Dispute resolution - Frequently Asked Questions (FAQ)
(from article 141 to article 141i of Consumer Code)
In case of issues related to the purchase of a product or service, regardless of whether it was purchased online or directly in a store, the consumer can resort to out-of-court dispute resolution methods (so-called "Alternative Dispute Resolution" or "ADR") regulated by Articles 141 to 141i of the Consumer Code.
In general, whenever a problem arises in the purchase of a product or in the provision of a service, the consumer is invited to activate the tools described in the following sections.
SECTION I: COMPLAINT TO THE PROFESSIONAL
In case of problems related to the purchase of a product or the provision of a service, as a first step, the consumer is required to make a complaint directly to the professional in order to expose the problem and explore possible solutions.
- Contact the professional's customer service department
- Contact details can generally be found on the company's website.
- Try to explain the problem in a clear and simple way and provide, as far as possible, evidence to support your claims (invoices, contracts, correspondence, etc.).
- Keep in mind that the trader is required to provide all the information related to the causes of the problem and where the problem cannot be directly solved, the trader has the duty to guide the consumer on the initiatives to be taken.
- If this approach is not successful, consider whether to undertake other measures.
SECTION II: CONTACT A CONSUMER ASSOCIATION
If the complaint sent to the trader has not been answered or if the response is not sufficient to remedy the problem reported, the consumer is invited to contact one of the consumer and user associations among those listed in the national list of the Ministry of Economic Development, available at the following link.
- Consumer associations are non-profit organisations whose sole statutory purpose is to safeguard and defend the interests of consumers.
- The most representative associations at national level are included in the single national list drawn up by the Ministry of Economic Development pursuant to Article 137 of the Consumer Code.
- Useful information about your rights can be provided by consumer associations which can also give assistance in solving eventual problems arisen with the professional.
SECTION III: ACTIVATE AN ADR PROCEDURE
If, following the complaint, the trader responds negatively or does not give any response, the consumer can activate an ADR procedure. Such procedures have the advantage of offering a fast and effective solution to conflicts between traders and consumers (as well as streamlining the judicial burden), as they proceed by "alternative" routes without recourse to the courts. This procedure also avoids that consumers, discouraged by the cost and duration of the court proceedings, renounce the protection of their rights. Thus consumers and businesses have the opportunity to resolve any national or cross-border disputes concerning sales contracts or service provision through an out-of-court procedure managed by an ADR entity, supervised by a competent authority.
WHAT ARE ADR PROCEDURES?
- ADR is the acronym for "Alternative Dispute Resolution".
- They are out-of-court dispute resolution procedures that comply with the requirements of Title II-a of the Consumer Code (article 141, paragraph 1, letter g)
- The matter is governed by articles 141-141i of the Consumer Code. ADR procedures were introduced into the Italian legislation by Legislative Decree no. 130 of August 6, 2015, which has transposed the ADR Directive for consumers 2013/11/EU.
- These are voluntary procedures, activated by the consumer, who will be the plaintiff party in the procedure.
- They are fast procedures that must be completed within 90 days from the date of receipt of the complete application file by the ADR entity; in the case of particularly complex disputes, the ADR entity may, at its discretion, extend the deadline up to a maximum of 90 days; the parties must be informed of this extension and of the new deadline for completion of the procedure (art. 141-quater, paragraph 3, letter e).
- These procedures are free of charge or subject to "merely symbolic costs" for the consumer (art. 141-quater, paragraph 3, letter c). Please note that in the framework of ADR procedures, the parties are not obliged to provide legal assistance.
- These procedures are efficient: the ADR entity registered on the list must dispose of natural persons in charge of dispute resolution who possess adequate and specific training requirements to be demonstrated by means of educational qualifications and any certification, in accordance with the provisions of the individual competent authorities (art. 141-bis, paragraph 4, letter a).
