Italy

Status

Adopted

Explanatory note re status

The legislative process for the implementation of the Omnibus Directive into Italian law has been completed by introducing (through a Legislative Decree: see next section) amendments to the Italian Consumer Code.

The new rules have come into force on 2 April 2023, except for the provisions as per Article 1(2) - that introduced Article 17-bis on price reduction announcements in the Italian Consumer Code - which apply to promotional campaigns as of 1 July 2023.

Implementation Act

Legislative Decree of 7 March 2023, No 26 implementing Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules ("Decreto Legislativo 7 marzo 2023, n. 26. Attuazione della direttiva (UE) 2019/2161 del Parlamento europeo e del Consiglio, del 27 novembre 2019, che modifica la direttiva 93/13/CEE del Consiglio e le direttive 98/6/CE, 2005/29/CE e 2011/83/UE del Parlamento europeo e del Consiglio per una migliore applicazione e una modernizzazione delle norme dell'Unione relative alla protezione dei consumatori": the “Decree”) which introduced amendments to the Italian Consumer Code.

(Envisaged) Implementation Date

The new rules have come into force on 2 April 2023, except for the provisions as per Article 1(2) - that introduced Article 17-bis on price reduction announcements in the Italian Consumer Code - which apply to promotional campaigns as of 1 July 2023.

Approach to implementation

Amendments to existing laws (see "Implementation Act" section above).

Next steps

See "Implementation Date" section above.

A. Amendment to Unfair Contract Terms Directive (Directive 93/13/EEC)

What penalties can be imposed for infringements of consumer rights related to consumer contracts?
Has the option to limit the penalties been implemented?

New Article 37-bis(2-bis) of the Italian Consumer Code refers to the administrative fines provided for by Article 27(9) of the Italian Consumer Code against unfair commercial practices, i.e. from EUR 5,000 to EUR 10,000,000, taking into account of the seriousness and duration of the breach, as well as the economic and financial conditions of the trader.

In addition, "Widespread infringements" and "infringements with a Union dimension" are now subject to fines.

Under the new Article 37-bis(2-bis) of the Italian Consumer Code, fines can be imposed on traders responsible for widespread infringements or widespread infringements with a Union dimension.

The fines cannot exceed 4 % of the trader’s annual turnover in Italy or in the EU Member State(s) concerned.

Fines may only be applied through the coordinated action mechanism established by Regulation (EU) 2017/2394.

Italy has refrained from acting on the option given by the Omnibus Directive to set higher maximum fines than the fines mentioned above.

B. Amendments to Price Indications Directive (98/6/EC)

I. What obligations must traders now comply with when advertising price reductions to consumers?

When announcing a price reduction, traders must now indicate the lowest price of the product applied to consumer sales within 30 days prior to applying the price reduction. This is provided for in Article 17-bis of the Italian Consumer Code.

This does not apply to, inter alia:

• agricultural and food products which are liable to deteriorate;
• progressive, uninterrupted price reductions;
• launch prices;
• goods that have been on sale for less than 30 days (in which case, the lowest price since the start of the sale must be indicated, as well as the period of time to which the previous price refers); and
• underselling.

II. What penalties can now be imposed for infringements of consumer rights related to the indication of the prices of products offered to consumers? What criteria have been established for the imposition of the fines?

Administrative fine pursuant to Article 22(3) of Italian Legislative Decree No 114/1998 applies (i.e., from €516.46 to €3098.74), in accordance with the terms set out therein and taking into account the following criteria:

a) the nature, gravity, extent and duration of the infringement;

b) any action taken by the trader to mitigate or remedy the harm suffered by consumers;

c) any previous infringement committed by the trader;

d) the financial benefits achieved or losses avoided by the trader as a result of the infringement, if the relevant data are available;

e) sanctions imposed on the trader for the same infringement in other Member States in cross-border cases where information related to such sanctions is available through the mechanism established by Regulation (EU) 2017/2394;

f) any other aggravating or mitigating factors applicable to the circumstances of the case.

C. Amendments to Unfair Commercial Practices Directive (2005/29/EC)

I. What are the implications of "digital services and content" now being considered "products" under the Unfair Commercial Practices Directive?

