the expiry of a month after the second
anniversary of having been approved as an ADR entity, and within the
expiry of a month of every second anniversary thereafter, compile and
provide the competent authority with the information in accordance with
Schedule 1, paragraph 2.

Ongoing assessment of an ADR entity.

15. Following the receipt of information from an ADR entity under
regulation 14(2) the competent authority shall review the information
received and assess whether the ADR entity continues to meet the
requirements in regulations 17, 18 or Schedule 2.

Removal of approval.

16.(1) The competent authority shall provide notice in writing to an ADR
entity approved by it under regulation 11 if the competent authority has
reason to believe that the ADR entity no longer meets a requirement in
Schedule 2.

(2) The notice referred to in subregulation (1) shall-

(a) state the requirement the ADR entity fails to comply with; and

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(b) require the ADR entity to meet the requirement promptly or in
any event within 3 months.

(3) If the ADR entity fails to meet the requirement notified to it on or
before the expiry of the period specified in subregulation (2), the competent
authority shall–

(a) send notice in writing to the ADR entity of the withdrawal of
the competent authority’s approval of the ADR entity; and

(b) remove the ADR entity from the list maintained by the
competent authority under regulation 12.

(4) Where a competent authority removes an ADR entity under
subregulation (3) it shall, without undue delay, ensure the updated list is
sent to the Commission.

ADR entities - miscellaneous

Training.

17.(1) The competent authority shall encourage ADR entities to provide
training for a natural person providing ADR services.

(2) Where the ADR entity decides to provide training for a natural person
providing ADR services, as referred to in subregulation (1), the competent
authority shall monitor the training schemes established by the ADR
entities, on the basis of information communicated to it in accordance with
Schedule 1, paragraph 2(g).

Liberty.

18.(1) An agreement between a consumer and a trader to submit complaints
to an ADR entity shall not be binding on the consumer where the agreement
was concluded before the dispute materialised and if the agreement has the
effect of depriving the consumer of his right to bring an action before the
courts for settlement of the dispute.

(2) In ADR procedures which impose a solution, the solution shall only be
binding on the parties where–

(a) the parties were informed that the solution was binding in
advance of the ADR procedure; and

(b) the parties specifically accepted this.

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Consumer information by traders.

19.(1) Where a trader, established in Gibraltar, is obliged to use ADR
services provided by an ADR entity–

(a) pursuant to any statutory obligation or rule of law; or

(b) under the rules of a trade association to which the trader
belongs,

the trader must provide the name and website address of the ADR entity or
entities–

(c) on the trader’s website, if the trader has a website; and

(d) in the general terms and conditions of sales or service contracts
between the trader and a consumer.

(2) The information referred to in subparagraph (1) shall be provided in a
clear, comprehensible and easily accessible way.

(3) Where a trader has exhausted its internal complaint handling procedure
when considering a complaint from a consumer relating to a sales contract
or a service contract, the trader shall inform the consumer, on a durable
medium–

(a) that the trader cannot settle the complaint with the consumer;

(b) of the name and website address of an ADR entity which
would be competent to deal with the complaint, should the
consumer wish to use ADR services; and

(c) whether the trader is obliged, or prepared, to submit to an ADR
procedure operated by that ADR entity.

(4) The trader information requirements set out in subregulations (1) and
(3) apply in addition to information requirements applicable to traders
regarding out-of-court redress procedures required under any other
enactment.

Assistance for consumers.

20.(1) A consumer from a Member State may access an ADR entity which
is competent to deal with the dispute in Gibraltar in order to begin ADR
proceedings relating to a dispute arising from a cross-border sale contract or
service contract.
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(2) The residual ADR entity shall assist consumers in accessing the ADR
services in Gibraltar or a Member State.

General Information.

21.(1) An ADR entity shall make publicly available on its website, by
providing a link to the European Commission’s website, and on a durable
medium at its premises, the list of ADR entities referred to in article 20(4)
of the Directive.

(2) The competent authority shall encourage relevant consumer
organisations and business associations to make publicly available, on their
websites and by other means they consider appropriate, the list of ADR
entities referred to in article 20(4) of the Directive.

