Price Reductions: Transposition of Directive (EU) 2019/2161 (the “Omnibus Directive”) in Italy

Directive (EU) 2019/2161 (the “Omnibus Directive”) introduced into the Italian legal framework a number of changes that have had an impact over consumers’ contracts/consumer protection measures, and over the diligence requirements for food- and non-food business operators. In this context, the main issues have emerged in connection with the new rules concerning price-reduction advertisement. The following section offers a few initial observations on the main regulatory changes introduced, and the application limits of the Italian Decree transposing the Omnibus Directive.

Legislative Decree No 26 of 7 March 2023 (hereinafter, the “Decree”), transposing Directive (EU) 2019/2161 (also known as the Omnibus Directive), was published in the Official Gazette No 66 of 18 March 2023. This Decree is aimed at transposing into national law Directive (EU) 2019/2161, which modernised the consumer protection regulations contained in four earlier Directives regarding, respectively, price indications on consumer products (Directive 98/6/EC), unfair commercial practices (Directive 2005/29/EC), consumer rights (Directive 2011/83/EU), and unfair terms in consumer contracts (Directive 93/13/EEC). The above transposition entailed changes to Legislative Decree No 206/2005 (the “Consumers’ Code”), which will be briefly outlined below.

The changes entered into force on 2 April 2023, with the exception of regulations on price reductions, introduced as of 1 July 2023.

The Decree closely follows various points clarified in Commission Notice 2021/C526/02, specifically providing clarifications regarding price reduction announcements through the new Article 17-bis of the Consumers’ Code, which provides for specific sets of rules based on the category of goods involved and the price-reduction practice at issue. The new price reduction regulations are detailed in Article 17-bis of the Consumers’ Code, which provides guidelines on both price discount calculations and on discount presentation and promotional techniques, adding to the general price regulations previously in place. Every price reduction announcement must contain indications of the lowest price previously applied by the same trader over the 30 days prior to the application of the price reduction. In Italy, the Ministry further clarifies, in line with similar affirmations issued by the European Union, that the “prior price” to be taken as reference for the purpose of making a price reduction announcement is the lowest price applied to the general public over the 30 days prior to the application of the price reduction, in the online sales channel or single physical point of sale (eg, online price and offline price for in-store sales) where the goods are purchased.

The obligations introduced by the new regulations do not apply to the following products:

Anyone acting in violation of the above provisions is subject to the administrative fine provided for under Article 22, paragraph 3 of Legislative Decree 114/1998 (fine ranging between EUR516.46 and EUR3,098.74), imposed in the manner prescribed therein. The following criteria are taken into account:

With the provision establishing a prohibition against unfair commercial practices, the Italian Antitrust Authority (Autorità garante della concorrenza e del mercato) furthermore imposes the application of an administrative fine ranging today from EUR5,000 to EUR10,000 (Article 27, paragraph 9 of the Consumers’ Code).

The Decree also extends the list of misleading actions (Article 21 of the Consumers’ Code), misleading omissions (Article 22 of the Consumers’ Code) and commercial practices deemed in any case misleading (Article 23 of the Consumers’ Code), including the following cases:

From the point of view of consumer protection in contract-related matters, the Decree introduces changes in the following areas: