Introduction

The Italian Competition Authority (“ICA”) has recently closed three investigations with rather significant fines. The investigations concerned infringements of Article 62 of the Italian Consumer Code, which imposes (as of 13 June 2014) an absolute prohibition in relation to charges on Italian consumers for using particular payment methods (reference is made to Article 62 of the Legislative Decree No. 206/2005 as amended following the transposition of Consumer’s Rights Directive 2011/83/EU).

Legislative Background

Following the transposition of Directive 2011/83/EU (“Consumers’ Rights Directive”), Article 62 of the Legislative Decree no. 206/2005 (“Italian Consumer Code”) was amended by prohibiting traders from charging consumers for using certain means of payment, incurring expenses for the use of such means of payment or, in the cases expressly foreseen by the law, imposing fees that exceed the cost borne by the trader. Thus, only where expressly provided is it possible for a trader to charge fees in respect of the use of certain means of payment, provided, however, that they do not exceed the costs actually incurred by the trader. In fact, Article 62 of the Italian Consumer Code establishes that charges on the payer for using a particular payment instrument are allowed if provided for by a specific regulation issued by the Bank of Italy, also in line with Article 52 paragraph 3 of Directive 2007/64/EC (“Payment Service Directive”). However, considering that no such regulation has been published by the Bank of Italy to date, the ICA has interpreted Article 62 as an outright ban on imposing charges by traders (i.e. providers of goods or services, other than financial services) on consumers for the use of certain means of payment such as, for example, credit cards . This ban is effective starting from 13 June 2014, the date of entry into force of the Legislative Decree No. 21/2014 transposing the Consumer’s Rights Directive that amended the relevant Italian Consumer Code.

ICA’s Findings

The three investigations, as anticipated, have determined that there has been an infringement of Article 62 of the Italian Consumer Code and, subsequently, the ICA has imposed heavy fines on the companies involved. The first two decisions concerned two airline companies, fined because they were surcharging consumers using credit cards to buy travel tickets on their websites. In particular, in two decisions published on 14 October 2016, the low cost airline companies Norwegian Air (Resolution no. 26183 - PS9235 - NORWEGIAN AIR SHUTTLE-COMMISSIONI SU CARTA DI CREDITO) and Blue Air (Resolution no. 26184 - PS10076 - BLUE AIR-CREDIT CARD SURCHARGE (CCS)) were fined, respectively, €150,000 and €170,000, by the ICA for not complying with the new rule introduced pursuant to the transposition of Directive 2011/83/EU on Consumer Rights into Italian legislation. As mentioned previously, charging extra fees - connected and corresponding to consumers’ use of a particular payment method - is considered a clear infringement of Article 62 of the Italian Consumer Code. The ICA has made clear that this prohibition concerns not only charges on the use of credit cards, but also other forms of payment, such as bank transfers and purchases with cash or gift cards.

The consumer protection agenda of the ICA is (and will be in the future) extremely focused on assessing compliance with Article 62 of the Italian Consumer Code, especially with regard to online payments; in fact, soon after the two abovementioned cases, the ICA opened a new investigation against Automobile Club d’Italia and ACI Informatica (collectively “ACI”), two companies involved in the management and collection, on behalf of the regions, of the Italian regional road tax. In this third investigation, the ICA pointed out that in relation to payment of road tax via ACI’s website ACI charged a 1.2% surcharge where payment was made via a credit card. In stores, a €0.20 surcharge was imposed where payment was made using debit cards.

In light of the above, in a decision published on 19 December 2016 (Resolution no. 26259 - PS9458 - AGENZIA ACI-COMMISSIONI BANCOMAT) the ICA confirmed that ACI infringed Article 62 of the Italian Consumer Code by imposing an illicit surcharge on the consumer for using a certain means of payment (in this case, credit card and debit card). As a result, the ICA imposed a €2.8 million fine on ACI.

Conclusions

In line with Article 52 paragraph 3 of the Payment Service Directive, Article 62 of the Italian Consumer Code foresees that charges on the payer for using a particular payment instrument are allowed upon specific regulation of the Bank of Italy. In the aforementioned investigations, the ICA has interpreted this provision as an outright ban as no regulation in this regard has been published by the Bank of Italy.

The introduction of this prohibition in the Italian legislation concerns all economic sectors and not only air transportation or regional road tax collection. This is an extremely pro-consumer interpretation that will definitely impact on every sector, especially on e-commerce and online payments in general.