Legislative Decree no. 146 of 2 August 2007
Only the Italian text is authentic
LEGISLATIVE DECREE No 146 of 2 August 2007
Implementing directive 2005/29/EC concerning unfair business-to-consumer commercial practices in the internal market and amending Directives 84/450/EEC, 97/7/EC, 98/27/EC and 2002/65/EC and
Regulation (EC) No 2006/2004 (Official Gazette No 207 of 6/9/2007)
Unfair Commercial Practices
1. Sections 18 to 27 of Legislative Decree No 206 of 6 September 2005 enacting the Consumers' Code are replaced by the following:
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;
(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.
1. This Title shall apply to unfair business-to-consumer commercial practices before, during and after a commercial transaction in relation to a product.
2. This Title is without prejudice to:
a) contract law and, in particular, to the rules on the formation, validity, or effect of a
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.
Unfair commercial practices
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.
Misleading commercial practices
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.
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).
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.
Aggressive commercial practices
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.
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.
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.
Administrative and judicial protection
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.
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 €500,000.00, 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 €150,000. 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. Appeals may be filed against decisions adopted by the Authority solely before the Administrative Courts. 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."
2. The following provisions are to be inserted into Legislative Decree No 206 of 6 September 2005 enacting the "Consumers' Code" after section 27, as amended by this Legislative Decree:
"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.
2. The Ministry for Economic Development shall ensure that the following are available on the official website:
(a) general information on the procedures referring to the complaints and appeals procedures available in the event of disputes, and on the codes of conduct adopted pursuant to Section 27-bis;
(b) details of the authorities, organisations or associations from which further information or assistance may be acquired;
(c) details and synopses of major decisions regarding disputes, including those issued by out-of-court settlement bodies".
3. The heading of part II of Legislative Decree No 206 of 6 September 2005, enacting the Consumers' Code, is replaced by the following: "Education, information, commercial practices, advertising".
4. The words "Chapter III" and "Section I" of Title III of Part II of Legislative Decree No 206 of 6 September 2005, enacting the Consumers' Code are replaced, respectively, by "Title IV" and "Chapter I".
5. The word "Section" is replaced by "Chapter" in section 28 (1) of Legislative Decree No 206 of 6 September 2005.
Unsolicited supplies under distance contracts
1. Section 57 of Legislative Decree No 206 of 6 September 2005 is replaced by the following:
"Section 57 (Unsolicited supplies). - 1. The consumer is not required to pay for unsolicited supplies. In no case shall the lack of a reply be deemed to be consent on the part of the consumer.
2. Notwithstanding the penalties provided by section 62 all forms of unsolicited supplies pursuant to this section shall be deemed unfair commercial practice within the meaning of Title III, Chapter II."
Unsolicited services in the distance marketing of financial services
1. Section 14 of Legislative Decree No 190 of 19 August 2005 is replaced by the following:
"Section 14 (Unsolicited services) - 1. The consumer is not required to pay for unsolicited supplies. In no case shall the lack of a reply be deemed to be consent on the part of the consumer.
2. Notwithstanding the penalties provided by section 16 all forms of unsolicited services pursuant to this section shall be deemed unfair commercial practice within the meaning of Title III, Chapter II of Legislative Decree No 206 of 6 September 2005, enacting the "Consumers' Code".
1. The regulations provided by section 27 (11) of Legislative Decree No 206 of 6 September 2005 enacting the "Consumers' Code" shall be issued within 90 days of the date of entry into force of this Legislative Decree.
1. Following the date of entry into force of this Legislative Decree, sections 5 (1) and (7) of Law No 173 of 17 August 2005, governing direct selling to the home and the protection of consumers from forms of pyramid selling are hereby repealed where they refer to forms of pyramid selling between consumers and traders as defined by section 23(1)(p) of Legislative Decree No 206 of 6 September 2005 enacting the Consumers' Code which provides that it is possible for a contribution to be made by the consumer as defined by section 18(1)(a) of the aforementioned Code. The aforementioned sections 5 (1) and 7 therefore remain applicable to forms of pyramid promotion involving any natural or legal person acting as part of their commercial, industrial, craft or trading activities.
1. The implementation of this decree shall not create any new or greater burdens on public finances.
This decree, bearing the Seal of State shall be entered in "Raccolta Ufficiale" of Laws of the Italian Republic. Compliance and enforcement are man