2023 report - The consumer

The consumer Ombudsman for the ENGIE Group 2023 report

The legal framework for Mediation

The independence

of the Ombudsman

Consumer mediation emerged from the European states’ desire to enhance

consumer trust in the functioning of the common market.

In pursuit of this goal, the European Commission introduced

the RELC Directive (Extra-judicial Resolution of Consumer

Disputes) in 2013. This directive aimed for minimal harmonisa-

tion, allowing each member state to adapt it while considering

local mediation practices. It outlined key criteria def ining this

unique form of mediation. The days of mediators self-declar-

ing independence without oversight were over. The directive

specif ied the mediator’s status, the mediation procedures,

and the oversight mechanisms, ensuring independence for

consumers. France transposed this directive in 2015, incorpo-

rating several key provisions:

• Consumer mediation must be voluntary on the part of both

parties to the dispute;

• Consumers may have free recourse to a consumer mediator;

• Professionals are responsible for funding the entire me-

diation process, empowering mediators to maintain inde-

pendence. Consequently, professionals have no inf luence or

f inancial stakes tied to mediation outcomes;

• There are no limits on the value of disputes eligible for me-

diation;

• Professionals are obligated to inform consumers of their

right to seek consumer mediation and ensure accessible

mediation services, while emphasising that mediation is

optional. The mediation process must not preclude recourse

to legal action; therefore, the limitation period is suspended

during mediation;

• Professionals can select their preferred mediation system,

provided it is approved by the assessment and control com-

mission;

• Mediators lack binding authority and can only propose

solutions based on legal principles and fairness which the

parties are free to accept or reject Conf identiality is

strictly maintained throughout the mediation process

adhering to legal principles

Crucially France established an independent state body

the National Commission for the Assessment and Control

of Consumer Mediation CECMC tasked with overseeing

compliance with these provisions outlined in Title 1 of Book

VI of the Consumer Code Articles L6111 to L6411 and R6121

to R6162

The Appointment

of the Ombudsman

for the ENGIE Group

The CECMC is the body responsible for appointing ombuds-

men, whether they are individuals or legal entities (organisa-

tions, federations, etc.).

The choice of Ombudsman is governed by law, with specif ic

criteria outlined in article L613:

The Consumer Ombudsman must:

“(1) Possess skills in the f ield of mediation as well as solid legal

knowledge, especially in the f ield of consumer af fairs;

(2) Be appointed for a minimum period of three years;

(3) Be remunerated regardless of the outcome of the mediation;

(4) Not be subject to a conf lict of interest but, if such a situation

arises, declare it as such.”

Foundational principles of

consumer mediation, independence

and impartiality are thus assured

by the CECMC.

In this regard in February 2016

Mediation for the ENGIE Group was

added to the list of independent

consumer mediators of f icially

communicated to the European

Commission

In addition, an Ombudsman for a single company must

meet additional criteria:

“(1) He or she shall be appointed, in accordance with a transpar-

ent procedure, by a collegiate body set up by the company, com-

prising representatives of approved consumer organisations and

representatives of the business;

(2) At the end of his or her term of of f ice, the Ombudsman is pro-

hibited from working for the business who employed him or her

or for the federation of which this business is a member for a pe-

riod of at least three years;

(3)There can be no hierarchical or functional reporting relation-

ship between the business and the Ombudsman while the latter

is carrying out his or her role as Ombudsman.”

The conditions

of the Ombudsman’s work:

guaranteeing independence

Legislation dictates that the mediator must have a strong

grasp of consumer law to maintain independence from all par-

ties. To ensure adherence to this standard, the CECMC man-

dates ongoing training in consumer law due to its dynamic

nature.

In addition to consumer law, the ombudsman must possess

the requisite skills to prof iciently navigate the core principles

of mediation. The Ombudsman for the ENGIE Group holds a

mediator diploma from CNAM, as do two of his team members.

Recommendations for further ensuring

the independence of the Consumer

Ombudsman

The Consumer Code mandates that once their term concludes,

the ombudsman cannot work for the company that employed

them for at least three years.

To reinforce this independence, the Consumer Ombuds-

man for the ENGIE Group advocates for three recommen-

dations already proposed in 2022:

1. Clear communication regarding the Ombudsman’s status:

• The Ombudsman does not report to the company.

• The Ombudsman reports on his activities only to the CECMC

and, more generally, to the public, in particular through his

annual report.

The company must provide the Ombudsman with the f inan

cial and human resources to enable him to carry out his du

ties independently It also undertakes not to entrust the Om

budsman with any other duties at the end of his mandates

for a period of three years

2 The mediation process could be the subject of an agree

ment between the company and the Ombudsman to make

visible the severance of the hierarchical or functional link with

the company beyond what is already provided for by law In

particular this agreement could delineate and reinforce the

separation of hierarchical or functional ties beyond legal re

quirements This agreement would def ine the Ombudsmans

role, principles of action (such as independence, impartiality,

and neutrality), and set timeframes for the company’s re-

sponses to disputes, acceptance of proposed solutions, and

their implementation. This convention would be made public,

and the Ombudsman would review its implementation annual-

ly in their activity report.

3 To reinforce if need be the power of consumer associations

in the appointment process it could be added that the appoint

ment of the Ombudsman requires the positive vote not only of

the majority of the members of the appointing body but also of

the majority of the associations represented In fact the joint

collegiate body for appointing the Ombudsman provided for

in the decree of 7 December 2015 grants consumer defence

associations equal representation to the company These as

sociations play a pivotal role in ensuring independence being

particularly vigilant on this front Additionally ombudsmens

annual reports could be routinely presented in plenary meet

ings attended by these extended conf igurations potentially

involving other representative associations