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Access to justice barriers

Already in the late 1970s, the access to justice scholars Mauro Cappelletti and Bryan Garth evaluated complaints mechanisms to render law procedures more effective.[1] As a result, they identified three key obstacles: cost, organizational problems, and lack of adequate procedures.[2] However, today, almost 40 years later, cost barriers and inefficient procedures are still upheld as the main problems for access to justice for consumers in the current European system.[3]

First, the main reason for not bringing a case is the financial risk of a legal case that can be so costly as to effectively preclude the participation of consumers or their interest groups. In the Eurobarometer survey 73 per cent of consumers indicated cost as a reason not to complain. In particular, the amount of damages claimed by consumers might be relatively low in relation to the cost of a claim. As a result, consumers with small claims often refrain from bringing an individual action.

Secondly, an organizational problem for access to justice is the lack of legal expertise.[4] Consumers perceive resolving arguments with sellers or service providers in court as difficult. Owing to procedural complexity, and the lack of information in a global market, the diffuse interests of consumers are becoming more dependent on interest groups or public bodies to enforce the law. However, consumer groups often lack funding and adequate legal knowledge in order to represent collective consumer claims. In this regard a promising Consumer Law Enforcement Forum (CLEF) project has been established in the EU that could improve the capability of consumer interest groups. This Enforcement Forum deals with the involvement and the possible roles of consumer organizations in both public enforcement, i.e. getting public authorities to engage more fully with consumer problems, and in private enforcement, i.e. bringing a case to courts via collective action.[5]

Finally, another factor that might obstruct justice is the lack of adequate redress mechanisms for damages. In fact, 74 per cent of European consumers would be more willing to defend their rights in court if they could join with other harmed consumers in the procedure.[6] However, at the transnational level this is often not possible.

Nonetheless, the data also highlighted that only a small number of consumers wish to bring a case before the courts, as a complaint is timeconsuming and might be expensive.[7] This indicates the importance of effective alternative dispute resolution mechanisms for consumers in the EU.

In conclusion, at present, access to justice remains difficult for consumers, which indicates a need for novel procedural solutions at cross-border level. Accordingly, before exploring new redress schemes the following section assesses both the effectiveness of existing EU redress mechanisms and out-ofcourt procedures.

  • [1] M. Cappelletti & B. Garth (eds), Access to Justice: a World Survey (Milan: A. Giuffre, 1978), p. 49.
  • [2] M. Cappelletti, ‘Alternative Dispute Resolution within the Framework of the World-WideAccess-to-Justice Movement’, (1993) 56 MLR, pp. 282-90.
  • [3] In the Eurobarometer survey 2006 (n 9), 73% of consumers indicated that they would notbring their complaint to court, because of the high litigation costs, the length (33%), and theprocedural complexity (33%).
  • [4] According to the Eurobarometer 2006 survey (n 9), 41% of consumers were not satisfied withthe handling of the complaint. Further, around 50% of unsatisfied consumers do not complainagainst a company because of a lack of resources or legal expertise.
  • [5] See: .
  • [6] Consumers remain passive in complaints, because they have the impression that they are notheard and often do not know where and how to complain.
  • [7] Taking sellers or providers to court occupies the second lowest position in the Eurobarometersurvey (an EU average of 17%).
 
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