(Articles 52 - 59 Consumer code)
I. What is the right of withdrawal?
II. When is the right of withdrawal provided for?
III. Within what period can the right of withdrawal be exercised?
IV. How to exercise the right of withdrawal?
V. The effects of the withdrawal
VI. The right of withdrawal in the context of law-value contracts.
VII. The right of withdrawal in the context of contracts concluded by telephone.
VIII. The right of withdrawal and any payment obligations on the consumer.
SECTION I: WHAT IS THE RIGHT OF WITHDRAWAL?
The right of withdrawal, commonly known as the "right to reconsider", is one of the most important rights recognised to consumers by the Consumer Code. It is governed by Legislative Decree No 21/2014 which transposed Directive 2011/83/EU on consumer rights. The right of withdrawal allows the consumer to change his mind about the purchase made, freeing himself from the contract concluded without giving any reason. In this case, the consumer can return the goods and obtain a refund of the amount paid.
SECTION II: WHEN IS THE RIGHT OF WITHDRAWAL PROVIDED FOR?
The right of withdrawal is provided for distance or off-premises contracts concluded between traders and consumers. However, there are numerous exceptions, listed in Article 59 of the Consumer Code:
- Service contracts after the full provision of the service if the performance has started with the express agreement of the consumer and the acceptance of the loss of the right of withdrawal once the contract has been fully performed by the trader;
- the provision of goods or services whose price is linked to fluctuations in the financial market which the trader is unable to control and which may occur during the withdrawal period;
- the provision of custom-made goods or clearly personalized;
- the provision of goods which are liable to deteriorate or expire rapidly;
- the provision of sealed goods which are not suitable for return for reasons of hygiene or health protection and have been opened after delivery;
- the provision of goods which, after delivery, are, by their nature, inseparably mixed with other goods;
- the provision of alcoholic beverages, whose price was agreed at the time of conclusion of the sales contract, whose delivery can be made only after 30 days and whose actual value depends on fluctuations in the market which cannot be controlled by the trader;
- contracts for which the consumer has specifically requested a visit by the trader to carry out urgent repair or maintenance work. If, on the occasion of such a visit, the trader provides services in addition to those specifically requested by the consumer or goods other than spare parts necessary to carry out the maintenance or repairs, the right of withdrawal shall apply to those additional services or goods;
- the provision of sealed audio or video recordings or computer software which were unsealed after delivery;
- the provision of newspapers, periodicals and magazines with the exception of subscription contracts for the supply of such publications;
- contracts concluded at a public auction;
- the provision of accommodation other than for non-residential purposes, transport of goods, car rental services, catering or services related to leisure activities if the contract provides for a specific date or period of performance;
- the provision of digital content not supplied on a tangible medium if the performance has begun with the consumer's prior express consent and his acknowledgment that hereby loses his right of withdrawal.
Traders are required to expressly specify the existence of the right or its inapplicability to the specific case.
Pursuant to Article 47, paragraph 2, of the Consumer Code, the provisions relating inter alia to the right of withdrawal shall not apply to off-premises contracts for which the payment to be made by the consumer does not exceed € 50. (so-called law-value contracts). However, the provisions shall apply in the case of various contracts stipulated by the same parties at the same time, if the amount of the overall consideration, irrespective of the amount of the individual contracts, exceeds € 50.
SECTION III: WHITHIN WHAT PERIOD CAN THE RIGHT OF WITHDRAWAL BE EXERCISED?
The right of withdrawal in the e-commerce field can be exercised within 14 days starting to run:
- in the case of service contracts, from the time of conclusion of the contract;
- in the case of sales contracts, from the day on which the consumer or a third party, other than the carrier and designated by the consumer to receive the goods, acquires physical possession of the goods or:
- in the case of multiple goods ordered by the consumer in one order and delivered separately, from the day on which the consumer acquires physical possession of the last good;
- in the case of delivery of a good consisting of multiple lots or pieces, from the day on which the consumer acquires physical possession of the last lot or piece;
- in the case of contracts for regular delivery of goods during a defined period of time, from the day on which the consumer acquires physical possession of the first good;
- in the case of contracts for the supply of water, gas or electricity, where they are not put up for sale in a limited volume or set quantity, of district heating or of digital content which is not supplied on a tangible medium, from the day of conclusion of the contract.
In case the trader has not fulfilled the obligation to inform the consumer about the existence of the right of withdrawal (in violation of article 49, paragraph 1, letter h), the deadline for its exercise is extended to twelve months, additional to the initial 14 days.
If the trader provides the consumer with information on the right of withdrawal within twelve months from the conclusion of the contract, the withdrawal period shall end fourteen days after the day on which the consumer was informed.
SECTION IV: HOW TO EXERCISE THE RIGHT OF WITHDRAWAL?
Before the expiry of the withdrawal period, the consumer shall inform the trader of his decision to withdraw from the contract. For this purpose, the consumer may either:
- use the model withdrawal form as set out in Annex I Part B of the Consumer Code
- or make any other unequivocal statement setting out his decision to withdraw from the contract.
