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Legislative Decree no. 206 of 6 September 2005 - Consumer Code


 

Only the Italian text is authentic

 

 

 

 


Legislative Decree no. 206 of 6 September 2005

Consumer Code


[As amended by:

Section 1 of Legislative Decree no. 146 of 2 August 2007,

Section 36 of Decree Law 201/2011, which was converted with modifications from Law no. 214 of 22 December 2011 on the “Conversion to law, with modifications, of Decree Law no. 201 of 6 December 2011 on urgent measures for the growth, equity and consolidation of public finances.",

Section 5, 7, 28 of Decree-Law 1/2012 converted, with modifications, from Law n. 27 of 24 March 2012 on "Urgent provisions for competition, infrastructure development and competitiveness",

Section 1 (6) of Legislative Decree no. 21 of 21 February 2014:" Implementation of the directive 2011/83/UE of consumer rights, amending directives 93/13/CEE and 1999/44/CE and repealing directives 85/577/CEE e 97/7/CE".]


CHAPTER I

General Provisions

Section 18
Definitions

As amended by Section 7 (2) of decree-law 1/2012 converted, with modifications, from Law n. 27 of 24 March 2012 on "Urgent provisions for competition, infrastructure development and competitiveness"]

1. For the purposes of this Title the following terms shall have the following meanings:

(a) ‘consumer’ means any natural person who, in commercial practices covered by this Title, is acting for purposes which are outside their trade, business, craft or profession;

(b) ‘trader’ means any natural or legal person who, in commercial practices covered by this Title, is acting for purposes relating to their trade, business, craft or profession and anyone acting in the name of or on behalf of a trader;

(c) ‘product’ means any goods or service including immovable property, rights and obligations;

(d) ‘business-to-consumer commercial practices’ (hereinafter also referred to as "commercial practices") means any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers;

d-bis) "micro-enterprises": entities, companies or associations that, regardless of their legal form, engage in an economic activity, even as an individual or family, that employs fewer than ten persons and generates an annual revenue or total annual balance sheet not in excess of two million euros, pursuant to section 2, paragraph 3 of the annex to recommendation n. 2003/361/EC of the Commission, dated 6 May 2003;

(e) ‘to materially distort the economic behaviour of consumers’ means using a commercial practice to appreciably impair the consumer’s ability to make an informed decision, thereby causing the consumer to take a transactional decision that they would not have taken otherwise;

(f) ‘code of conduct’ means an agreement or set of rules not imposed by law, regulation or administrative provision of a Member State which defines the behaviour of traders who undertake to be bound by the code in relation to one or more particular commercial practices or business sectors;

(g) ‘code owner’ means any entity, including a trader or group of traders, which is responsible for the formulation and revision of a code of conduct and/or for monitoring compliance with the code by those who have undertaken to be bound by it;

(h) ‘professional diligence’ means the standard of special skill and care which a trader may reasonably be expected to exercise towards consumers, commensurate with honest market practice and/or the general principle of good faith in the trader’s field of activity;

(i) ‘invitation to purchase’ means a commercial communication which indicates characteristics of the product and the price in a way appropriate to the means of the commercial communication used and thereby enables the consumer to make a purchase;

(l) ‘undue influence’ means exploiting a position of power in relation to the consumer so as to apply pressure, even without using or threatening to use physical force, in a way which significantly limits the consumer’s ability to make an informed decision;

(m) ‘transactional decision’ means any decision taken by a consumer concerning whether, how and on what terms to purchase, make payment in whole or in part for, retain or dispose of a product or to exercise a contractual right in relation to the product, whether the consumer decides to act or to refrain from acting;

(n) ‘regulated profession’ means a professional activity or a group of professional activities, access to which or the pursuit of which, or one of the modes of pursuing which, is conditional, directly or indirectly, upon possession of specific professional qualifications, pursuant to laws, regulations or administrative provisions.

 

Section 19
Purpose

[As amended by Section 7 (2) of decree-law 1/2012 converted, with modifications, from Law n. 27 of 24 March 2012 on "Urgent provisions for competition, infrastructure development and competitiveness"]

1. This Title shall apply to unfair business-to-consumer commercial practices before, during and after a commercial transaction in relation to a product as well as any unfair commercial practices between professionals and micro-enterprises. The protection of micro-enterprises from deceitful advertising and unlawful comparative advertising is explicitly guaranteed by legislative decree n. 145 of 2 August 2007.

2. This Title is without prejudice to:

a) contract law and, in particular, to the rules on the formation, validity, or effect of a

contract;

b) Community or national rules relating to the health and safety aspects of products;

c) the rules determining the jurisdiction of the courts;

d) any conditions of establishment or of authorisation regimes, or to the deontological codes of conduct or other specific rules governing regulated professions in order to uphold high standards of integrity on the part of professionals;

3. In the event of conflict, the provisions of Community directives or other Community legislation, and the national provisions transposing them to govern specific aspects of unfair commercial practices shall prevail over the provisions of this Title and shall apply to these specific aspects.

4. This Title shall not apply to the certification and indication of the standard of fineness of articles of precious metal.

 

 

CHAPTER II

Unfair commercial practices


Section 20
Prohibition of unfair commercial practices

1. Unfair commercial practices shall be prohibited.

2. A commercial practice shall be unfair if it is contrary to the requirements of professional diligence and materially distorts or is likely to materially distort the economic behaviour with regard to the product of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed to a particular group of consumers.

3. Commercial practices which are likely to materially distort the economic behaviour only of a clearly identifiable group of consumers who are particularly vulnerable to the practice or the underlying product because of their mental or physical infirmity, age or credulity in a way which the trader could reasonably be expected to foresee, shall be assessed from the perspective of the average member of that group. This is without prejudice to the common and legitimate advertising practice of making exaggerated statements or statements which are not meant to be taken literally.

4. In particular, commercial practices shall be unfair which:

(a) are misleading within the meaning of Sections 21, 22 and 23 or

(b) are aggressive within the meaning of Sections 24, 25 and 26.

5. Sections 23 and 26 contain the list of those commercial practices which shall in all circumstances be regarded as misleading and aggressive, respectively.

 

SUBCHAPTER 1
Misleading commercial practices


Section 21
Misleading actions

1. A commercial practice shall be regarded as misleading if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise:

(a) the existence or nature of the product;

(b) the main characteristics of the product, such as its availability, benefits, risks, execution, composition, accessories, aftersale customer assistance and complaint handling, method and date of manufacture or provision, delivery, fitness for purpose, usage, quantity, specification, geographical or commercial origin or the results to be expected from its use, or the results and material features of tests or checks carried out on the product;

(c) the extent of the trader's commitments, the motives for the commercial practice and the nature of the sales process, any statement or symbol in relation to direct or indirect sponsorship or approval of the trader or the product;

(d) the price or the manner in which the price is calculated, or the existence of a specific price advantage;

(e) the need for a service, part, replacement or repair;

(f) the nature, attributes and rights of the trader or his agent, such as his identity and assets, his qualifications, status, approval, affiliation or connection and ownership of industrial, commercial or intellectual property rights or his awards and distinctions;

(g) the consumer's rights, including the right to replacement or reimbursement under Section 130 of this Code.

2. A commercial practice shall also be regarded as misleading if, in its factual context, taking account of all its features and circumstances, it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise, and it involves:

(a) any marketing of a product, including comparative advertising, which creates confusion with any products, trade marks, trade names or other distinguishing marks of a competitor;

(b) non-compliance by the trader with commitments contained in codes of conduct by which the trader has undertaken to be bound, where the commitment is firm and capable of being verified, and the trader indicates in a commercial practice the binding nature of the code.

3. It is considered to be an unfair commercial practice, in relation to products likely to harm the health and safety of consumers, to fail to state this likelihood such that consumers are induced to neglect to observe the normal standards of prudence and vigilance.

3-bis. It is considered to be an unfair commercial practice when a bank, credit institution or financial agency makes the stipulation of a loan contract conditional on the stipulation of an insurance policy supplied by the same bank, institution or intermediary. [Introduced by Section 36 of Decree Law 201/2011, which was converted with modifications from Law no. 214 of 22 December 2011 on the “Conversion to law, with modifications, of Decree Law no. 201 of 6 December 2011 on urgent measures for the growth, equity and consolidation of public finances."] or to open an account with the same bank, institution or intermediary [Introduced from art. 28, para.3, of decree-law 1/2012 converted, with modifications from Law n. 27 of 24 March 2012 on "Urgent provisions for competition, infrastructure development and competitiveness'"].