(3) The competent authority shall ensure appropriate dissemination of
information on how a consumer may access ADR procedure for resolving
disputes covered by these Regulations and by the Directive.

(4) The competent authority shall raise awareness of ADR entities and
their procedures and promote ADR take-up by traders and consumers.

(5) The competent authority shall provide consumers with information
about the relevant ADR entity when it receives a complaint from a
consumer.

Cooperation and exchanges of experience between ADR entities.

22.(1) An ADR entity shall cooperate in the resolution of a cross-border
dispute and conduct regular exchanges of best practices as regards the
settlement of both cross-border and domestic disputes.

(2) The competent authority shall encourage ADR entities that facilitate
the resolution of cross-border disputes and deal with disputes in a certain
area to become members of sector-specific networks, where such networks
exist.

Cooperation between ADR entities and consumer protection
authorities.

23.(1) The competent authority shall ensure cooperation between ADR
entities and national authorities entrusted with the enforcement of consumer
protection.

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(2) The cooperation referred to in subregulation (1) shall, in particular,
include–

(a) mutual exchange of information on practices in specific
business sectors about which consumers have repeatedly
lodged complaints; and

(b) the provision of technical assessment and information by
national authorities to ADR entities where the assessment or
information is necessary for the handling of individual disputes
and is already available.

(3) This regulation shall be without prejudice to provisions on
professional and commercial secrecy which apply to the national authorities
enforcing consumer protection.

(4) The ADR entities which receive information from the national
authorities under this regulation shall comply with the provisions on
professional and commercial secrecy referred to in subregulation (3).

(5) The Data Protection Act 2004 shall apply to this Regulation.

Penalties.

24.(1) The competent authority may issue a direction requiring a trader to
comply with regulation 19.

(2) Where the trader fails to comply with the competent authority’s
direction within 2 weeks of receipt of such direction, the competent
authority may impose a civil penalty.

(3) The amount of the civil penalty referred to in subsection (2) shall not
exceed the equivalent of level 3 on the standard scale of fines.

(4) A penalty imposed under this regulation may be recovered as a civil
debt by the competent authority.

(5) Any monies recovered by the competent authority from the payment of
a civil penalty shall be paid into the consolidated fund.

Duty deemed to be discharged - unable to consider a complain.

24A. Where, in accordance with the procedural rules referred to in
paragraph 7 of Schedule 2, an ADR entity is unable to consider a complaint
that has been submitted to it, there is no obligation to ensure that the
consumer can submit his complaint to another ADR entity.
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Duty deemed to be discharged - able to consider a complaint.

24B. Where an ADR entity dealing with disputes in a specific economic
sector is competent to consider disputes relating to a trader operating in that
sector but which is not a member of the organisation or association forming
or funding the ADR entity, the obligations under article 5(1) of the
Directive shall be deemed to have been complied with also with respect to
disputes concerning that trader.

Online dispute resolution

ODR network.

24C.(1) Subject to subregulation (2), the ODR contact must provide
support to the resolution of disputes relating to complaints submitted though
the ODR platform by fulfilling the following functions-

(a) if requested, facilitating communication between the parties
and competent ADR entity, which may include, in particular–

(i) assisting with the submission of the complaint and,
where appropriate, relevant documentation;

(ii) providing the parties and the ADR entities with general
information on consumer rights in relation to sales and
service contracts which apply in Gibraltar;

(iii) providing information on the functioning of the ODR
platform;

(iv) providing the parties with explanations of the procedural
rules applied by the ADR entities identified;

(v) informing the complainant party of other means of
redress when a dispute cannot be resolved through the
ODR platform;

(b) submitting, based on the practical experience gained from the
performance of their functions, every 2 years an activity report
to the Commission and to the Member States.

(2) The ODR contact point must not perform the functions listed in
subregulation (1) where the parties are habitually resident in Gibraltar.

Use of ODR platform.
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24D.(1) Where an ADR entity receives a complaint through the ODR
platform the ADR entity must without delay inform the parties whether it
agrees or refuses to deal with the dispute in accordance with paragraph 7 of
Schedule 2.

(2) Where an ADR entity agrees to deal with a complaint received through
the ODR platform the ADR entity must inform the parties of its procedural
rules and, if applicable, of the costs of the dispute resolution procedure
concerned.

(3) Where the parties to the dispute fail to agree within 30 days of
submission of the complaint form on an ADR entity or an ADR entity
refuses to deal with the dispute, the complaint must not be processed
further.

(4) Where the parties to the dispute fail to agree within 30 days of
submission of the complaint form on an ADR entity or an ADR entity
refuses to deal with the dispute in accordance with subregulation (3) the
complainant party must be informed of the possibility of contacting an ODR
advisor for general information on other means of redress.

Resolution of ODR dispute.

24E. An ADR entity which has agreed to deal with a dispute received
through the ODR platform must-

(a) conclude the ADR procedure within the deadline referred to in
subsubparagraph 4(1)(e) of Schedule 2 and subparagraph 4(2)
of Schedule 2.

(b) not require the physical presence of the parties or their
representatives, unless its procedural rules provide for that
possibility and the parties agree;

(c) without delay transmit the following information to the ODR
platform;

(i) the date of receipt of the complaint file;

(ii) the subject-matter of the dispute;

(iii) the date of conclusion of the ADR procedure;

(iv) the result of the ADR procedure;

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(d) not be required to conduct the ADR procedure through the
ODR platform.

Consumer information.

24F.(1) Traders established in Gibraltar engaging in online sales or service
contracts, and online marketplaces established within Gibraltar, must
provide on their websites an electronic link to the ODR platform and state
their email addresses.

(2) The electronic link referred to in subregulation (1) must be easily
accessible for consumers.

(3) Traders established in Gibraltar engaging in online sales or service
contracts, which are committed or obliged to use specific ADR entities to
resolve disputes with consumers, must inform consumers about the
existence of the ODR platform and the possibility of using the ODR
platform for resolving their disputes.

(4) The traders referred to in subregulation (3) must inform consumers
about the existence of the ODR platform and the possibility of using the
ODR platform for resolving their disputes by including this information-

(a) in an electronic link to the ODR platform on their website;

(b) where applicable, in their general terms and conditions; and

(c) where the offer is made by email, in that email.

(5) The trader information requirements set out in subregulations (1) to
(4) are without prejudice to regulation 19 and the provisions on consumer
information on out-of-court redress procedures required under any other
enactment.

(6) The traders referred to in this regulation must try to, when obliged to
provide information in accordance with subregulations (1) to (4) and with
the provisions referred to in subregulation (5), provide the information
together.

(7) The competent authority must ensure that the websites of the ADR
entities, the ODR contact and of the competent authority itself provide an
electronic link to the ODR platform.

(8) The competent authority must encourage consumer associations and
business associations to provide an electronic link to the ODR platform.

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Penalties.

24G.(1) The competent authority may impose a penalty equal to level 3 on
the standard scale on a person who fails to comply with a requirement in
subregulations 24F(1), (2), (3), (4) and (7).

(2) The competent authority must not impose a penalty on a person under
subregulation (1) where there are reasonable grounds for him to be satisfied
that the person took all reasonable steps to ensure the requirement would be
complied with.

(3) Where the competent authority proposes to impose a penalty under
this regulation, he must give the person written notice of-

(a) his proposal to impose the penalty and the proposed amount;

(b) the reasons for imposing the penalty; and

(c) the right to make representations to him within a specified
period (which may not be less than 14 days).

(4) The competent authority must then decide, within a reasonable period,
whether to impose a penalty under this regulation and he must give the
person written notice of-

(a) his decision not to impose a penalty; or

(b) the following matters-

(i) his decision to impose a penalty and the amount;

(ii) the reasons for his decision; and

(iii) the right to appeal under regulation 24H.

(5) A penalty imposed under this regulation is payable to the competent
authority.

(6) In subregulation (1) “appropriate” means an effective, proportionate
and dissuasive penalty.

Appeals.

24H.(1) A person may appeal from a decision by the competent authority
under regulation 24G(4) to the Magistrates’ Court.”.

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(2) The Magistrates’ Court may make an order on such terms and
conditions as it thinks fit, however the Magistrates’ Court must not impose a
higher penalty than the penalty provided for in regulation 24G(1).

Amendments

Amendment to the Limitation Act.

25. The Limitation Act is amended by inserting the following section after
section 33A–

“Postponement of effect of expiry of limitation periods for ADR
disputes.

33B.(1) In this section–

(a) “ADR” has the meaning given to it in the Consumer
Alternative Dispute Resolution Regulations 2015, as
amended from time to time;

(b) “ADR entity” has the meaning given to it in the
Consumer Alternative Dispute Resolution Regulations
2015, as amended from time to time;

(c) “ADR official” has the meaning given to it in the
Consumer Alternative Dispute Resolution Regulations
2015, as amended from time to time; and

(d) “ADR procedure” has the meaning given to it in the
Consumer Alternative Dispute Resolution Regulations
2015, as amended from time to time.

(2) Where, but for this section, the last day of a period of
limitation prescribed by this Act that relates to the subject of
the whole or part of a relevant dispute falls–

(a) on or after a date when an ADR procedure in relation to
the relevant dispute starts but before the date that the
ADR procedure ends;

(b) on the date that an ADR in relation to the relevant
dispute ends,

(c) in the 8 weeks after the date that an ADR procedure in
relation to the relevant dispute ends

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the expiry of that period is postponed in accordance with subsection
(3).

(3) For the purposes of initiating any judicial proceedings or
arbitration, the expiry of that period of limitation is postponed
until the date falling 8 weeks after the date on which the ADR
procedure ends.

(4) For the purposes of this section, an ADR procedure starts on
the date of the agreement to enter an ADR procedure that is
entered into by the parties and the ADR entity.

(5) For the purposes of this section, an ADR procedure ends on the
earliest of the date that–

(a) the parties reach an agreement in resolution of the
relevant dispute;

(b) a party notifies the other parties to the relevant dispute or
the ADR entity that it has withdrawn from the ADR
procedure of the relevant dispute;

(c) where there are 2 parties to the ADR procedure of the
relevant dispute, is 14 days after a party has requested
the other to confirm that is continuing with the ADR
procedure of the relevant dispute, and has not receive a
response from that party within 14 days of the request
being made;

(d) where there are more than 2 parties to the ADR
procedure of the relevant dispute, is 14 days after a party
has requested another party to the relevant dispute (the
second party) to confirm to the requesting party and all
the other parties to the relevant dispute that it is
continuing with the ADR procedure of the relevant
dispute and the requesting, and other parties have no all
received a response from the second party within 14 days
of the request being made;

(e) is 14 days after the parties are notified that the ADR
official’s appointment has ended (whether by death,
resignation or otherwise), if, within that 14 day period,
the parties do not agree and appoint a replacement ADR
official; or

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(f) the ADR procedure of the relevant dispute otherwise
comes to an end pursuant to the terms of the agreement
to mediate the relevant dispute.

(6) For the purpose of subsection (5)–

(a) notification, requests and confirmation may be oral or
written; and

(b) where the parties agree or party notifies other parties on
different dates or are notified on different dates, the
relevant date is the date that the last party agrees or
notifies or is notified.

(7) Where more than one period of limitation applies in relation to
a relevant dispute, the expiry of one of those periods of
limitation and the postponement of the effect of that expiry
under subsection (3) does not affect the running of the other
limitation periods.

(8) Where a period of limitation is extended by a fixed period by
this Act, subsection (2) applies to the period of limitation so
extended.

(9) This section applies notwithstanding the other provisions of
this Act.

(10) This section is without prejudice to the provisions on limitation
periods in international agreements applicable to Gibraltar and
without prejudice to section 33A.”.



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SCHEDULE 1

INFORMATION AN ADR APPLICANT SHALL SUPPLY

Regulations 11, 14(1), 14(4)

Upon application.