- ADR entities are subject to obligations of transparency, impartiality and fairness towards the parties to the proceedings and consumers in general: in particular, ADR entities, via annual reports, must inform the "public" about the procedure adopted, the types of disputes, the rules governing the submission of complaints, the criteria guiding the adoption of decisions, etc.. (Article 141a).
- The quality of the procedure is guaranteed by compliance with the consumer ADR legislation contained in the Directive and by the monitoring of the activity of registered entities carried out by the competent authority: in particular, inclusion on the list managed by the competent authority provides registered ADR entities with a quality certification, so as to give them visibility at European level through their inclusion on the ODR platform.
- The use of an ADR procedure is without prejudice to the possibility for the consumer and the trader to bring proceedings before a court (Article 141, paragraph 10). Irrespective of the outcome of the ADR procedure, the consumer retains the fundamental right to bring the matter before the competent judicial authority (which is a fundamental right established by the European Convention on Human Rights).
WHAT ARE ADR ENTITIES?
- ADR procedures are managed by specially established bodies active in the consumer sector (so-called ADR bodies).
- ADR entities are defined as "any entity, irrespective of its designation, established on a permanent basis, which offers the resolution of a dispute through an ADR procedure and is included on the list established by the competent authority" (article 141, paragraph 1 letter h).
- Obligations, authority and requirements of ADR entities are governed by article 141a of the Consumer Code.
- In order to be included on the list established by the competent authorities, ADR entities must send them a series of information pursuant to article 141-novies.
- The procedures for registration and control of the compliance with the requirements of stability, efficiency, impartiality and non onerousness of the consumer service are regulated by each competent authority (art. 141-decies).
HOW TO SELECT THE ADR BODY TO CONTACT?
The choice of the ADR entity to contact shall be made according to the type of dispute to settle. In this respect, three scenarios can be distinguished:
- The dispute arises in relation to a product or service that falls within a regulated area.
- The dispute arises in relation to a product or service purchased
- The dispute arises in relation to a product or service that was purchased abroad, in the European Union, Norway or Iceland.
1. If the dispute concerns a product or service falling within a regulated sector, it is advisable for the consumer to contact the competent authority responsible for the sector concerned. In accordance with the option provided for in Article 18 of the ADR Directive, the Italian State has chosen to designate more than one competent authority according to the sector concerned. The competent authorities within the meaning of Article 141-octies are the following:
- The Ministry of Justice jointly with the Ministry of Economic Development with reference to the register of mediation bodies relating to consumer issues referred to in Article 16, paragraphs 2 and 4 of Legislative Decree no. 28 of 4 March 2010;
- The National Commission for Companies and the Stock Exchange (CONSOB), which has 1 ADR body, the Arbitrator for Financial Disputes (Italian ACF) (see Avvio dell’operatività dell’Arbitro per le controversie finanziarie (Start of operations of the Arbitrator for Financial Disputes) and Acf - Arbitro per le controversie finanziarie (Arbitrator for Financial Disputes);
- The Bank of Italy, which has 1 ADR body, the Financial Banking Arbitrator (ABF) (see press release regarding the qualification of ABF as ADR body and Arbitro bancario finanziario (Financial Banking Arbitrator);
- The Regulatory Authority for Energy Networks and Environment (ARERA), which has 20 ADR bodies (see Provvedimento istitutivo dell'elenco ADR (the measure establishing the ADR list) and Elenco ADR (ADR List);
- The Authority for Guarantees in Communications (AGCOM), which has 20 ADR entities (see Provvedimento istitutivo dell'elenco ADR (measure establishing the ADR list) and Elenco ADR (ADR List);
- The Ministry of Economic Development with reference to the joint negotiations pursuant to article 141b relating to the non-regulated sectors for which the relevant independent regulatory authorities do not apply or do not adopt specific provisions (4 ADR bodies), as well as with reference to the conciliation bodies set up by the Chambers of Commerce (11 ADR bodies).
