Unfair terms in B2C contracts: consumer protection under Italian law

The econd article on unfair terms under Italian law. You can read here the first one.

Introduction

In the first article, we examined the general regime governing unfair terms set out in Articles 1341 and 1342 of the Italian Civil Code, based on the formal mechanism of double signature and applicable to any contractual relationship in which one party accepts the general terms and conditions, or standard contracts, drafted by the other party without negotiation.

Alongside this general regime, the Italian Legislative Decree 206/2005, known as the “Consumer Code”, which transposes Directive 93/13/EEC, sets out a specific regime for B2C relationships. This regime applies exclusively to contracts between “seller or supplier” and “consumer”, not to B2B relationships.

This distinction is fundamental: in B2C relationships, the dual signature (required under the general regime) is insufficient, as the legislator requires a substantive review of the terms’ content.

Who is the “consumer” and who is the “seller or supplier”

Article 3 of the Consumer Code defines the two parties concerned.

A “consumer” is a natural person acting for purposes unrelated to their business or professional activity. A “seller or supplier” is a natural or legal person acting for purposes relating to their trade, business or profession.

When a contract is concluded between a seller or supplier and a natural person acting for purposes unrelated to their business or professional activity, the relationship falls within the scope of the Consumer Code.

The concept of an unfair term

Article 33 of the Consumer Code defines as unfair any term “which has not been individually negotiated” and which “despite the requirement of good faith, results, to the detriment of the consumer, in a significant imbalance between the rights and obligations of the parties arising from the contract”.

Unlike the formal check (double signature) provided for in Articles 1341–1342 of the Civil Code, the Consumer Code introduces a substantive review of the term’s content.

The “grey list”: clauses presumed to be unfair

Article 33, paragraph 2 of the Consumer Code contains the so-called “grey list”, a list of terms that are presumed to be unfair unless proven otherwise.

Among the most relevant items in a commercial context are clauses which:

• exclude or limit the consumer’s remedies or rights against the seller or supplier or another party in the event of the seller’s or supplier’s total or partial non-performance, or improper performance;
• exclude or limit the consumer’s right to set off a debt owed to the seller or supplier against a claim held against the seller or supplier;
• allow the seller or supplier to terminate an open-ended contract without reasonable notice, except in cases of just cause;
• allow the seller or supplier, in the event of the consumer’s withdrawal or failure to conclude the contract, to retain sums paid by the consumer, without providing for the consumer’s right to claim double the amount paid from the seller or supplier;
• definitively bind the consumer, whilst the performance of the service remains subject solely to the seller’s or supplier’s discretion;
• limit or exclude the consumer’s right to raise a defence of non-performance;
• impose manifestly excessive penalties on the consumer;
• reserve the right of withdrawal solely to the seller or supplier;
• allow the seller or supplier to make unilateral amendments to the contract without justifiable cause;
• provide for derogations from the competent court to the detriment of the consumer, designating a court other than that of the consumer’s place of residence.

The technical difference between the “grey list” and the “blacklist” (see below) is significant.

In the case of the “grey list”, the seller or supplier may rebut the presumption of unfairness by demonstrating that the term was the subject of individual negotiation, i.e., that the consumer was able to exert genuine influence over its content.

The “blacklist”: clauses that are always void

Article 36 of the Consumer Code sets out the so-called “blacklist”. Three types of terms that are always void, even if individually negotiated, namely terms that:

• exclude or limit the seller’s or supplier’s liability for the consumer’s death or personal injury,
• exclude or limit the consumer’s remedies in the event of total, partial or improper performance,
• extend the consumer’s acceptance to terms of which the consumer had no opportunity to become aware prior to the conclusion of the contract.

For these terms, however, the nullity applies without exception: not even proof of individual negotiation can render them valid.

Protective nullity and remedies

The Consumer Code provides for “protective nullity”: the nullity applies only to the individual unfair term, while the rest of the contract remains valid.

Furthermore, this nullity is relative: it may be invoked only by the consumer or raised ex officio by the court in the consumer’s interest; it may never be invoked by the seller or supplier who drafted the term.

Alongside individual protection, Article 37 of the Consumer Code provides for a collective injunction action, entitling consumer associations to bring legal proceedings to secure the cessation of the use of unfair terms by sellers or suppliers, thereby strengthening the legislation’s preventive scope.

Practical considerations for businesses

For businesses that draft general terms and conditions of contract intended for consumers, compliance with the rules on unfair terms requires a methodical and informed approach.

Firstly, it is essential to check that the general terms and conditions do not contain any terms that fall within the “blacklist”, for the obvious reason that such terms are always void.

Secondly, it is necessary to identify the terms that fall within the “grey list”, ensure that they are the subject of genuine individual negotiation, and document this carefully.

It is essential to bear in mind that mere specific written approval under Article 1341 of the Civil Code – that is, the dual signature (as required under the general regime) – is insufficient to rebut the presumption of unfairness under the Consumer Code. The protection afforded by Articles 1341 and 1342 of the Italian Civil Code is based on a formal requirement, whereas the Consumer Code requires proof of individual negotiation, that is, evidence that the consumer had a genuine opportunity to negotiate the content of the clause presumed to be unfair.

Compliance with the rules on unfair terms is, ultimately, not merely a regulatory obligation but also a means of protection for the business itself.

A contract whose terms are drafted in accordance with the Consumer Code protects the seller or supplier from the real risk of having its contractual provisions declared null and void, with potentially significant consequences for the transaction’s overall financial stability.