E-commerce: checklist of exceptions to the right of withdrawal under Art. 59 of the Italian Consumer Code

1. 1.

   Services fully performed (Lett. a)

   Withdrawal is excluded if the service has been fully performed, provided that execution began with the previo consenso espresso (prior express consent). Providing the service alone is insufficient: the professional must obtain acceptance of the fact that the consumer will lose the diritto di recesso (right of withdrawal) upon full performance of the contract. Operationally, the burden of proof for informed consent lies with the seller. Without a documentable positive action, such as a specific non-pre-selected checkbox, the right to withdraw remains exercisable even if the service is complete, exposing the company to undue refunds or sanctions for unfair commercial practices.

2. 2.

   Custom-made or clearly personalized goods (Lett. c)

   This clause is frequently litigated. Established case law and AGCM guidance distinguish clearly between simple catalog choices and genuine personalization. If a user selects predefined combinations (e.g., color and fabric options already available in a drop-down menu), the exception may not apply. The dividing line lies in the nature of the good: if the product can be restored and resold without significant economic loss, the exclusion of withdrawal is difficult to enforce. In-house counsel must verify that the personalization is such that the good is objectively useless for others based on the specific technical requirements provided by the customer.

3. 3.

   Goods liable to deteriorate or expire rapidly (Lett. d)

   This exception primarily applies to the food and e-grocery sectors. The exclusion operates for products with a short commercial life that does not allow for return and subsequent resale. Prevailing case law includes fresh food products in this category but excludes long-life or vacuum-packed products with long expiration dates. For in-house counsel, it is necessary to correctly map the product categories in the catalog: indiscriminately applying the exclusion to the entire food sector, including wines or canned goods, could be considered an undue limitation of the consumer's right of withdrawal.

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   4.

   Sealed goods for hygiene or health protection (Lett. e)

   The exclusion operates only if the goods have been unsealed after delivery. It is not enough for the good to be potentially soilable: there must be an objective health risk. The European Court of Justice (Slewo Judgment, C-681/17) clarified that products such as mattresses do not automatically fall under this derogation, as they can be professionally sanitized for resale, unlike tube cosmetics or toothbrushes. The legal department must ensure that the seals applied are suitable for clearly signaling that their removal entails the loss of the right, and that the nature of the good effectively justifies health protection.

5. 5.

   Sealed audio/video recordings or software (Lett. i)

   For physical media containing software or multimedia content, the right of withdrawal is lost at the moment the consumer breaks the seal, such as shrink-wrap or a SIAE sticker. If the product is delivered without a protective seal or if the seal remains intact, withdrawal must be guaranteed within the standard 14 days. It is essential that the Terms and Conditions specify this temporal and physical limit. During the returns management phase, the company must photographically document any broken seals to legitimately refuse a refund or apply a reduction in value where permitted.

6. 6.

   Digital content on non-tangible media (Lett. o)

   This is the crucial exception for SaaS, e-books, and streaming services. Following the changes introduced by the Omnibus Directive, withdrawal is excluded if execution began with the consumer's prior express consent and acknowledgment of the loss of the right. An often-overlooked requirement is the documentary obligation: if the professional fails to provide contract confirmation on a mezzo durevole (durable medium), including proof of consent and acknowledgment of the loss of the right, the consumer retains the right of withdrawal despite having started to use the content. Transactional email systems must therefore be configured to include such legal evidence in the order confirmation.

References: Articolo 59, D.Lgs. 206/2005 (Codice del Consumo)D.Lgs. 26/2023 (Attuazione Direttiva Omnibus)Direttiva 2011/83/UE sui diritti dei consumatoriSentenza CGUE C-681/17 (Slewo)

Editorial oversight: Avv. Federico Papa·ICAMUpdated 30 September 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction