As mentioned in Giulio’s post some months ago, Italy implemented the EU Directive 2011/83 on consumer rights. The new provisions were added to the Italian Consumer Code, effective from 13 June 2014. Our team worked hard on helping our clients to comply with it…and still does!
The main changes relate to “distance contracts” (including online sales) and off-premises contracts, although some rules concerning disclosure obligations apply also to other contracts.
Here are some indications on the main new rules.
1. Disclosure obligations
A number of information must be provided by the trader to the consumer before the latter is bound by a contract, with some differences depending upon whether the sale is based upon a distance/off-premises or another type of contract.
In a nutshell, the following information must be provided before the conclusion of any contract with a consumer, including contracts for the supply of water, gas or electricity (but with the exception of contracts involving day-to-day transactions and which are performed immediately at the time of their conclusion):
- the main characteristics of the goods or services;
- the identity of the trader, such as his trading name, the geographical address at which he is established and his contact details;
- the total price of the goods or services inclusive of taxes as well as, where applicable, all additional freight, delivery or postal charges;
- where applicable, the arrangements for payment, delivery, performance, the time by which the trader undertakes to deliver the goods or to perform the service;
- a reminder of the existence of a legal guarantee of conformity for goods;
- the duration of the contract, where applicable, or, if the contract is of indeterminate duration or is to be extended automatically, the conditions for terminating the contract;
Other specific information must be provided in case of sale of digital contents.
In addition, it should be noted that in case of distance or off-premises sales, a very relevant obligation is imposed upon the traders: they must inform consumer on the conditions, time limit and procedures for exercising the right of withdrawal (see point 2 below) and provide the consumer with a model withdrawal form.
2. Right of withdrawal
The consumer shall have a period of at least 14 days to withdraw from a distance or off-premises contract without giving any reason, and without incurring any costs. In the case of service contracts, such term starts from the day of the conclusion of the contract; in case of sales contracts, from the day the goods are delivered to the consumer. If the trader does not provide the consumer with the information on the right of withdrawal, the withdrawal period shall expire after 12 months + 14 days. Once the right of withdrawal is exercised, the trader has only 14 days to refund the purchase price including the delivery price, but he may withhold the reimbursement until he has received the goods back. The consumer shall send back the goods not later than 14 days from the day on which he has communicated his decision to withdraw.
Some exceptions to the right of withdrawal are provided, e.g. in case of bespoke products.
3. No extra payments
In providing terms and condition for the sale of goods or services by electronic means, the traders must consider that, according to the new rules of Italian Consumer Code, they are prevented from surcharging consumers in respect of the use of a specific means of payment.
Also, before the consumer is bound by the contract or offer, the trader shall seek the express consent of the consumer for any extra payment in addition to the compensation agreed upon for the trader’s main contractual obligation. If the consumer’s express consent was inferred through default options, the consumer shall be entitled to reimbursement of the relevant payment.
4. Formal requirements for distance and off-premises contracts
Specific formal requirements are provided for online/off-premises contracts: the trader shall provide the consumer with the confirmation of the contract entered on a durable medium (for online sales, at the latest at the time of the delivery of the goods or before the performance of the service begins). Such confirmation shall include the pre-contractual information required by the law, unless already provided on a durable medium prior to the conclusion of the contract.
Finally, an innovation that traders simply cannot ignore: the Italian Antitrust Authority has been assigned with the power to supervise the implementation of the new rules and to impose administrative fines in case of breach (and such fines are up to EUR 5,000,000!).