Microsoft Word - D144-2005.doc LAW October 28, 2005 144 REPUBLIC OF SAN MARINO LEGISLATION FRAMEWORK FOR THE PROTECTION OF CONSUMERS AND USERS We the Captains Regent of the Most Serene Republic of San Marino Promulgate and publish the following law passed by the Council great and General during the meeting of 28 October 2005. TITLE I GENERAL PROVISIONS Art.1 (Purposes and object of the law) 1. this law aims to ensure greater protection for the rights of consumers and users in the field of regulation and of ' exercise of all economic, public and private activities. 2. The Republic recognizes and guarantees as fundamental rights of consumers and users: a) the protection of health; b) the provision of public services in accordance with quality and efficiency standards; c) the safety and quality of products and services; d) a complete and adequate information; e) correct advertising; f) the fairness, transparency and equity in relations relating to goods and services; g) the promotion of associations democratic consumerista and collective protection of rights and interests of consumers and users; h) consumer education. 3. The provisions of this Act shall, where possible, apply immediately following their publication, subject to the necessary emanation from the Great and General Council of the implementing laws. 4. The Republic is committed to encouraging the pursuit of the rights and interests of consumers of purpose and user protection through specific programs dedicated to it and govern relationships between consumer and user associations and public administrations. Article 2 (Definitions) 1. For the purposes of this Act and with reference to emanande sector provisions, shall apply: 1) consumer or user: the natural person to whom it is directed commercial communications or acting primarily for purposes unrelated to 'entrepreneurial and professional activity; b) consumer groups: associations whose sole statutory purpose of protecting the rights and interests of consumers or users; c) professional: any natural or legal person, public or private, that as part of its business or professional activities, offers or provides goods and services to the consumer or user; d) Seller: the professional who, in the exercise of their business or profession, provides the consumer with goods or provides services or the person acting in his name or on his behalf. The seller is also equated with the one who, in any capacity, promotes the establishment, transfer or transfer the fee at the promise offered to the consumer contracts; e) manufacturer: the manufacturer of the goods or the service provider or an intermediary, as well as the importer of the goods or services in the territory of the Republic, or any other natural or legal person to be a producer by identifying the good or service under its own name, trade mark or other distinctive mark. Article 3 (Protection in trade relations of the different consumers weak Contracting) 1. 'authorized the State Congress to propose, within thirty-six months after entry into force of this Act, a bill containing provisions on protection in trade relations of the different consumers weak parties. TITLE II OF USERS AND PUBLIC SERVICES Art.4 (user reports and quality standards) 1. The rights of users of public services are in compliance with the principles of impartiality and efficiency by the entity or firm providing the public service. 2. The user relationship must take place in accordance with predetermined and adequately publicized quality standards. 3. Users and their representative associations is in any case guaranteed the right to participate in defining procedures and the subsequent assessment of the quality standards of public services, expressly including the drafting of service charters. Art.5 (Reference to legislation on catchment and quality standard reports) 1. 'authorized the State Congress to propose, within fifteen months after the entry into force of this Act, a bill containing provisions in terms of the supply of utilities and public services. 2. The law referred to in paragraph 1 will consider: 2) determining, for organizations or companies operating in the public service obligations to adopt service charters, as well as the essential substance of the information, while respecting the principle of consultation referred to in Article 4, paragraph 3;
b) the establishment of the Supervisory Authority on the Rights of Consumers and Users which are to be entrusted with the regulation and control functions in relation to public services and users, with devolution of regulatory and sanctioning powers. The members of the Authority shall be appointed three in number, and will be chosen by the Great and General Council between professionals and academics of recognized competence in the field consumerist. The term of office of members of the Authority, as well as the internal organization and the same operating procedures, will have to be defined by the Act on Enforcement; c) the provision of consultation obligations by institutional bodies, in their respective powers and competencies, the Supervisory Authority on the Rights of Consumers and Users and consumers' associations and users. TITLE III CONSUMER ASSOCIATIONS AND ACCESS TO THE PROTECTION COLLECTIVE Art.6 (consumer associations and users) 1. Consumer and user associations have sole statutory purpose to protect the rights and interests of consumers and / or users and do not pursue any profit-making. Associations must obtain legal recognition and apply for entry to the appropriate registry established at the Single Court. 