The communication of the intention to exercise the right of withdrawal may be made by traditional means or by electronic communication. In particular, the trader may provide for the electronic completion of the form for the exercise of the right of withdrawal annexed to the Consumer Code or provide for such communication by other means, such as by filling in the appropriate form on the trader's website
The trader shall, upon receipt of the communication, communicate to the consumer an acknowledgement of receipt on a durable medium without delay.
The burden of proof of exercising the right of withdrawal in accordance with the rules of the Consumer Code shall be on the consumer.
SECTION V: THE EFFECTS OF THE WITHDRAWAL
The exercise of the right of withdrawal shall release the parties from their respective obligations. It follows that:
- consumers shall be required to return the goods within 14 days after the date upon which the trader was informed of the consumer's intention to withdraw. This deadline is respected if the consumer returns the goods before the due date. The consumer shall bear only the direct cost of returning the goods, provided that the trader has not agreed to bear this cost or has failed to inform the consumer that this cost is borne by the consumer.
- the trader shall reimburse all payments received from the consumer, including, where applicable, delivery costs, without undue delay and in any event within 14 days after the date upon which the professional was informed of the consumer's intention to withdraw. The trader shall carry out the reimbursement referred to in the first sentence using the same means of payment used by the consumer for the initial transaction, unless the consumer has expressly agreed otherwise and provided that the consumer does not incur any fees as a result of such reimbursement. The trader is not required to reimburse the supplementary costs, if the consumer has expressly opted for a type of delivery other than the least expensive type of standard delivery offered by the trader. Unless the trader has offered to collect the goods himself, the trader may withhold the reimbursement until he has received the goods back, or until the consumer has supplied evidence of having sent back the goods.
In the case of off-premises contracts where the goods have been delivered to the consumer's home at the time of conclusion of the contract, the trader shall collect the goods at his own expenses if the goods by their nature cannot be normally returned by post.
Any clause limiting the reimbursement to the consumer of sums paid as a result of the exercise of the right of withdrawal shall be null and void.
The consumer is only liable for any diminished value of the goods resulting from handling the goods other than what is necessary to establish the nature, characteristics and functioning of the goods. The consumer is in no circumstances liable for the diminished value of the goods if the trader has failed to inform the consumer of his right of withdrawal.
The consumer shall not bear any cost for the provision of services or the supply of water, gas or electricity during the withdrawal period where:
- the trader has failed to provide information about the right of withdrawal; or
- the consumer did not expressly request the beginning of the performance during the withdrawal period.
The consumer does not incur any cost for the supply of digital content where:
- the consumer has not given his prior express consent for the performance to begin before the end of the 14-day period; or
- the professional failed to provide confirmation of the contract.
SECTION VI: THE RIGHT OF WITHDRAWAL IN THE CONTEXT OF LAW-VALUE CONTRACTS
National rules on the right of withdrawal do NOT apply to law-value contracts negotiated away from business premises (Article 47 paragraph 2 Consumer Code). For the purposes of the qualification of a "law-value contract", the limit under national law is € 50, in accordance with the EU law.
SECTION VII: THE RIGHT OF WITHDRAWAL IN THE CONTEXT OF CONTRACTS CONCLUDED BY TELEPHONE
In general, the agreement resulting from the telephone proposal made by the trader to the consumer will not be finalised when the trader does not carry out further formalities functional to the consumer's informed choice of purchase. In particular, under Article 51 paragraph 6 of the Consumer Code, when a distance contract is concluded by telephone, the trader is required to confirm the offer to the consumer by sending the confirmation of the contract proposal in writing or on a durable medium. This confirmation must include all the pre-contractual information required by Article 51 paragraph 7 of the Consumer Code and must be sent by the trader before the beginning of the supply of the service and in any case before the delivery of the goods or services covered by the contract. Therefore, the consumer is bound only after signing the offer or after accepting it in writing. In such cases the electronic document may be signed by e-signature and, if the consumer consents, the confirmation may also be made on a durable medium. In any case, the acceptance by telephone of the contract, even if recorded, must always be accompanied by the sending of the conditions of the offer by making a written notification or on a durable medium, otherwise the consumer will not be bound by the contract.
SECTION VIII: THE RIGHT OF WITHDRAWAL AND ANY PAYMENT OBLIGATIONS ON THE CONSUMER
The trader may request the payment during the withdrawal period of 14 days provided that the consumer has made an explicit request to receive the performance covered by the contract before exercising the right of withdrawal. Pursuant to article 57, paragraph 3, if the consumer has made a request for activation of the supply, provision of the service or delivery of the goods during the withdrawal period, the consumer shall pay to the trader an amount which is in proportion to what has been provided until the time the consumer has informed the trader of the exercise of the right of withdrawal, in comparison with the full coverage of the contract. The proportionate amount to be paid by the consumer to the trader shall be calculated on the basis of the total price agreed in the contract. If the total price is excessive, the proportionate amount shall be calculated on the basis of the market value of what has been provided.