A list of ADR entities shall be established in each competent authority by decree or internal measures. Each competent authority shall ensure the registration, suspension and deletion of those registered and shall supervise the list as well as the individual ADR entities registered as regards compliance with the requirements set out in the Consumer Code
Each competent authority shall notify any update to the Ministry of Economic Development, which in turn shall communicate to the European Commission the list of the respective competent authorities. The list and updates are sent to the European Commission by the Ministry of Economic Development as "single liaison office ".
ADR entities on the list upheld by the Ministry of Economic Development are grouped into entities operating through joint negotiations and entities set up by chambers of commerce.
- Bodies operating through joint negotiations:
- Joint negotiations are governed by Article 141b of the Consumer Code.
- Only the joint negotiations governed by memorandum of understanding stipulated between professionals or their associations and at least one third of the consumers' and users' associations registered in the national list referred to in art.ìicle 137 of the Consumer Code can be qualified as "ADR procedures".
- All ADR procedures carried out by entities operating through joint negotiations are strictly free of charge for the consumer, with no contribution, even on a purely symbolic basis.
- In the memorandum of understanding, the trader undertakes in advance to resort to ADR to resolve any disputes that may arise in the sectors covered by the protocol.
- As a general rule, the joint negotiations operate in non-regulated sectors, i.e. where no independent authority is provided for, or in regulated sectors to the extent that the sectoral authority has not yet adopted and applied specific provisions on the registration of such bodies.
- Currently, the professionals who have signed memoranda of understanding with consumer associations to set up ADR entities operating through equal negotiations areTrenitalia , Trenord, Consorzio Netcomm e Poste Italiane.
- Finally, it should be borne in mind that traders are free to enter into memoranda of understanding with consumer associations with which they undertake to resolve any disputes with consumers through joint negotiations, without being registered with a competent authority. In this case, entities operating through joint negotiation do not qualify as "consumer ADR entities" and are therefore not subject to the control of any competent authority.
- Bodies set up by Chambers of Commerce
- Pursuant to Article 2, paragraph 2, letter g) and paragraph 4, of Law no. 580 of 29 December 1993, the Chambers of Commerce may establish conciliation bodies, limited to disputes between consumers and professionals not included in the register of mediation bodies relating to consumer matters referred to in Article 16, paragraphs 2 and 4, of Legislative Decree no. 28 of 4 March 2010.
- There are currently 11 Chambers of Commerce which have set up conciliation offices pursuant to Law no. 580/1993 and which are therefore included in the list of the Ministry of Economic Development.
2. If the issue concerns a product or service purchased online, consumers can lodge a complaint via the ODR platform managed by the European Commission. ADR entities operating in the European Union, Norway, Iceland and Liechtenstein are registered on the ODR platform.
- ODR is the acronym for "Online Dispute Resolution".
- The matter is governed by Regulation (EU) No 524/2013 of the Parliament and of the Council of 21 May 2013.
- This is a data transmission platform through which a consumer who has encountered problems when purchasing a good or a service online can activate an online dispute resolution procedure.
- To resolve a dispute through the ODR procedure, the consumer must:
- connect to the ODR telematics platform, managed by the European Commission, at https://webgate.ec.europa.eu/odr;
- choose the ADR entity to contact to resolve the dispute;
- activate the relevant procedure.
- The web address of the ODR platform must also be accessible from the website of the trader with whom the consumer has concluded the contract for the purchase of goods or services online.
- Within the platform, consumers and traders can interact in all official EU languages (e.g. to submit complaints or receive notifications) using an automatic translation tool for free text communications. However, the parties may request that the results of the ADR procedure be translated by a professional translator.
- The platform identifies the ADR entities competent to deal with the case and refers the dispute to the ADR entity agreed by the parties;
- ADR entities may use the platform's case management system to conduct the entire ADR procedure online;
- The platform shall provide clear deadlines to ensure the speed of the procedure.
