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Italy: As of 2022, contractual documents will have to be adapted for the E-commerce market

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published on 19 October 2021 | reading time approx. 3 minutes


The significant increase in e-commerce, which has shaped the global scenario in recent years, has made a more accurate regulation of the digital market at a EU level necessary.



Accordingly, in May 2019, the EU legislator issued, among others, EU Directive 2019/770, introducing new rules on contracts for the supply of digital content and digital services entered into between a consumer and a professional, as well as EU Directive 2019/771, amending the existing legal framework through a more specific regulation of certain aspects relating to contracts for the sale of goods, with the aim of balancing a high level of consumer protection together with the enhancement of SMEs competitiveness.
 
These directives shall apply in the Member States from January 2022.
 
Currently, in Italy, the implementation process is yet to be completed. However, on 29 July 2021, the Council of Ministers preliminary approved the relevant implementing legislation (i.e. legislative decrees).
 
In particular, the first legislative decree amends the Legislative Decree no. 206 of 2005 (the "Italian Consumer Code"), in order to make the Italian law consistent with EU Directive 2019/770. This latter directive, marks a distinction between (i) "digital content" (e.g., computer programs, applications, video files, etc.), (ii) "digital services" (e.g., cloud computing); (iii) "goods with digital elements" (e.g., smartphones equipped with a standard pre-installed application), together with the regulation of certain aspects of contracts for the supply of digital content and services, including the conformity of the goods with the contract, remedies for lack of conformity or non-delivery, and the modification of the digital content or service.
 
These rules will apply to any agreement whereby the professional provides (or undertakes to provide) digital content or services to the consumer, against the payment of a consideration (or the undertaking to pay a consideration) by the consumer, or the transfer of personal data to the professional as remuneration for the digital content or service provided. 
 
The second measure, implementing EU Directive 2019/771, amends the relevant sections of the Italian Consumer Code, regulating sales contracts, guarantees of conformity and consumer rights.
 
Furthermore, in the same year, the EU further adopted Directive 2019/2161 (also known as the "Omnibus Directive") to complete the so called New deal for consumers. The Omnibus Directive amends Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council enhancing the enforcement and modernisation of EU consumer protection rules, which shall be implemented by the Member States by 28 November 2021 and enter into force as of 28 May 2022. 
 
The purpose of the Omnibus Directive is to update a coherent, yet outdated, regulatory framework in the light of the technological innovations witnessed in the recent years.
More specifically, its purpose is to:
  • ensure greater transparency for on-line, also with regard to prices;
  • remove excessive burdens on businesses;
  • adequately inform users about the criteria for classifying offers on platforms, providing for more effective sanctions in the event of infringements.
 
These legal changes will require all online market players to update their contractual documents accordingly.
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