4-bis. It is considered to be an unfair commercial practice to require costs surcharge for the finalization of an electronic transaction with a supplier of goods or services. [Introduced by Decree Law no. 179 of 18 October 2012 which was converted with modifications from Law no. 221 of 17 December 2012].


Section 22
Misleading omissions

1. A commercial practice shall be regarded as misleading if, in its factual context, taking account of all its features and circumstances and the limitations of the communication medium, it omits material information that the average consumer needs, according to the context, to take an informed transactional decision, thereby causing or being likely to cause the average consumer to take a transactional decision that they would not have taken otherwise.

2. It shall also be regarded as a misleading omission when, taking account of the matters described in paragraph 1, a trader hides or provides in an unclear, unintelligible, ambiguous or untimely manner such material information as referred to in that paragraph or fails to identify the commercial intent of the commercial practice if not already apparent from the context, and where, in either case, this causes or is likely to cause the average consumer to take a transactional decision that they would not have taken otherwise.

3. Where the medium used to communicate the commercial practice imposes limitations of space or time, these limitations and any measures taken by the trader to make the information available to consumers by other means shall be taken into account in deciding whether information has been omitted.

4. In the case of an invitation to purchase, the following information shall be regarded as material, within the meaning of paragraph (1), if not already apparent from the context:

(a) the main characteristics of the product, to an extent appropriate to the medium and the product;

(b) the geographical address and the identity of the trader, such as his trading name and, where applicable, the geographical address and the identity of the trader on whose behalf he is acting;

(c) the price inclusive of taxes, or where the nature of the product means that the price cannot reasonably be calculated in advance, the manner in which the price is calculated, as well as, where appropriate, all additional freight, delivery or postal charges or, where these charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable by the consumer;

(d) the arrangements for payment, delivery, performance and the complaints handling policy, if they depart from the requirements of professional diligence;

(e) for products and transactions involving a right of withdrawal or cancellation, the existence of such a right.

5. Information requirements established by Community law in relation to commercial communication including advertising or marketing, shall be regarded as material within the meaning of paragraph (1).


Section 22-bis

Deceptive advertising of prices charged by maritime companies

[As amended by Section 22 of Law no. 99 of 23 July 2009 containing “Provisions for the development and internationalisation of firms, and regarding Energy”]

1. Advertising regarding prices charged by maritime companies operating from Italy either directly or under code-sharing agreements is deemed deceptive when it advertises the cost of the ticket purchased from the maritime company separately from additional charges, port taxes and from any other charges borne by the consumer, the maritime company being obliged to advertise a single price which includes all of these items.


Section 23
Commercial practices which are in all circumstances considered misleading

1. The following commercial practices are misleading in all circumstances:

a) Claiming to be a signatory to a code of conduct when the trader is not;

b) Displaying a trust mark, quality mark or equivalent without having obtained the necessary authorisation;

c) Claiming that a code of conduct has an endorsement from a public or other body which it does not have;

d) Claiming untruthfully that a trader, his commercial practices, or a product in he trades has been approved, endorsed or authorised by a public or private body when he/it has not, or making such a claim without complying with the terms of the approval, endorsement or authorisation;

e) Making an invitation to purchase products at a specified price without disclosing the existence of any reasonable grounds the trader may have for believing that he will not be able to offer for supply or to procure another trader to supply, those products or equivalent products at that price for a period that is, and in quantities that are, reasonable having regard to the product, the scale of advertising of the product and the price offered (bait advertising);

f) Making an invitation to purchase products at a specified price and then:

1) refusing to show the advertised item to consumers, or

2) refusing to take orders for it or deliver it within a reasonable time, or

3) demonstrating a defective sample of it with the intention of promoting a different product (bait and switch);

g) Falsely stating that a product will only be available for a very limited time, or that it will only be available on particular terms for a very limited time, in order to elicit an immediate decision and deprive consumers of sufficient opportunity or time to make an informed choice;

h) Undertaking to provide after-sales service to consumers with whom the trader has communicated prior to a transaction in a language which is not an official language of the Member State where the trader is located and then making such service available only in another language without clearly disclosing this to the consumer before the consumer is committed to the transaction;

i) Stating or otherwise creating the impression that a product can legally be sold when it cannot;

l) Presenting rights given to consumers in law as a distinctive feature of the trader's offer.

m) Without prejudice to the provisions of Legislative Decree No 177 of 31 July 2005, and subsequent amendments, using editorial content in the media to promote a product where a trader has paid for the promotion without making that clear in the content or by images or sounds clearly identifiable by the consumer (advertorial);

n) Making a materially inaccurate claim concerning the nature and extent of the risk to the personal security of the consumer or their family if the consumer does not purchase the product;

o) Promoting a product similar to a product made by a particular manufacturer in such a manner as deliberately to mislead the consumer into believing that the product is made by that same manufacturer when it is not;

p) Establishing, operating or promoting a pyramid promotional scheme where a consumer gives consideration for the opportunity to receive compensation that is derived primarily from the introduction of other consumers into the scheme rather than from the sale or consumption of products;

q) Claiming that the trader is about to cease trading or move premises when he is not;

r) Claiming that certain products are able to facilitate winning in games of chance;

s) Falsely claiming that a product is able to cure illnesses, dysfunctions or malformations;

t) Passing on materially inaccurate information on market conditions or on the possibility of finding the product with the intention of inducing the consumer to acquire the product at conditions less favourable than normal market conditions;

u) Claiming in a commercial practice to offer a competition or prize promotion without awarding the prizes described or a reasonable equivalent;

v) Describing a product as 'gratis', 'free', 'without charge' or similar if the consumer has to pay anything other than the unavoidable cost of responding to the commercial practice and collecting or paying for delivery of the item;

z) Including in marketing material an invoice or similar document seeking payment which gives consumers the impression that they have already ordered the marketed product when they have not;

aa) Falsely claiming or creating the false impression that the trader is not acting for purposes relating to his trade, business, craft or profession, or falsely passing oneself off as a consumer;

bb) Creating the false impression that after-sales service in relation to a product is available in a Member State other than the one in which the product is sold.

 

SUBCHAPTER II
Aggressive commercial practices


Section 24

Aggressive commercial practices

1. A commercial practice shall be regarded as aggressive if, in its factual context, taking account of all its features and circumstances, by harassment, coercion, including the use of physical force, or undue influence, it significantly impairs or is likely to significantly impair the average consumer’s freedom of choice or conduct with regard to the product and thereby causes him or is likely to cause him to take a transactional decision that he would not have taken otherwise.


Section 25
Use of harassment, coercion and undue influence

1. In determining whether a commercial practice uses harassment, coercion, including the use of physical force, or undue influence, account shall be taken of:

a) its timing, location, nature or persistence;

b) the use of threatening or abusive language or behaviour;

c) the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer's judgement, of which the trader is aware, to influence the consumer's decision with regard to the product;

(d) any onerous or disproportionate non-contractual barriers imposed by the trader where a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader;

(e) any threat to take any action when such action is manifestly vexatious or groundless.


Section 26
Commercial practices, which are in all circumstances considered aggressive

1. The following commercial practices are in all circumstances considered aggressive:

a) Creating the impression that the consumer cannot leave the premises until a contract is formed;

b) Conducting personal visits to the consumer's home ignoring the consumer's request to leave or not to return except in circumstances and to the extent justified, under national law, to enforce a contractual obligation;

c) Making persistent and unwanted solicitations by telephone, fax, e-mail or other remote media except in circumstances and to the extent justified under national law to enforce a contractual obligation, without prejudice to Section 58 and Section 130 of Legislative Decree No 196 of 30 June 2003;

d) Requiring a consumer who wishes to claim on an insurance policy to produce documents which could not reasonably be considered relevant as to whether the claim was valid, or failing systematically to respond to pertinent correspondence, in order to dissuade a consumer from exercising his contractual rights;

e) Including in an advertisement a direct exhortation to children to buy advertised products or persuade their parents or other adults to buy advertised products for them, without prejudice to the provisions of Legislative Decree No 177 of 31 July 2005 and subsequent amendments;

f) Demanding immediate or deferred payment for or the return or safekeeping of products supplied by the trader, but not solicited by the consumer except where otherwise provided by Section 54 (2) (2);

g) Explicitly informing consumers that if they do not buy the product or service, the trader's job or livelihood will be in jeopardy;

h) Creating the false impression that the consumer has already won, will win, or will on doing a particular act win, a prize or other equivalent benefit, when in fact either there is no prize or other equivalent benefit, or taking any action in relation to claiming the prize or other equivalent benefit is subject to the consumer paying money or incurring a cost.

