The new law will enter into force on 2 April 2023
On 18 March 2023, Legislative Decree No. 26 of 2023 implementing EU Directive 2019/2161 (“Omnibus Directive“) was published in the Italian Official Journal.
After a long implementation process, the legislative decree will enter into force on 2 April 2023, amending and integrating the text of Legislative Decree no. 206 of 2005 (“Consumer Code“).
The new rules are intended to strengthen consumer protection when contracting, especially online, with traders. The new rules are also intended to fully harmonise consumer protection rules at European level by introducing greater transparency and more effective sanctions with regard to unfair commercial practices, unfair terms and distance contracts.
Increase in sanctions related to:
- Unfair commercial practices and distance selling
Pursuant to art. 27 para 9 of Consumer Code
For national violations
The maximum administrative fine that can be issued by the Italian Competition Authority (ICA) is raised from EUR 5 to 10,000,000 in case of unfair commercial practice and/or violation of the rules on distance selling or for violation of urgent measures, injunctions or removal of effects or commitment undertaken by the trader.
For union violations
Sanctions up to 4% of the trader’s annual turnover of the trader realised in Italy or in EU Member States concerned by the violation and where information on annual turnover is not available the maximum amount of the sanction shall be 2 million of Euros.
- Unfair clauses
New sanction regime for unfair terms. The maximum amount is equal to the maximum sanctions applicable to unfair commercial practices. The new paragraph 2-bis of Article 37-bis of the Consumer Code provides that if the ICA ascertains the use of unfair clauses, it shall apply the sanction provided for in Article 27(9) (unfair commercial practices).
New unfair commercial practices
The new regulation introduces into our legal system new cases of unfair commercial practices as well as strengthens consumer protection measures (in terms of new mandatory pre-contractual information and withdrawal) in contracts concluded at a distance or off business premises.
Such protection measures apply also to contracts under which the consumer does not pay a price but provides personal data to the trader that process them for purposes other than for providing the digital content or digital service.
This is therefore a modernisation of the discipline in the light of the new frontiers of online transactions and the constantly evolving digital tools used in relations between traders and consumers.
Price reduction announcements
Further intervention concerns price reduction announcements, which must indicate the price charged in the previous 30 days.
The new Article 17-bis of the Consumer Code establish the specific modalities for indicating the previous price and its exceptions (e.g., products that have been on the market for less than thirty days and perishable agricultural and food products).
The new provisions apply also to extraordinary sales but NOT to sales below cost. With respect to promotional campaigns, the new rules will apply from the 90th day following the entry into force of the Decree (i.e., 1 July 2023), in order to allow the companies involved to adapt to the new regulatory framework.