1. When applying to become an ADR entity, under regulation 11, an ADR
applicant shall supply the following information to the competent authority–

(a) name, contact details and website address;

(b) information on the structure and funding of the ADR entity,
including information on the natural persons in charge of
dispute resolution, their remuneration, term of office and by
whom they are employed;

(c) the procedural rules of the ADR entity;

(d) the fees charged, if applicable;

(e) the average length of the dispute resolution procedures;

(f) the language or languages in which complaints may be
submitted and the dispute resolution procedure conducted;

(g) a statement on the types of disputes covered by the dispute
resolution procedure;

(h) the grounds on which the dispute resolution entity may refuse
to deal with a given dispute in accordance with article 5(4) of
the Directive;

(i) a reasoned statement on whether the entity qualifies as an ADR
entity falling within the scope of the Directive and complies
with the quality requirements set out in Chapter II of the
Directive.


Information on second anniversary and every second year thereafter.

2. An ADR entity shall provide the competent authority with the following
updated information, in accordance with regulation 14(4)–

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(a) the number of disputes received and the types of complaints to
which the complaints related;

(b) the percentage share of ADR procedures which were
discontinued before an outcome was reached;

(c) the average time taken to resolve the disputes received;

(d) the rate of compliance, if known, with the outcomes of the
ADR procedures;

(e) any systematic or significant problems that occur frequently
and lead to disputes between consumers and traders (the
information communicated in this regard may be accompanied
by recommendations as to how such problems can be avoided
or resolved in future);

(f) where applicable, an assessment of the effectiveness of the
ADR entity’s cooperation within networks of ADR entities
facilitating the resolution of cross-border disputes;

(g) where applicable, the training provided to natural persons in
charge of ADR in accordance with regulation 17;

(h) an assessment of the effectiveness of the ADR procedure
offered by the entity and of possible ways of improving the
ADR entity’s performance.


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SCHEDULE 2

REQUIREMENTS AN ADR ENTITY SHALL MEET

Regulation 11

Access to the ADR entity.

1. An ADR entity shall meet the following requirements, in order to
facilitate access by consumers to the ADR entity–

(a) maintain an up-to-date website which provides the parties with
easy access to information concerning the ADR procedure, and
which enables consumers to submit a complaint and the
requisite supporting documents online;

(b) provide the parties, at their request, with the information
referred to in subparagraph (a) on a durable medium;

(c) enable the consumer to submit a complaint offline, where
applicable;

(d) enable the exchange of information between the parties via
electronic means or, if applicable, by post;

(e) accept both domestic and cross-border disputes, including
disputes covered by the EU Regulation;

(f) when dealing with disputes covered by these regulations, take
the necessary measures to ensure that the processing of person
data complies with the Data Protection Act 2004.

Expertise, independence and impartiality.

2.(1) An ADR entity shall ensure that its ADR officials possess the
necessary expertise and are independent and impartial.

(2) An ADR entity shall ensure the requirements in subparagraph (1) are
met by ensuring the ADR official–

(a) possesses a general understanding of the law and the necessary
knowledge and skills relating to the out-of-court or judicial
resolution of consumer disputes, to be able to carry out his
functions competently;

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(b) is appointed for a term of office of sufficient duration to ensure
the independence of his actions, and is not liable to be relieved
from his duties without just cause;

(c) is not subject to instructions from either party or either party’s
representatives;

(d) is remunerated in a way that is not linked to the outcome of the
procedure;

(e) discloses, without undue delay, to the ADR entity any
circumstances that may, or may be seen to, affect their
independence and impartiality or give rise to a conflict of
interest with either party to the dispute they are asked to
resolve.

(3) The obligation, under subsubparagraph (e), shall–

(a) only apply where the ADR entity comprises of more than one
natural person; and

(b) it shall be a continuing obligation throughout the ADR
procedure.