 

CHAPTER III
Enforcement


Section 27
Administrative and judicial protection

[As amended by Section 1 (6) of Legislative Decree no. 21 of 21 February 2014:" Implementation of the directive 2011/83/UE of consumer rights, amending directives 93/13/CEE and 1999/44/CE and repealing directives 85/577/CEE e 97/7/CE"]

1. The Competition Authority, hereafter the "Authority", shall exercise the powers set forth in this section also as the authority competent for implementing regulation 2006/2004/EC of the European Parliament and the Council of 27 October 2004 on cooperation between the national authorities responsible for enforcing consumer protection legislation within the limits imposed by law.

1-bis. Even in regulated sectors pursuant to Section 19, paragraph (3), the power to intervene with respect to conducts of  traders  involved in unfair commercial practices, without prejudice to current regulations, shall lie exclusively with the Competition Authority  which acts on the basis of the powers granted  by this Section after  getting the opinion of the competent Regulation Authority. This without prejudice to the competence of the Regulation Authorities  to exercise their powers in the event of  infringement  of the regulations non constituting  unfair commercial practices. The Authorities may regulate through  memorandums of understanding the enforcement and procedural issues of their mutual cooperation, pursuant to the respective competences.

2. The Authority, acting on its own authority or at the request of any individual or organisation having an interest, shall prohibit the continuation of any unfair commercial practices and eliminate their effects. To this end the Authority shall avail itself of the investigative and executive powers provided by the aforementioned Regulation 2006/2004/EC also in relation to offences which are not of a cross-border nature. In the performance of the tasks referred to in paragraph (1) above, the Authority may use the Guardia di Finanza (Customs and Excise Police) exercising their own powers to assess value added tax and income tax liability. Action by the Authority may take place independently of whether the consumers concerned in the territory of the member state in which the trader is resident, or in another member state.

3. The Authority may issue a reasoned measure ordering the provisional suspension of unfair commercial practices whenever there is a particularly urgent need. At all events, it shall serve notice of the commencement of proceedings on the trader concerned, and if the principal is unknown the Authority may request the owner of the medium advertising the unfair practice to supply the information needed to identify the principal. The Authority may also request businesses, organisations or private individuals in possession of information and documents to supply them if they are of relevance for the purposes of identifying infringements. The provisions of section 14 (2), (3) and (4) of Law No 287 of 10 October 1990 shall apply.

4. In the event of failure to comply without good reason with the determinations of the Authority pursuant to section 14 (2) of Law No 287 of 10 October 1990, the Authority shall impose an administrative fine of between €2,000 and €20,000. In the event that the information or the documentation is untruthful, the authority shall impose an administrative fine of between €4,000 and €40,000.

5. The Authority may require the trader to furnish evidence as to the accuracy of factual claims in advertising if, taking into account the legitimate interest of the advertiser and any other party to the proceedings, such a requirement appears appropriate on the basis of the circumstances of the particular case. If the evidence is not provided or is deemed to be insufficient the factual data shall be deemed to be inaccurate. At all events, the burden of proof lies with the trader who must demonstrate, by proving with facts, that he could not reasonably have foreseen the impact of the commercial practice on consumers, within the meaning of section 20 (3).

6. When the commercial practice has been or is intended to be disseminated in the periodical or daily press, or by radio or television or any other telecommunications medium, before issuing its measure, the Authority shall request the opinion of the Communications Regulatory Authority.

7. Except when the commercial practice is manifestly unfair and of a serious nature, the Authority may require the liable trader to give an undertaking to end the infringement and to cease its dissemination, or to modify such that the unlawful parts are removed. The Authority may order the trader to publish a statement of the commitment entered into with the Authority, at the trader's expense. In this case, having assessed the appropriateness of such commitments, the Authority may make them mandatory on the trader and lay down the procedure to be followed without proceeding to investigate the infringement.

8. If the Authority deems the commercial practice to be unfair it shall prohibit its dissemination, in the event that it has not yet been brought to the attention of the public, or ban its further dissemination in the event that a the practice has already begun. Under the same measure the Authority may order the trader, at the trader's expense, to publish the Authority's resolution, or an extract of it, or a specific corrective statement, to ensure that the unfair commercial practices do not continue to procure any effects.

9. In its measure prohibiting the unfair commercial practice, the Authority shall also impose an administrative fine of between €5,000.00 and €5,000,000.00, to take account of the seriousness and the duration of the infringement. In the case of the unfair commercial practices provided by section 21 (3) and (4) the penalty shall not be less than €50,000.00.

10. In cases relating to commercial communications forming part of product packages, when the Authority issues the measures referred to in paragraphs (3) and (8), it shall set a deadline for its instructions to be acted upon, taking account of the time materially needed for compliance.

11. The Competition Authority shall issue its own regulations to govern the procedure for investigations, in a way which gives all the parties the opportunity to put their cases and to be fully acquainted with all the case papers and the transcripts.

12. If the trader fails to comply with the emergency measures or injunctions or instructions to remove the effects referred to in paragraph (3), (8) and (10) above, and in the event of failure to comply with the commitments undertaken pursuant to paragraph (7), the Authority shall impose an administrative fine of between €10,000 and €5,000,000. In the event of repeated non-compliance, the Authority may order the trader to suspend trading for a period which shall not be more than thirty days.

13. [Repealed]. With regard to the administrative fines imposed as a result of infringements of this decree, the provisions of Chapter I, Subchapter I, and Sections 26, 27, 28 and 29 of Law No 689 of 24 November 1981, as subsequently amended, where applicable, shall apply. The administrative fines referred to in this section must be paid within 30 days of the service of notice of the Authority's measure.

14. In the event that the commercial practice has been approved with an administrative measure, which is also designed to ascertain its non-unfair character, the protection of the persons and organisations having a legitimate interest can be provided by appealing against the aforementioned measure before the Administrative Court.

15. The ordinary courts of law retain jurisdiction to take cognisance of acts of unfair competition provided by article 2598 of the civil code and, with regard to comparative advertising, of acts infringing copyright law provided by Law No 633 of 22 April 1941, as subsequently amended, and trademark protection provided by Legislative Decree No 30 of 10 February 2005, as subsequently amended, and denominations of origin recognised and protected in Italy and other distinctive signs of competing companies, goods and services."


Section 27-bis
Codes of Conduct

1. Professional and business associations and organisations may adopt specific codes of conduct, in relation to one or more commercial practices or one or more specific business sectors, laying down rules for the conduct of traders who undertake to comply with these codes, indicating the name of the person or the organisation responsible for monitoring and enforcement.

2. The code of conduct shall be drawn up in the Italian and English languages and made accessible also via the Internet, by the persons or organisations responsible.

3. The codes of conduct shall at least guarantee protection of children and safeguard human dignity.

4. The codes of conduct referred to in paragraph (1) shall be notified to traders in the relevant sectors and shall be kept by the party responsible for the code, indicating the names of all the persons who agree to comply with it, for their acceptance.

5. Consumers must be given advance notice of the existence of the code of conduct, its contents, and the trader's acceptance of it.


Section 27-ter
Self-regulation

1. Before instituting the procedure provided by Section 27, consumers and competitors, either directly or through their associations or organisations, may agree in advance with the trader on the party having responsibility or the body charged with overseeing the code of conduct for a particular sector, on an agreed settlement of the dispute in order to prohibit or put an end to the unfair commercial practice.

2. In all instances, appeals filed pursuant to the previous section, whatever the outcome of the procedure, shall not affect the right of consumers to apply to the Authority pursuant to section 27 or to the appropriate court.

3. Once the procedure before a self-regulatory body has begun, the parties may agree not to apply to the Authority until the final ruling is issued, or they may request the proceeding before the Authority to be suspended in the event that it has also been initiated by another party having a legitimate interest while awaiting the ruling of the self-regulatory body. After examining all the circumstances the Authority may decide to suspend the proceeding for a period of not more than 30 days.


Section 27-quater
Requirement to provide information

1. The Competition Authority and the traders' and business associations or organisations referred to in Section 27-bis shall regularly report to the Ministry for Economic Development on the decisions adopted pursuant to the provisions of this Title.


Section 33
Unfair terms in agreements between a professional and a consumer

1. In contracts entered into between consumers and professionals, terms shall be considered unfair where, contrary to good faith, they cause a significant imbalance in the rights and obligations arising under the contract, to the detriment of the consumer.

2. Terms are presumed unfair, unless proved otherwise, where they have the object or effect of:

a) excluding or limiting the liability of the professional in the event of the death of the consumer or personal injury to the latter resulting from an act or omission of that professional;

b) excluding or limiting the actions or legal rights of the consumer vis-à-vis the professional or another party in the event of total or partial non-performance or inadequate performance by the professional;

c) excluding or limiting the option of offsetting a debt owed to the professional against any claim which the consumer may have against him;

d) making an agreement binding on the consumer whereas provision of services by the professional is subject to a condition whose realization depends on his own will alone;

e) permitting the professional to retain sums paid by the consumer where the latter does not conclude the contract or withdraws from it, without providing the right for the consumer to demand from the professional twice the amount of the sum paid where the professional is

the party that fails to conclude or withdraws from the contract;

f) requiring any consumer who fails to fulfil or delays in fulfilling his obligation to pay a sum of money by way of compensation, a penalty clause or similar, which is manifestly excessive;

g) authorising only the professional to dissolve the contract where the same facility is not granted to the consumer, or permitting the professional to retain even a part of the sum paid by the consumer by way of consideration for services not yet supplied, where it is the professional himself who cancels the contract;

h) enabling the professional to terminate an open-term contract without reasonable notice, except where there are fair grounds for doing so;

i) establishing a period of notice to terminate which is too far in advance of the contract’s expiry date in order to avoid tacit extension or renewal;

l) providing for an extension of the consumer’s acceptance to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

m) enabling the professional to alter the terms of the contract unilaterally, or the features of the product or service to be supplied, without a valid reason which is specified in the contract;

n) providing for the price of the goods or services to be determined at the time of delivery or provision of the service;

o) allowing the professional to increase the price for the goods or services without giving the consumer the right to cancel the contract if the final price is too high in relation to the price originally agreed;

p) giving the professional the right to determine whether the goods or services supplied are in conformity with the contract or giving him the exclusive right to interpret any clause of the contract;

q) limiting the professional’s liability with respect to commitments arising from contracts entered into in his name by his agents, or making the performance of said commitments subject to compliance with particular formalities;

r) limiting or excluding the consumer’s right to refuse the fulfilment of his obligations where the professional fails to fulfil his own obligations arising from the contract;

s) allowing the professional to transfer his rights and obligations under the contract to a third party, even with the consumer’s prior consent, where this reduces protection of the consumer’s rights;

t) burdening the consumer with expiry deadlines, limitations on his right to refuse the fulfilment of his obligations, derogations from the jurisdiction of the courts, restrictions in evidence available, shifts in the burden of proof, restrictions on freedom of contract in relations

with third parties;

u) establishing as forum in case of dispute, a jurisdiction other than the place where the consumer is resident or has his domicile of choice;

v) subjecting the assignment of a right or the assumption of an obligation to a condition precedent dependent on the mere will of the professional, as against an immediately effective obligation binding the consumer. This is without prejudice to Article 1355 of the Civil Code.

3. If the object of the contract is the supply of financial services of indeterminate duration, the professional may, in derogation from subparagraphs h) and m) of paragraph 2:

a) where there is a valid reason, withdraw from the contract without notice, informing the consumer immediately thereof;

b) where there is a valid reason, alter the conditions of the contract, informing the consumer with reasonable notice; the latter is entitled to withdraw from the contract.

4. If the object of the contract is the supply of financial services, provided that there is a valid reason, the professional may, without notice, alter the rate of interest or the amount of any other charge relating to the financial service originally agreed, in derogation from subparagraphs (n) and (o) of paragraph 2. The professional shall be required to inform the consumer immediately, and the consumer shall be entitled to withdraw from the contract.

5. Subparagraphs (h), (m), (n) and (o) of paragraph 2 shall be without hindrance to contracts which have as their object transferable securities, financial instruments and other products or services whose price is linked to fluctuations in a stock exchange quotation or index or a financial market rate that the professional does not control, and to contracts which have as their object the sale and purchase of foreign currency, traveller’s cheques or international money orders in foreign currency denominations.

6. Subparagraphs (n) and (o) of paragraph 2 shall not apply to priceindexation clauses, where lawful, provided that the method by which prices vary is explicitly described.


Section 34
Assessment of the unfair nature of terms

1. The unfair nature of a term shall be assessed by taking into account the nature of the goods or services for which the contract was concluded and by referring to all the circumstances existing at the time of conclusion of the contract, and to the other terms of the same contract or of another contract upon which it is dependent.

2. Assessment of the unfair nature of the terms shall relate neither to the definition of the main subject matter of the contract nor the adequacy of the consideration for the goods or services, in so far as these terms are in plain intelligible language.

3. Terms which reproduce provisions of law or which reproduce provisions or implement principles contained in international conventions to which all Member States of the European Union or the European Union itself are contracting parties, shall not be unfair.

4. Terms or aspects of terms that have been individually negotiated shall not be unfair.

5. For contracts concluded by signing a pre-formulated form or standard contract designed to regulate certain contractual relations in a uniform way, the professional shall bear the burden of proving that the terms or aspects of terms have been individually negotiated with the consumer, even though they have been prepared unilaterally by the professional.


Section 35
Form and interpretation

1. In the case of contracts where some or all terms are presented to the consumer in writing, these terms must always be drafted in plain, intelligible language.

2. Where there is doubt as to the meaning of a term, the interpretation that is most favourable to the consumer shall prevail.

3. The rule on interpretation provided by paragraph 2 shall not apply in the case of the procedures laid down in Article 37.


Section 36
Nullity for protection of consumers

1. Terms considered to be unfair pursuant to Articles 33 and 34 shall be null, while the remainder of the contract shall remain valid.

2. Terms shall be null, even if they have been individually negotiated, where they have the purpose or effect of:

a) excluding or exempting liability of the professional in the event of the death of the consumer or personal injury to the latter resulting from an act or omission of that professional;

b) excluding or exempting the actions of the consumer vis-à-vis the professional or another party in the event of total or partial non-performance or inadequate performance by the professional;

c) providing for an extension of the consumer’s acceptance to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract;

3. Nullity shall only operate for the benefit of the consumer and may be ascertained ex officio by the court.

4. The vendor shall have rights of recovery from the supplier for damage suffered as a result of the declaratory judgment of nullity of the terms declared unfair.

5. All contractual terms that have the effect of depriving the consumer of the protection given by the present Title by providing that the law applicable to the contract shall be the law of a non-Member country, shall be null, if the contract has a closer connection with the territory of a Member State of the European Union.


Section 37

Injunctions

1. Consumers’ associations pursuant to Article 137, associations representing professionals, and Chambers of Commerce, Industry, Crafts and Agriculture, may bring proceedings against any professional or professional association that uses or recommends the use of contractual terms drawn up for general use, and may request the competent court to grant orders preventing the use of terms that have been found unfair pursuant to this Title.

2. Injunctions may be granted, when there are fair grounds of urgency, pursuant to Articles 669-bis et seq. of the Civil Procedure Code.

3. The court may direct that the order be published in one or more newspapers, of which at least one is distributed nationwide.

4. For all matters not covered by this Article, the provisions of Article 140 shall apply to applications for injunctions brought by consumers’ associations under paragraph 1 thereof.


Section 37-bis
Administrative protection against unfair terms

[Introduced from section 5 of decree-law 1/2012 converted, with modifications, from Law n. 27 of 24 March 2012 on "Urgent provisions for competition, infrastructure development and competitiveness"]

