This chapter discusses the consumer benchmarks in Italian unfair commercial practices law. As noted in the introduction of this book, Italian law had the reputation of being particularly permissive towards traders, expecting the consumer to be critical towards advertising.¹ This chapter addresses the question, as has been done in the previous chapters on German and English law, what consumer benchmarks were and are applied in Italian unfair commercial practices law, as well as what behaviour was and is expected of the consumer in this context.

Firstly, paragraph 7.2 will briefly deal with the ‘old’ consumer benchmark as applied under the provisions in the Italian Civil Code. The paragraphs that follow, deal with the consumer benchmarks as currently applied in Italian law. Before delving into the details on the consumer benchmarks and their application, the legal context will be discussed, i.e., the Italian legislation and practice related to misleading advertising and unfair commercial practices (paragraph 7.3). After that, the general application of the consumer benchmarks, including the possibility to take empirical investigations into account, will be dealt with (paragraph 7.4). This will be followed by a more detailed account of the application of the average consumer benchmark (paragraph 7.5) and the protection of target groups and vulnerable groups (paragraph 7.6).

As in the previous chapters, case law is central to the discussion on the consumer benchmarks in this chapter. In the case of Italy this concerns in particular the decisions of the AGCM and the administrative judgments following from the appeals against these decisions. Cases have been selected on the basis of literature and on running queries in the online database of the AGCM, using keywords related to the consumer benchmarks.²

Until the early 1990s, unfair commercial practices could only be challenged through the general tort clause and through the general provisions on unfair competition, both laid down in the Codice Civile (Italian Civil Code, CC).³ In 1942, along with a reform of the Codice Civile, a special section on concorrenza sleale (unfair competition) was introduced, which is still in force today. Before that time, unfair competition was governed by the general tort clause of Article 1151 of the Codice Civile of 1866. The provisions that came into force in 1942 (Title 10 of Book 5, Articles 2595–2601 CC), aim only at protecting competitors.⁴ Affected competitors and professional associations can initiate court actions on the basis of these provisions, but consumers and consumer associations cannot.⁵ Although there had been calls for protection of consumers through these provisions on unfair competition, this possibility was expressly excluded by the Constitutional Court in 1988. The Constitutional Court stated that the rules in place were not designed to protect consumers, and that it was up to the legislature to alter this situation if it was unsatisfied with the situation.⁶ Misleading advertising was covered mainly by Article 2598 CC, which contains a general clause on breaches of ‘principles of professional correctness’.⁷

Which consumer benchmark was applied according to the rules on concorrenza sleale in the Codice Civile? German comparative scholars identified Italian law as the exact opposite of German law’s inattentive and uncritical consumer. In his study on Italian unfair advertising in 1965, Ulmer reported that Italian law was amongst the most lenient towards advertisers in Europe, and that—in line with this—the Italian consumer was expected to be particularly critical and suspicious towards advertising.⁸ In one case the Tribunale di Torino had to decide on the deceptiveness of a slogan of a product called Asti wine, which contained only 60 % Asti wine. The Court stated that boasting and exaggeration did not constitute unfair competition and that one cannot expect advertising to always be an exact and reliable reflection of reality.⁹ The Corte di Cassazione judged similarly, arguing that advertising generally is suggestive and exaggerating, and that this does not determine the choice of consumers.¹⁰

It must be noted, though, that the provisions in the Codice Civile on unfair competition were seldom applied in the context of consumer-related cases such as unfair advertising,¹¹ making it difficult to state exactly what was expected of the consumer. Still, the tone of the judgments pointed towards a critical and savvy consumer, who is not deceived easily.

In general terms, the AGCM makes flexible use of the average consumer benchmark and the target group and vulnerable group benchmarks; it is clearly more concerned with dealing pragmatically with problems in the market than with ascertaining the exact reaction of the average consumer, or discovering whether a specific target group or vulnerable group can be identified. Overall, the Tar Lazio and the Consiglio di Stato agree with this approach and grant the AGCM significant freedom in deciding on the deceptiveness of commercial practices and the assessment of what consumers should be protected.