2. There are conditions for the constitution: a) the possession of a statute which establishes a democratic system and its associated provision for the sole purpose, without seeking any profit-making, the protection of consumers and users; b) maintenance of a list of members, the majority of whom must be resident, updated annually with details of the fees paid directly to the association for the pursuit of their statutory objectives; c) a number of members not less than one percent of the resident population; d) an indication of the company name; e) an indication of the office; f) the administrative rules and the functioning of the association; g) approving the bylaws, by the assembly of the association, the annual financial statements no later than April of each year, with prior publication of the same in terms useful for all members; h) the preparation of a technical report signed by the legal representative certifying the performance of activities specifically dedicated to information of consumers and users and to consumer education; i) does not have its legal representatives now no condemnation, become final, in relation to the activity of the association itself, and not put on the same representatives qualify as entrepreneurs or managers of manufacturing companies and services, in any form constituted , for the same sectors in which the association. 3 3. For matters not expressly provided in the preceding paragraphs of this Article shall apply to consumer associations and users, mutatis mutandis, the provisions of Articles 1, 2, 3, 4 and 5 of Law 17 February 1961 n. 7. 4. At consumer groups and users is also precluded any promotion or advertising business activities concerning goods or services produced by third parties and any shared interests with the production or distribution companies; the same associations can in any case carry out commercial activities provided that they are of the dell'occasionalità fonts and margins and in any event the sole purpose of co-financing its institutional activities, provided for in the statute. Article 7 (collective protection of consumers and users) 1. Consumer associations and users referred to in Article 6 of this Law are entitled to act for the protection of rights and other subjective legal positions recognized Ordinamento San Marino and referable to the provisions of Article 1, paragraph 2, of this law, exercising before the competent legal authority the following collective protection actions: a) actions on a precautionary and preventive purposes, aimed at inhibiting the acts and conduct prejudicial to the These rights and subjective legal situations; b) action to be ordered to return the property and / or the repayment of sums and / or compensation and / or cancellation of administrative acts in favor of a plurality of subjects, as a result of facts or acts plurioffensivi, from whomever committed, that have affected the rights and / or subjective legal situations attributable to the aforementioned subjects. Consumer associations can also request the court to order the publication of the measure obtained in one or more newspapers, where advertising
measure may help to correct or eliminate the effects of the infringements found. 2. E 'expressly recognized associations referred to in Article 6 of this Act the right to bring a civil action in criminal proceedings in which matters in relation to the lesion of subjective legal positions recognized Ordinamento San Marino and linked to the provisions laid down 'Article 1, paragraph 2, of this Act. Article 8 (Reference to legislation on associations of consumers and users and access to the collective protection) 1. 'authorized the State Congress to propose, within twelve months after entry into force of this Act, a draft law containing provisions relating to consumer associations and users and access to collective protection. 2. The law referred to in paragraph 1 will consider: a) the clarification, as a general rule and subject to the provisions of the sector, the powers and faculties attributed to consumer associations and users, with reference to the representation and protection tools collective of consumers and users and participation in different ways to the same associations to administrative proceedings; b) the treatment of concessions and state contributions to consumer associations, specifying the types of activities to be carried out by the associations as a function of the possible achievement of the benefits of the law, with primary reference to the issues of information, education consumption and dissemination of a culture of rights of consumers and users; c) the regulation of collective protection actions with respect to the actions requirements, the conditions of such remedies and the effects of the same, the possible attribution of the four standing to parties other than the associations referred to in Article 6 of this Act, and the ritual rules applicable to such collective disputes and the clarification of the competent court to know them; d) the identification of optional tools of-court settlement of individual and collective disputes. TITLE IV INFORMATION AND ADVERTISING Article 9. (essential contents of information to the consumer) 1. The information provided to the consumer, irrespective of their origin, is to ensure maximum transparency of the professional demeanor, it should always be appropriate to the means of communication used and must be expressed in a clear and understandable. 