(4) The competent authority shall ensure the ADR entity has in place the
following procedures in the event that an ADR official declares, under
subsubparagraph (e), or is discovered to have a conflict of interest in
relation to a dispute€

(a) where possible, the ADR official is replaced by another ADR
official to handle the dispute; or

(b) where it is not possible to replace the ADR official–

(i) the ADR official shall refrain from conducting the ADR
procedure; and

(ii) the ADR entity shall, where available, propose to the
parties that they submit the dispute to another ADR
entity which is competent to deal with the dispute; or

(c) where the dispute cannot be transferred to another ADR entity,
the ADR entity shall inform the parties to the dispute–

(i) of the circumstances of the conflict of interest;

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(ii) that they have the right to object to the conflicted person
continuing to handle the dispute, and

the ADR official shall only continue to deal with the dispute if no
party to the dispute objects.

(5) The competent authority shall ensure that where an ADR official is
employed or remunerated exclusively by a professional organisation or a
business association of which the trader is a member, the ADR entity has a
separate and dedicated budget at its disposal which is sufficient to carry out
its functions as an ADR entity.

(6) The competent authority shall ensure that where the structure of the
ADR entity is to have a collegial body of representatives of both
professional organisations or business associations and consumer
organisations, its ADR officials comprise an equal number of
representatives of consumers’ interests and traders’ interests.

(7) Subparagraph (5) shall not apply where the ADR entity is made up of
a collegial body as described in subparagraph (6).

Transparency.

3.(1) An ADR entity shall make the following information publically
available–

(a) its contact details, including postal address and email address;

(b) the fact that its listed in accordance with regulation 12;

(c) the ADR officials, the method of the officials’ appointment and
the length of their mandate;

(d) the expertise, impartiality and independence of the ADR
officials, if they are employed or remunerated exclusively by
the trader;

(e) its membership in networks of ADR entities facilitating cross-
border dispute resolution, if applicable;

(f) the types of disputes it is competent to deal with, including any
threshold if applicable;

(g) the procedural rules governing the resolution of a dispute and
the grounds on which the ADR entity may refuse to deal with a
given dispute in accordance with paragraph 7 of this Schedule;
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(h) the languages in which complaints can be submitted to the
ADR entity and in which the ADR procedure is conducted;

(i) the types of rules the ADR entity may use as a basis for the
dispute resolution (for example; legal provisions,
considerations of equity, codes of conduct);

(j) the preliminary requirements, if any, the parties are required to
meet prior to an ADR procedure being instituted, including the
requirement that an attempt be made by the consumer to
resolve the matter directly with the trader;

(k) whether the parties can withdraw from the ADR procedure;

(l) the costs, if any, to be borne by the parties, including the rules,
if any, on awarding costs at the end of the procedure;

(m) the average length of each ADR procedure handled by the
ADR entity;

(n) the legal effect of the decision of the ADR procedure,
including whether the decision is enforceable and the penalties
for non-compliance with the decision, if any;

(o) the enforceability of the ADR decision, if relevant;

(p) whether the ADR procedures conducted by the ADR entity
may be conducted in writing, verbally or by both means; and

(q) the annual activity report required to be prepared under
regulation 14(3).

(2) The information referred to in subparagraph (1) shall be provided on
the ADR entity’s website, on a durable medium, where requested, and by
other means the ADR entity considers appropriate, and must be clear and
easily understandable.

Effectiveness.

4.(1) The competent authority shall ensure the ADR procedures are
effective and fulfil the following requirements–

(a) the ADR procedure is available and easily accessible to both
parties irrespective of where they are located, including by
electronic means and non-electronic means;
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(b) the parties have access to the procedure without being obliged
to retain a lawyer or legal advisor but this shall not deprive the
parties of their right to independent advice or to be represented
or assisted by a third party at any stage of the ADR procedure;

(c) the ADR procedure is free of charge or available at a nominal
fee for consumers;

(d) the ADR entity, after receipt of a complaint, shall notify the
parties as soon as it has received all the documents containing
the relevant information relating to the complaint; and

(e) subject to subparagraph (2), the decision of the ADR procedure
is made available within 90 calendar days from the date on
which the ADR entity has received the complete complaint
file;

(2) In the case of highly complex disputes, the ADR entity may, at its own
discretion, extend the 90 calendar days and shall inform the parties of such
extension of the period and of the expected length of time that will be
required to conclude the dispute.

