CONSUMER PROTECTION | The Council of State dismissed ICA’s appeals regarding the prohibition of the ius variandi

On 23 and 24 March 2026, the Administrative Court of Second Instance (Council of State) issued its judgments in cases No 2438/2026 (Enel Energia), 2456/2026 (Acea Energia) and 2487/2026 (Eni Plenitude), dismissing the appeals brought by the Italian Competition Authority (ICA) against the decisions of the Rome Administrative Court of First Instance (TAR Lazio), which had annulled the sanctions imposed on the companies for aggressive commercial practices, within the meaning of Articles 24 and 25 of the Consumer Code. The alleged aggressive practices reportedly involved sending customers notices to change the financial terms of supply during the period of validity of Article 3 of Decree-Law No 115/2022 (Aiuti-bis’ Decree) which restricted the companies’ right to alter such terms (“ius variandi”). The Council of State upheld the interpretation of the TAR Lazio according to which the changes made by the companies to the financial terms did not fall within the scope of the prohibition on the ius vairandi as set out in the Aiuti-bis Decree, which prohibited only the unilateral amendment of the ‘general terms and conditions of the contract’. The judgments also suggest that conduct potentially contrary to sector-specific regulation does not, as such, fall within the scope of aggressive commercial practices under the Consumer Code.

Newsletter n. 117 – April 2026