On 13 January 2017, the Italian Competition Authority (AGCM) and the Italian Communication Authority (AGCOM) signed a memorandum of understanding concerning several aspects of their cooperation in the application of consumers’ protection rules. Under the memorandum of understanding, in the case of consumers’ protection matters, which potentially involve both authorities, there will be coordinated actions, even during the preliminary investigation phase. Furthermore, AGCM will inform AGCOM on cases concerning the violations of rules enforced by AGCOM, which will do the same in case of hypothesis of unfair commercial practices in the electronic communications sector. The authorities agreed also to set up a standing working group in order to promote the debate on consumer protection issues. Finally, the agreement provides rules on the exchange of information between the authorities on investigations.
According to Article 27(1-bis) of the Italian Consumers Code, introduced by Legislative Decree no. 21 of 21 February 2014, implementing Directive 2011/83/EU of 25 October 2011 on consumer rights, “the authorities can stipulate memoranda of understanding in order to regulate procedural aspects of their cooperation within their respective competences”. On 22 May 2013 the authorities had signed a first memorandum of understanding regarding general aspects of their cooperation. After the implementation of Directive 2011/83/EU on consumer rights, on 13 January 2017, the authorities signed a new memorandum of understanding in order to amend the part related to the cooperation on the unfair commercial practices. In particular, the agreement regulates the complementary relationship between the Italian Consumers Code and sector specific rules regarding electronic communications. It highlights that in cases of conflict or overlap between general provisions of unfair commercial practices and sector specific rules implementing European legislation; the latter shall prevail and apply to those specific aspects of the commercial practice regarding the electronic communications sector (eg, contractual information, right of withdrawal in case of amendments of contractual provisions, number portability). However, the application of the Italian Consumers Code provisions will not be automatically excluded; in fact, it will apply with regard to the other aspects that are not covered by sector specific rules (eg, aggressive conducts put in place by operators). Concerning the allocation of powers between the authorities on this matter, the Council of State handed down a judgment in February 2016, clarifying that even if AGCOM has the exclusive competence on information obligations regulated by the Italian Electronic Communications Code, AGCM has the sole competence on the unfair commercial practices (eg, aggressive commercial practices) and therefore in case of violations of the above mentioned information obligations also involving aggressive commercial practices, it has exclusive competence.