Fairness.

5.(1) An ADR entity shall–

(a) ensure during the ADR procedure that the parties may, within a
reasonable period of time–
(i) express their points of view;

(ii) and are provided by the ADR entity, the arguments,
evidence, documents and facts put forward by the other
party, including a statement made or opinion given by an
expert;

(b) ensure a party may, within a reasonable period of time,
comment on the information and documents provided under
subsubsubparagraph (a)(ii);

(c) inform the parties that they are not obliged to retain a lawyer or
legal advisor but they may seek independent advice or be
represented by a third party, although the parties may choose to
do so at any stage of the ADR procedure;

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(d) notify the parties, in writing or on a durable medium, of the
decision of the ADR procedure and provide a statement of the
grounds on which the decision is based.

(2) Subject to subparagraphs (3) and (4), in relation to ADR procedures
which aim at resolving the dispute by proposing a solution, an ADR entity
shall ensure the parties–

(a) have the possibility of withdrawing from the ADR procedure at
any stage if they are dissatisfied with the performance or the
operation of the procedure;

(b) are informed, prior to the commencement of the ADR
procedure, of their right under subsubparagraph (a);

(c) are informed, prior to agreeing or following a proposed
solution–

(i) of their choice whether to agree to or follow the
proposed solution;

(ii) that participation in the ADR procedure shall not
preclude the possibility of seeking redress through court
proceedings;

(iii) that the proposed solution may be different from a
judgment given by the court applying legal rules; and

(iv) of the legal effect of agreeing to or following such a
proposed solution.

(d) before expressing their consent to a proposed solution or
amicable agreement are permitted a reasonable period of time
to reflect.

(3) The Minister may make a declaration that the ADR procedure shall be
binding, and shall publish a notice in the Gazette to that effect, and where
such a declaration is made article 9(2) shall be read as applying to
consumers.

Legality.

6. In ADR procedures which aim at resolving the dispute by imposing a
solution on the consumer, the ADR entity–

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(a) where there is no conflict of laws, the solution imposed by the
ADR entity shall not result in the consumer being deprived of
the protection afforded to him by the provisions that cannot be
derogated from by agreement under Gibraltar law;

(b) shall where there is a conflict of laws–

(i) and where the law applicable to the sales or service
contract is determined in accordance with article 6(1)
and (2) of Regulation (EC) No 593/2008, the solution
imposed by the ADR entity shall not result in the
consumer being deprived of the protection afforded to
him by the provisions that cannot be derogated from by
agreement by virtue of the law of the Member State in
which he is habitually resident;

(ii) where the law applicable to the sales or service contract
is determined in accordance with article 5(1) to (3) of the
Rome Convention of 19 June 1980 on the law applicable
to contractual obligations, the solution imposed by the
ADR entity shall not result in the consumer being
deprived of the protection afforded to him by the
mandatory rules of the law of the Member State in which
he is habitually resident.


Grounds to refuse to deal with a dispute.

7.(1) An ADR entity may only refuse to deal with a domestic dispute or a
cross-border dispute which it is competent to deal with on one of the
following grounds–

(a) prior to submitting the complaint to the ADR entity, the
consumer did not attempt to contact the trader in order to
discuss the complaint and seek to resolve the matter directly
with the trader;

(b) the dispute is frivolous or vexatious;

(c) the dispute has previously or is currently under consideration
by a different ADR entity or a court;

(d) the value of the claim falls below or above the monetary
thresholds set by the ADR entity;

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(e) the consumer did not submit the complaint to the ADR entity
within the pre-specified time limit.

(f) dealing with such a type of dispute would otherwise seriously
impair the effective operation of the ADR entity.

(2) The pre-specified time limit referred to in subsubparagraph (e) shall
not be set at less than one year from the date upon which the consumer
submitted the complaint to the trader;

(3) The procedural grounds referred to in subparagraph (1) shall not apply
in any case where its application will significantly impair consumers’ access
to ADR procedures, including in cross-border disputes.