2. The information has always concerned the safety and quality of products and services offered. Art.10 (Definitions and essential characteristics of the commercials) 1. It is intended for any form of advertising message that it is widespread, in any way, in the exercise of a professional activity in general promotional purpose. 2. Advertising must always be clear, truthful and correct. 3. E 'misleading any advertising which, in any way, including its presentation, deceives or is likely to deceive the natural or legal persons to whom it is addressed or whom it reaches and which, because of its deceptive nature, is likely affect their economic behavior or which, for those reasons, injures or is likely to injure a competitor. 4. 'comparative any advertising which explicitly or by implication identifies a competitor or goods or services offered by a competitor. Art.11 (Reference to the legislation on consumer information and advertising) 1. 'authorized the State Congress to propose, within twenty-four months after entry into force of this Act, a bill containing provisions issue of consumer information and advertising. 2. The law referred to in paragraph 1 will consider: a) the regulation of the disclosure requirements to be met in relation to the various product categories, also with reference to sanctions applicable to infringements of the provisions laid down; b) the guidelines for the crackdown on misleading advertising and the conditions under which comparative advertising, even with regard to the protection needs of children and adolescents; c) the inclusion, among the skills dell'istituenda Supervisory Authority on the Rights of Consumers and Users referred to in Article 5, paragraph 2, letter b), of the functions of regulation and control 5 in the area of ​​information and commercial communications and repression of misleading advertising, with devolution of regulatory powers and sanctions to the above Authority. TITLE V SAFETY AND QUALITY 'OF PRODUCTS Art.12 (definition of safe product and producer liability)
1. Without prejudice to any specific provisions of the legislation in the sector, in general, it defines the product safely that, under normal or reasonably foreseeable conditions of use, including duration, does not present any risk or only present the minimum risk compatible with the use of product or considered acceptable and consistent with a high level of health protection and safety of persons, depending, in particular, of the following: a) product characteristics, in particular the composition, packaging, mode of assembly and maintenance; b) the effect on other products, where it is reasonably foreseeable their joint use; c) presentation of the product, labeling, any instructions for its use, disposal and any other indication or information provided by the manufacturer; d) categories of consumers who are in conditions of serious risk when using the product, particularly with regard to minors. 2. The producer and persons equivalent to them are responsible for any damage caused by products that do not meet the conditions referred to in paragraph 1. Section 13 (Reference to the law on safety and quality of products) 1. E 'given sent to the State Congress to propose, within thirty months after the entry into force of this Act, a bill containing provisions on safety, quality of products, and producer liability. 2. The law referred to in paragraph 1 will consider: a) the regulation of obligations of conduct designed to ensure the safety of marketed products, including with regard to the minimum safety standards by product category and the prevention and control procedures; b) the conditions for authorization and recognition of voluntary quality certifications from professionals; c) the treatment of producer responsibility and the persons equivalent to them for any damage caused by products that do not comply with safety conditions. TITLE VI CONTRACTS OF CONSUMER AND WARRANTIES 6 SECTION I GENERAL PROVISIONS AND CLAUSES Art.14 (Consumer protection and commercial activities) 1. Commercial activities must take place in accordance with the principles of good faith, fairness and transparency. 