European institutions are increasingly calling upon our legislator to intervene with punctual reforms having the aim to boost a favourable increase in the rights and guarantees of subjects disadvantaged relative to their commercial counterparts, in favour of which it seems necessary to provide greater legal protection.
Consumers are a particular category that stand out among these former subjects. They represent the individuals who act and execute agreements for purposes which are different and unrelated to their entrepreneurial, commercial, artisan or professional activity. Since 2005, consumers enjoy a special and broader protection than the one guaranteed by common rules of civil law, due to the provisions set forth under Legislative Decree no. 206/2005, the so-called Consumer Code.
The Consumer Code has been recently reformed by Legislative Decree no. 170/2021, a transposition of EU Directive no. 2019/771, which entered into force last January and profoundly changed some aspects of the Consumer Code, exposing producers and sellers who have direct or indirect relationships with consumers, to risks of various kinds, both operational and legal.
The rationale behind the aforementioned reform is the European Union’s aim to standardise the contractual protections provided within the legal systems of each Member State, in order to increase consumers’ and small and medium-sized enterprises’ confidence in the digital market. By doing so, the European Union wishes to encourage the intra-frontier exchange of goods and services within the eurozone and strengthen the commercial unity of its members.
To this end, the legislator has reformed Chapter I of Title III of the Consumer Code, intervening on legal guarantees, responsibilities of sellers and producers, as well as remedies available to consumers in the event of non-conformity defects.
Although the reform has not made profound changes to the system of rights guaranteed in the pre-reform period, already resulting from the transposition of a European directive, it is clear that Legislative Decree no. 170/2021 is the bearer of a new method of protection for consumers, leveraging:
1) the introduction of new and more specific legal definitions, including that of product conformity, capable of guaranteeing greater clarity and legal certainty, especially in the frequent case of chain transactions;
2) the applicability of Consumer Code’s new rules not only to sale agreement having object consumer goods but also to service agreement having object digital contents and the provision of the liability regime in the event of failing or incorrect installation of the same, or any of its updates;
3) a more specific description of the remedies available to the consumers in the event of non-conformity defects, which remain, in any event, the same as those provided for under pre-reform legislation (repair or replacement of the goods, price reduction and termination of the agreement);
4) a wider possibility for consumers to make use of the product’s guarantee, given the lack of the obligation to report the non-conformity defects, under penalty of forfeiture, within two months from discovery.
Given the above, this reform imposes a prompt revision of contractual terms not just to those sellers who, from January 1st 2022, will directly or indirectly (e.g., via commercial agents, promoters, or brokers) execute sale agreement of consumers’ goods or provide digital contents towards consumers, but also to the producers of such goods or contents, who will have to adapt their contractual, technical and advertising documentation to reduce the risk of possible disputes against their distributors or retailers.
In fact, the reform has confirmed the right of the final seller who has complied with the consumer’s requests as per point 3 above, to take recourse, within one year from the performance of the guarantee towards the consumer, against the person responsible for the non-conformity of the product who is part of the chain transaction, in order to obtain the reinstatement of what has been provided.
It should be added that, according to the new article 135-sexies, the newly introduced rules are mandatory, and therefore, cannot be subject to any derogation in pejus by the parties, not even in case foreign law shall apply to the agreement. It follows that all the rights introduced by the reform shall be guaranteed if a consumer is an Italian citizen but also when the consumer has a close connection (i.e., domicile or residence) with the territory of one of the Member States of the European Union.