ContractualConditionstobeAppliedtoEndUsersUnderNewRegulations

19 December 2003

Claudia Ricciardi

The EC Directives 2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC were implemented by the issue of the new Italian Code of Electronic Communications, dated 1st August 2003, which entered into force on 16th September 2003. This involves improved protection of users in contractual relationships with operators, who are now bound to comply with a number of obligations under such relationships.

Article 70 of the new Code provides for the mandatory content that the agreements with users for the supply of electronic services shall include.

In addition to the various information regarding the operator and the kind of services supplied (which should be described), the user must be provided with detailed information on the quality levels that the service must achieve, as well as detailed information on the amounts to be available as indemnification in case of failure to comply with such service levels.

Accordingly, following a recent deliberation issued by the Italian Telecommunications Authority (24th July 2003), the document called “carta dei servizi” (i.e. charter of services), which in the past was aimed at stating solely general principles (such as the equality of treatment of the users) regulating relationships with customers, has now to become “substantial” in its contents and must also include the above mentioned service levels and indicate the amounts that will be paid to users in case of failure to comply with such levels.

In consideration of the obligations imposed on the operators dealing with end-users, the Italian Telecommunications Authority is currently performing an in-depth examination of the general terms and conditions, as well as of the “carta dei servizi” applied by the operators. This shows the renewed attention given by the competent authorities to these aspects.

Further evidence of this trend is that, the new Code of Electronic Communications states that the operators must notify the user of any amendment of the general terms and conditions thirty days before the application of such amendments. The user then has the right to withdraw the agreement, with no penalties, in case of non-acceptance of such amendments.

This clause is extremely favourable to the user, and imposes risks to the operator, since its formulation allows the possibility for the user to terminate the agreement even if the amendments are in his favour (for instance, in principle, also in case of more favourable tariffs applied by the operator).

An interpretation of the Authority on this point is now awaited in order to comprehend how the provision should be interpreted.