New measures
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.
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.
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In particular it should be noted:
Two new misleading omissions:
- Art. 22, para 4, letter (e-bis) of Consumer Code: It must be specified whether the third party offering the products on an online marketplace is a trader or not.
- Art. 22, para 4 bis of Consumer Code: Key parameters that determine the classification of products presented to consumers as a result of their research and the relative importance of these parameters compared to other parameters must be made accessible to consumers (this applies to websites that offer research for key word or other data).
Two new conducts considered always misleading:
- Art. 23, para 1, letter (m-bis) of Consumer Code: Providing search results in response to a consumer's online search without clearly indicating any paid advertisement or specific payment for better product ranking within those results
- Art. 23, para 1, letter (bb-ter) of Consumer Code: Indicate that reviews of a product are submitted by consumers who have actually used or purchased the product without taking reasonable and proportionate steps to verify that the reviews are from such consumers.
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Some of the new pre-contractual information obligations for distance contracts:
- Informations to contact the trader (telephone and e-mail address) any other means of online communication which guarantee that the consumer can keep any written correspondence, including the date and time of such correspondence, with the trader on a durable medium
- That the price was personalised on the basis of automated decision-making
- A reminder of the existence of a legal guarantee of conformity also for digital services
- The 'functionality', 'compatibility' and 'interoperability' capabilities of the digital service
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Specific additional information requirements for contracts concluded on online marketplaces:
Pursuant to Article 49-bis of the Consumer Code, all information must be provided in a clear and comprehensible manner and in a manner appropriate to the means of distance communication adopted.
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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.
