New reform of the consumer code, in effect from January 1, 2022

On October 23, 2005, the so-called Consumer Code came into effect in Italy: an important document consisting of 146 articles aimed at reshaping the regulations that protect consumers during the purchase of goods or services. Due to the evolution of the market and the trade sector, particularly regarding the online segment, modifications became necessary that came into effect on January 1, 2022. This is a true reform desired by the government to provide consumers with additional tools to adequately protect themselves during purchases.

Consumer Code: as of January 1, 2022, the amendments are in effect.

The changes made to the Consumer Code that came into effect on January 1, 2022, must be applied only and exclusively to all contracts signed after that date. This means that the new rules cannot be applied, for example, to a car purchased in November 2021 or earlier. The changes included in Legislative Decree No. 170 of 2021 are a natural continuation of the European directive on the matter and concern a much broader segment as they refer to the sale of goods between seller and consumer and not just exclusively for consumer goods. A subtle but important difference. In practice, there has been a redefinition of the term good, taking into account how the online market now represents a considerable share, thus referring to goods as digital items. Live animals also fall under the new classification. The text of the law includes provisions that also regulate situations surrounding the sale of a good, such as updates and what happens in case of incorrect installation of a product, damages, and so on. Naturally, the update of a good is provided for an informational program, a smartphone app, a system that allows managing orders in a restaurant, a smart and state-of-the-art appliance, and more. There are also significant new developments regarding the seller's obligations and the consumer's conduct, as well as the so-called subjective and objective conformity requirements.

How to generate correct Terms and Conditions?

The terms and conditions of sale are very important to avoid problems and disputes; they must be drafted correctly. For our ecommerce, we can rely on a law firm specialized in the sector, or on services that allow us to generate the documents correctly. Services like Iubenda and legalblink.it allow us to create these legal documents comprehensively and keep them updated with the latest regulations.

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The main changes introduced to the Consumer Code

Following the European directive, Italy has also 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 regarding the conformity of goods, remedies in case of non-conformity, the methods of exercising remedies, and conventional warranties.

In which areas do the changes apply?

The first and perhaps most important novelty concerns the scope of application and the definition of goods that are no longer just consumer goods but goods in general. The horizon is broadened, especially including those who operate in online commerce for the provision of digital content and digital services that were previously excluded.

To summarize the issue, the changes to the consumer code can be applied to all other existing articles, including goods with digital elements and live animals.

Compliance of goods

One of the cornerstones of the changes that came into effect on January 1, 2022, is the conformity of goods. This is a very important aspect, especially regarding online commerce, as the buyer does not have the opportunity to verify the integrity of the item and its functionality in person. The change also concerns the scope of application because previously it referred to conformity to the contract, while today it speaks of conformity of goods to the contract, which is very different. The new text issued with Legislative Decree No. 170 of 2021 emphasizes that the good must have subjective requirements.

First of all, it must conform to the description, the type, and the quantity indicated in the purchase contract that is signed. Furthermore, the new regulation establishes that the good must be suitable for a specific use for which the buyer has requested information from the seller and received a positive response.

The subjective requirements also include the possibility of performing updates if provided for in the sales contract, and it must be sold complete with instructions, any essential accessories for use, and for installation. All these requirements must, however, have been highlighted in the sales contract in order to establish conformity.

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

Obligations of the seller and the buyer

The new regulations also address the correct behavior that must be maintained by both the seller and the buyer in a sale. The most important change concerns the seller, who is no longer subject to what is highlighted in public statements for a specific good, provided that they can demonstrate that they were unaware of such statements and that these were corrected before the conclusion of the contract. Furthermore, the obligation ceases if the statement made public by the seller did not, in any case, influence the consumer in purchasing the good. This is the classic case where the seller, in order to induce the buyer to make a purchase, lists characteristics that the product does not actually possess. There are also specific obligations regarding updates of goods with digital elements if provided for in the contract, and it has been established that if a consumer fails to install a purchased product within a certain timeframe, then the seller will no longer be obliged to respond for conformity defects arising from the lack of update. This situation applies especially if the seller has informed the consumer of the availability of the update and what happens if it is not carried out. Moreover, in Article 131 of the Consumer Code, it is established that in the case of incorrect installation of a good, the status of conformity defect can only be applied if the installation was carried out by the seller or if there was a lack of indications from the seller that would allow it to be carried out correctly. Article 133, on the other hand, establishes the seller's responsibilities for conformity defects that manifest within 2 years of purchase. An important change in this regard is that there is no longer a 2-month limit 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, included in Article 135. In particular, a presumption has been activated that the lack of conformity may have existed at the time of delivery of the good if it manifests within 365 days of purchase, even in the case of digital goods. With Article 135-bis, a list of possible actions that the buyer can take in case of a lack of conformity is provided: they can request the restoration of conformity, a proportional reduction of the price paid, or the termination of the contract and return of the good. When we talk about restoring conformity, this can be achieved either through a repair intervention or by replacing the product. The choice between one action or the other depends on the value of the good in relation to the cost of repair and the extent of the problem. It is understood that the seller must still work to find a solution that does not cause inconvenience to the consumer. A price reduction or contract termination applies if the seller, for any reason, has failed to carry out the repair or replacement of the defective product. Furthermore, it can also be requested 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 time frame to avoid inconveniences. Article 135-quater discusses the method by which the price reduction is established. The price reduction must be proportional to the decrease in the value of the good due to the defect, while the return is exercised by a declaration directly to the seller: the consumer must return the good at the seller's expense, who will be obliged to refund the price paid as soon as the product in question is delivered to them.

The other news

Article 135 quinquies discusses conventional warranty. It is proposed by the manufacturer in relation to the durability of the good, and the manufacturer is responsible for the entire warranty period indicated. This means that they will have to bear the necessary costs for any repairs or replacements, including shipping and transportation costs. The regulation also states that the warranty certificate must be drafted clearly, understandably, and on a durable medium. Moreover, the regulation declares null any situation that seeks to limit or evade the terms of the conventional warranty. Finally, for all situations not addressed in the Consumer Code, reference is made to the Civil Code, especially for matters related to the validity and effectiveness of contracts, such as the right to compensation or termination.

Author: Stefania Tamberlani

Stefania Tamberlani

CHIEF EXECUTIVE OFFICER

Stefania Tamberlani, the commercial, organizational, and administrative hub of Arte e Informatica, handles relationships with clients and suppliers. She has extensive knowledge in configuring and managing Joomla and PrestaShop platforms, from setting up payment methods to couriers, as well as managing the catalog and orders.

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