A commission with a mission: Novelties in Decree-Law n. 123/2023

Context:

In May 2021, Law n. 32/2021, of May 27^th, was adopted, prescribing the creation of an administrative system for the control and prevention of use of unfair (and thus prohibited) Standard Contractual Clauses (SCC). Decree-law n. 123/2023 (available here) has recently been enacted to precisely further detail and implement, in the form of a (SCC) Commission, working with the members of Government responsible for Justice and Consumer Protection, and administratively backed by the General-Directorship for Consumer Affairs (DGC).

In the words of the legislator, the aim of this system is to “inform consumers and deter this practice”, “preventing the use of unfair SCC” and “shining light onto providers of goods or services of have been judicially recognized as using prohibited SCCs.”

The Commission and its Mission:

The Commission shall be composed of seven unpaid members, to be appointed by various entities who pursue public interest goals in the area of Consumers Protection and Justice.

The attributions of the Commission include “examination of contract containing SCC”, as well as the publication of standardized SCC that parties may voluntarily adopt, “issuing of recommendations of modifications or withdrawal of SCC from existing contractual models”, as well as supervising compliance with those recommendations, and “issuing opinions” on matters related to SCC. These powers are, however, subsidiary to those of sector-specific regulatory entities.

To perform the tasks contained in its attributions, the Commission may:

– Request SCC proponents to submit their model clauses in use for analysis

– Issue, within 30 days of the request and after hearing the relevant SCC proponents, recommendations aimed at withdrawing or modifying SCCs

– Notify the District Attorney’s Office and any interested parties of any failure of the proponent to comply with a judicial obligation to abstain from using abusive SCC

– Issue an opinion, within 30 days of the request and after hearing the proponents, on the possible prohibited nature of specific SSC, at the request of judicial courts

– Appreciate legislative initiatives submitted to its bodies.

The opinions and recommendations issued by the Commission should be published in an online Portal, to be created to host them, alongside SCC-relevant anonymized judicial decisions.

The Commission shall, lastly yet relevantly, act as depositary of SCC models used by specific (types or categories of) companies, to be announced by the Minister responsible for Consumer Protection area, which constitutes, no doubt, the most significant innovation in this diploma.

The Next Steps:

The Commission should be ready to run by, at the latest, 90 days after the entry of force of the diploma, on December 27^th, 2023. Afterwards, it shall enjoy an additional 90 day-period to enact self-regulatory statutes and make available the SCC online Portal. This means the entities mentioned above have less than six months to erect a fully functioning SCC Commission. No members have, however, been officially appointed so far.