On 12 March 2014 the Legislative Decree no. 21 of 2014 implementing the EU Consumers Directive 2011/83/UE (the “Decree“) has been published on the Italian Official Journal. The new provisions will enter into force on June 13, 2014 and will apply to contracts concluded after such date, replacing articles 45-67 of the Italian Consumer Code.
Continue reading for a summary of the main changes
Reinforcement of the withdrawal right
- The consumer has a period of 14 days to withdraw from the contract (instead of the current period of 10 days). This term runs from the day of the conclusion of the contract in the case of service contracts and the day of delivery in the case of sales contracts.
- In the case of failure to provide the information on the right of withdrawal, the withdrawal period is extended by 12 additional months.
- Following the withdrawal, the trader shall reimburse all payments received from the consumer not later than 14 days from the day on which he is informed of the consumer’s decision to withdraw from the contract.
- The consumer exercising the right of withdrawal and returning the goods purchased is only liable for any diminished value of the goods resulting from the handling of the goods other than what is necessary to establish the nature, characteristics and functioning of the goods.
- The right of withdrawal does not apply to the following cases:
- service contracts after the service has been fully performed if the performance has begun with the consumer’s prior express consent, and with the acknowledgement that he will lose his right of withdrawal once the contract has been fully performed by the trader;
- the supply of digital content which is not supplied on a tangible medium if the performance has begun with the consumer’s prior express consent and his acknowledgment that he thereby loses his right of withdrawal;
- the supply of sealed audio or sealed video recordings or sealed computer software which were unsealed after delivery;
- the supply of sealed goods which are not suitable for return due to health protection or hygiene reasons and were unsealed after delivery.
The ‘order with obligation to pay’ button
When the contract is concluded online and entails an obligation to pay, the button for placing the order shall be labelled only with the words ‘order with obligation to pay’ (or a corresponding unambiguous formulation). If the trader has not complied with this requirement, the consumer shall not be bound by the contract or order.
More pre-contractual information requirements
The Decree includes new information requirements before the conclusion of a distance contract in addition to those already prescribed by the Consumer Code, such as: (i) the existence, the conditions and procedures for exercising the right of withdrawal (as well as a model withdrawal form); (ii) a reminder of the existence of a legal guarantee of conformity for goods and, where applicable, the existence of commercial guarantees; (iii) in the case of provision of digital content, the functionality, including applicable technical protection measures, of such content as well as any relevant interoperability of digital content with hardware and software.
Moreover, trading websites shall indicate clearly and legibly at the latest at the beginning of the ordering process whether any delivery restrictions apply and which means of payment are accepted.
Prohibition of additional fees
According to the Decree traders are prohibited from charging consumers, in respect of the use of a given means of payment, fees that exceed the cost borne by the trader for the use of such means.
Delivery and passing of risk
Unless otherwise agreed, the trader shall deliver the goods not later than 30 days from the conclusion of the contract. In the case of late delivery, the consumer shall call upon the trader to make the delivery within an additional period and if the trader fails to deliver the goods within that additional period of time, the consumer is entitled to terminate the contract. In contracts where the trader dispatches the goods, the risk of loss of or damage to the goods remains on the trader until the consumer has acquired the physical possession of the goods.
Sanctions and enforcement
The Italian Competition Authority will ensure compliance with the new provisions and has the power to sanction any unfair practices.