Access to Justice in financial services in Greece
(By Inka Greece)

Access to justice in financial services: judicial and extrajudicial defence

INTRODUCTION

The perturbation of the negotiate balance between producers-traders and consumers and the massivity of modern production and consumption showed on the one side the weakness of consolidation of individual interests of consumer, on the base of the classic means of Urban Code and on the other side the need of passage from the private individual interests in the collective interests of the consumers, which involve dangers for the modern economic and productive activity. The need of safeguarding consumers’ interests becomes perceptible in the Community law, but also in our national law. The protection of consumer is expressed explicitly in the primary Community law and in the Treaty on the Single European Act, but same in the Treaty of Maastricht, which places henceforth as autonomous objective the guarantee of higher possible level of protection of consumers. In the frame of these objectives, the European Union is possible to take all the necessary measures for the harmonisation of the required rules aiming to the protection of consumers in a European level. The protection of consumer is formulated however also explicitly and in the international conventional Community fair-procedural law, law of conflict - via the Convention of Brussels on the international jurisdiction and the implementation of decisions in urban and commercial differences and via the Convention of Rome on the applicable law on the conventional obligation.

However, except from the primary Community law, the cheque of protection of consumers’ interests is also formulated via the constant case law of the Court of European Community (CEC). Moreover, also in the secondary Community law a line of Regulations and Directives has been published, with final or direct objective the protection of consumers; specifically: Regulation on Eco-Lan abel, Regulation 295/91 on the overbooking in air transports, Directive 85/347/EOK on the approach of provisions of member states on issues of responsibility for defective products, etc.

II. THE DEMAND OF PROTECTION OF CONSUMERS AND THE EUROPEAN LEGISLATIVE CONFRONTATION

A. JUDICIAL APPROACH

1. The Directive 98/27/EC of the European Parliament and Council of 19 May 1998 on injunctions for the protection of consumer interests [Official Journal L 166 of 11.06.1998] has been planed in order to coordinate national provisions relating to injunctions so as to ensure that Community consumer law is applied in an effective and non-discriminatory manner. It is designed to put an end to any behaviour which adversely affects consumer protection and which is defined by law as illegal.

The purpose of the Directive is to approximate the laws, regulations and administrative provisions of the Member States relating to injunctions in order to protect the collective interests of consumers as enshrined in the following directives:

Directive 89/450/EEC ( misleading advertising );
Directive 85/577/EEC ( contracts negotiated away from business premises );
Directive 87/102/EEC et seq .( consumer credit );
Directive 89/552/EEC et seq. ( Television without Frontiers );
Directive 90/314/EEC ( package travel, package holidays and package tours );
Directive 92/28/EEC ( medicinal products advertising );
Directive 93/13/EEC ( unfair terms in consumer contracts );
Directive 94/47/EEC ( time-shares );
Directive 97/97/EEC ( distance contracts ).

The actions covered by the Directive are to bring to an end or prohibit, possibly in the framework of an emergency procedure, any infringement, i.e. any act contrary to the above-mentioned Directive, to adopt the measures needed, such as publication of the decision, to eliminate the effects of the infringement, to order against the infringer for payment of a penalty in the event of failure to comply with the decision within the time-limit specified.
Member States must take the necessary measures to ensure that, in the event of infringement originating in that Member State, any qualified entity in another Member State in respect of which the interests it protects are adversely affected by the infringement, may institute proceedings before the court or competent administrative authorities. Inclusion in the list mentioned in point 4 constitutes proof of the qualified entity's legal capacity to institute proceedings.

Member States may adopt provisions pursuant to which a party may not bring an action for an injunction unless it has first tried to obtain the cessation of the infringement by consulting the offending party and possibly a qualified entity. If the infringement is not terminated within two weeks following receipt of the request for consultation, an action for an injunction may be brought.

