Which remedies are available to consumers free of charge?
Where a consumer has problems with purchasing a product or service, whether online or in store, they can make use of the out-of-court alternative dispute resolution methods governed by Articles 141 and 141-decies of the Consumer Code (Legislative Decree No 130/2015, which transposed ADR Directive 2013/11/EU). The procedure is based on the parties’ desire to avoid legal proceedings and offers a simple and quick solution to disputes between consumers and companies, including via electronic means, and to national and international disputes between consumers and traders established or resident in the European Union. They are quick procedures, free of charge or with ‘merely nominal costs’. ADR bodies must comply with transparency, impartiality and equality obligations vis-à-vis the parties to the proceedings, and it is possible to resolve consumer disputes online, to the advantage of both the trader/company and of the consumer. (The ADR Directive for consumers and Regulation (EU) No 524/2013) are legislative instruments which introduce a set of rules as well as an online web platform for the entire European Union, managed by the European Commission, at the web address https://webgate.ec.europa.eu/odr. Every Member State designates an ‘ODR (Online Dispute Resolution) contact point within the meaning of Article 7 of Regulation (EU) 524/2013, and for Italy this is the national centre of the European Consumer Centres Network (ECC-Net). It fulfils functions including assisting with the submission of the complaint and, where appropriate, relevant documentation, providing information on the functioning of the ODR platform, and informing the complainant party of other means of redress when a dispute cannot be resolved through the ODR platform’.
ADR consumer procedures also include ‘joint negotiations’. (Article 141-ter of the Consumer Code) initiated by consumer associations which have ‘locus standi’ to protect the collective interests of consumers and users (within the meaning of Articles 139 and 140 of the Consumer Code).
Deadlines for implementing the solution
The matter must be resolved within a period of 90 days from the date of receipt of the full application file by the ADR entity; for particularly complex disputes, the ADR entity can extend the term by a maximum of 90 days. The parties must be informed of this extension and of the new deadline for concluding proceedings.
Is the repaired/replaced product covered by a new guarantee?
Generally speaking, it is possible for repair and replacement to take place again during the legal guarantee period; in particular, it is pointed out that in the case of complex goods it is in any case necessary to distinguish between two different scenarios:
1) If, during the legal guarantee period, the consumer exercises their right to repair, with replacement, for example, of a specific part, a new 2-year guarantee period does not begin for the replacement part, but the deadline relating to the first delivery of the product continues to run.
2) If, after the legal guarantee period has ended, the consumer has the product repaired, with replacement, for example, of a specific part, the replaced part will be covered by the 2-year legal guarantee from the moment of its delivery or installation
Can the consumer take action against the importer or any intermediary in the supply chain, up to and including the manufacturer?
The seller is responsible for any lack of conformity present when the goods are delivered. Therefore the consumer must always contact the seller, who is the only party with whom they have entered into a contractual relationship. The manufacturer can be held to account in the first instance for any lack of conformity in goods delivered to the consumer only where they can also be considered the ‘seller’, i.e. where they make direct sales to customers. This is however without prejudice to the cases provided for by other legislation where the manufacturer has direct responsibility, including, for example, the manufacturer’s direct responsibility to consumers where the latter suffers wrongful damage as the result of a manufacturing fault (for further details, please see the Consumer Code, specifically Part IV, ‘Product Safety and Quality’, Chapter I, ‘Product Safety’, in Articles 102 et seq.).
If it is not possible to amicably resolve the matter, what is the deadline for commencing legal proceedings?
Participating in an ADR procedure does not prevent either the consumer or the trader from taking legal action (Article 141(10)). Irrespective of the outcome of the ADR procedure, the consumer reserves the fundamental right to bring an action before the competent judicial authority (established in the European Convention on Human Rights), to obtain compensation for damages within the standard 10-year period pursuant to Article 2946 of the Civil Code, other than where briefer periods are provided in exceptional cases for particular ‘categories of contracts’.
Which national bodies are responsible for alternative dispute resolution (ADR)?
‘ADR entity’ (Article 141(1)(h) of Directive 2013/11/EU), means any entity which is established on a durable basis and offers the resolution of a dispute through an ADR procedure and that is entered on the list pursuant to Article 141-decies (role of competent authorities), established and managed by a specific competent authority (Ministry of Economic Development) which provides obligatory information including the address of the website of the relevant ADR entity or entities.
For more information please visit the website of the Ministry of Economic Development [Ministero dello Sviluppo Economico, (MISE)], available in both Italian and English:
- Consumer Code (Articles 141-141-decies)
- Legislative Decree No 130 of 6 August 2015 Implementation of Directive 2013/11/EU on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR)
- Directive 2013/11/EU Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees
- Regulation (EU) No 524/2013 Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR)
- Consumer Code (Articles 139 and 140)
- Memoranda of understanding for joint conciliation.