1. The Autorità Garante della Concorrenza e del Mercato, having heard the representative national-level professional associations and the interested chambers of commerce or their unions, ex officio or in response to complaints, and for the sole purpose of the subsequent paragraphs, declares the unfair nature of terms that are included in contracts between professionals and consumers through the acceptance of general contract conditions or the signing of forms, models or templates. The provisions envisaged by section 14, paragraphs 2, 3 and 4 of law n. 287 of 10 October 1990 apply in accordance with the procedures noted in the regulation referred to in paragraph 5. In cases of non-compliance with orders by the Authority pursuant to section 14, paragraph 2 of law n. 287 of 10 October 1990, the Authority may apply pecuniary administrative sanctions ranging from 2,000 to 20,000 euros. If the information or documentation that is untruthful, the Authority may apply pecuniary administrative sanctions ranging from 4,000 to 40,000 euros.
2. An extract of the measure establishing the unfair nature of the term shall also be distributed via publication in a special section of the Authority's institutional website, on the website of operators who adopt terms deemed to be unfair and by any other means deemed opportune in relation to furnish consumers with due notice by and at the expense of the operator. In cases of non-compliance with the provisions of the present paragraph, the Authority may apply pecuniary administrative sanctions ranging from 5,000 to 50,000 euros.
3. The enterprises in question may consult with the Authority in advance, following the procedures indicated by the regulation referred to in paragraph 5, to determine whether the terms they intend to use in commercial relations with consumers would be considered unfair. The Authority makes a decision on this consultation within one hundred and twenty days of when the request is received, unless the information that was provided turns out to be seriously inaccurate, incomplete or untruthful. Terms that are found not to be unfair as a result of the consultation are immune to further assessment by the Authority for the effects referred to in paragraph 2. The professionals’ accountability to consumers remains unchanged in any case.
4. In matters of judicial protection against the acts by the Authority that are adopted in application of the present section, the administrative court shall be the court of jurisdiction. The exception is the ordinary court's jurisdiction over the validity of the unfair terms and compensation for damages.
5. The Authority regulates the investigative proceedings in accordance with its own regulations so as to guarantee full respect for legitimate reasons of confidentiality in cross-examination and access to the acts. The Authority uses its same regulations to regulate the procedures for consulting with representative national-level professional associations and interested chambers of commerce or their unions through the dedicated section of the website referred to in paragraph 2 and through the consultation procedure. In the exercise of the duties referred to in the present section, the Authority may hear from the regulation or oversight authorities of the sectors in which the interested professionals operate, as well as the interested chambers of commerce or their unions.
6. The activities referred to in the present section are implemented using the human, instrumental and financial resources that have already been allocated by law


Section 38
Reference

1. For all matters not provided for by the present Code, the provisions of the Civil Code shall apply to contracts concluded between the consumer and the professional.

 

[...]

 

Section 45
Definitions

1. For the purposes of Subchapters I  to IV of  this  Chapter, the following terms shall have the following meanings:

a) "consumer"means the physical person,   pursuant to Section 3, paragraph  (1) letter a);

b)  "trader"  means  the subject  pursuant to Section 3, paragraph (1), letter c);

c) "goods" means any tangible movable item, with the exception of items sold by way of execution or otherwise by authority of law; water, gas and electricity shall be considered as goods within the meaning of this Directive where they are put up for sale in a limited volume or a set quantity;

d) ‘goods made to the consumer’s specifications’ means non-prefabricated goods made on the basis of an individual choice of or decision by the consumer;

e) "sales contract" means any contract under which the trader transfers or undertakes to transfer the ownership of goods to the consumer and the consumer pays or undertakes to pay the price thereof, including any contract having as its object both goods and services;

f) "service  contracts" means  any contract other than sales contracts on the basis of which the trader supplies or undertakes to supply a service to the consumer and the consumer pays or undertakes to pay the price thereof;

g) "distance  contract" means any contract concluded between the trader and the consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

h)  ‘off-premises contract’ means any contract between the trader and the consumer:

(1) concluded in the simultaneous physical presence of the trader and the consumer, in a place which is not the business premises of the trader;

(2) for which an offer was made by the consumer in the same circumstances as referred to in point (1);

(3) concluded on the business premises of the trader or through any means of distance communication immediately after the consumer was personally and individually addressed in a place which is not the business premises of the trader in the simultaneous physical presence of the trader and the consumer; or

(4) concluded during an excursion organised by the trader with the aim or effect of promoting and selling goods or services to the consumer;

i)  ‘business premises’ means:

(1) any immovable retail premises where the trader carries out his activity on a permanent basis; or

(2) any movable retail premises where the trader carries out his activity on a usual basis;

l) ‘durable medium’ means any instrument which enables the consumer or the trader to store information addressed personally to him in a way accessible for future reference for a period of time adequate for the purposes of the information and which allows the unchanged reproduction of the information stored;

m) ‘digital content’ means data which are produced and supplied in digital form;

n) ’financial service’ means any service of a banking, credit, insurance, personal pension, investment or payment nature;

o) ‘public auction’ means a method of sale where goods or services are offered by the trader to consumers, who attend or are given the possibility to attend the auction in person, through a transparent, competitive bidding procedure run by an auctioneer and where the successful bidder is bound to purchase the goods or services;

p) ‘commercial guarantee’ means any undertaking by the trader or a producer (the guarantor) to the consumer, in addition to his legal obligation relating to the guarantee of conformity, to reimburse the price paid or to replace, repair or service goods in any way if they do not meet the specifications or any other requirements not related to conformity set out in the guarantee statement or in the relevant advertising available at the time of, or before the conclusion of the contract;

q) ‘ancillary contract’ means a contract by which the consumer acquires goods or services related to a distance contract or an off-premises contract and where those goods are supplied or those services are provided by the trader or by a third party on the basis of an arrangement between that third party and the trader.


Section 46
Scope

1. The provisions of  Subchapters  I to IV of this Chapter apply  to any contract concluded between a trader and a consumer. It shall also apply to contracts for the supply of water, gas, electricity or district heating, including by public providers, to the extent that these commodities are provided on a contractual basis.

2. If any provision of Subchapters I to IV of this Chapter conflicts with a provision of another European Union act governing specific sectors, the provision of that other European Union act, and the provisions of the national legislation transposing it, shall prevail and shall apply to those specific sectors.

3. The provisions of Subchapters I to IV of this Chapter do not prevent traders from offering to consumers contract terms which are more favourable with respect to the guarantees provided for by these rules.


Section 47
Exceptions

3. The provisions of these Subchapters I to IV of this Chapter shall not apply to contracts:

a) for social services, including social housing, childcare and support of families and persons permanently or temporarily in need, including long-term care;

b) for healthcare, for services provided by health professionals to patients, in order to assess, maintain or reestablish their health, including prescription, administration and supply of medicine and medical devices, whether or not they are provided via healthcare facilities;

c) for gambling, which involves wagering a stake with pecuniary value in games of chance, including lotteries, casino games and betting transactions;

d) for financial services;

e) for the creation, acquisition or transfer of immovable property or of rights in immovable property;

f) for the construction of new buildings, the substantial conversion of existing buildings and for rental of accommodation for residential purposes;

g) which fall within the scope of the regulation on package travel, package holidays and package tours in terms of Sections 32 to 51 of  Legislative Decree No. 79 of 23 May 2011;

h) which fall within the scope of regulation governing the protection of consumers in respect of certain aspects of timeshare, long-term holiday product, resale and exchange contracts in terms of article 69 to 81-bis of this Code;

i) established by a public office-holder who has a statutory obligation to be independent and impartial and who must ensure, by providing comprehensive legal information, that the consumer only concludes the contract on the basis of careful legal consideration and with knowledge of its legal scope;

l) for the supply of foodstuffs, beverages or other goods intended for current consumption in the household, and which are physically supplied by a trader on frequent and regular rounds to the consumer’s home, residence or workplace;

m) for passenger transport services, with the exception of Section 51, paragraph (2) and Sections 62 and 65;

n) concluded by means of automatic vending machines or automated commercial premises;

o)  concluded with telecommunications operators through public payphones for their use or concluded for the use of one single connection by telephone, Internet or fax established by a consumer.

2. The provisions of Subchapters I to IV of this Chapter shall not apply to off-premises contracts for which the payment to be made by the consumer does not exceed 50 Euros. However, the provisions of this Chapter shall apply in the case of various contracts stipulated by the same parties at the same time,  if the amount of the overall consideration exceeds 50 Euros.

 

Subchapter I
Pre-contractual  consumer Information requirements for contracts other than distance or off-premises contracts


Section 48

Information requirements for contracts other than distance or off-premises contracts

1. Before the consumer is bound by a contract other than a distance or an off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner, if that information is not already apparent from the context:

a) the main characteristics of the goods or services, to the extent appropriate to the medium and to the goods or services;

b) the identity of the trader, the geographical address at which he is established and his telephone number, and, if relevant, the geographical address and the identity of the trader on whose behalf he is acting;

c) the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated, as well as, where applicable, all additional freight, delivery or postal charges or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable;

d) where applicable, the arrangements for payment, delivery, performance, the time by which the trader undertakes to deliver the goods or to perform the service, and the trader’s complaint handling policy;

e) in addition to a reminder of the existence of a legal guarantee of conformity for goods, the existence and the conditions of after-sales services and commercial guarantees, where applicable;

f) the duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;

g) where applicable, the functionality, including applicable technical protection measures, of digital content;

h) where applicable, any relevant interoperability of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of.

2. The pre-contractual information obligations in terms of  paragraph (1) shall also apply to contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, of district heating or of digital content which is not supplied on a tangible medium.

3. The pre-contractual information  pursuant to paragraph (1) shall not apply  to contracts which involve day-to-day transactions and which are performed immediately at the time of their conclusion.

