On 23 September last, for the first time, the Italian Antitrust
Authority (hereinafter the "AGCM") found undertakings
guilty for unfair commercial practices and misleading advertising
vis-à-vis microenterprises. The decision was published on 21
Since the legislative reform of 2012, it is the first ruling of
the AGCM in favour of microenterprises. Indeed, on 20 January 2012
the Italian government approved Law Decree 1/2012 (converted by Law
24 March 2012, no. 27) that extends to microenterprises the
protection against unfair commercial practices which, until then,
was for "consumers" only. These are defined as
"any natural person who is acting for purposes which are
outside his trade, business, craft or profession".
Now, as a consequence of the 2012 reform, microenterprises, as
beneficiaries of the law against unfair commercial practices, are
defined by Article 18 letter d-bis) of the Italian Legislative
Decree 206/2005 (the "Consumer Code") as
"entities, companies or associations that, regardless of
their legal form, engage in an economic activity, even as an
individual or family, that employs fewer than ten persons and
generates an annual revenue or total annual balance sheet not in
excess of two million euros, pursuant to section 2, paragraph 3 of
the annex to recommendation n. 2003/361/EC of the Commission, dated
6 May 2003". On the basis of these criteria, in
consideration of the Italian economic structure, the vast majority
of Italian enterprises would qualify as microenterprises and
consequently be eligible for protection against unfair commercial
Going back to the case decided by the Authority, the relevant
investigation was propelled by several reports from small
companies, such as bars, restaurants and news-stands, mostly
Five companies owned by the Index group, each with a specific
role, advertised a computer network which would allow retailers to
act as centres for selling services such as phone charge cards,
mail delivery and online bets. However the advertising campaign did
not mention that some of these services could be unavailable. In a
few cases, a disclaimer of such unavailability was present but
scarcely readable. As a consequence, those retailers who accepted
the offer found themselves often incapable of providing services to
their customers (also suffering an harm to their reputation).
Moreover, the companies of the Index group operated a complex and
carefully planned disclaimer of responsibility, which substantially
prevented retailers from terminating their contract.
Under the Consumer Code, the AGCM may impose fines, if unfair
commercial practices are found, from 5 thousand to 5 million Euros,
commensurate to the gravity and the duration of the violation.
In the case at hand, the AGCM sanctioned the companies of the
Index group for unfair commercial practices with a fine amounting
to 234 thousand Euros in total. The AGCM, then, condemned the same
companies to publish an abstract of the ruling on their websites,
as additional remedy.
As mentioned before, the inclusion of microenterprises in the
protection against unfair commercial practices is especially
important in an economic system such as the Italian one, where
small and family-run businesses are extremely common. Moreover, the
first case investigated by the AGCM in favour of microenterprises
shows that the Authority is keen to apply the law.
Thus microenterprises, placed at the same level as consumers
vis-à-vis larger companies, may enjoy wide protection.
Indeed, the commercial practices which could be considered unfair
and prohibited, pursuant to article 20 of Consumer Code, are
"any act, omission, course of conduct or representation,
commercial communication including advertising and marketing, by a
trader, directly connected with the promotion, sale or supply of a
product to consumers".
Especially large companies have been warned: they will have to
shape their policies towards microenterprises in order to make sure
that they offer them the same safeguards which consumers already
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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