- To date, there are 47 Italian ADR entities registered on the ODR platform (notified to the European Commission by the Ministry of Economic Development).
3. If the good or service was purchased abroad, in the European Union, Norway or Iceland, the consumer can contact the European Consumer Centre (ECC-Net) in case of problems.
- The matter is governed by Article 141-sexies, paragraph 5, of the Consumer Code.
- The European Consumer Centre in Italy is part of a network established by the European Commission, called ECC-Net, composed of national bodies designated by each State and approved by the same Commission.
- The ECC-Net is a network of bodies that provides free assistance and advice to consumers on their cross-border purchases, both online and through offices in the territory. The ECC-Net Italy has two offices: one in Rome (Adiconsum) and one in Bolzano (CTCU).
- The National Centre of the European Consumer Network (ECC-Net) has been designated as "ODR contact point in accordance with article 7 of Regulation (EU) 524/2013" for the performance of functions such as "assistance with the submission of the complaint and, where appropriate, relevant documents (...) the transmission of information on the functioning of the ODR platform (...) the transmission to the complainant party of information on other means of redress if a dispute cannot be resolved through the ODR platform".
- The European Consumer Centre in Italy is co-financed by the European Commission and the Ministry of Economic Development, which is also the "single liaison office" with the European Commission.
- For further information, please consult the Centre's website at the following link. https://www.ecc-netitalia.it/it/
SECTION IV: FORMAL LEGAL ACTION
- On a residual basis, if these instruments have not led to a solution to the problem, the consumer retains in any event the right to assert his claims before the competent judicial authority.
- Moreover, if the conditions are met, the European Small Claims Procedure can be activated or a European order for payment can be obtained (for more details visit the Commission's website at the following link).
- The time limit for taking legal action varies depending on the right the consumer has to assert: for example, in case of defects in the goods, which are not maliciously concealed by the seller, the legal action is prescribed within a maximum period of 26 months after delivery of the goods.
- It is understood that the person who has suffered damage due to the non-fulfilment of the contract of other parties may take legal action to obtain compensation for damages within the ordinary term of ten years pursuant to article 2946 of the Italian Civil Code, except for shorter periods of time exceptionally provided for particular categories of contracts.
SECTION V: ADMINISTRATIVE PROTECTION
- In addition to the instruments described above, if the problem is not easy to solve, the consumer can report the conduct of the professional directly to the Antitrust Authority (AGCM).
- The AGCM Authority has jurisdiction over unfair commercial practices, unfair terms and misleading advertising.
- - The activity of the AGCM Authority is aimed at ensuring administrative protection against violations of the Consumer Code: this activity consists of an injunction and sanction against the professionals who have carried out the violations.
- Therefore, the AGCM Authority has no specific competence in the resolution of disputes between individual consumers and professionals.
- Consumer Code (articles 141-141-decies)
- Legislative Decree no. 130 of 6 August 2015
- Directive 2013/11/EU
- Regulation (EU) No 524/2013
- Memoranda of Understanding for Joint Conciliation.
 According to Article 14 of Regulation (EU) No 524/2013, companies active in online markets (so-called Marketplaces) must publish an electronic link to the ODR platform on their websites: https://webgate.ec.europa.eu/odr. In order to facilitate companies in this obligation, there are 4 models of clickable web banners, developed by the competent offices of the European Commission, to link to the ODR platform and which can be published by companies on their websites. To also facilitate the publication of web banners, a document (versione pdf and versione xlsx), developed by the relevant European Commission offices, is available with the html code for the four different banner formats in the 23 EU languages together with the ODR platform URL. The document consists of three columns: the first column indicates the language, the second the banner size and the third the html code. Once the company has chosen the web banner best suited to its needs, it can simply copy and paste the content of the third column and the web banner will appear on its website. Within the limits provided by art. 14 of Regulation (EU) no. 524/2013 and in the manner deemed appropriate, companies are invited to inform consumers of the possibility of using the ODR platform.