Unfair commercial practices and the perspective of consumer associations in Italy Andrea Filippo Gagliardi

Unfair commercial practices in Italy EU Directive 2005/29/EC was implemented in Italy with Legislative Decree of 2 August 2007 and it’s now part of the Italian Consumer Code. It appointed the Italian Competition Authority (ICA) has the main public administration responsible for the enforcement of these rules also vis-à- vis other EU MS As these rules are mainly targeting traders they are from the policy point of view under the competence of the Italian Ministry for the Economic Development. The Ministry acts in cooperation with consumer associations to which it confers the main task of educating traders on compliance to these rules as well as represent consumer interests also before ICA Consumers can also lodge their cases before judges but the value at stake rarely justifies the costs. In Italy we have started to introduce class actions. Consumer associations can also be the vehicle for ADR but in Italy it rarely works

The role of consumer associations Consumer associations in Italy are one of the main institutional instruments to educate traders and consumers about fair marketing practices They can: -Educate consumers and traders through publications (including their website) and training -Advise consumers over their rights -Run market surveys and represent consumers in front of ICA for unfair commercial practices -Run comparative tests on the quality and characteristics of products and services -Act as mediator in settling cases -Assist consumers in judicial litigation, including class actions

Funding of Italian consumer associations in unfair commercial practices The Ministry of Economic Development is funding a number of consumer associations which demonstrate they are equipped with experts capable of advising consumers over their rights, are capable of running market surveys and may assist consumers to lodge cases before ICA or the judiciary, including for settlements These associations perceive funds which represent a percentage of the amount of sanctions issued by ICA against unfair commercial practices These associations have an obligation to monitor fair practices in determined sectors through investigations, including mistery shopping and reporting over their activity to the Ministry and ICA, notably to influence future consumer policy Other funds come from subscribers to the association, who perceive a number of benefits including free legal advice The associations rely also on voluntary support and donations

The objective of consumer associations in the fight against unfair commercial practices  Consumer associations should act as a filter in fixing unfair practices for the benefits of consumers  In order to do that they need to detect evidence of an infringement  This evidence may come directly from the consumer through a complaint mechanism but this is rarely sufficient. Consumers are often not well informed of their rights and lack supporting documentation for a case (they have lost the contract; the invoice/receipt; they have not read the clauses; they are late in exercising redress).  That’s why having a team which may run market surveys is an essential requirement to receive State funding for unfair commercial practices and promote consumer disputes

ICA is the best fixer in Italy The procedure before judges is costly and in Italy the judicial system is too slow ICA has a toll free number where consumers as well as associations can lodge their complaint and can issue a temporary restraining order in one week and close a case in average 4 months The procedure is fast with parties which are ordered to provide evidence (the burden of proof is on the trader), sanctions for obstructions to the investigation and power of inspections Hearings are rare, since ICA has no obligation ICA can also settle the case unless the practice is black listed Sanctions they go from a minimum of Euro to a max of Euro for each infringement and may include publication of apologies ICA team is business-friendly and knows how markets behave because they are also antitrust experts

Class action In March 2013 there was the first sentence in Italy where a judge has recognised a class action claim brought by a consumer association. The case concerned a group of tourist which were mislead over the characteristics of a resort in Zanzibar. They were told it was a luxury hotel with spa and swimming pool while the resort was actually not even built...They were awarded Euro each from the “unfair” Tour Operator The class action was lodged by the Unione Nazionale Consumatori. This legal “revolution” may lead to future class actions to be lodged by consumer associations concerning the duration of the i-phone guarantee.

Examples of cases run by consumer associations and decided by ICA TV quiz for christmas Portability of mortgage loans Financial services for pensioners Video mobile telephone services Telephone directory services Food products making health claims Maintanance services for electronic products