The courts do recognise that the abstract model of the average consumer is based on the principle of proportionality in European law and that it thus functions to strike a balance between the free movement of goods and the protection of consumers.²² Despite this, the protection of smaller groups of consumers—and this was the case even before the introduction of the vulnerable group benchmark in the Unfair Commercial Practices Directive—is clearly not excluded. This is well illustrated by the following section from the Videosystem & Areafilm case (2009) of the Tar Lazio, in which the Court explicitly stated that in some cases the protection of vulnerable consumers is more important than free competition:²³

IT Il richiamo a sifatto modello non esclude però (ad esempio nelle ipotesi in cui la repressione della pubblicità ingannevole è funzionale alla protezione di un diverso e più rilevante bene giuridico rispetto a quello della libera concorrenza) che la stessa tutela debba essere assicurata anche ai consumatori più sprovveduti o non particolarmente vigili.

La scelta della fascia di collettività sulla quale appuntare la tutela (perché considerata particolarmente vulnerabile) costituisce insomma, ancora oggi, determinazione di merito insindacabilmente devoluta all’Autorità.

EN The mentioning of such a model [i.e., the average consumer], however, does not exclude that (for instance, in cases in which the repression of misleading advertising is instrumental to the protection of an interest other than and more important than that of free competition) the same protection has also to be granted to the most naïve or not particularly observant consumers.

The choice as to which part of the community must be addressed by protection (being considered particularly vulnerable) is thus, still today, a matter that is left to the Authority’s [i.e., the AGCMs] exclusive appreciation.

This line of reasoning is also evident in the Sigarette Lights case (2006), which is important both in terms of the scope of protection and the relationship of the average consumer with empirical research. In the Sigarette Lights case, the AGCM commissioned research by a market research bureau in order to ascertain how consumers perceived the producers’ claims on their products.²⁴ This is an exception to the general practice of the AGCM to base its decision on its own impression of how the average consumer, a targeted group or a vulnerable group perceives a commercial message. The case deals with the deceptiveness as to the health consequences of ‘light cigarettes’, the marketing of which is now prohibited throughout Europe, but the case dates from before the overall prohibition.

In order to discover the extent to which consumers believed that smoking light cigarettes as opposed to regular cigarettes was less harmful to their health, the AGCM commissioned a consumer survey. According to this survey, just over 10 % of consumers had the (false) impression that light cigarettes were indeed less harmful. On the basis of these results, the AGCM decided that the marketing of light cigarettes was deceptive and should, therefore, be forbidden. The defendants argued against this, arguing that this prohibition was in breach of EU law, which requires the average consumer (being reasonably well-informed, observant and circumspect) rather than just 10 % of consumers to be misled. One of the parties even requested filing a preliminary procedure with the CJEU on the interpretation on this matter.

The Tar Lazio emphasised, however, that the CJEU deliberately left the possibility to use empirical investigations to the Member States, and that the same applies for the decision as to what percentage of consumers is required to be misled. In the Lifting case, the CJEU had indeed argued that it is up to national courts, if they decide to use a consumer survey or an expert opinion to decide, in the light of its own national law, the percentage of consumers that is required to be misled, in order to determine whether it is it sufficiently important to justify prohibiting its use.²⁵ The Tar Lazio interpreted this in the sense that also a small percentage of consumers being misled can be sufficient to assess an advertisement as being deceptive, and that, therefore, the CJEU had left open ‘a clear and definite option’ for Member States to decide which consumers are worthy of protection. According to the Tar Lazio, this means that the case on light cigarettes—dealing with the consumer’s health—should not be decided on the basis of the average consumer benchmark:

IT Il modello astratto del consumatore medio appare poi idoneo, ai fini del giudizio di ingannevolezza, soprattutto nelle ipotesi in cui è sufficiente operare un bilanciamento, secondo il principio di proporzionalità, tra l’esigenza di libera circolazione delle merci e il diritto del consumatore a determinarsi consapevolmente in un mercato concorrenziale, ma non già in quelle in cui la repressione della pubblicità ingannevole è funzionale alla protezione di più rilevante bene giuridico, quale, in particolare, il diritto alla salute, la cui tutela deve essere ovviamente assicurata anche ai consumatori più sprovveduti o non particolarmente vigili.

