Better late than never - almost a year late - Italy has transposed EU directive 2019/2161 on the protection of consumers from unfair commercial practices, in the reform of the Consumer Code.
Legislative Decree 26/2023 updates the previous regulation by introducing the judicial protection of the consumer but also new rules on distance contracts and online. And a significant tightening of sanctions.
1) Unfair commercial practices, EU directive 2019/2161
La EU directive 2019/2161 (Omnibus Directive EU No 2019/2161) has intervened to amend directives 93/13/EEC, 98/6/EC, 2005/29/EC and 2011/83/EU to protect consumer rights in the digital age, such as it has been seen. (1)
The new rules ensure greater transparency in distance contracts e online, as well as introducing the right of consumers to receive direct judicial protection. (2)
The legislative decree March 7, 2023 no. 26, in force since 2 April 2023 - in transposing EU directive 2019/2161 - intervenes to amend the Consumer Code (3,4).
2) EU Dir. 2019/2161, misleading commercial practices
Deceptive business practices – already listed in Title III, Chapter II, Section I of the Consumer Code – are integrated as follows.
2.1) Dual quality, identity of the seller
It is forbidden first of all:
- promote a good as identical to another good marketed in another Member State, when instead its characteristics are significantly different (art. 21, new paragraph 2-up to), (one)
- omit to declare, on the platforms of e-commerce, whether or not the seller is a professional (art. 22, new letter e-up to). A substantial difference, as regards the exercise of the warranty and withdrawal rights,
- resell pre-purchased tickets by circumventing the limits imposed by the regulations (art. 23, new letter bb-up to).
2.2) Results of research
The managers of the platforms ecommerce where it is possible to search for the products of several manufacturers using keywords, they must clarify:
- general product information,
- the parameters that led to the search result,
- the relevance of the parameters used with respect to other criteria (art. 22, new paragraph 4-up to)
- any advertising contribution, or other forms of remuneration, to the positioning of the products (art. 23, new letter m-up to).
The platforms of selling online who publish reviews must specify:
- if the reviews come from actual buyers (art. 23, new letter bb-Tue), And
- the methods followed to verify this circumstance (art. 22, new paragraph 5-up to).
It is also it is forbidden to send or instruct third parties to send false reviews or false positive comments, even on social networks (art. 23, new letter bb-c).
3) Price transparency, the illusion continues
The 'ads of price reduction' are subject to a minimum administrative fine, from 516 to 3.099 euros, in cases where:
- the announcement of a price reduction is not accompanied by an indication of the lowest price applied in the previous 30 days. With the exception of agricultural products and easily perishable foods (art. 17-up to),
- the 'normal' sale price is not displayed on the occasion of extraordinary sales and sales below cost (legislative decree 114/98, art. 15).
Ridiculous penalties when referring to large-scale commercial promotions. (6)
4) Extension of the withdrawal period
The withdrawal period for the consumer it is extended from 14 to 30 days in the case of contracts stipulated away from business premises, in particular of 'contracts concluded in the context of unsolicited visits by a trader' (art. 52,1-up to).
The right of withdrawal without notice it can also be exercised at a later date, if the professional provides information in this regard within 12 months of signing the contract, in the following 30 days (Article 53, paragraph 2).
5) Digital content
The contents created or entered by consumers while using a digital good or service – outside of personal data, subject to strict protection in the GDPR (7) – cannot be used by the professional. Unless they are 'useless', aggregated with other data, or created together with other users who continue to use them.
Customers have the right to recover such contents in a free, legible form and in a reasonable time until the withdrawal of the contract, when the professional will be able to prevent access to the profiles and their contents (Article 56, paragraph 3-Tue and the following).
6) Judicial protection
The consumer who suffers from unfair commercial practices can finally appeal to the ordinary judge to obtain compensation for the damage suffered, a reduction in the price or termination of the contract. Having regard to the nature and seriousness of the unfair commercial practice, the damage suffered and any other circumstances (legislative decree 206/05, new paragraph 15-up to). An important step forward, considering that:
- the Antitrust, unlike the judiciary, has the discretion to decide which cases to pursue and which to file based on 'political priorities'. As demonstrated by the shameful dismissal of our repeated complaints against Amazon (8,9),
- the shortage of personnel compared to the number of cases handled, in the judiciary, is less dramatic than that of the AGCM. Where the public funding of advertising campaigns to turn to the AGCM has led to millions of reports that the Italian Antitrust is unable to manage.
7) Administrative sanctions
The European legislator has required Member States to introduce sanctions'effective, proportionate and dissuasive'. The extent of which must be determined, depending on the case, also taking into account the following criteria:
a) nature, gravity, extent and duration of the infringement,
b) any action taken by a trader to mitigate the damage suffered by consumers or to remedy it,
c) any violations previously committed by the professional,
d) financial benefits gained or losses avoided by the trader as a result of the breach, if relevant data are available,
e) penalties imposed on the trader for the same infringement in other Member States in cross-border cases (..),
f) any other aggravating or mitigating factors applicable to the circumstances of the case' (EU Directive 2019/2162, article 13).
The Italian Government he added the dutiful consideration 'the economic and patrimonial conditions of the professional' (Consumer Code, amended Article 27.9).
7.1) Draconian sanctions
The penalties provided for by the Consumer Code are dramatically increased. Pursuant to Legislative Decree 26/2023, the Antitrust can now apply a fine of between 5 thousand and 10 million euros in the event of an assessment of:
- unfair business practices. Up to 4% of the professional's annual turnover (or 2 million euros, where information on turnover is not available), in cases of cross-border infringements (Consumer Code, article 27, new paragraph 9-up to),
- vexatious clauses in contracts between professionals and consumers concluded by signing general conditions or forms. Up to 4% of the professional's annual turnover, if the AGCM ascertains widespread infringements (art. 37-up to, new paragraph 2-up to),
- in compliance with the emergency, inhibitory or remedial measures ordered by the Authority, such as the temporary suspension or the prohibition of the diffusion of unfair commercial practices (art. 27, paragraph 12).
Dario Dongo and Alessandra Mei
(1) Elena Bosani. Consumer rights in contracts, the European Commission clarifies. GIFT (Great Italian Food Trade). 14.4.22
(2) EU Directive 2019/2161, for better enforcement and modernization of EU consumer protection rules. https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX%3A32019L2161
(3) Legislative Decree 7 March 2023, no. 26, Implementation of Directive (EU) 2019/2161 for a better application and modernization of EU consumer protection rules. https://www.gazzettaufficiale.it/eli/id/2023/03/18/23G00033/sg
(4) Legislative Decree 206/2005 and subsequent amendments. Consumer Code https://www.normattiva.it/uri-res/N2Ls?urn:nir:stato:decreto.legislativo:2005-09-06;206
(5) Dario Dongo, Giulia Torre. Dual Quality Food, first analysis by the European Commission. GIFT (Great Italian Food Trade). 29.6.19
(6) Dario Dongo. Promotional sales, poor protection of producers and consumers. GIFT (Great Italian Food Trade). 24.5.22
(7) Fabrizio Zaninetti, Dario Dongo. Privacy and GDPR, the ABC's. GIFT (Great Italian Food Trade). 20.3.19
(8) Dario Dongo, Giulia Torre. Amazon, cyberbullying. GIFT (Great Italian Food Trade). 23.4.18
(8) Martha Strinati. Amazon, too many illegal food sales. GIFT appeals to the Antitrust. GIFT (Great Italian Food Trade) 15.12.17