Unfair contract terms


In 2012 the law granted to the ICA new powers on unfair contract terms (Article 37-bis of the Consumer Code) included in general contract conditions or forms drafted by sellers or suppliers and used towards consumers. Pursuant to art. 33 and following of the Consumer Code (that implemented the Directive no. 93/13/EEC), a contractual term shall be regarded as unfair, even in the case of the seller’s/supplier’s good faith, if it causes a significant imbalance in the parties’ rights and obligations arising under the contract to the detriment of the consumer.

In this setting, the ICA’s enforcement powers are twofold: (i) the ICA can evaluate and ascertain the unfair nature of contractual terms through an ex officio inquiry or following to a complaint or (ii) it can make an assessment under a specific request by a seller or supplier (the so-called “interpello”).

As far as the first tool abovementioned is concerned, the ICA can verify, ex officio or following to a complaint, the unfair nature of contractual terms. The complaint can be filed even through the web (web form or certified e-mail – PEC), by any natural or legal person or organization (e.g. consumer association) that has an interest in it. Chambers of Commerce or their associations (“Chamber System”) can file complaints too. If an inquiry is started, a mandatory on-line consultation is carried out through the ICA’s website for 30 days: the Chamber System, main traders’ associations at national level and main consumers’ associations (taking part to the National Council of Consumers and Users - CNCU) can participate in the consultation.

At the end of the inquiry, the ICA adopts a decision that is published, even as a summary, on its website and on the seller’s/supplier’s website that adopted the contractual terms considered as unfair, and may also inform consumers with whatever suitable medium.

The ICA can issue fines if the trader does not provide the requested information or if the same information is untruthful, as well as if the trader does not comply to the mandatory publication of the ICA’s decision that has stated the unfair nature of contract terms.

With regard to the second tool abovementioned (the “interpello”), sellers or suppliers can ask the ICA – using a specific form – to pre-emptively verify whether the terms they intend to use in contracts with consumers are unfair. The ICA takes its decision within 120 days, except in the case the information provided is seriously incorrect, incomplete or untruthful.

In addition, the ICA can ask an opinion to regulatory or supervisory bodies active in the traders’ sectors or to the Chamber system.

Moreover the ICA, prior to start an inquiry, may also inform the supplier or the seller about the likelihood of unfairness of certain contractual terms by written communication (moral suasion).