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Which commercial practices are considered unfair?

Misleading commercial practices and aggressive commercial practices are considered unfair.

Generally speaking, a commercial practice is unfair, and is therefore prohibited, if it is contrary to professional diligence, distorts or is liable to appreciably distort economic behaviour in relation to the product, of the average consumer it reaches or to whom it is directed or of the average member of a group if the commercial practice is directed to a specific group of consumers (See Art. 20 of the Consumer Code).

 

When can unfair terms result in the invalidity of a contract?

Unfair terms placed on the consumer always result in the partial nullity of the contract. In fact, the sanction provided for in the event of harassment of the clause is the so-called "protection" nullity which is, in fact, partial, because it does not affect the entire contract but a part of it, remaining effective for the rest and, secondly, to be relative, as applicable only for the benefit of the consumer (See art. 36 of the Consumer Code).

Any inertia on the part of the consumer to challenge the unfair terms in the contract does not prevent them from being affected and sanctioned by the court, which is, in any case, entitled to take over the harassment ex officio.

 


Relevant legislation

 

  • Consumer Code:
  • Article 20:(Prohibition of unfair commercial practices);
  • Article 36:(Nullity of protection).

 

What are the national rules in force on the safety of consumer products?

The Ministry of Enterprises and Made in Italy ensures the conformity and safety of the products intended for final consumers and others, by monitoring goods already placed on the market and those imported from non-EU countries, which, pursuant to Article 25 of EU Regulation 1020/2019 must be held at customs.

The Ministry:

  • Operates in the field of product conformity and safety, in particular as concerns:
    • Toys (Legislative Decree N. 54/2011),
    • Low-voltage electrical equipment (Legislative Decree N. 86/2016),
    • Personal protective equipment (PPE) (Legislative Decree N. 17/2019),
    • Goods liable to generate electromagnetic disturbance (Legislative Decree N. 80/2016),
    • Goods classified as pressure equipment (Legislative Decree N. 26/2016),
    • Appliances burning gaseous fuels (Legislative Decree N. 23/2019),
    • Construction products (Legislative Decree N. 106/2017),
    • Goods covered by the machinery legislation (Legislative Decree N. 17/2010);
  • Operates in the field of general product safety in accordance with Directive (EC) 2001/95, pursuant to Legislative Decree 206/2005 (Part IV, Title I, of the Consumer Code).

 


Relevant legislation

 

  • LEGISLATIVE DECREE N. 86 of 19 May 2016implementing Directive 2014/35/EU on the harmonisation of the laws of the Member States relating to the making available on the market of electrical equipment designed for use within certain voltage limits
  • LEGISLATIVE DECREE N. 80 of 18 May 2016amending Legislative Decree No 194 of 6 November 2007 implementing Directive 2014/30/EU of the European Parliament and of the Council of 26 February 2014 on the harmonisation of the laws of the Member States relating to electromagnetic compatibility (recast).
  • LEGISLATIVE DECREE N. 93, of 25 Febraury 2000, as amended Implementing Directive 97/23/EC on pressure equipment and Directive 2014/68/EU on the harmonization of the laws of the Member States concerning the making available on the market of pressure equipment (recast), providing for its repeal.
  • LEGISLATIVE DECREE N. 17 of 27 January 2010implementing Directive 2006/42/EC on machinery, and amending Directive 95/16/EC on lifts
  • LEGISLATIVE DECREE N. 23 of 21 February 2019implementing the delegation referred to in Article 7(1) and (3) of Law No 163 of 25 October 2017 for the adaptation of national legislation to the provisions of Regulation (EU) 2016/426 of the European Parliament and of the Council of 9 March 2016 on appliances burning gaseous fuels and repealing Directive 2009/142/EC
  • LAW n. 1083 of 6 December, 1971, as amended Regulation implementing the delegation referred to in Article 7(4) and (5) of Law No 163 of 25 October 2017 to adapt national regulations to the provisions of Regulation (EU) 2016/426 of the European Parliament and of the Council of 9 March 2016 on appliances burning gaseous fuels and repealing Directive 2009/142/EC
  • LEGISLATIVE DECREE N. 206 of 6 September 2005Consumer Code, pursuant to Article 7 of Law No 229 of 29 July 2003
  • LEGISLATIVE DECREE N. 54 of 11 April 2011implementing Directive 2009/48/EC on the safety of toys. This Decree applies to products designed, whether or not exclusively, for use in play by children under 14 years of age.
  • LEGISLATIVE DECREE N. 17 of 19 February 2019adapting national legislation to the provisions of Regulation (EU) 2016/425 of the European Parliament and of the Council of 9 March 2016 on personal protective equipment and repealing Council Directive 89/686/EEC.
  • LEGISLATIVE DECREE N. 106 of 16 June 2017adapting national legislation to the provisions of Regulation (EU) No 305/2011 laying down harmonised conditions for the marketing of construction products and repealing Council Directive 89/106/EEC.
  • DECREE OF THE PRESIDENT OF THE REPUBLIC N. 162 of April 30, 1999, Regulation laying down rules for the implementation of Directive 2014/33/EU, relating to elevators and safety components of elevators, and for the operation of elevators.
  • LEGISLATIVE DECREE N. 85 of May 19, 2016 Implementation of Directive 2014/34/EU on the harmonization of the laws of the Member States relating to equipment and protective systems intended for use in potentially explosive atmospheres.
  • LEGISLATIVE DECREE No. 311 of September 27, 1991 Implementation of Directives No. 87/404/EEC and No. 90/488/EEC on simple pressure vessels, pursuant to Article 56 of Law No. 428 of December 29, 1990.
  • LEGISLATIVE DECREE N. 5 of January 11, 2016 Implementation of Directive 2013/53/EU of the ropean Parliament and of the Council of November 20, 2013, relating to recreational craft and personal watercraft and repealing Directive 94/25/EC.

 

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