2. No person shall promote and carry out activities and sales structures in which the primary economic incentive components of the structure is based on the mere recruitment of new subjects, rather than on their ability to sell or promote the sale of goods or services directly or through other components of the structure. It is prohibited also, promotion or organization of all those operations, such as games, development plans, "chain letters" that make up the opportunity to gain through the mere recruitment of other people and in which the right to recruit moves to infinity after the payment of a fee; in any case the use of such facilities and sales techniques involve the nullity of the contract, which operates for the sole benefit of the consumer or the weaker party and may be detected by the courts. 3. Compliance with the principles referred to in paragraph 1 shall be determined by reference to the protection needs of the various categories of consumers. Art.15 (Legal Guarantees and conventional warranties for consumer goods) 1. consumer goods movable property, even those to be assembled, with the exception of: a) the subject of forced sale or other goods sold under other authority mode judicial; b) water and gas where they are not put up for sale in a limited volume or a set quantity; c) electricity. 2. Without prejudice to the provisions of Title V of this Act, the consumer goods shall conform to the contract to which they are subject, as well as to advertising communications relating to such assets; the minimum legal duration of the compliance warranty for consumer goods is fixed at two years, subject to improvement provisions of conventional warranty offered by the professional. 3. The law shall, in the manner and time prescribed in Article 21, the applicable conditions and the exercise of the legal and conventional warranties for consumer goods. Art.16 (Unfair terms in consumer contracts) 1. In contracts concluded between the consumer and the professional are considered unfair clauses that determine the responsibility of the consumer a significant imbalance in the rights and obligations under the contract. 2. Contract terms must always be drafted in plain, intelligible language; in
If in doubt about the meaning to be attributed to the content of a clause it will prevail the interpretation most favorable to the consumer. 7 3. The assessment of the unfair nature of a clause does not concern the determination of the object of the contract nor to the adequacy of the consideration for goods and services, provided that such features are identified in a clear and understandable. 4. I am not vexatious clauses which reproduce provisions of law or international conventions to which either the Republic of San Marino; reproductive clauses to regulate or secondary status provisions do not escape the judgment of unfair nature. 5. No unfair clauses or aspects of terms which have been individually negotiated between the parties; always falls on the professional responsibility to provide adequate proof dell'intercorsa individually negotiated. 6. Unfair terms are null and void any legal effect; where possible the contract remains effective for the rest. 7. The nullity of the clause operates for the exclusive benefit of the consumer and can be detected by the courts. 8. E 'in any case void the contract term, the contract providing for the applicability of a law of a foreign state, has the effect of depriving the consumer of the protection offered him Ordinamento San Marino; It is allowed to return to a foreign law by the contract, where this would make, according to the appreciation of the judge, greater levels of protection for the consumer. 9. E 'subject to the right of the professional recourse against the supplier for damages suffered as a consequence of the finding of unfair nature of contractual terms. SECTION II SPECIAL TYPES OF CONTRACT Art.17 (Contracts concluded away from business premises) 1. We define contracts concluded away from business premises those stipulated: a) during the visit of the trader, or his representative, to the consumer's home or another consumer, or in place of the consumer's business or the premises where the consumer is, even temporarily, for reasons of work, study, or care; b) during an excursion organized by the trader outside his business premises; c) in the public area or open to the public, by signing an order note, however named; d) by mail or otherwise, on the basis of a catalog which the consumer has had the opportunity of reading in the professional presence. 2. They are equivalent to contracts concluded outside the contractual proposals, whether binding or not the business premises, which are formally made by the consumer under conditions similar to those described in paragraph 1, and for which it had not yet taken the professional acceptance . 3. The law regulates that specific type of contract and ensures, in the manner and time provided by article 21, in a specific discipline, more extensive consumer protection are parts of the contracts referred to in paragraph 1, recognizing in each case the right to withdraw from contracts concluded away from business premises to consumers, exercisable on terms and conditions predefined by law. Art.18 (Distance Selling) 8 1. We define distance contracts relating to those goods or services concluded between a supplier and a consumer under a sales or provision of services at a distance organized by the professional who, for the conclusion of the contract, it employs one or more means of distance communication. 