B. EXTRA- JUDICIAL APPROACH

1. EUROPEAN CONSUMER CENTRES (EUROGUISHETS)

The European Consumer Centres Network (ECC-network) is an important interface between the Commission and European consumers. The role of the network is to help European consumers understand better how to make the Internal Market work for them and to provide advise if they encounter a problem. The aim is to ensure that they feel as confident when shopping in another country as they do at home. An additional important task of the network is to provide the European Commission with important "grassroots" information on consumer concerns.
Initially the European Consumer Centres (ECCs) or "Euroguichets" concentrated on consumer information and consumer support related exclusively to cross-border shopping transactions. Over time, however, their role has expanded and priority is now given to providing consumers with pro-active information on European consumer issues that concern them. The shift in priorities has also resulted in moving the ECCs from the border areas to the capital or to some other central area from which they can more readily reach the consumers of the Member State concerned.
The Commission’s aim is to have at least one ECC in every Member State. With the opening up of the ECC in Athens in May 2003, the ECC network consists of 15 European Consumer Centres, situated in 13 Member States. ECC of Athens is the newest in the network but it shows a remarquable work regarding on the cross-border consumers problems.
The Centres' aims and main tasks are defined in the specifications of the European Consumer Centres.
The tasks of ECC are to inform consumers about the opportunities offered by the Internal Market, to advise individuals facing a consumer related problem and to support them in pursuing cross-border complaints, to co-operate with each other and with other European networks such as the EEJ-net (European Extra Judicial network) and the FIN-Net (Financial Network),to provide information on EU and national legislation and case law,to conduct cross border comparisons of such things as prices, legislation and other issues of consumer concern.

3. EEJ-net (European Extra Judicial network)

EEJ-Net is a network of out-of-court redress mechanisms operating in the EU/EEA countries. This network is a communication and support structure available to all EU/EEA consumers that can be used to settle their commercial disputes with traders in any member states. The aim of the EEJ-Net is to facilitate access to justice for EU/EEA consumers in particular for cross-border e-commerce disputes. EEJ-Net aims to achieve this by linking together the various out-of-court consumer dispute settlement bodies in the EU and EEA member states.
This network helps consumers to settle cross-border disputes with companies that provide defective goods or services, by guiding them towards alternative dispute resolution mechanisms (ADR).
The role of the network (for the various national contact points or "clearing houses") is to inform consumers of the possibilities of recourse to alternative dispute resolution mechanisms, to facilitate cross-border complaints, particularly by helping the complainants to overcome linguistic difficulties by providing practical assistance such as translating complaint forms, to facilitate the lodging of complaints using the appropriate standard ADR form, to follow-up resolution of complaints and action taken involving ADR within the network.

3. ADR (Alternative Dispute Resolution)

ADR stands for Alternative Dispute Resolution. In simple terms, that means using any method for resolving your disputes other than starting a formal court procedure. Usually, using ADR means asking a neutral third party to mediate or arbitrate in a dispute between two parties.
Normally, going to courts is expensive, time-consuming and frustrating. Especially for small value disputes, quite often the consumer may not consider it worthwhile to go to a court for resolving her problem. Use of ADR can be a more informal but cheaper and quicker method for resolving a problem. The solution may often be a half-way compromise between what the consumer wants and what the merchant is willing to offer.

4. SOLVIT NETWORK

SOLVIT is an on-line network which helps find out-of-court (informal) solutions to complaints by consumers and enterprises regarding the misapplication of internal market laws by public authorities.
By way of example, the network might find solutions to cross-border problems in the European Union (EU) relating to employment, the recognition of university qualifications, car registration, business start-ups or the supply of goods and services anywhere in the EU.
This problem-solving network is free of charge and attempts to find a solution within a short ten-week deadline. It adopts an informal customer-oriented approach. If a SOLVIT centre regards the complaint received (from a consumer or enterprise) as justified, it forwards it to the SOLVIT centre in the country where the problem has arisen for it to be solved (within ten weeks).
The solutions proposed are not binding. In any case, if the customer does not consider the proposal to be acceptable, it may recommend that the dispute be resolved through the courts. The Member State concerned is responsible for settling the dispute, but if the Member State does not take action, the Commission reserves the right to initiate proceedings.