Pursuant to Italian Legislative Decree No 173/2021, digital services and content provisions were inserted into the Italian Consumer Code as a specific category of supply contract.

II. What changes for traders who offer goods and services of different traders or consumers on their website that are displayed in a certain order when searched by a consumer ("rankings")?

Traders enabling consumers the possibility to search for products offered by different traders or consumers based on a search (in the form of a keyword, phrase or other data) must now provide clear information on the main parameters used to rank products in online searches and their relative importance [Article 22(4-bis) of the Italian Consumer Code].
This does not apply to online search engine providers as per Article 2(6) of Regulation (EU) 2019/1150.

Non-compliance by the trader of the above obligation constitutes a misleading omission.

The trader is also prohibited from providing search results without clearly disclosing any paid advertisement or payment specifically for achieving higher ranking of products within the search results [Article 23(1)(m-bis) of the Italian Consumer Code].

III. What are the transparency obligations that traders who operate online marketplaces where other traders and consumers can sell goods and services must comply with now?

Traders who sell goods and services on online marketplaces are obliged to inform consumers whether an item (good, digital service or content) is purchased from another consumer or a different trader.

For the pre-contractual information obligations with regard to online marketplace providers, see section D.IV. below for details.

IV. Are there any new provisions for consumer protection against unfair practices in doorstep selling and commercial excursions?

No, Italy has not made use of the option to introduce new provisions to protect consumers against aggressive or misleading marketing or selling practices in the context of unsolicited visits by a trader to a consumer’s home or excursions organised by a trader with the aim or effect of promoting or selling products to consumers.

V. What transparency obligations must traders who publish consumer reviews now comply with?

Traders are obliged to inform the consumer about whether and how they ensure that published reviews originate from consumers who are actual users/buyers [Article 22(5-bis) of the Italian Consumer Code].

This only covers traders who make consumer reviews accessible themselves.

It is forbidden for traders to:

• state that reviews are submitted by actual users/buyers without taking reasonable and proportionate measures to check authenticity of such reviews [Article 23(1)(bb-ter) of the Italian Consumer Code]; and
• submit or commission another legal or natural person to submit false reviews or endorsements, or misrepresenting consumer reviews or social endorsements, in order to promote products [Article 23(1)(bb-quater) of the Italian Consumer Code].

VI. What must traders who market a good, in one Member State, as being identical to a good marketed in other Member States, while the goods have a different composition ("dual quality"), consider now?

The new unfair commercial practice provision of Article 21(2)(b-bis) of the Italian Consumer Code provides that marketing a good in one EU Member State as identical to a good offered in other EU Member States is unlawful if the goods significantly differ in their components or characteristics, except where this is justified by legitimate and objective factors.

VII. Under what conditions and with what effects are legal remedies now available to consumers who have been harmed by unfair commercial practices?

Pursuant to Article 27(15-bis) of the Italian Consumer Code, consumers may claim damages for unfair commercial practices committed by the trader, in addition to the other remedies already available under the applicable Italian laws.

VIII. What penalties can be imposed for infringements of consumer rights by unfair commercial practices?

In addition to the possibility for consumers to claim damages, fines are implemented.

Under the new Article 27(9-bis) of the Italian Consumer Code, fines can be imposed on traders responsible for “widespread infringements” or “widespread infringements with a Union dimension” as defined in Regulation (EU) 2017/2394.

The fines cannot exceed 4 % of the trader’s annual turnover in Italy or in the EU Member State(s) concerned. If there are no indications for an estimate of the annual turnover, the maximum fine is EUR 2,000,000.

Fines may only be applied through the coordinated action mechanism established by Regulation (EU) 2017/2394.

Italy has refrained from acting on the option given by the Omnibus Directive to set higher maximum fines than the fines mentioned above.

D. Amendments to Consumer Rights Directive (2011/83/EC)

I. What are the implications of "goods with digital elements" and "digital services and content" now falling within the scope of the Consumer Rights Directive? Must traders consider any new information requirements?