2. They are equated to distance contract proposals, whether binding or not, which are formally made by the consumer under conditions similar to those described in paragraph 1 and for which has not yet taken the professional acceptance. 3. The law regulates that specific type of contract, select the relevant communication techniques for the purposes of paragraph 1 and shall, in the manner and time provided by article 21, in a specific discipline, more extensive consumer protection are parts of contracts referred to in paragraph 1, recognizing in any case the right to terminate the contract concluded at a distance to consumers, exercisable on terms and conditions predefined by law. Art.19 (Purchase Contracts of real estate and securities timeshare) 1. define contracts for the purchase of real estate timeshare the duration of the contracts of one year or with which, on payment of a lump sum, it is, moved, or it promises to provide or transfer, directly or indirectly, a real right or any other
law concerning the use one or more immovable properties or any part thereof, for continued use of a tourism and hospitality house, for a specified or ascertainable period of the year not less than six days. 2. We define contracts for the purchase of securities of the timeshare contracts lasting at least six months with which, on payment of a lump sum, it is, moves, or promises to provide or transfer, directly or indirectly, a right in rem or any other right concerning the use one or more movable property, for a specified or ascertainable period of the year no less than thirty days. 3. The law regulates that specific type of contract and ensures, in the manner and time provided by article 21, in a specific discipline, the broadest protection of consumers who are parties to the contracts referred to in the preceding paragraphs, recognizing in each case the right to terminate their contracts to purchase real estate and securities timeshare, exercisable on terms and conditions predefined by law. Art.20 (tourist packages) 1. We define tour packages contracts relating to travel, holidays and "all inclusive," resulting from the combination of at least two of the following elements, sold or offered for sale to a flat rate price and lasting more than forty-eight hours, that you continue for a period of time including at least two nights: a) transport; b) accommodation; c) tourist services not ancillary to transport or accommodation, which constitute a significant part of the "package." 2. The law regulates that specific type of contract and ensures, in the manner and time provided by article 21, in a specific discipline, more extensive consumer protection are parts of the contracts referred to in paragraph 1. 9 Art.21 ( reference to legislation on consumer contracts and discipline of the legal and conventional guarantees of consumer goods) 1. 'authorized the State Congress to propose, within eighteen months after entry into force of this Act, a bill containing provisions relating to consumer contracts and discipline of the legal and conventional warranties of consumer goods. 2. The law referred to in paragraph 1 will consider: a) the clarification of the implementing directives of the principles of good faith, fairness and transparency to which inform commercial transactions between professional and consumer, expressly including the Protection Legislation consumer from the forms of pyramid selling and / or chain; b) the definition of the conditions of applicability of the legal and conventional warranties for consumer goods; c) to the extent not already provided for in Article 16, the regulation of unfair terms in contracts where it is part of a consumer, expressly including the specification of a list of examples of such clauses and a list of unfair terms although they have been the subject individually negotiated, as well as the regulation of the right of professional recourse against the supplier; d) the regulation of contracts concluded away from business premises; e) a system of distance contracts; f) the regulation of contracts for the purchase of real estate and securities timeshare; g) the regulation of tourist packages. TITLE VII TRANSITIONAL PROVISIONS AND FINAL PROVISIONS Art.22 (Technical Commission Institution) 1. 'authorized the State Congress to set up a special technical commission for the study and the preparation of draft laws referred to in Articles 3, 5, 8 , 11, 13 and 21. 2. the composition of the Technical Commission, given the diversity of the subjects under study, may vary according to the draft law to be issued. Art.23 (provisional standard for organizations already recognized consumers) 1. Consumer and user associations that, at the date of entry into force of this Act, have already obtained legal recognition are required to comply with the requirements of referred to in Article 6 not later than twelve months after entry into force of the law. 10 Art.24 (Entry into force) 1. This law comes into force on the fifth day following that of its legal publication. Given at Our Residence, this day of 31 October 2005/1705 THE CAPTAINS REGENT Claudio Muccioli - Antonello Bacciocchi p. THE SECRETARY OF STATE FOR INTERNAL AFFAIRS The Secretary of State Pier Marino Mularoni 11