5. FIN-NET (Network for settling cross-border financial
disputes out of Court)

In case of a financial dispute between the consumer and the financial service provider, the consumer can contact the out-of-court complaints body in his own country of residence. This body will give him all the necessary and appropriate information about the complaints network and about the competent scheme in the country of the financial service provider. If the consumer decides to file the complaint with the foreign scheme, he can leave it with the nearest scheme which will transfer the complaint to the competent scheme. Once the competent scheme has received the complaint, it will try to resolve the dispute according to its rules and taking into account Commission Recommendation No. 98/257 of 30.3.1998.
This network, called FIN-NET, has been designed particularly to facilitate the out-of-court resolution of consumer disputes when the service provider is established in an EU Member State other than that where the consumer lives. The network brings together more than 35 different national schemes that either cover financial services in particular (e.g. banking and insurance ombudsmen schemes) or handle consumer disputes in general (e.g. consumer complaint boards). Both on- and off-line services are covered. The difficulty of obtaining out-of-court redress is a barrier to the development of cross-border services, particularly in the financial sector where it risks undermining the growth of electronic commerce. The European Commission in its Financial Services Action Plan and its recent Communication on a new strategy for the services sector has stressed that improved consumer confidence in non-costly, simple, effective, alternatives to legal action is crucial to the creation of an integrated internal market in financial services -a key Lisbon Summit objective.

6. The Banking Ombudsman

The Banking Ombudsman is an independent scheme created by the Hellenic Bank Association (H.B.A.) in order to examine disputes between customers and banks in a fair, impartial and open way, and help find an amicable settlement.

a. The Ombudsman schemes in general
The word "Ombudsman" is of Scandinavian origin and means the "mediator", the "advocate". As a scheme, it aims to supervise public administration, fight bureaucracy, increase openness and generally offer citizens extrajudicial protection.
The Ombudsman scheme is very old and well recognised. Known as early as Ancient Greek times ("Efthini"), the scheme was constitutionally introduced in Sweden in 1809 ("Administration Delegate") and is nowadays established both in the Public Sector (in 1998 there were Ombudsmen in more than 90 countries-in Greece see the ?Greek Ombudsman, in the European Union see the European Ombudsman), and in various private sectors (e.g. banking, insurance, industry, medicine, mass media etc.).

b. The European Ombudsman
The European Ombudsman scheme was introduced by the Treaty for the European Union which was signed in Maastricht on 7.2.1992 (art. 138e).
The scheme aims to increase openness in the activities of the E.U. organisations and to promote the European nationality established by article 8 of the Treaty.
The European Ombudsman is appointed by the European Parliament and is completely independent in the performance of his duties. He/she investigates instances of maladministration in the activities of the Community’s institutions or bodies, formulates recommendations and drafts relevant reports.

II. COSNUMER PROTECTION IN THE GREEK LAW

The above Directives were incorporated partly in national legislation, mainly in law 1961/1991 on the protection of consumer while TODAY they are found impressed in law 2251/1994 on the protection of consumers. The beginning of protection of consumer influences undeniably and it inspires also Greek legislator, who in law 2251/1994 forecasted regulations, as e.g. the responsibility of providing services or taking collective legal action, what is not ordained in the secondary Community law, but is dictated by the general principle on consumer protection which establishes the primary Community law.

As mentioned above, in the consumer union is granted, claim of pecuniary satisfaction because of moral damage. Concretely, according to article 10 paragraph 8 law 2251/94 each consumer union is legalised to ask for the rights of its consumers-members legal protection, judicially or administratively, in any form, that is to say that is legalised to take legal actions in order to protect the individual claims of its members. Also in paragraph 9 of the same article is recognized the ability of consumer unions, which have at least five hundred active members and have been registered in the registration of consumer unions at least two years ago, to take all kinds of legal action for the protection of the general interests of consuming public (collective education).

A. Consumer organizations-Collective means of protection

The consumer organizations are constituted as associations and are conditioned by the provisions of article 10 law 2251/1994 and Civil Code. The consumer organizations have an exclusive aim the protection of interests of the consuming public. They represent the consumers in the bodies in which the representation of consumers is included, informs and consults the consumers, represents them judicial and extrajudicial and take legal action according to the provisions of the legislation.
Each consumer organization has the right to ask and to receive information on subjects that are reduced: in the interests of consuming public from the public services, the public institutions, the enterprises of common utility, the legal persons of public right and the independent committees that function in the frames of public administration and local self-government.
Each consumer organization is legalised to ask for the rights of its consumer-members: legal protection, judicially or administratively, of any form. Same is legalised to take legal action, application of actuarial metres, and application of cancellation or resort against administrative acts. Each consumer organization is eligible to intervene in the trials of its members for the support of their rights as consumers.

1. Collective legal actions according to the Greek legislation (article 10 Law 2251/1994)

Consumer organizations that have at least five hundred active members and have been registered in the registration of consumer unions at least two years ago can take all forms of legal action for the protection of general interests of the consuming public (collective legal action). Specifically they can ask:
1. The omission of illegal behaviour of supplier, before it is even expressed. They can ask the engagement, the withdrawal or the destruction of defective products dangerous to the safety or health of the public. They can also ask the redress of misleading or comparative publicity in any suitable way, in which the correctional publicity with expenses of the advertised is included.
2. Pecuniary satisfaction because of moral damage.
3. The taking of actuarial metres for the guarantee of their requirements for omission or pecuniary satisfaction up to the publication of the executant decision. In the case of defective products dangerous for the safety or health of the public, the engagement of products can be ordered as actuarial metre.

The decision that will be published produces its results opposite everyone, even if they were not suitors.

The consumer organizations are not eligible of wage from their members for individual or collective means of protection that they provide them with.

2. The collective legal action (delimitation and its importance)

One from the more substantially and important rights, which are recognized internationally from the consumer unions, is taking legal action in order to protect the interests of consumers.

Collective legal action, is the legal action that the consumer organizations practise for the protection of collective interests, that is to say interests that do not concern consumers individually, but entire categories of consumers or even all the consumers. The exercise of collective legal action is presented as the most suitable form of protection of consumer interests "which are not anymore individual interests of one or more individuals or of a numerically limited social team, that is to say private interests, but is general public interest as reported in a wider and open circle of persons". This collective legal goods or interests of consumers, which are protected with the exercise of collective legal action, are mainly life, health, safety and their economic interests.

a. Collective legal action as means of preventive protection

According to article 10 paragraph 9a, consumer unions can ask specially the omission of illegal behaviour of supplier, even before is expressed, mainly when it is recommended in the formulation of abusive general terms of transactions, in prohibited sales outside a shop or by distance or in infringements of obligations of after-sale service, in the production, import or disposal of defective products dangerous for the safety or health of public, in the benefit of defective services or in misleading, illicit, comparative or direct publicity. They can ask the engagement, the withdrawal or the destruction of defective products dangerous to the safety or the public health, as well as the redress of misleading or comparative publicity in any suitable way, in which is included and the correctional publicity with expenses advertised. As it appears from the above, illegal behaviour that exposes in danger the collective interests of consuming public is mainly the position or the maintenance in the circulation of dangerous defective products, the use of misleading advertising methods or abusive general terms in transactions.

The claim of omission of illegal behaviour presupposes previous illegal offence of more general interests of consuming public and existence of well-founded danger that the offence will be repeated. Explicitly is reported in the article 10 paragraph 9a that the claim can practise itself and preventively, that is to say before the illegal behaviour of the supplier is expressed. The omission can be also achieved with a positive action of removal of dangers. The claim of lifting the offence presupposes existing illegal offences affecting the collective interests of consumers, and at this point culpability of supplier is not required. In every case the court will be the one fixing the way in which the offence of collective interests of consumers will be raised. Demand of legal action in any case is the reintroduction of situation that existed before the offence.

b. Collective legal action as means of repressive protection

Apart from the exercise of the above rights (article 10 paragraph 9), according to article 10 paragraph 9 b, consumers can ask also pecuniary satisfaction because of moral damage. For the definition of pecuniary satisfaction the court takes into consideration same the intensity of offence of legislation that the illegal behaviour involves, the size of enterprise of the supplier, as well as the needs of the general and special prevention. Pecuniary satisfaction because of moral damage is provided only one time. The sum is disposed "for beneficial aims to the public, relative to consumer protection.