EN Furthermore, the abstract model of the average consumer seems suitable to assess the misleading nature [of a certain advertisement], especially in those situations in which it is sufficient to balance, in light of the principle of proportionality, the need for free movement of goods and the consumer’s right to make autonomous decisions in a competitive market, but not in those cases in which the control of misleading advertising is instrumental to the protection of a more important interest, such as, in particular, the right to health, the protection of which obviously has to be guaranteed also to the most naïve or not particularly observant consumers.

Hence, in a similar fashion to the case quoted above, the Tar Lazio interprets the case law of the CJEU as giving room for Member States to diverge from the benchmark of the average consumer if deemed necessary, such as in this case for the protection of health. Although it may be true that the right to health can overrule the free movement of goods, it seems questionable whether the CJEU generally leaves it to Member States to decide the level of protection; the average consumer benchmark was introduced in order to limit the freedom of Member States to decide on the level of protection, in particular if the high level of protection conflicts with the free movement of goods.²⁶

In general, the AGCM does not regard the average consumer as particularly informed, observant and circumspect.²⁷ This view has raised complaints by traders who were accused of unfair commercial practices, but the AGCM is supported in its views by the administrative courts.²⁸ For example, the Tar Lazio, in response to a complaint as to the application of the average consumer benchmark, emphasised that the average consumer is not an ideal consumer.²⁹ More generally, it is often emphasised that ‘advertising should be clear and comprehensible’.³⁰ This means that there is a strong responsibility on the side of the trader and less emphasis on requiring the (average) consumer to critically assess the trader’s communication.

Especially with regard to some sectors in which the average consumer is facing a high degree of information asymmetry, the average consumer is not expected to be particularly knowledgeable, attentive and critical.³¹ Despite the fact that some consumers will be aware of market developments, the Tar Lazio identifies as the average consumer the novice consumer, i.e., the consumer who has little or no experience with the product at hand. The Tar Lazio has recognised this for the sectors of telecommunication, consumer credit, as well as recently liberalised markets. While the Court specifically mentioned these sectors, it seems likely that this reasoning can be applied to other sectors as well (e.g., to complex products such as insurance and banking products).

For the telecom sector, the Tar Lazio recognised the average consumer’s vulnerability in the 2010 Wind Absolute Tariffa case. In this case, the Court stated in general terms that the average consumer in some sectors, in this case the telecommunication sector, should be regarded as a consumer who is new to the services offered and therefore has little knowledge. The Court links this reasoning to the CJEUs formula of ‘social, cultural and linguistic factors’:³²

IT L’individuazione di siffatto modello […] non può conseguire ad una valutazione condotta in termini meramente statistici o empirici, dovendo invece essere presi in considerazione fattori di ordine sociale, culturale ed economico, fra i quali, in particolare, va analizzato il contesto economico e di mercato nell’ambito del quale il consumatore si trova ad agire.

In tale ottica non può essere disconosciuto che il settore in esame è non solo estremamente complesso e caratterizzato da una continua evoluzione tecnologica (tanto da richiedere frequenti interventi dell’Autorità per le Garanzie nelle Comunicazioni, a salvaguardia della concorrenza tra gli operatori e dei diritti degli utenti), ma soprattutto ‘impatta’ su una larghissima platea di potenziali consumatori, all’interno della quale non è ragionevolmente predicabile un elevato e diffuso grado di informazione.

Il richiamo al modello del consumatore medio, ove posto in rapporto alla peculiarità del settore in esame, non esclude perciò che adeguata tutela debba essere assicurata anche ai consumatori meno smaliziati, in quanto presumibilmente, sono proprio costoro gli utenti ‘medi’ dei servizi oggetto della pratica.

EN The identification of that model [i.e., the average consumer] […] cannot be derived merely from a statistical or empirical evaluation, but rather requires the joint consideration of social, cultural and economic factors, among which, in particular, the economic and market environment in which the consumer has to act needs to be analysed.

