Italy: Unfair Commercial Practices And Misleading Advertising—New Powers Granted To The Italian Antitrust Authority

On September 21, 2007, the Italian Antitrust Authority (the "Authority" or "IAA") was given additional powers to curb unfair commercial practices and misleading advertising. The Authority has now been empowered to act ex officio without the express request of consumers and/or public entities.1

Unfair Commercial Practices

Scope of Application. In general terms, a commercial practice is unfair if it is contrary to the requirements of professional diligence and materially distorts, or is likely to materially distort, the economic behavior of consumers in their choice of a product offered for sale.2

There are two types of unfair commercial practices: "misleading practices," which may consist of "misleading actions" or "misleading omissions,"3 and "aggressive practices," which encompass harassment, coercion, or other forms of unlawful influence that cause consumers to make commercial decisions that they would not otherwise have made.4

According to such provisions, the subject of protection from such practices is the consumer, defined as the "physical entity that, in the context of commercial practices . . . , operates for purposes not included in its commercial, industrial, craft or professional activity."5 This appears to exclude from protection "professionals," expressly defined as "any physical or juridical entity that, in the context of commercial practices . . . , operates for purposes included in its commercial, industrial, craft or professional activity or acts in the name or on behalf of a professional."6

Blacklists. The new rules specifically identify a series of misleading and aggressive practices that can be considered misleading and aggressive without the need for demonstrating whether or not they are likely to distort or falsify consumer choice.

Misleading practices that have been blacklisted include: (i) use of a trademark without the necessary authorization; (ii) falsely declaring to be the subscriber of an ethical code; (iii) falsely declaring that a certain product will be available for a limited period of time; and (iv) falsely asserting that the sale of a product is lawful.

Aggressive practices blacklisted by the Code of Consumers include: (i) giving the impression that the consumer may leave the commercial premises only after entering into an agreement; (ii) repeatedly visiting consumers at their homes in violation of their express wishes; and (iii) addressing advertising campaigns to children in an effort to sell products to their parents.

Powers of the Authority. Under the new rules, the IAA is entitled to investigate unfair commercial practices and misleading and comparative advertising on its own initiative, without having to wait for external complaints to be submitted. The Authority has investigative powers that enable it to: (i) access any relevant document; (ii) request information and documents from any party whatsoever; (iii) impose sanctions in the event of refusal or if false information and documents are submitted; (iv) conduct inspections; (v) make use of the services of the Tax Police (Guardia di Finanza); and (vi) order expert testimony.

Interim measures immediately terminating unfair practices may be imposed by the Authority when the need is urgent and the claim appears to be grounded. Moreover, a system of undertakings has been instituted: except in cases of manifest unfairness and gross violation, the IAA may waive the need to prove that a violation has been committed if the trader undertakes to correct the unlawful activity.

Sanctions. Once a violation has been ascertained, the Authority may: (i) order the infringing party to stop its illegal activity; (ii) order rectifying statements to be published at the expense of the infringing party; and (iii) issue fines ranging between €5,000 and €500,000. If the activity relates to hazardous products that could threaten, even indirectly, the safety of children or adolescents, the minimum fine is €50,000. In case of noncompliance with the Authority's measures, the penalty can range from €10,000 to €150,000.

Misleading And Comparative Advertising: An Overview

Scope of Application and Basic Rules. The rules on misleading and comparative advertising previously provided in the Code of Consumers are now included in a separate piece of legislation,7 which focuses on the protection of traders in their commercial relations.

The new provisions ban any form of advertising that, because of its misleading nature, could distort the economic conduct of the parties to which it is addressed or that is likely to harm a competitor. Specific provisions and sanctions dealing with advertising addressed to children or concerning dangerous products remain unchanged.

Guidelines for the lawful use of comparative advertising also remain unchanged. Comparative advertising shall be "nonmisleading"; the IAA determines whether the message is misleading by taking into account the unfair commercial practices listed in the Code of Consumers as well as the definition of "misleading advertising" provided by the new provisions8 i.e., advertising that, because of its misleading nature, distorts the economic conduct of the parties to which it is addressed or is likely to harm a competitor.

Powers of the Authority. In addition to the above-mentioned power of the Authority to act ex officio, and with the support of the Tax Police, a "precontentious phase" has been introduced. In this phase, the Authority may negotiate with the advertiser to cease and/or modify the message. In this case, the Authority would have the power to render such undertaking mandatory for the advertiser without any declaration of infringement.

Sanctions. After ascertaining a violation of the rules on misleading and comparative advertising, the IAA imposes a fine. Under the new legislation, the fines have increased ― in certain cases, by up to 500 percent ― reaching a peak of €500,000.

Common Procedural Aspects

Shortly after the new legislation went into force, the IAA issued enacting regulations detailing specific aspects of the procedures to be followed in cases of infringement.

According to these regulations, the maximum term for the duration of legal proceedings in cases of unfair commercial practices and misleading and comparative advertising has been set at 120 days. However, when an express opinion of the Italian Communications Authority is requested before issuance of a final decision, the term can be extended by up to 210 days if the infringer is domiciled or has its registered seat abroad.

It is worth noting that entities with public or private interests that may be harmed by the infringing practices discussed in the proceedings may intervene in the proceedings. They may do so by filing a brief mentioning the reasons for the intervention, and the intervening party may have access to the documents of the case.

Access to documents is governed in detail by enacting regulations for cases of unfair commercial practices and misleading and comparative advertising. In principle, the minutes of meetings between the IAA and other authorities, including the EU Commission, are not likely to be accessible, but parties to the proceedings may claim confidentiality on information they have provided.

The IAA's powers also include carrying out inspections at the premises of entities that may have documents and information referring to the infringement. In the course of the inspection, IAA officials may: (i) have access to the premises; (ii) review relevant documents and extract copies; and (iii) request verbal explanations.


On the one hand, enactment of these new rules appears to entail a widening of IAA powers that, in principle, may allow consumers and professional operators to receive more effective protection. On the other hand, companies might take advantage of the new provisions by using the blacklists of specific prohibited practices as benchmark to self-assess their day-to-day commercial conduct.

However, practical application of such peculiar rules may be controversial, and their success will largely depend on how the IAA uses its discretionary powers (especially taking into account investigations that may be opened ex officio by the Authority). Thus, it will be necessary to evaluate the impact of this innovation in the next few years to come, in light of an increased awareness among business operators.


1. Legislative Decrees No. 145/2007 and No. 146/2007, transposing EC Directives 2006/114/EC and 2005/29/EC into Italian law, have entered into force. These new rules have slightly modified existing laws governing misleading and comparative advertising and have also granted to consumers new means of protection against unfair commercial practices. New rules concerning unfair commercial practices have been introduced in the new Code of Consumers (Legislative Decree No. 206/2005), while rules on misleading advertising are now contained in a different piece of legislation.

2. Section 20 of the Code of Consumers.

3. Section 21 of the Code of Consumers.

4. Section 24 of the Code of Consumers.

5. Section 18, letter a, of the Code of Consumers.

6. Section 18, letter b, of the Code of Consumers.

7. Legislative Decree No. 145/2007.

8. Legislative Decree No. 145/2007.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions