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. The procedure thus offers advantages to both the trader and the consumer. It is also possible to resolve consumer disputes online, pursuant to Regulation (EU) No. 524/2013; this regulation, specifically establishes an online web platform for the entire EU (so-called "odr platform") managed by the European Commission at the web address https://webgate.ec.europa.eu/odr. Each Member State designates an "ODR (Online Dispute Resolution) contact point", pursuant to Article 7 of the aforementioned Regulation; for Italy, pursuant to Article 141- sexies, paragraph 5 of the Consumer Code, the National Centre of the European Consumer Network (ECC-Net) has been designated, providing assistance in the filing of the complaint and, where appropriate, of the documents for the transmission of information on the functioning of the ODR platform as well as in relation to the transmission to the plaintiff of information on the other means of redress if a dispute cannot be resolved through the ODR platform".
Consumer ADR procedures also include "joint negotiations" (art. 141-ter of the Consumer Code), which concern alternative dispute resolution procedures between professionals and consumers, set up by at least one third of the consumer and user associations registered on the list referred to in art. 137 of the Consumer Code on the basis of specific memoranda of understanding entered into with the professionals adhering to them, as well as the procedures governed by memoranda of understanding entered into in the local public services sector according to the criteria for this purpose indicated in the agreement sanctioned at the Unified State-Regions and State-Cities and Local Autonomies Conference of 26 September 2013.
Deadlines for implementing the solution
ADR procedures, pursuant to Article 141-quater (3)(e) of the Consumer Code, must be concluded 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 (at his own expense), with the 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.
In addition, pursuant to Article 141-quinquies Consumer Code, the request addressed to the ADR entity produces the same effects on the limitation period as a court request, and also prevents the limitation period from running for one time. In the event that the ADR procedure fails, the relevant limitation and forfeiture periods start to run again from the date of the communication to the parties of the failure to settle the dispute.
Which national bodies are responsible for alternative dispute resolution (ADR)?
The national bodies competent for dispute resolution ADR according to the criteria laid down in Directive 2013/11 (EU) are the ADR bodies referred to in Article 141(1)(h) of the Consumer Code, that is any body, regardless of its name and established on a permanent basis, which offers the resolution of a dispute through an ADR procedure, and is registered on the list established by one of the competent authorities, pursuant to Article 141-decies of the Consumer Code.
For further information:
https://www.mise.gov.it/index.php/it/assistenza/domande-frequenti/2040873-risoluzione-delle-controversie-domande-frequenti-faq
https://www.mise.gov.it/en/single-digital-market/resolving-consumer-disputes
Relevant legislation
- 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.
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