4. This Section is without prejudice to the possibility to adopt or maintain additional pre-contractual information requirements for contracts to which this Section applies.

5. This Section is without prejudice to the provisions of Sections 6 to 12 of this Code.

 

Subchapter II
Pre-contractual consumer information and right of withdrawal for distance and off-premises contracts


Section 49

Information requirements for distance and off-premises contracts

1. Before the consumer is bound by a distance or off-premises contract, or any corresponding offer, the trader shall provide the consumer with the following information in a clear and comprehensible manner:

a) the main characteristics of the goods or services, to the extent appropriate to the medium and to the goods or services;

b) the identity of the trader;

c) the geographical address at which the trader is established and the trader’s telephone number, fax number and e-mail address, where available, to enable the consumer to contact the trader quickly and communicate with him efficiently and, where applicable, the geographical address and identity of the trader on whose behalf he is acting;

d) if different from the address provided in accordance with letter (c), the geographical address of the place of business of the trader, and, where applicable, that of the trader on whose behalf he is acting, where the consumer can address any complaints;

e) the total price of the goods or services inclusive of taxes, or where the nature of the goods or services is such that the price cannot reasonably be calculated in advance, the manner in which the price is to be calculated, as well as, where applicable, all additional freight, delivery or postal charges and any other costs or, where those charges cannot reasonably be calculated in advance, the fact that such additional charges may be payable. In the case of a contract of indeterminate duration or a contract containing a subscription, the total price shall include the total costs per billing period. Where such contracts are charged at a fixed rate, the total price shall also mean the total monthly costs. Where the total costs cannot be reasonably calculated in advance, the manner in which the price is to be calculated shall be provided;

f) the cost of using the means of distance communication for the conclusion of the contract where that cost is calculated other than at the basic rate;

g) the arrangements for payment, delivery, performance, the time by which the trader undertakes to deliver the goods or to perform the services and, where applicable, the trader’s complaint handling policy;

h) where a right of withdrawal exists, the conditions, time limit and procedures for exercising that right in accordance with Section 54,  paragraph (1), as well as the model withdrawal form set out in Annex I  (B);

i) where applicable, that the consumer will have to bear the cost of returning the goods in case of withdrawal and, for distance contracts, if the goods, by their nature, cannot normally be returned by post, the cost of returning the goods;

l) that, if the consumer exercises the right of withdrawal after having made a request in accordance with Section 50 paragraph (3) or Section 51  paragraph(8), the consumer shall be liable to pay the trader reasonable costs in accordance with Section 57, paragraph (3);

m) where a right of withdrawal is not provided for in accordance with Section 59, the information that the consumer will not benefit from a right of withdrawal or, where applicable, the circumstances under which the consumer loses his right of withdrawal;

n) a reminder of the existence of a legal guarantee of conformity for goods;

o) where applicable, the existence and the conditions of after sale customer assistance, after-sales services and commercial guarantees;

p) the existence of relevant codes of conduct, as defined in Section 18, paragraph (1), letter f) of this Code, and how copies of them can be obtained, where applicable;

q) the duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;

r) where applicable, the minimum duration of the consumer’s obligations under the contract;

s) where applicable, the existence and the conditions of deposits or other financial guarantees to be paid or provided by the consumer at the request of the trader;

t) where applicable, the functionality, including applicable technical protection measures, of digital content;

u) where applicable, any relevant interoperability of digital content with hardware and software that the trader is aware of or can reasonably be expected to have been aware of;

v) where applicable, the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods for having access to it.

2. Pre-contractual information obligations referred to in paragraph (1) shall also apply to contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, of district heating or of digital content which is not supplied on a tangible medium.

3. In the case of a public auction, the information referred to in letters b), c) and d) of paragraph (1) may be replaced by the equivalent details for the auctioneer.

4. The information referred to in letters h), i) and l) of paragraph (1) may be provided by means of the model instructions on withdrawal set out in Annex 1 (A). The trader shall have fulfilled the information requirements laid down in letters h), i) and l) of paragraph (1) if he has supplied these instructions to the consumer, correctly filled in.

5. The information referred to in paragraph (1) shall form an integral part of the distance or off-premises contract and shall not be altered unless the contracting parties expressly agree otherwise.

6. If the trader has not complied with the information requirements on additional charges or other costs as referred to in letter (e) of paragraph (1), or on the costs of returning the goods as referred to in letter i) of paragraph (1), the consumer shall not bear those charges or costs.

7. In the event of use of techniques which permit individual communication, the information  referred to in paragraph (1) are supplied in Italian if the consumer so requests (at the consumer’s request).

8. The information requirements laid down in this section are in addition to information requirements contained in Legislative Decree No. 59 of 26 March 2010 as subsequently modified and Legislative Decree No. 70 of 9 April 2003 as subsequently modified and do not prevent imposition of additional information requirements in accordance with those provisions.

9. Without prejudice to the provisions of paragraph (8), in the event of conflict between the provisions of Legislative Decree No. 59 of 26 March 2010 as subsequently amended, and Legislative Decree No. 70 of 9 April 2003 as subsequently amended, on the content and form of provision of information and a provision of this section, the latter shall prevail.

10. As regards compliance with the information requirements laid down in this subchapter, the burden of proof shall be on the trader.


Section 50
Formal requirements for off-premises contracts

1. With respect to off-premises contracts, the trader shall give the information provided for in Section 49, paragraph (1) to the consumer on paper or, if the consumer agrees, on another durable medium. That information shall be legible and in plain, intelligible language.

2. The trader shall provide the consumer with a copy of the signed contract or the confirmation of the contract on paper or, if the consumer agrees, on another durable medium, including, where applicable, the confirmation of the consumer’s prior express consent and acknowledgement in accordance with Section 59, paragraph (1) letter o).

3. Where a consumer wants the performance of services or the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or of district heating to begin during the withdrawal period provided for in Section 52, paragraph (2), the trader shall require that the consumer makes such an express request on a durable medium.

4. With respect to off-premises contracts where the consumer has explicitly requested the services of the trader for the purpose of carrying out repairs or maintenance for which the trader and the consumer immediately perform their contractual obligations and where the payment to be made by the consumer does not exceed EUR 200:

a) the trader shall provide the consumer with the information referred to in letters b) and c) of Section 49, paragraph (1) and information about the price or the manner in which the price is to be calculated together with an estimate of the total price, on paper or, if the consumer agrees, on another durable medium. The trader shall provide the information referred to in letters a), h) and m) of Section 49, paragraph (1) but may choose not to provide it on paper or another durable medium if the consumer expressly agrees;

b) the confirmation of the contract provided in accordance with paragraph (2) of this Section shall contain the information provided for in Section 49, paragraph (1).


Section 51
Formal requirements for distance contracts

1. With respect to distance contracts, the trader shall give the information provided for in Section 49, paragraph (1) or make that information available to the consumer in a way appropriate to the means of distance communication used in plain and intelligible language. In so far as that information is provided on a durable medium, it shall be legible.

2. If a distance contract to be concluded by electronic means places the consumer under an obligation to pay, the trader shall make the consumer aware in a clear and prominent manner, and directly before the consumer places his order, of the information provided for in letters (a), (e), (q) and (r) of Section 49, paragraph (1). The trader shall ensure that the consumer, when placing his order, explicitly acknowledges that the order implies an obligation to pay. If placing an order entails activating a button or a similar function, the button or similar function shall be labelled in an easily legible manner only with the words ‘order with obligation to pay’ or a corresponding unambiguous formulation indicating that placing the order entails an obligation to pay the trader. If the trader has not complied with this sub-article, the consumer shall not be bound by the contract or order.

3. Trading websites shall indicate clearly and legibly at the latest at the beginning of the ordering process whether any delivery restrictions apply and which means of payment are accepted.

4. If the contract is concluded through a means of distance communication which allows limited space or time to display the information, the trader shall provide, on that particular means prior to the conclusion of such a contract, at least the pre-contractual information regarding 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, if the contract is of indeterminate duration, the conditions for terminating the contract, as referred to in letters a), b), e), h) and q) of Section 49 paragraph (1). The other information referred to in Section 49 paragraph (1) shall be provided by the trader to the consumer in an appropriate way in accordance with paragraph (1) of this Section.

5. Without prejudice to paragraph (4), if the trader makes a telephone call to the consumer with a view to concluding a distance contract, he shall, at the beginning of the conversation with the consumer, disclose his identity and, where applicable, the identity of the person on whose behalf he makes that call, and the commercial purpose of the call and the information referred to in Section 10 of Presidential Decree No. 178 of 7 September 2010.

6. Where a distance contract is to be concluded by telephone, the trader has to confirm the offer to the consumer who is bound only once he has signed the offer or has sent his written consent ; in such case the electronic document may be signed digitally  pursuant to Section 21 of Legislative Decree No. 82 of 7 March 2005 as subsequently amended. Upon agreement with the consumer, such confirmations may be given, on a durable medium.

7. The trader shall provide the consumer with the confirmation of the contract concluded, on a durable medium within a reasonable time after the conclusion of the distance contract, and at the latest at the time of the delivery of the goods or before the performance of the service begins. That confirmation shall include:

a) all the information referred to in Section 49 paragraph (1), unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract; and

b) where applicable, the confirmation of the consumer’s prior express consent and acknowledgment in accordance with letter o) of Section 59.

8. Where a consumer wants the performance of services, or the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or of district heating, to begin during the withdrawal period provided for in Section 52, paragraph (2), the trader shall require that the consumer make an express request.

9. This Article shall be without prejudice to the provisions on the conclusion of e-contracts and the placing of e-orders set out in Section 12, paragraphs (2) and (3), and Section 13 of Legislative Decree No. 70 of 9 April 2003, as subsequently amended.


Section 52
Right of withdrawal

1. Save where the exceptions provided for in Section 59 apply, the consumer shall have a period of 14 days to withdraw from a distance or off-premises contract, without giving any reason, and without incurring any costs other than those provided for in Section 56  paragraph(2) and Section 57.

2. Without prejudice to Section 53, the withdrawal period referred to in paragraph (1) of this Section shall expire after 14 days from:

a) in the case of service contracts, the day of the conclusion of the contract;

b) in the case of sales contracts, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the goods or:

1) in the case of multiple goods ordered by the consumer in one order and delivered separately, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the last good;

2) in the case of delivery of a good consisting of multiple lots or pieces, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the last lot or piece;

3) in the case of contracts for regular delivery of goods during defined period of time, the day on which the consumer or a third party other than the carrier and indicated by the consumer acquires physical possession of the first good;

c) in the case of contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, of district heating or of digital content which is not supplied on a tangible medium, the day of the conclusion of the contract.

3. The parties to the contract may perform their contractual obligations during the withdrawal period. Nevertheless, in the case of off-premises contracts, traders  shall not accept as payment cheques or bills of exchange which expire less than 15 days from the conclusion of the contract for service contracts or from the acquisition of physical possession of goods in sales contracts and shall not discount them prior to such term.


Section 53
Omission of information on the right of withdrawal

1. If the trader has not provided the consumer with the information on the right of withdrawal as required by letter h) of Section 49 paragraph (1) the withdrawal period shall expire 12 months from the end of the initial withdrawal period, as determined in accordance with Section 52, paragraph (2).

2. If the trader has provided the consumer with the information provided for in paragraph (1) of this Section within 12 months from the day referred to in Section 52 paragraph 2, the withdrawal period shall expire 14 days after the day upon which the consumer receives that information.


Section 54
Exercise of the right of withdrawal

1. Before the expiry of the withdrawal period, the consumer shall inform the trader of his decision to withdraw from the contract. For this purpose, the consumer may either:

a) use the model withdrawal form as set out in Annex I (B); or

b) make any other unequivocal statement setting out his decision to withdraw from the contract.

2. The consumer shall have exercised his right of withdrawal within the withdrawal period referred to in Section 52 paragraph (2) and Section 53 if the communication concerning the exercise of the right of withdrawal is sent by the consumer before that period has expired.

3. The trader may, in addition to the possibilities referred to in paragraph 1, give the option to the consumer to electronically fill in and submit either the model withdrawal form set out in Annex I (B) or any other unequivocal statement on the trader’s website. In those cases the trader shall communicate to the consumer an acknowledgement of receipt of such a withdrawal on a durable medium without delay.

4. The burden of proof of exercising the right of withdrawal in accordance with this Section shall be on the consumer.


Section 55
Effects of withdrawal

1. The exercise of the right of withdrawal shall terminate the obligations of the parties:

a) to perform the distance or off-premises contract; or

b) to conclude the distance or off-premises contract, in cases where an offer was made by the consumer.


Section 56
Obligations of the trader in the event of withdrawal

1. The trader shall reimburse all payments received from the consumer, including, if applicable, the costs of delivery without undue delay and in any event not later than 14 days from the day on which he is informed of the consumer’s decision to withdraw from the contract in accordance with Section 54. The trader shall carry out the reimbursement referred to in the first sentence using the same means of payment as the consumer used for the initial transaction, unless the consumer has expressly agreed otherwise and provided that the consumer does not incur any fees as a result of such reimbursement. In the event that the payment is made by cheque or bill of exchange, if these have not yet been presented for payment they must be duly returned. Any provision which limits reimbursement to the consumer of amounts paid as a result of withdrawal shall be null and void.

2. Notwithstanding paragraph (1), the trader shall not be required to reimburse the supplementary costs, if the consumer has expressly opted for a type of delivery other than the least expensive type of standard delivery offered by the trader.

3. Unless the trader has offered to collect the goods himself, with regard to sales contracts, the trader may withhold the reimbursement until he has received the goods back, or until the consumer has supplied evidence of having sent back the goods, whichever is the earliest.


Section 57
Obligations of the consumer in the event of withdrawal

1. Unless the trader has offered to collect the goods himself, the consumer shall send back the goods or hand them over to the trader or to a person authorised by the trader to receive the goods, without undue delay and in any event not later than 14 days from the day on which he has communicated his decision to withdraw from the contract to the trader in accordance with Section 54. The deadline shall be met if the consumer sends back the goods before the period of 14 days has expired. The consumer shall only bear the direct cost of returning the goods unless the trader has agreed to bear them or the trader failed to inform the consumer that the consumer has to bear them. In the case of off-premises contracts where the goods have been delivered to the consumer’s home at the time of the conclusion of the contract, the trader shall at his own expense collect the goods if, by their nature, those goods cannot normally be returned by post.

2. The consumer shall only be liable for any diminished value of the goods resulting from the handling of the goods other than what is necessary to establish the nature, characteristics and functioning of the goods. The consumer shall in any event not be liable for diminished value of the goods where the trader has failed to provide notice of the right of withdrawal in accordance with letter h) of Section 49 paragraph (1).

3. Where a consumer exercises the right of withdrawal after having made a request in accordance with Section 50 paragraph (3) or Section 51 paragraph (8), the consumer shall pay to the trader an amount which is in proportion to what has been provided until the time the consumer has informed the trader of the exercise of the right of withdrawal, in comparison with the full coverage of the contract. The proportionate amount to be paid by the consumer to the trader shall be calculated on the basis of the total price agreed in the contract. If the total price is excessive, the proportionate amount shall be calculated on the basis of the market value of what has been provided.

4. The consumer shall bear no cost for:

a) the performance of services or the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, or of district heating, in full or in part, during the withdrawal period, where:

1) the trader has failed to provide information in accordance with letter h) and l) of Section 49 paragraph (1); or

2) the consumer has not expressly requested performance to begin during the withdrawal period in accordance with Section 50 paragraph (3) and Section 51 paragraph (8); or

b) the supply, in full or in part, of digital content which is not supplied on a tangible medium where:

1) the consumer has not given his prior express consent to the beginning of the performance before the end of the 14-day period referred to in Section 52;

2) the consumer has not acknowledged that he loses his right of withdrawal when giving his consent; or

3) the trader has failed to provide confirmation in accordance with Section 50  paragraph(2)  or Section 51 paragraph (7).

5. Except as provided for in Section 56, paragraph (2) and in this Section, the consumer shall not incur any liability as a consequence of the exercise of the right of withdrawal.


Section 58
Effects of the exercise of the right of withdrawal on ancillary contracts

1. Without prejudice to the provisions of Legislative Decree No. 141 of 13 August 2010 as subsequently amended on credit agreements for consumers, if the consumer exercises his right of withdrawal from a distance or an off-premises contract in accordance with Sections 52 to 57, any ancillary contracts shall be automatically terminated, without any costs for the consumer, except as provided for in Section 56  paragraph(2) and Section 57.


