Italian Parliament sets out the criteria for the implementation of the Omnibus Directive

On 26 August 2022, Law No. 127 of 4 August 2022, containing the Delegation to the Government for the transposition and implementation of certain EU directives and regulatory acts, the so-called “European Delegation Law 2021”, has been published in the Official Journal.

Among the concerned EU measures, there is the so-called Omnibus Directive, i.e. Directive 2019/2161/EU which entered into force on 7 May 2020, aimed at improving and modernizing EU consumer protection rules, which in turn amends Directive 93/13 EEC on unfair terms, Directive 98/6/EC on the indication of the prices of products offered to consumers, Directive 2005/29/EC on unfair commercial practices and Directive 2011/83/EU on consumer rights.

In particular, Article 4 of Law No. 127/2002, provides that the decrees transposing the Omnibus Directive shall provide for:

• the sanctions for the infringement of the regulation on unfair terms in B2C contracts;
• the professional’s obligation to indicate the price previously applied to a product in the event of a discount or reduction of price;
• the obligation for professionals allowing consumers to e-search for goods or services to inform them about the main parameters for the classification of products presented to consumers;
• the need to inform consumers about the adoption of procedures to guarantee that reviews on product are made by those who have actually purchased or used the product, qualifying as an unfair commercial practice that of instructing someone to transmit false reviews or appreciations in order to promote products;
• the increasing of the pre-contractual information to be given to the consumer, that shall also include: (i) whether the price offered has been customized on the basis of an automated decision-making process, (ii) how offers are ranked within the results of an online search, (iii) whether the contract is with a professional or a private subject, and (iv) whether or not the rules on legal consumer protection apply.

Unlike other European Member States, which have already completed the implementation process of the Omnibus Directive, this process is still ongoing in Italy.

Nevertheless, Law 127/2022 allows us to anticipate, as of now, the content of some essential provisions that will be contained in the implementing decrees and, specifically:

          1. with regard to sanctioning framework:

• the introduction, within the Consumer Code, of effective, dissuasive and proportionate sanctions;
• the attribution to the Antitrust Authority (AGCM) of sanctioning powers also in relation to cases of exclusively national importance, to which the provisions of the Consumer Code apply, without prejudice to the provisions of Article 27, paragraph 1-bis of the same Code, concerning the acquisition, by the AGCM, in regulated sectors, of the opinion of the competent Authority;
• the provision of the highest threshold for sanctions for an amount not lower than 4% of the trader's annual turnover in the concerned Member State(s). This amount will only apply to cases of so-called “widespread infringements” or “widespread infringements with a Union dimension”, as provided for in Article 21 of Regulation 2017/2934/EU. Indeed, the Italian Senate excluded from the scope of the sanction the national infringements resulting from the violation of the rules of the Consumer Code concerning: unfair, deceptive and aggressive commercial practices between professionals and consumers, and between professionals and micro-businesses (Articles 18 to 27-quarter); unfair terms in contracts between professionals and consumers that are concluded by adhering to general terms and conditions or by signing forms (Articles 33 to 38); contracts concluded between a trader and a consumer, including those for the supply of water, gas, electricity or district heating, also by public providers (Articles 45 to 67). In the above-described hypotheses, therefore, the sanctions already provided for by the Consumer Code, of much lesser impact, will continue to apply.
  
  2. with regard to prices:
   
• the provisions already contained in the Consumer Code shall be coordinated with the other provisions in force and, in particular, with the provisions on extraordinary sales set out by Article 15 of Legislative Decree No. 114/1998;
• in the event of price reductions or discounts, the previous price must also be indicated for products that have been on the market for less than thirty days, as well as in the case of progressive price reduction increases. This provision shall not apply to goods that deteriorate or expire rapidly.

Finally, for contracts concluded in the context of unsolicited home visits and excursions organized for the purpose of selling products, the deadline by which the consumer may exercise the right of withdrawal will be extended to 30 days (instead of the 14 provided for by Article 52 of the Consumer Code). In such cases, the exclusions of the right of withdrawal set forth in Article 59 of the Consumer Code will not apply.

Law 127/2022 will enter into force on 10 September 2022; the Government shall adopt the legislative decrees implementing the Omnibus Directive within three months from that date.