European Commission

 

Enforcement fiche for Italy



I. ADMINISTRATIVE ENFORCEMENT
Which administrative mechanisms are available to enforce the UCP Directive? In Italy, the Directive is implemented by Legislative Decree 146/2007 ("UCP Act"). The administrative enforcement of the UCP Act is handled by the Italian Antitrust Authority - General Division for user's and consumer's rights (AGCM-GDPC). The General Division for user's and consumer's rights (GDPC) is separate from the General Division for Competition, which is entitled to enforce antitrust laws. The general website of the AGCM can be found at http://www.agcm.it/index.htm. Following the recent reforms, the AGCM has been given wide investigation powers, such as accessing relevant documents, requesting information and documents from any party, whether private or public, imposing penalties in the event of refusal, ordering expert testimony, conducting inspections and dawn raids, even using the office of the Customs and Excise Police (Guardia di Finanza).
Who can file administrative complaints? Any individual or legal entity can file administrative complaints to AGCM. AGCM can also start investigations on its own authority.
Do any specific procedural requirements apply to filing administrative complaints? There are no particular requirements to file administrative complaints. Any individual or legal entity can file a complaint, either by calling the special Call Centre, created by AGCM in order to receive oral complaints, or sending a written complaint. The complainant shall provide the Authority with: the applicant's details and address; any information necessary to identify the commercial practice and the author of the same; any information useful for the Authority's appraisal.
Do the administrative authorities have an obligation to investigate the complaint? The AGCM has an obligation to investigate every complaint that it receives. However, if the AGCM believes that there are no grounds for proceeding with the investigation, the request shall be overturned. In this event, the Case Handler has the duty to inform the complainant According to article 27 of the Consumer Protection Code, the decisions issued by the AGCM may be appealed before the Administrative Courts.
Are there any specific requirements regarding the provision of evidence to the competent authorities? There are no specific requirements provided for by the law.
II. ENFORCEMENT THROUGH COURT ACTION
Which court actions are available to enforce the UCP Directive? The ordinary courts of law retain jurisdiction for the civil enforcement of the rights of consumers who claim of having been harmed by an unfair commercial practice. The UCP Act does not provide for any special procedure. Thus, the rights of consumers can be enforced before the civil courts through the ordinary cease-and-desist procedures and actions for damages.
Who can start a court action? Whoever has an individual interest in the case. The action can be brought also by Consumers' Associations in the form of collective actions or class actions.
Can court actions be initiated by competitors? The Court action cannot be initiated by a competitor. However, it may be the case that an unfair commercial practice is regarded also as an unfair competition practice pursuant to article 2598 of the Italian civil code. In this case, competitors may start the action, provided that they prove their direct and legitimate interest.
Can the case be handled through an accelerated procedure? There is no specific accelerated procedure.
Are there any specific requirements regarding the provision of evidence to the court? No specific requirements are provided for; consequently, in such cases the general rules on evidence as laid down in the Italian law are applicable.
III. SANCTIONS
What are the possible civil sanctions and remedies for the infringement of the UCP provisions? The remedies for the infringement of the UCP provisions are those generally prescribed by the Civil Code; action for injunction and action for damages. The court may also declare the invalidity of a contract entered into by the consumer, when it is proved that the contract has been entered into by the consumer on the grounds of a mistaken consent. The action for injunction and damages can also be brought by consumers associations.
What are the possible criminal sanctions for the infringement of the UCP provisions? There are no criminal sanctions for the infringement of UCP Act.
What are the possible administrative sanctions for the infringement of the UCP provisions? AGCM can order injunctions and impose fines in the amount between €5,000.00 and €500,000.00. If the UCP practice relates to hazardous products which could threaten the safety of children, the minimum fine is €50,000. Additionally, if the trader fails to comply with the injunctions the AGCM may impose another administrative fine that can range from €10,000 to €150,000. In the event of repeated non-compliance, AGCM may orders the trader to suspend trading for a certain period of time.
What are the contractual consequences of an administrative order or a judgement relating to an unfair commercial practice on an individual transaction? If the AGCM or a competent civil Court concludes that an undertaking has put in place an unfair commercial practice, the consumer that may use this order or judgment to prove that there was a mistaken consent and to obtain, through a Court action, a declaratory of invalidity of the contract.
How can consumers get redress/compensation (e.g. through collective actions)? The administrative enforcement does not allow a consumer to get redress. Redress is possible by bringing either an individual court action or a class action. In Italy class action is in force from January 2010 and it can be brought with regard to unlawful acts occurred after August 15th 2009. Article 140-bis of the Italian Consumer Protection Code expressly states that class actions can be started on the ground of alleged unfair commercial practices. Class action represents an alternative to - and not a replacement for - the existing judicial remedies.
Can the administrative authorities or the courts require the publication of their decisions? The AGCM may order the trader to publish, at his own expense, the AGCM decision or an extract of it. The same remedy can be adopted by the Civil Courts.
IV. OTHER TYPES OF ENFORCEMENT
Are there any self-regulatory enforcement systems in your jurisdiction that deal with aspects of the UCP Directive? The most relevant example of Italian self-regulatory enforcement systems is the Istituto dell'Autodisciplina Pubblicitaria (IAP). IAP is a non-profit organisation, that intends to act and ascertain that all marketing communication is honest, truthful and proper. Official bodies of the IAP are: the Board of Directors, which is composed by thirteen members designated by IAP Members, with powers for ordinary and extra-ordinary administration of the Istituto; the President; the Executive Council; the Study Commission, which is composed by one representative from each of the eighteen associate bodies, with responsibility for submitting proposed revisions to the Code and for studying new initiatives; the Auditing Committee; the Treasurer; the General Secretary. The Review Board and the Jury are the bodies that have responsibility for monitoring on marketing communication; they are backed by a Secretariat, responsible for the organisation in general and for first screening.
Are there any mediating services that deal with aspects of the UCP Directive (e.g., an ombudsman)? The most relevant Italian mediating services are the Arbitro Bancario Finanziario (ABF) and the Comitato Regionale per le Comunicazioni (Co.Re.Com). The ABF replaces the Ombudsman Giurì Bancario. It allows to resolve disputes between consumers and banks or other financial intermediaries, regarding banking and financial services. It offers a more simple, rapid and less expensive service than litigation, which often involves complex procedures. The decisions are not binding as those of a court, but if a bank or another financial intermediary does not follow them, the infringement will be made public. The consumer can contact the ABF only after attempting to resolve the problem directly, filing a complaint; if not satisfied with the decisions of the ABF, a court action may be started. Co.Re.Com are part of the Italian Communication Regulatory Authority (Autorità per le Garanzie nelle Comunicazioni-AGCom). They have the mission to try to settle disputes between consumers and their telecom providers. The procedure is completely free. If the parties through the Co.Re.Com enter into an agreement such agreement shall be binding.