Italian Consumer Code and consumer goods requirements: the new double face of product law compliance

Introduction

Since November last year, consumer protection legislation has been the subject of several amendments, with innovations - both in terms of legislative precepts and in terms of their implementation - inevitably bound to have a very significant impact not only on those who market consumer goods, but also on those who produce them.

The relevant legislation and the amendments to Article 129 of the Italian Consumer Code

The new rules on b2c sales contracts are contained in the provisions of Chapter I, Title III of the Italian Consumer Code ("ICC"), as amended by Legislative Decree No. 170 of 4 November 2021, which transposed Directive 2019/771/EU concerning certain aspects of contracts for the sale of goods into Italian law. The reform brought about by the recent legislative intervention is aimed, on the one hand, at modernising the contents of the existing discipline in order to adapt it to technological developments and, on the other hand, at achieving the EU legislator's objective of reaching full harmonisation of consumer protection legislation across the EU Member States.

Among the main new features is the change in the criteria for determining whether, and under what conditions, the goods delivered to the consumer may be considered to be in compliance with the contract. Indeed, the amended version of the ICC now contemplates two distinct types of parameters: the so-called "subjective" criteria, based on the covenants included by the parties in the contract of sale (Art. 129, para. 1, ICC), and the so-called "objective" criteria, deriving from a legislative source, which supplement the "subjective" ones (Art. 129, para. 2, ICC). The application of the objective criteria may be excluded only if the consumer, at the time of the conclusion of the contract of sale, "was specifically informed of the fact that a particular characteristic of the goods deviated from the objective requirements of compliance" and has "expressly and separately accepted that deviation at the time of the conclusion of the contract of sale" (Art. 130, para. 4, ICC).

The reform thus further clarifies the content of the seller's obligation to deliver goods in conformity with the contract by broadening the boundaries of the notion of “lack of conformity”.

In detail, on the one hand, based on the so-called “subjective criteria”¹, a good is considered compliant if:

• it matches the contractual description, type, quantity and quality and if it possesses the functionality, compatibility, interoperability and other features as stipulated in the sales contract;
• it is suitable for any particular use intended by the consumer, which has been brought to the knowledge of the seller at the time of the conclusion of the sales contract, and which the seller has accepted;
• it is supplied together with all accessories and instructions, including those concerning installation, provided for in the sales contract;
• it is provided with the updates foreseen in the sales contract.

On the other hand, based on the so-called "objective requirements"², which make it possible to assess the conformity of a good not only in the light of the contractual provisions governing the relationship between seller and consumer, but rather in the light of the characteristics that an “ideal model” of that same good should present, a conforming good is deemed to be in conformity only if:

• it is suitable for the purposes for which goods of the same type are normally used, taking into account, where appropriate, other provisions of national and Union law, technical standards or, in the absence of such technical standards, industry codes of conduct applicable to the specific sector;
• where applicable, it possesses the quality and corresponds to the description of a sample or model, which the seller has made available to the consumer prior to the conclusion of the contract;
• where applicable, it is delivered together with such accessories, including packaging, installation instructions or other instructions, as the consumer may reasonably expect to receive;
• it is of the quantity and possesses the qualities and other characteristics, including in terms of durability, functionality, compatibility and safety, ordinarily found in goods of the same kind and which the consumer may reasonably expect, having regard to the nature of the goods and the public statements made by (or on behalf of) the seller, or other persons at earlier stages in the chain of commercial transactions, including the producer, in particular in advertising or on the label.

The peculiarity of these objective compliance criteria derives from the very nature of the goods whose sale is to be regulated: these are consumer goods produced on a large scale and in a completely standardised manner³. In other words, the omnipresence of certain types of goods in consumers' lives today makes it possible to delineate an "ideal type" - that is, an ideal and abstract model of that same good, the purchase of which is thus capable of generating legitimate expectations that the consumer is entitled to see fulfilled. Take, for example, the purchase of a smartphone: nowadays, none of us would ever think of making sure, before proceeding to the purchase, that such a smartphone is equipped with an internet connection, enables making phone calls or accessing a social network. These are characteristics that, in the collective imagination, are constitutive of this type of good.

The new rules also regulate sales of "movable goods with digital elements", i.e., tangible and movable goods that incorporate (or are interconnected with) a digital content or a digital service and whose fitness for use also depends on the digital content or service⁴. Therefore, with reference to the sale of such goods, the profiles of conformity to the contract of the digital contents and services incorporated in the goods are also relevant, and this regardless of whether they are provided by the professional with whom the consumer has concluded the sales contract or by a third party⁵.

The impact of the new rules on b2c sales contracts for manufacturers and importers

The analysis of the "objective" criteria of conformity shows that conformity must also be assessed in relation to characteristics of the goods which are outside the seller's sphere of control and which depend on how those goods were conceived and/or presented to the market by the manufacturer or importer. Indeed, the fact that the conformity of the goods is also to be assessed in the light of the fact that they are accompanied by the accessories and by instructions for their installation and use (i.e. in conformity with what the consumer may reasonably expect to receive), as well as the fact that the goods must possess the qualities and other characteristics, also in terms of durability, functionality, compatibility and safety, ordinarily present in goods of the same type, are subject to the control and responsibility of the producer and/or importer and are outside the seller's sphere of intervention.

The new rules therefore seem to further heighten the risk profiles for the producer/importer who, in addition to having to be mindful of to the increasingly complex and stringent system of rules aimed at guaranteeing the safety and conformity of products placed on the market, may be called upon to answer, not only to consumers but also to other operators in the distribution chain, such as the seller, for the consequences of the non-conformity of their products. In this regard, the manner in which the producer presents the goods subject to the contract of sale to the public (or the way in which it presents the characteristics of durability, functionality, compatibility and safety of the goods, compared to goods of the same type, for which the producer is entirely responsible) are relevant. Ensuring conformity of the digital content or services incorporated in the good also involves parties other than the seller, such as the producer of the good or the digital content or service.

Thus, manufacturers/importers risk being exposed to additional liability profiles not only directly towards consumers, but also towards the seller. Indeed, if the non-conformity is ultimately attributable to the manufacturer or importer, the final seller will be entitled to recover from them the costs incurred to eliminate the non-conformity.

Next steps

To sum up, the increasing regulatory focus on product compliance and safety today makes it all the more necessary for manufacturers and others in the supply chain to make careful assessments of product compliance and safety. Not only when planning the launch of a new product line, but also when evaluating related advertising and marketing initiatives. A poorly designed advertising campaign could in fact generate liability profiles not only for manufacturers/importers but also for other operators in the distribution chain, including sellers.

Authored by Christian Di Mauro and Pietro Orlandi.

References