Goods with digital elements as well as digital content and digital services are now subject to the same rules as all other goods and services covered by the Consumer Rights Directive.

However, for goods with digital elements and digital content and digital services, additional pre-contractual information requirements for traders apply.

In particular, under amended Articles 48 (regarding contracts other than distance or off-premises contracts) and 49 (regarding distance and off-premises contracts) of the Italian Consumer Code, before being bound by a contract or a corresponding offer, the consumer must be informed by the trader, inter alia, about the following:

• where applicable, the functionality of the goods with digital elements, of digital services and content, including applicable technical protection measures;
• where applicable, any compatibility and interoperability of the goods with digital elements, of digital services and content, to the extent that this information is known or ought to be known by the trader; and
• a reminder of the existence of the legal guarantee of conformity for goods, digital content and digital services.

II. Do the national provisions that transpose the rules under the Consumer Rights Directive also apply when consumers "pay" for the provision of digital content or services with personal data?

Yes, pursuant to Article 46 of the Italian Consumer Code, provisions on sections I-IV (on pre-contractual information obligations and consumers’ other contractual rights) also apply if the trader provides or undertakes to provide digital content by means of a non-material medium or a digital service to the consumer and the consumer provides or undertakes to provide personal data in return.

No provision was implemented into Italian law regarding the application of the above rule to the collection of personal data through cookies or metadata.

However, the above provisions do not apply if the trader processes the personal data provided by the consumer for no other purposes than:

• fulfilling its contractual obligation by supplying the digital content on a non-material medium or digital service; or
• for complying with legal requirements to which the trader is subject.

III. What new information obligations and formal requirements must traders comply with for distance or off premise contracts with consumers?

Traders must now always provide their telephone number (and e-mail address) to the consumer when concluding a distance or off-premises contract. The obligation to indicate the fax number, on the other hand, is no longer applicable. In addition, traders must provide information about any other means of online communication which guarantee that the consumer can keep any written correspondence, including the date and time of such correspondence, with the trader on a durable medium [Article 49(1)(c) of the Italian Consumer Code].

Traders must also inform the consumers if they have personalized the price of the specific product/service on the basis of automated decision-making. Even such information must be provided in a clear and comprehensible manner before the conclusion of the contract with the consumer [Article 49(1)(e-bis) of the Italian Consumer Code].

Where there is only limited space or time to display the information, the main characteristics of the goods or services, the identity of the trader, the total price, the right of withdrawal, the duration of the contract and the conditions of termination of indeterminate contracts must be indicated. However, the trader must still provide the other mandatory information, including the model withdrawal form, in a manner appropriate to the medium used, using a simple and understandable language [Article 51(4) of the Italian Consumer Code].

The model withdrawal instructions contained in the Annexes to the Italian Consumer Code were also amended. In the model withdrawal instructions for distance and off-premises contracts, the reference to contact or withdrawal by fax is no longer included. Likewise, there is no longer the obligation to give a fax number in the model withdrawal form. On the other hand, it is now mandatory to indicate the e-mail address in the withdrawal instructions, whereas previously this has only been required if an e-mail address was in fact available.

IV. Which additional specific information requirements apply for contracts concluded on online marketplaces?

The providers of online marketplaces must provide information about:

• the main parameters for determining the ranking of offers presented to the consumer as a result of his/her research and the relative importance of these parameters compared to other parameters;
• whether the third party offering their goods, services or digital content is a trader or not;
• the non-applicability of consumer rights deriving from EU law on consumer protection if the third party offering the goods, services or digital content is not a trader; and
• where applicable, how the obligations related to the contract are shared between the third party offering the goods, services or digital content and the provider of the online marketplace.

In addition, relevant provisions under Italian Legislative Decree No 70/2003 on the information for providers of online marketplaces continue to apply.

V. In case of a withdrawal by the consumer: What must traders consider with regard to the use of content (other than personal data) created or provided by the consumer when using digital products provided by the trader?

