Right of withdrawal and new obligations for businesses: implementation of the Omnibus Directive

Legislative Decree no. 26 of 7 March 2023, which implemented Directive (EU) 2019/2161 of the European Parliament and of the Council (so-called "Omnibus Directive"), for a better application and modernisation of Union rules relating to consumer protection has partially amended the rules of the Consumer Code on the right of withdrawal.

As well known, consumers have a period of fourteen days to withdraw from a distance or off-premises contract, without having to provide any reasons and without having to incur costs.

The new legislation intervened by regulating the conditions of use of digital content and digital services following withdrawal and extending the exceptions to the consumer's right to withdraw. In addition, a specific discipline of withdrawal has been provided for in the case of contracts concluded in the context of unsolicited visits to the consumer's home and excursions organized by a professional with the aim or effect of promoting or selling products.

The novelties can be summarized as follows.

• Conditions of use of digital content and digital services in the event of withdrawal by the consumer

In case of exercise of the right of withdrawal by the consumer, the professional may prevent any further use of the digital content or digital service by the consumer, in particular by making the consumer inaccessible to him or by deactivating his user account.

However, content, other than personal data, provided or created by the consumer cannot be used unless are useless outside the context of the digital content or digital service supplied by the professional, or relate only to the activity of the consumer when using the digital content or digital service supplied by the professional, or have been aggregated by the professional with other data and cannot be disaggregated or can only be disaggregated with disproportionate effort or have been generated jointly by the consumer and other persons, if other consumers can continue to use them.

However, content must be made available to the consumer, at his request and free of charge.

• Exceptions to the right of withdrawal

The right to exercise the right of withdrawal within 14 days from the conclusion of the contract is expressly excluded in service contracts after the full performance of the service; however, if the contract imposes on the consumer the obligation to pay, the right of withdrawal is excluded only if performance has begun with the consumer's prior express consent and his acceptance of the fact that, in the event of full performance of the contract by the professional,  will lose your right of withdrawal.

The right of withdrawal is also excluded in contracts for the supply of digital content by way of a tangible medium where performance of the digital content has begun and, where the contract imposes an obligation on the consumer to pay, where the consumer has given his prior express consent to start the service during the period of right of withdrawal or has acknowledged that he is thus losing his right of withdrawal or where the professional has provided confirmation of the contract on a durable medium.

• Right of withdrawal in contracts concluded in the context of unsolicited visits to the consumer's home and excursions organized by a professional with the aim or effect of promoting or selling products

For such contracts, the withdrawal period is extended to thirty days. In addition, the consumer may also withdraw in the following cases (in which, normally, the possibility of exercising the withdrawal is excluded):

• service contracts after the complete provision of the service;
• supply of goods or services the price of which is linked to fluctuations in the financial market that the professional is unable to control and which may occur during the withdrawal period;
• supply of goods made to measure or clearly personalised;
• supply of sealed goods that are not suitable to being returned for hygienic or health protection reasons and have been opened after delivery.

These provisions will be effective from 2 April 2023.

For the note, recently published, on the new specific information requirements for digital platforms in the case of e-commerce sales (link).