Commercial Practices - Equity and Transparency

Tuesday, 10 November 2020

Which commercial practices are considered unfair?

Both misleading and aggressive commercial practices are considered to be unfair.

As a general rule, a commercial practice is unfair, and therefore prohibited, if it is contrary to professional diligence and it materially distorts or is likely to materially distort the economic behaviour, in relation to the product, of the average consumer whom it reaches or to whom it is addressed, or of the average member of the group when a commercial practice is directed at a particular group of consumers.

 

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

Unfair terms affecting consumers will always render the contract partially null and void. The applicable penalty in the event of unfair terms is ‘protective’ invalidity, which has two features: it is partial, in that it only invalidates the unfair terms, leaving the other terms and conditions unaffected; and it is relative, in that it is only applicable in the consumer’s favour.

If the consumer fails to challenge the unfair terms in the contract, a court may nevertheless, acting of its own motion, find them unfair and issue a penalty.

 

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

The Ministry of Economic Development – Directorate-General for the Market, Competition, Consumer Protection and Technical Standards – ensures the conformity and safety of the products intended for intermediate and end consumers, by monitoring goods already placed on the market and those imported from non-EU countries which, pursuant to Article 27 of EU Regulation 765/2008 must be held at customs.

The Ministry:

  • operates in the field of product conformity and safety, in particular as concerns:
    • toys (Legislative Decree No 54/2011),
    • low-voltage electrical equipment (Legislative Decree No 86/2016),
    • personal protective equipment (PPE) (Legislative Decree No 17/2019),
    • goods liable to generate electromagnetic disturbance (Legislative Decree No 80/2016),
    • goods classified as pressure equipment (Legislative Decree No 26/2016),
    • appliances burning gaseous fuels (Legislative Decree No 23/2019)
    • construction products (Legislative Decree No 106/2017)
    • goods covered by the machinery legislation (Legislative Decree No 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 No 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 No 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 No 26 of 15 February 2016 implementing Directive 2014/68/EU of the European Parliament and of the Council of 15 May 2014 on the harmonisation of the laws of the Member States relating to the making available on the market of pressure equipment (recast)
  • LEGISLATIVE DECREE No 17 of 27 January 2010implementing Directive 2006/42/EC on machinery, and amending Directive 95/16/EC on lifts
  • LEGISLATIVE DECREE No 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
  • PRESIDENTIAL DECREE No 121 of 6 August 2019Regulation 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 No 206 of 6 September 2005Consumer Code, pursuant to Article 7 of Law No 229 of 29 July 2003
  • LEGISLATIVE DECREE No 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 No 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 No 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

 

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