New reform of the consumer code, effective from 1 January 2022

On October 23, 2005, the so-called Consumer Code came into force in Italy: an important document consisting of 146 articles with the aim of reformulating the legislation that protects the consumer during the purchase phase of a good or service. Due to the evolution of the market and of the commerce sector with particular reference to the online segment, changes were necessary which came into effect from January 1, 2022 . This is a real reform wanted by the government to give consumers additional tools to protect themselves adequately during the purchase.

Consumer Code: from 1 January 2022 the changes are in force

The changes made to the Consumer Code entered into force on January 1, 2022, must be applied only and exclusively for all contracts signed after that date . This means that the new rules will not apply to, for example, a car purchased in November 2021 or earlier. The changes included in the legislative decree number 170 of 2021 are a natural continuation of the European directive on the subject and concern a much wider segment as they refer to the sale of goods between seller and consumer and not only more exclusively for consumer goods. A subtle but important difference. In practice, there has been a reshaping of the definition of good taking into consideration how the online market now represents a considerable slice, for which reference is made to goods as digital elements. Moreover, live animals are also included in the new series. In the text of the law there are passages in which situations surrounding the sale of an asset are also regularized, such as updating and what happens in the event of incorrect installation of a product, damage and so on. Naturally, the updating of an asset is provided for an information program, a smartphone app, a system that allows you to manage orders in a restaurant, a smart and latest generation appliance and more. There are also important innovations with regard to the obligations of the seller and the conduct of the consumer, as well as on the so-called subjective and objective compliance requirements.

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The main changes introduced to the Consumer Code

Following the European directive, also in Italy we proceeded with the modification of the Consumer Code to establish a balanced relationship between seller and buyer.

In particular, the changes concern some very important aspects of sales contracts with reference to the conformity of goods, remedies in the event of lack of conformity, the methods of exercising remedies and conventional guarantees.

In which areas the changes apply

The first and perhaps most important change concerns the scope of application and the definition of goods that are no longer consumer goods but goods tout court. The horizon broadens, especially by incorporating those who operate in online commerce for the supply of digital content, digital services that until now were excluded.

Wanting to summarize the matter a bit, the changes to the Consumer Code can be applied to all other items already in place, including goods with digital elements and live animals.

Conformity of goods

One of the cornerstones of the changes that came into force on January 1, 2022, is the conformity of goods. This is a very important aspect especially with regard to online commerce as the buyer does not have the possibility to verify the integrity of the article and its functionality live. The change also concerns the scope because previously reference was made to compliance with the contract while today we talk about compliance of the goods with the contract, which is very different. In the new text issued with the legislative decree number 170 of 2021, it is emphasized that the property must have subjective requirements.

First of all, it must conform to the description , type and quantity indicated in the purchase contract that you sign. Furthermore, the new rule establishes that the asset must be suitable for a specific use for which the buyer has requested information from the seller, obtaining a positive response .

Subjective requirements also include the possibility of updating if required by the sales contract and must be sold complete with instructions, any accessories essential for use and installation. However, all these requirements must have been highlighted on the sales contract in order to establish compliance.

In addition, there are objective requirements that refer mainly to the possibility of using that particular product or service for the purposes for which they are normally used. For example, if you buy a vacuum cleaner, it must necessarily be able to vacuum, otherwise it becomes non-compliant. In addition, the quality and description of a particular product must comply with what is indicated by the seller, and must be delivered in a package in which there are all the accessories necessary to be able to use the product correctly and for its installation. It must also satisfy other essential characteristics such as durability over time, efficiency and compatibility with the intended use. Last but not least, the product sold must be safe for things and people and made in full compliance with the regulations applied at European and national level.

Obligations of the seller and the buyer

The new rules also address the correct behavior that must be maintained by both the seller and the buyer in the sale. The most important change concerns the seller, now no longer subject to what is highlighted in public declarations for a specific asset as long as he can prove that he did not know these declarations and that they were corrected before the conclusion of the contract. Furthermore, the constraint lapses if the declaration made public by the seller has not, in any case, influenced the consumer in buying well. This is the classic case in which the seller in order to induce the buyer to make a purchase lists characteristics that, in reality, the product does not have. There are also specific obligations regarding the updates of goods with digital elements if provided for in the contract and it has been established that in the event that a consumer fails to install a purchased product within a certain time period, then the seller will not will be more obliged to answer for lack of conformity resulting from failure to update. This situation applies especially if the seller has informed the consumer that the update is available and what happens if it does not proceed. Among other things, in article 131 of the Consumer Code, it is established that in the event of incorrect installation of a good it is possible to apply the status of lack of conformity only if the installation was carried out by the seller or if there has been lack of indications from the same seller that would allow it to be carried out correctly. With article 133, on the other hand, the responsibilities of the seller have been established for conformity defects that appear within 2 years of purchase. Important news for this aspect is that there is no longer a limit of 2 months within which the consumer had to report defects from the moment they became apparent.

Burden of proof

Many other very important changes have been introduced, especially for online commerce, including the burden of proof, inserted in article 135. In particular, the presumption that the lack of conformity could already exist at the time of delivery of the goods has been activated if this occurs within 365 days of purchase, even in the case of digital goods. With article 135 bis, on the other hand, a list of possible actions that the buyer can carry out in the event of lack of conformity is provided: he can request the restoration of conformity, the proportional reduction of the price paid or the termination of the contract and return of the Well. When it comes to restoring compliance, this can be achieved with either a repair or a product replacement. The choice between one action and another depends on the value of the asset compared to the cost of repair and the extent of the problem. It is well understood that the seller will have to work in any case to find a solution that does not create inconvenience to the consumer. On the other hand, the price reduction or termination of the contract is applied if the seller, for whatever reason, has failed to repair or replace the defective product. Furthermore, it can be requested even if the defect is very serious for which there is no other solution. In article 135 ter, the Consumer Code also establishes the methods by which the repair and replacement service will be managed. The seller must ensure that the intervention takes place at no cost to the consumer and within a reasonable period of time to avoid inconveniences. In article 135 quater we talk about the way in which the price reduction is established. The price reduction must be proportional to the decrease in the value of the goods due to the defect while the return is exercised by direct declaration to the seller: the consumer must return the goods at the expense of the seller who will be obliged to reimburse the price paid as soon as he the product in question will be delivered.

The other news

In article 135 quinquies we speak of a conventional guarantee. It is proposed by the manufacturer in relation to the durability of the goods, and it is the manufacturer himself who is responsible for the entire warranty period indicated. This means that you will have to bear the costs necessary for any repairs or replacements, including shipping and transport costs. The standard also indicates that the guarantee certificate must be drawn up in a clear, understandable manner and on a durable medium over time. Among other things, the legislation declares void any situation for which an attempt is made to limit or evade the terms of the conventional guarantee. Finally, for all those situations that have not been addressed in the Consumer Code, please refer to the Civil Code, especially for matters relating to the validity and effectiveness of contracts such as, for example, the right to compensation or termination.

Author: Stefania Tamberlani

Stefania Tamberlani

CHIEF EXECUTIVE OFFICER

Stefania Tamberlani commercial, organizational and administrative hub of Arte e Informatica deals with relationships with customers and suppliers. He has a high level of knowledge in the configuration and management of the Joomla and PrestaShop platforms, from the configuration of payment methods to couriers, passing through the management of the catalog and orders.

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