From this perspective, one should not ignore the fact that the sector at hand is not only extremely complex and characterised by on-going technological developments (to the point of requiring frequent interventions on the side of the Autorità per le Garanzie nelle Comunicazioni [Italian Communication Authority, AGCOM], with the aim of safeguarding competition and users’ rights), but above all has an impact on a very wide audience of potential consumers, within which it is not reasonable to assume the presence of a high and widespread level of information.

The reference to the model of the average consumer, if read in relation to the specificities of the sector concerned, does therefore not exclude that adequate protection should also be provided to the less shrewd consumers, since it is exactly these consumers who presumably are the ‘average’ users of the services involved in the practice.

Hence, because of the ongoing technological changes in the market, the average consumer is confronted with information asymmetry and is not expected to be up-to-date with market developments.³³

It is interesting to note that the Court linked this idea to the CJEUs formula of ‘social, cultural and linguistic factors’. As discussed in Chaps. 3 and 4, the CJEU mentioned this formula only in the context of recognising that there may be differences between consumers (and thus between the applications of the average consumer benchmark) in different Member States. The Tar Lazio utilises the formula to clarify that the reaction of the average consumer is highly context specific, and that the average consumer is sometimes rather vulnerable, depending on the economic context.

Very similar reasoning to that of Wind Absolute Tariffa can be found in the Accord Italia—Carta Auchan case (2010), dealing with consumer credit cards, and the ENEL and ENI cases (2009 and 2011) dealing with the—at the time—recently liberalised energy market.

In the Accord Italia—Carta Auchan case the Tar Lazio emphasised that the average consumer should be seen as a novice as to consumer credit cards and, more generally, consumer credit, despite the fact that it recognised that consumer credit cards had become a widespread phenomenon over the past years.³⁴ The underlying principle seems to be that because these products are rather complex and difficult to understand for many consumers, there is a strong responsibility for traders to inform the consumer in a clear and understandable way. This also applies to the ENEL and ENI cases, in which the Tar Lazio applies this rule to the liberalised energy market. Again, this reasoning is placed in the framework of ‘social, cultural and linguistic factors’.³⁵

Other cases also illustrate the tendency of the AGCM and the administrative courts not to expect the consumer to be particularly knowledgeable. For example, the Tar Lazio emphasised that the consumer is clearly not an expert with regard to the workings of the internet (in a case concerning the internet speed of an internet provider)³⁶ and the AGCM decided that the average consumer has no particularly high level of knowledge of the recyclability of plastic shopping bags.³⁷ Especially in the latter case, this is perhaps no different from what the CJEU would expect of the average consumer. What is more important is that the consumer is not expected to act particularly critically upon being confronted with information he or she does not fully understand. The reasoning seems to be, once more, that the trader is responsible for providing clear information rather than the consumer being responsible to critically assess the statements and to ascertain more concerning the products or claims. The same idea also seems to underlie another principle in Italian unfair commercial practices law, which is that the average consumer’s understanding of an advertisement is based on the general and immediate impression he or she obtains, rather than on a careful reading or systematic analysis of the message.³⁸ It must be noted, however, that this does not mean than any exaggeration is taken literally,³⁹ nor that any possibly incorrect interpretation of an advertising claim is ‘covered’.⁴⁰

Also in the context of doorstep selling or similar direct sales strategies, the average consumer is seen as less critical and, therefore, more vulnerable. This is well illustrated by the Congress case (2012), dealing with the sale of multimedia encyclopaedias at consumers’ homes. The Consiglio di Stato made clear in this case that the consumer lacks critical attitude as to home sales, especially when the commercial intent is at first unclear:⁴¹

IT È dato di comune esperienza che ai messaggi pubblicitari si contrappongano, da parte del consumatore, istintive difese, che tendono ad abbassarsi in presenza di comunicazioni apparentemente neutre, ovvero dettate da mero intento informativo, o ancora, come nella situazione in esame, in presenza di offerte che non si è preparati ad affrontare e che possono risultare più allettanti, nella particolare atmosfera riconducibile al perseguimento di un gratuito beneficio.

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