Article 56(3-ter) of the Italian Consumer Code stipulates that the trader may not continue to use any content (that is not personal data) that was provided or created by the consumer when using the digital content or service supplied by the trader (digital product), in case of a withdrawal by the consumer, unless the content in question:

• no. 1: has no use outside the context of the digital product;
• no. 2: only concerns the activity of the consumer during the use of the digital product;
• no. 3: has been aggregated by the trader with other data and cannot be disaggregated or can only be disaggregated with disproportionate effort; or
• no. 4: was created by the consumer together with others, provided that other consumers can continue to use the content.

The trader must, upon request, also provide the consumer with the content provided or created by the consumer (free of charge, within a reasonable period of time and in a common and machine-readable format). This does not apply to the above exceptions no. 1 to 3, however, it does apply in the case of no. 4.

VI. What are the new provisions for the expiry of / exceptions from the consumer's right of withdrawal?

With regard to contracts for the provision of services for which the consumer pays a price, the right of withdrawal only expires after the services have been fully provided and the consumer has consented to the service before the expiry of the withdrawal period acknowledging the expiry of the right of withdrawal following the full execution of the contract by the trader [Article 59(1)(a) of the Italian Consumer Code].

With regard to contracts for digital content that is not delivered on a durable medium and for which the consumer pays a price, the right of withdrawal only expires if the consumer expressly consents to the performance during the withdrawal period confirming his/her knowledge about the expiry of the right of withdrawal and the trader expressly confirms this consent to the consumer - depending on the type of contract concluded - in the form laid out in Article 50(2) or Article 51(7) of the Italian Consumer Code [Article 59(1)(o) of the Italian Consumer Code].

With regard to contracts for the provision of services for which the consumer pays a price, when the consumer has specifically requested a visit by the trader for the purpose of the performance of repair work, the consumer loses the right of withdrawal after the service has been fully provided with the consumer's prior express consent [Article 59(1-ter) of the Italian Consumer Code].

VII. What penalties can be imposed for infringements of consumer rights?

Please see section A. for details.

E. Optional Provisions and Deviations

Has the Member State transposed a provision which is optional under the Omnibus Directive or made use of a deviation possibility provided for therein?

Optional provisions/deviations:

• Art. 8b para. 2 Unfair Contract Terms Directive: Italy has not used the optional limitation of penalties for infringements of consumer rights related to consumer contracts.
• Art. 6a Nos 3-5 Price Indication Directive: Italy has made use of the option to exempt certain products or practices from the obligation to indicate the prior price when announcing a price reduction (see section B. I. above).
• Art. 3 para. 5 Unfair Commercial Practices Directive: Italy has not used the option to regulate new obligations for consumer protection against unfair practices in the context of doorstep selling and commercial excursions.
• Art. 11a Unfair Commercial Practices Directive: Italy has not used the option to determine (further) conditions for the application and effect of remedies, as it was already adequately regulated under Italian Law.
• Art. 13 para. 3 Unfair Commercial Practices Directive: Italy has not made use of the optional limitation of penalties for unfair commercial practices. It also refrained from acting on the option given by the Omnibus Directive to set higher maximum fines than the ones provided for in the Omnibus Directive.
• Art. 6a para. 2 Consumer Rights Directive: Italy has made use of the option to regulate additional information obligations for online marketplace operators (see section D. IV. above).
• Art. 9 para. 1a Consumer Rights Directive: Italy has made use of the option to extend the withdrawal period for consumer contracts concluded in the context of doorstep selling or commercial excursions to 30 days.
• Art. 16 para. 2 Consumer Rights Directive: Italy has made use of the option to derogate from some of the exceptions of the right of withdrawal set out in Art. 16 for contracts concluded in the context of doorstep selling or commercial excursions.
• Art. 16 para. 3 Consumer Rights Directive: Italy has made use of the option to provide that in the case of service contracts where the consumer has specifically requested a visit from the trader for the purpose of carrying out repairs, the consumer loses the right of withdrawal after the service has been fully performed provided that the performance has begun with the consumer's prior consent (see section D. VI.).
• Art. 24 Consumer Rights Directive: Italy has not made use of the option to regulate higher maximum fines than the ones provided for in the Omnibus Directive.

Noteworthy points arising from legislative changes

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