3. Committee on consumer protection for state of enterprise and institutions (article 13 law 2251/1994)

One of the basic problems for the consumer constitutes the protection against the enterprises possessing a dominating position in the market that is to say that they act a monopolistic or oligopolistic (articles 2 laws 703/77 and 86 EC Treaty). Such are also many public enterprises with which the consumer contracts the "conventions of adhesion", that is to say conventions in which contracting, has the right of contracting or not contracting of convention, but in case he decides to contract the convention, he is not in place to negotiate the terms. In this case he can only adhere the already formulated and usually standardised with regard to their content contracting terms which already have been formulated by his co-contractor. At this point a question arises: how can the consumer be protected, when he accepts terms that it is not capable to check and react? According to law 2251/94 the consumer unions and each consumer has the right to resort to justice or to practise his rights in order to be protected from the activities of public enterprises. The legislator selected the constitution of a consumer protection committee from public enterprises and institutions.

The Committee formulates proposals and proceeds in indications to public enterprises and institutions for the improvement of products and their services and the guarantee of consumer rights. In the frame of its competences the representation of administrations of public enterprises and institutions is obligatorily in order to give explanations in complaints or problems that occupy the consumers. Public enterprises and institutions are compelled to provide to the Committee information, explanations and all kinds of support that facilitates its work. The Minister of Trade, with proposal to the Committee, can impose a fine in any public enterprise or institution which omits to provide the above information or explanations (13 paragraph 3).

4. Protection of consumers via administrative bodies

The necessity of intervention of state for the protection of consumers has been pointed out by many sides. The Committee of EC had proposed, since 1975 to public authorities or bodies to undertake the defence of consumers, in the frame of the delegate of consumers. According to the map of consumers "each member state is compelled to create a powerful service, independent and effective that would represent the consumers, contribute and consult the executive and legislative bodies but also would be in place to ensure the respect of legislation in favour of the consumer".

The modern state did not remain inactive. National institutes of consumption were founded with competence to check the quality of foods in the different stages of production, packing and distribution, as well as networks of services with main destination the information of consumers. In many other countries administrative bodies were able to take legal action. In other words, the state activated itself in four mainly sectors:
1. representation,
2. information,
3. defence of consumers and
4. control of products.

The system of administrative protection of consumers presents natural disadvantages but also important advantages. A public Authority has more specialization concerning the consumer unions, is usually more representative of all the tendencies that are presented in the consuming movement and offers possibilities for fertile dialogue between consumers and suppliers. However, it functions bureaucratically and carries all the disadvantages of public administration.

B. EXTRA-JUDICIAL PROTECTION of CONSUMERS IN the ECONOMIC SERVICES

A. Friendly agreement according to law 2251/94

The main principle of article 11 Law 2251/94 is that the state provides the committees of friendly agreement with the necessary infrastructure. However, the state does not participate in their composition, neither it checks or influences them in any way.

In each prefecture, the prefect creates a committee of friendly agreement for the extrajudicial resolution of differences between suppliers and consumers or consumer unions (11 paragraphs 1). The committee has three-members and is constituted by a representative of local unions of consumers who is appointed together with a substitute.

1. Process of resolution of differences in the friendly agreement according to law 2251/94

The affairs are imported to the committee after application of consumers or local union of consumers (article 11 paragraphs 6 a). The supplier cannot resort in the committee of friendly agreement. The affairs are discussed in the order fixed by the chairman within 15 days maximum from the submission of the application and after invitation of whoever is interested at least 5 days before.

The committee decides concerning the active law and additionally seeks information from consumer unions. The committee judges by majority and its conclusions are announced with a document to whoever interested in 7 days maximum from discussion (article 11 paragraphs 8 ed. a).

Consequences of conclusions of committee of friendly agreement according to law 2251/1994

The conclusions of the committee cannot be supplemented to review, retraction or offence. The decisions of the committee of friendly agreement are not binding, do not deter the courts from publishing a same or different decision on the same difference, neither they suspend or they influence the course of any other process.

The importance of conclusions of committee lies on that it can be taken into consideration from the courts like judicial evidences (11 paragraphs 8). The aim of this provision is to give a motive in whoever interested in order to accept the proposed compromise and do not resort in the justice.