The consumer protection process

The protection offered to the consumer in the event that his right to obtain the legal guarantee pursuant to articles 128 et seq. of the Consumer Code is regulated by the same Legislative Decree 206/2005 (“Cod. Cons.”) and by civil law.

More generally, the law provides for various subjects that protect the consumer according to the scope of the offense suffered, as an alternative to ordinary judicial authorities; in fact, in the case of a dispute arising pursuant to Legislative Decree 196/2003 (“Privacy Law”), the competent authority is identified in the Guarantor for the Protection of Personal Data; with regard to the scope of communications, the consumer can activate the procedure before the Authority for Communications Guarantees; or in case of disputes related to insurance, the Institute for the Supervision of Private Insurance and Collective Interest. [1]

Finally, in the field of unfair commercial practices, misleading advertising, conflicts of interest and protection of competition, the Competition and Market Authority certainly plays a primary role. The activation of the proceedings before the AGCM takes place through alerts that can be made by the individual consumer, by the professional associations, by the police or supervisory forces in turn activated by the individual private subjects, or by the office. The Consumer Code, pursuant to art. 141, also provides for an out-of-court settlement of the dispute between the consumer and the seller. The standard refers to any alternative justice instrument, such as negotiation, conciliation, mediation, and the transaction, also by electronic means. These are methods of settling disputes between seller and consumer that can provide fast and flexible solutions, since the content of the decision can be atypical.

These forms of settlement of disputes are feasible for the protection of various consumer rights, with the sole exception of unavailable rights, for which it is necessary to contact the judge in case of conflict.

The provision of the Consumer Code exceeds the traditional approach that preferred the conciliation procedures promoted and implemented by the Chambers of Commerce. In fact, in addition to the chamber conciliation bodies, disputes may be decided by other out-of-court settlement bodies, identified by the Ministry of Economic Development decree and informed by the principles set by the European Union concerning the bodies responsible for the out-of-court settlement of disputes in the matter of consumption.

The recourse to the out-of-court settlement bodies of the dispute can be included in the clauses of the contract of sale of the asset. The Consumer Code explicitly qualifies these clauses as not being vexatious.

It is also important to underline that, as a result of the last paragraph of art. 141 of the Consumer Code, the out-of-court settlement procedures of disputes do not arise in relation to alternativeness with respect to judicial procedures. The consumer, regardless of the outcome of the out-of-court settlement procedure, can not, in fact, be deprived of the right to appeal to the judicial authority.

In the final analysis, a reference to the legislation envisaged with the amendment of the Consumer Code, with regard to the activation of the collective compensation actions in force since January 1, 2010, following the approval of the Finance Law, art. 2, paragraph 445.

 

This action can be exercised to remedy the crimes committed starting August 16, 2009.

It consists of a collective action, promoted by one or more consumers, who act in their own name or by mandating an association for the protection of consumer rights.

The action is promoted by an appeal presented to the court by the consumer, assisted by a lawyer.

The other interested consumers, owners of a right of identical and homogeneous content, can join the collective action already promoted, without having to resort to the patronage of a lawyer. The possibility of promoting individual action for the protection of one’s rights remains unaffected, but this solution prevents it from joining the collective action.

Compensatory collective action can be proposed by all those consumers who have suffered the harmful consequences of incorrect conduct or commercial practices, who have purchased a harmful or dangerous product or who are in the same situation of prejudice against a company, in consequence of a breach of contract.

This type of compensatory action proves to be very advantageous and effective in the event that many people suffer damage economically modest: it allows to reduce the costs deriving from the exercise of the action and allows the individual consumer to gain greater strength against the big business. The procedures analyzed above, however, do not affect in particular the consumer to whom the legal guarantee has not been granted by the seller; in fact, the problems related to consumer protection mainly concern the possibility for the buyer to assert his rights when they are not recognized by the seller even for small sums. In fact, the most immediate form of protection, and not onerous, in this case for the consumer is identified with the complaint to the police, in particular the Guardia di Finanza which on the report of the wrongdoing of the person concerned will intervene to try to remedy the default by the seller. Alternatively, the consumer has the right to act against the professional by quoting the same before the competent judicial authority, Court or Peace Judge, with the aim of obtaining the declaration of termination of the contract of sale of the consumer good. This solution involves costs for the consumer who, depending on the value of the dispute, may be more or less burdensome, both as regards the due task of a lawyer who represents him during the trial, and the “live” access costs to the civil procedure.

 

 


[1] In the insurance sector, we point out the overlapping of the Consumer Code regulations and the regulation of the Insurance Code, as per Legislative Decree 209/2005.