Section 59
Exceptions from the right of withdrawal

1. There shall not be any right of withdrawal set out in Sections 52 to 58 in respect of distance and off-premises contracts as regards the following:

a) service contracts after the service has been fully performed if the performance has begun with the consumer’s prior express consent, and with the acknowledgement that he will lose his right of withdrawal once the contract has been fully performed by the trader;

b) the supply of goods or services for which the price is dependent on fluctuations in the financial market which cannot be controlled by the trader and which may occur within the withdrawal period;

c) the supply of goods made to the consumer’s specifications or clearly personalised;

d) the supply of goods which are liable to deteriorate or expire rapidly;

e) the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery;

f) the supply of goods which are, after delivery, according to their nature, inseparably mixed with other items;

g) the supply of alcoholic beverages, the price of which has been agreed upon at the time of the conclusion of the sales contract, the delivery of which can only take place after 30 days and the actual value of which is dependent on fluctuations in the market which cannot be controlled by the trader;

h) contracts where the consumer has specifically requested a visit from the trader for the purpose of carrying out urgent repairs or maintenance. If, on the occasion of such visit, the trader provides services in addition to those specifically requested by the consumer or goods other than replacement parts necessarily used in carrying out the maintenance or in making the repairs, the right of withdrawal shall apply to those additional services or goods;

i) the supply of sealed audio or sealed video recordings or sealed computer software which were unsealed after delivery;

l) the supply of a newspaper, periodical or magazine with the exception of subscription contracts for the supply of such publications;

m) contracts concluded at a public auction;

n) the provision of accommodation other than for residential purpose, transport of goods, car rental services, catering or services related to leisure activities if the contract provides for a specific date or period of performance;

o) the supply of digital content which is not supplied on a tangible medium if the performance has begun with the consumer’s prior express consent and his acknowledgment that he thereby loses his right of withdrawal.

 

Subchapter III
Other consumer rights


Section 60
Scope

1. Sections 61 and 63 shall apply to sales contracts. Those Sections shall not apply to contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, of district heating or the supply of digital content which is not supplied on a tangible medium.

2. Sections 62, 64 and 65 shall apply to sales and service contracts and to contracts for the supply of water, gas, electricity, district heating or digital content.


Section 61
Delivery

1. Unless otherwise agreed between the parties in the sales contract, the trader shall deliver the goods to the consumer without undue delay and at the latest within thirty days from the date of signature of the contract.

2. The delivery obligation shall be deemed to have been fulfilled  by transferring the physical possession or control of the goods to the consumer.

3. Where the trader has failed to fulfill his obligation to deliver the goods at the time agreed upon with the consumer or within the time limit set out in paragraph (1), the consumer shall call upon him to make the delivery within an additional period of time appropriate to the circumstances. If the trader fails to deliver the goods within that additional period of time, the consumer shall be entitled to terminate the contract, without prejudice to further right for damages.

4. The consumer shall not be bound to grant the trader the additional term referred to in paragraph (3) if:

a) the trader has expressly refused to deliver the goods, or;

b) where delivery within the agreed delivery period is essential, taking into account all the circumstances attending the conclusion of the contract, or;

c) where the consumer informs the trader, prior to the conclusion of the contract, that delivery by or on a specified date is essential.

5. In the cases referred to in paragraph (4), if the trader fails to deliver the goods at the time agreed upon with the consumer or within the time limit set out in paragraph (1), the consumer shall be entitled to terminate the contract immediately without prejudice to further rights of damages.

6. Upon termination of the contract pursuant to paragraphs (3) and (5), the trader shall, without undue delay, reimburse all sums paid under the contract.

7. The consumer shall have the right to exercise its rights referred to in  Chapter XIV of Title II of Book IV of the Civil Code


Section 62
Fees for the use of means of payment

1. Pursuant to Section 3, paragraph (4) of Legislative Decree No. 11 of 27 January 2010, traders shall not charge consumers, in respect of the use of a given means of payment, expenses for the use of such means, or in the cases expressly established, fees that exceed the cost borne by the trader..

2. The institution issuing the payment card will re-credit the consumer with payments in the event of a payment exceeding the price agreed or in the case of fraudulent use of the payment card by the trader or a third party. The institution issuing the card has the right to debit the trader with the amounts credited back to the consumer.


Section 63
Passing of risk

1. In contracts where the trader dispatches the goods to the consumer, the risk of loss of or damage to the goods not caused by the seller shall pass to the consumer only when he or a third party indicated by the consumer and other than the carrier has acquired the physical possession of the goods.

2. However, the risk shall pass to the consumer upon delivery to the carrier if the carrier was commissioned by the consumer to carry the goods and that choice was not offered by the trader, without prejudice to the rights of the consumer against the carrier.


Section 64
Telephone communication

1. Where the trader operates a telephone line for the purpose of contacting him by telephone in relation to the contract concluded, the consumer, when contacting the trader is not bound to pay more than the basic rate, without prejudice to the right of electronic communication service providers to charge for such calls.


Section 65
Additional payments

1. Before the consumer is bound by the contract or offer, the trader shall seek the express consent of the consumer to any extra payment in addition to the remuneration agreed upon for the trader’s main contractual obligation. If the trader has not obtained the consumer’s express consent but has inferred it by using default options which the consumer is required to reject in order to avoid the additional payment, the consumer shall be entitled to reimbursement of this payment.

 

Subchapter IV
General Provisions


Section 66
Administrative and  judicial protection

1. In order to ensure compliance with the provisions of Subchapters I to IV of this Chapter by operators, the provision of Sections 27, 139, 140, 140-bis, 141 and 144 of this Code shall apply.

2. The Competition Authority ex officio or upon application of an interested person or organisation shall ascertain breach of the provisions of Subchapters I to IV of this Chapter, shall inhibit its continuation and eliminate the effects.

3. On assessment and penalties for infringement Section 27, paragraphs (2) to (15) of this Code shall apply. .

4. The Competition Authority shall have the role of competent authority pursuant to Section 3 letter c) of EU Regulation No. 2006/2004 of the European Parliament and the Council of 27 October 2004 with respect to the issues referred to in Subchapters I to IV of this Chapter.

5. This is without prejudice to the jurisdiction of the Ordinary Courts. This is also without prejudice to  extra-judicial resolution of litigations on the consumer relationship, on matters involving Sections I to IV of this Chapter, at the appropriate bodies set up  by the chambers of commerce, pursuant to Section 2, paragraph (4) of Law No. 580 of 29 December 1993.


Section 66-bis
Jurisdiction

1. Civil litigations with respect to the application of Subchapters I to IV of this Chapter shall be exclusively brought before the Court of the place of residence or domicile of the consumer, if these are within the territory of the State.


Section 66-ter
Imperative nature

1. If the law applicable to the contract is the law of a Member State, consumers resident in Italy may not waive the rights conferred on them pursuant to Subchapters I to IV of this Chapter.

2. Any contractual terms which directly or indirectly waive or restrict the rights resulting from Subchapters I to IV of this Chapter shall not be binding on the consumer.


Section 66-quater
Information and out of court settlement

1. Notices and documents concerning  off-premises  and distance contracts, including forms, order notes, advertising and web-site communication must include a  reference to this Chapter.

2. The operator may adopt particular codes of conduct pursuant to Section 27-bis.

3. For settlement of litigations arising from the proper application of agreements governed by the provisions of Subchapters I to IV of this Chapter it is possible to refer the matter to alternative dispute resolution in terms of Legislative Decree No. 28 of 4 March 2010. This without prejudice to the possibility to use voluntary settlement procedures in terms of Section 2, paragraph (2) of the same Legislative Decree No. 28 of 4 March 2010.


Section 66-quinquies
Inertia selling

1. The consumer shall be exempted from the obligation to provide any consideration in cases of unsolicited supply of goods, water, gas, electricity, district heating or digital content or unsolicited provision of services, prohibited by Section 20 paragraph (5) and Section 26 paragraph (1), letter f) of this Code. In such cases, the absence of a response from the consumer following such an unsolicited supply or provision shall not constitute consent.

2. Except with the consent of the consumer, to be given before or at the moment of the conclusion of the contract, the trader cannot comply by making a supply which is different to that agreed, even if the value and quality are equivalent or superior.


Section 67
Protection in terms of other legal provisions

1. The provisions of Subchapters I to IV of this Chapter do not exclude nor limit the rights of the consumer arising under other EU regulations or those adopted pursuant to EU regulations.

2. Any matter not regulated by Subchapters I to IV of this Chapter will be governed by the provisions of the Civil Code with respect to the validity, rafting or effectiveness of contracts.

3. Contract in terms of Subchapter III of this Chapter shall also be governed by the provision of Sections 18, 19 and  20 of Legislative Decree No. 114  of 31 March 1998, as subsequently amended, including the reform of rules governing the trade sector in terms of Section 4, paragraph  (4) of Law No. 59 of 15 March 1997".

 

Only the Italian text is authentic