Access to justice through alternative dispute resolution mechanisms: principles emerging from the CJEU jurisprudence

Authors: Federica Casarosa

ABSTRACT

The digitalisation of justice is an ongoing process that characterises all EU Member States with different scopes and, most importantly, at a different pace. This process also extends to creating Alternative dispute resolution mechanisms that enhance citizens’ access to justice (social network users, consumers, or business entities). ADRs are deemed a faster and cheaper process than judicial proceedings; they can adapt to the time and place constraints of the parties, allowing the possibility to meet or communicate in a diachronic manner. Although this seemed a solution that could easily enable citizens to exercise their rights, courts, particularly the Court of Justice of the EU, slowed down this process. The (few) cases decided by the CJEU show that the Court was initially sceptical in the use of alternative dispute resolution mechanisms to exercise EU-granted rights, and only through the repeated clarifications provided by the Member States in the arguments presented during the proceedings was able to change its approach. Still, the response of the CJEU was not simply accepting the member states’ positions but instead providing them with a framework where the alternative dispute resolution mechanisms may ensure a fair trial and effective protection outside judicial proceedings. Thanks to this dialogue, we may identify a set of criteria that may guide policymakers’ choices.

Keywords: CJEU - Fundamental Rights - Access to justice - Out-of-court dispute settlement - Fair trial

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