(4) Where in accordance with its procedural rules, an ADR entity is
unable to consider a dispute that has been submitted to it, the ADR entity
shall provide both parties with a reasoned explanation of the grounds for not
considering the dispute within 3 weeks of receiving the complaint file.

(5) An ADR entity may establish pre-specified monetary thresholds in
order to limit access to ADR procedures, provided that such thresholds are
not set at a level at which they significantly impair the consumer access to
complaint handing by ADR entities.

(6) The competent authority shall ensure the pre-specified monetary
thresholds referred to in subparagraph (5) are not set at a level at which they
significantly impair the consumer access to complaint handing by ADR
entities.

Extra requirements where the natural persons are employed or
remunerated by the individual trader.

8.(1) The competent authority shall ensure that an ADR entity, where the
ADR officials are employed or remunerated exclusively by the individual
trader, notifies the competent authority, in addition to the information and
statements referred to the preceding paragraphs of this Schedule, the
information necessary to assess the ADR entity’s compliance with the
specific additional requirements of independence and transparency set out
subparagraph (2).

(2) The extra requirements referred to in subparagraph (1) are as follows–

(a) the natural persons in charge of dispute resolution are
nominated by, or form part of, a collegial body composed of an
equal number of representatives of consumer organisations and
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of representatives of the trader and are appointed as result of a
transparent procedure;

(b) the natural persons in charge of dispute resolution are granted a
period of office of a minimum of 3 years to ensure the
independence of their actions;

(c) the natural persons in charge of dispute resolution commit not
to work for the trader or a professional organisation or business
association of which the trader is a member for a period of 3
years after their position in the dispute resolution entity has
ended;

(d) the ADR entity does not have any hierarchical or functional
link with the trader and is clearly separated from the trader’s
operational entities and has a sufficient budget at its disposal,
which is separate from the trader’s general budget, to fulfil its
tasks.


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SCHEDULE 3

INFORMATION TO BE INCLUDED IN THE LIST MAINTAINED
BY A COMPETENT AUTHORITY

Regulation 12

The following information shall be included in the list to be maintained by
the competent authority referred to in regulation 12–

(a) the name, contact details and website address of an ADR
entity;

(b) an ADR entity’s fees, if applicable;

(c) the language or languages in which complaints can be
submitted and the ADR procedure conducted;

(d) the types of disputes covered by the ADR procedure;

(e) the sectors and categories of disputes covered by each ADR
entity;

(f) the needs for the physical presence of the parties or of their
representatives, if applicable, including a statement by the
ADR entity on whether the ADR procedure is or can be
conducted as an oral or written statement;

(g) the binding or non-binding nature of the outcome of the
procedure; and

(h) the grounds on which the ADR entity may refuse to deal with a
given dispute in accordance with article 5(4) of the Directive.



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SCHEDULE 4

ADR ENTITY’S ANNUAL ACTIVITY REPORT

Regulation 14(3)

The ADR entity shall include the following information in its annual
activity report, as referred to in regulation 14(3)–

(a) the number of disputes received and types of complaints to
which they related;

(b) any systematic or significant problems that occur frequently
and lead to disputes between consumers and traders which the
ADR entity has become aware of (such information may be
accompanied by recommendations as to how such problems
can be avoided or resolved in future, in order to raise traders’
standards and to facilitate the exchange of information and best
practices);

(c) the rate of disputes the ADR entity has refused to deal with and
the percentage share of the types of grounds for such refusal as
referred to in paragraph 7 of Schedule 2;

(d) in the case of procedures referred in point (a) of article 2(2),
the percentage shares of solutions proposed or imposed in
favour of the consumer and in favour of the trader, and of
disputes resolved by an amicable solution;

(e) the percentage share of ADR procedures which were
discontinued and, if known, the reasons for their
discontinuation;

(f) the average time taken to resolve the disputes;

(g) the rate of compliance, if known, with the outcomes of the
ADR procedures;

(h) cooperation of ADR entities within networks of ADR entities
which facilitate the resolution of cross-border disputes, if
applicable.