The Italian Competition Authority has imposed a total of 9,000,000 Euros in fines on major telephone companies (Telecom, Vodafone, Wind, Fastweb and Tiscali) for adopting unlawful conducts in violation of the Consumer Code rules transposing the Directive on Consumer Rights in the field of distance – online or on the phone – or off-premises (such as at stands) marketing of fixed and/or mobile telephone services.

The cases mainly concern the practice of industry operators, whereby the performance of the contract is started by initiating the line activation process and/or migration from another operator during the 14-day period allowed for exercising the right of withdrawal (the so-called ‘cooling-off period’) with no relevant explicit request from the consumer.

The Consumer Code, by contrast, provides that the performance of the contract during the withdrawal period is beyond the own decision-making competence of the companies. The matter is regulated as an option referred to the sole consumer for decision. If interested, the consumer should explicitly request this, and the validity of the contract will not be affected by failure to do so.

In all five cases, the Authority ascertained the adoption of at least three unlawful conducts by the operators, in violation of the formal and informal requirements laid down by the regulation: the lack of the information documents provided for by the Consumer Code on the website and within the contract general terms and conditions, both in relation to the cost regime applied upon earlier performance of the contract and subsequent consumer withdrawal and to the fact that any costs are due only if the earlier performance was expressly requested by the consumer; the conclusion of contracts online, on the telephone or off-premises by initiating the so-called provisioning procedures for the activation of a new landline or the migration from another operator that were not expressly and autonomously requested by the consumer, as provided for by law and, in any case, do not put them in the position of being able to freely select this option and being able to conclude the contract at distance or off-premises in the lack of such a will; if the right to a cooling-off period is exercised, the charging or the prediction of costs not due in the lack of such information and/or explicit request.

Additional practices in violation of the Directive on Consumer Rights have been identified with regard to some operators. As to Tiscali, the Authority ascertained, in line with the foregoing, the non-compliance of the teleselling procedures with respect to the regulations provisions. As to Wind and Fastweb, the conduct substantially consisting in not starting the period for exercising the right to a cooling-off period on the date the consumers proposed operators to conclude the contract was found to be unlawful.

Rome, 18 July 2017