La direttiva dell’Unione europea sulla risoluzione alternativa delle controversie dei consumatori e il suo recepimento in Italia e in Spagna: una comparazione delle diverse soluzioni (I)

The essay aims to analyse the different approaches followed by the Italian and the Spanish legal systems in implementing Directive 2013/11/EU on consumer ADR. For over two decades in the European legal systems there has been the tendency to promote ADR, above all by the introduction of legislative reforms, be they wide-reaching or sector-specific, and sometimes, insofar as possible, through the case law. With specific regard to consumer ADR, the results reached by Directive 2013/11/EU cannot be considered satisfactory from the point of view of the aim of harmonization. Indeed the Directive basically provides the same rules and principles in relation to all the ADR procedures, without drawing a more clear-cut distinction between adjudicative procedures, such as arbitration, and the other alternative procedures. Reasoning from the EU perspective it is nevertheless undeniable that the adoption of the Directive is a significant step towards the progressive construction of a European framework which will be possibly capable of giving account of the relevant differences among ADR procedures in its subsequent developments. Indeed in implementing the Directive the Italian legislator replaced Article 141 of the consumer code by a group of provisions falling under Title II-bis, Part V, entitled “Consumer associations and access to justice”, of the same code. It can be noticed that for the first time the Italian legal system provides for a regulation specifically concerning consumer ADR. Furthermore, this is also a discipline which makes claim of completeness, above all when compared to the thin and less ambitious rules laid down in Article 141 consumer code, in the version in force before the implementation of the Directive.