Reading time:

4 MINUTES

To this end, the European Commission introduced the Alter-

native Dispute Resolution for Consumers (ARD) Directive

in 2013. This directive aimed for minimal harmonisation,

allowing each member state to adapt it while considering

local mediation practices. The ARD Directive outlines key

criteria def ining this particular type of mediation. The days

of mediators self-declaring independence without oversight

were over. The Directive def ined the mediator’s status, me-

diation procedures, and oversight mechanisms, ensuring

independence for consumers. France transposed this Di-

rective in 2015 and adopted the following provisions:

  Consumer mediation must be voluntary on the part of

both parties to the dispute;

  Consumers may have free recourse to a consumer medi-

ator;

  Professionals are responsible for funding the entire

mediation process and empowering mediators to main-

tain independence. 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 acces-

sible mediation services, while emphasising that media-

tion 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 pro-

pose solutions based on legal principles and fair

ness which the parties are free to accept or reject

In France conf identiality must be strictly maintained

throughout the mediation process by the parties and the

consumer mediators in accordance with 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 the above provisions outlined in Title 1 of

Book VI of the French Consumer Code (Articles L611.1 to

L641.1 and R612.1 to R616.2).

The CECMC is the body responsible for appointing ombuds-

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

sations, federations, etc.).

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

criteria outlined in Article L613:

The conditions of the Ombudsman’s work: guaranteeing independence

Legislation dictates that the Ombudsman must have a strong

grasp of consumer law to maintain independence from all

parties. To ensure adherence to this standard, the CECMC

mandates ongoing training in consumer law due to its ev-

er-changing 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 and two

of his staf f hold a mediation diploma from the CNAM, and

the other members of the team are also trained in mediation

techniques.

The legal framework for ediation

The independence of the Ombudsman

Consumer mediation emerged from the European states’ desire to enhance

consumer trust in the functioning of the common market.

The appointment of the Ombudsman

for the ENGIE Group

Independence and impartiality foundational principles of

consumer mediation are thus assured by the CECMC In this regard in February 2016

the CECMC added the Ombudsman for the ENGIE Group to the list of independent

consumer mediators which was of f icially reported to the European Commission

with this appointment being renewed in 2021

The French Consumer Code mandates that once their

term is f inished, the Ombudsman cannot work for the

company that employed them for at least three years.

To ensure greater independence, the CECMC would

like to extend this waiting period by introducing it prior

to the Ombudsman’s appointment, once they are only

dealing with the disputes of a single company.

The Ombudsman for the ENGIE Group considers that

such an extension would be pointless and would make

the current system less ef fective, without increasing

the Ombudsman’s independence. Moreover, the Euro-

pean Commission considered this proposal during the

preparatory phase for the 2013 Directive, but ultimate-

ly rejected it. This criterion would be at odds with the

technical expertise required of an Ombudsman, as re-

f lected in the solutions proposed during each mediation

process: these skills, such as knowledge of the technical

processes associated with the company or sector, must

be associated with knowledge of the law, and of the

French Consumer Code in particular. The Ombudsman

applies this knowledge and expertise to improve the

performance of relevant departments within the com-

pany, particularly by making recommendations.

The Consumer Ombudsman for the ENGIE Group propos-

es three alternatives which he considers would be more

ef fective:

1. Explicitly communicate the so-called “company”

Ombudsmans specif ic status within the company

thus marking a clear break with the past

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 particu

lar through his annual report which is made public

The company must provide the Ombudsman with the

f inancial and human resources needed to carry out

his duties independently It also undertakes not to en

trust the Ombudsman with any other duties at the end

of his mandate(s) for a period of three years.

2. Sign an agreement between the company and the

Ombudsman

This agreement would further conf irm the severance of

the hierarchical or functional relationship with the com-

pany, beyond what is provided for by law. This agree-

ment would def ine the Ombudsman’s role, principles of

action (such as independence, impartiality, and neutral-

ity), and set timeframes for the company’s responses to

disputes, acceptance of proposed solutions, and their

implementation. This agreement would be made public,

and the Ombudsman would review its implementation

annually in their activity report.

3. Extend the responsibility for the appointment of

the Ombudsman to the majority of consumer asso-

ciations represented

To give consumer associations more authority in the ap-

pointment process, the appointment of the Ombudsman

could require a positive vote, not only from the majority

of the members of the appointing body but also from

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 associations play a pivotal role in

ensuring independence being particularly vigilant on

this front Additionally Ombudsmens annual reports

could be routinely presented in plenary meetings in

volving other representative associations

These proposals would mark a genuine break from

the professional situation prior to the Ombudsmans

appointment This approach would be far more

ef fective than introducing a waiting period up

stream of the process

Recommendations of the Consumer Ombudsman

for the ENGIE Group in relation to the possible extension

of the waiting period prior to approval.

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 affairs;

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.

In addition, an Ombudsman for a single com-

pany must meet additional criteria:

1. He or she shall be appointed, in accordance with a

transparent procedure, by a collegiate body set up by

the company, comprising representatives of approved

consumer organisations and representatives of the

business;

2. At the end of their term of off ice, the Ombudsman is

prohibited from working for the business who employed

them or for the federation of which this business is a

member for a period of at least three years;

3 There can be no hierarchical or functional reporting

relationship between the business and the Ombudsman

while the latter is carrying out their role as Ombudsman

13 12