Right of Withdrawal Exceptions: A Guide to Art. 59 of the Italian Consumer Code

1. 1.

   Bespoke and Customized Goods (Art. 59, point (c))

   The exception for bespoke or clearly customized goods is highly scrutinized. Consolidated case law establishes that customization must make the item objectively non-resellable: choosing a standard color from a list does not qualify. To be AGCM-proof, customization must result from specific consumer instructions, such as engravings or non-standard measurements. Counsel must ensure the exclusion clause reflects a genuine alteration. If the product can be restored at minimal cost, denying withdrawal is deemed an unfair commercial practice. edit.legal recommends technically documenting why the item cannot be resold before disabling the digital withdrawal function.

2. 2.

   Perishable and Rapidly Expiring Goods (Art. 59, point (d))

   This derogation applies to goods with a very short lifecycle, such as fresh food or plants. Companies must map their inventory identifying items where withdrawal is technically impossible due to imminent physical deterioration. The notice must be specific: generic references to Art. 59 are inadequate. You must explain why the specific good risks deterioration. Failure here extends the withdrawal period to 12 months, creating significant logistical risks for the seller.

3. 3.

   Digital Content and Streaming (Art. 59, point (o))

   For software, ebooks, and online courses, withdrawal is excluded once performance begins with the consumer's express consent. Currently, a clause in the Terms and Conditions is not enough: a positive action (e.g., clicking an activation button) is required, accompanied by a clear warning that starting the download or stream results in losing the right, as well as the provision of the confirmation of the contract on a durable medium pursuant to Art. 51(7). Recent rulings penalize interfaces with pre-ticked boxes or ambiguous language. The trader must retain logical proof of the consumer's consent and acknowledgement. Without such proof, the user can request a refund even after consuming the service, as performance is not legally considered to have started regarding the forfeiture of withdrawal rights.

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   4.

   Sealed Goods for Hygiene Reasons (Art. 59, point (e))

   This exception is critical for fashion and beauty, including products such as cosmetics and supplements. The AGCM requires exclusions to be based on genuine hygiene or health protection grounds: references to the PAO (Period After Opening) are irrelevant as the rationale behind the rule is based on health protection and hygiene to ensure the product's resalability, not on its chemical stability after opening. The CJEU (Court of Justice of the EU) has limited the use of point (e) to cases where opening the seal makes the good permanently unsuitable for reuse. If a garment can be sanitized, withdrawal cannot be denied, even if the seal is removed. Counsel must draft clauses explaining exactly what type of seal is used and why breaking it prevents the return. Vague communication is treated as a failure to inform, leading to the statutory extension of the withdrawal period for the customer.

5. 5.

   The Digital Withdrawal Function

   Since June 19, 2026, the legislation implementing Directive (EU) 2023/2673 requires all e-commerce platforms to provide an easily accessible digital withdrawal function. If a product falls under Art. 59 exceptions, the seller may choose not to display the button for that order, provided this is backed by flawless pre-contractual information given at checkout. If the technical system lacks the function for a good that does not legally qualify for an exception, the company faces sanctions. The challenge for consultants is integrating legal logic into software development workflows, ensuring product databases are correctly mapped to Art. 59 categories to dynamically enable or disable the right.

6. 6.

   AGCM-proof Drafting with AI Models

   Using AI models like ChatGPT or Claude can assist legal professionals in drafting clear, plain-language clauses, but requires strict supervision. To avoid the fines provided for by Art. 27 of the Italian Consumer Code, the notice must be tailored to the specific product. AI-assisted drafting should follow three steps: provide the AI with the technical context, include Art. 49 transparency obligations, and check for unfair terms. edit.legal suggests using AI to generate simplified versions of complex notices, making them readable on mobile devices where the AGCM closely monitors text visibility. An ideal clause must state the exclusion, cite the specific point of Art. 59, and secure the user's acknowledgement before the transaction is finalized. For legal insights and notice templates, edit.legal provides verified analysis and drafting support. A free trial is available without a credit card.

References: Articolo 59 D.Lgs. 206/2005 (Codice del Consumo)Normativa di recepimento Direttiva (UE) 2023/2673 (Gazzetta Ufficiale)Articolo 27 D.Lgs. 206/2005Articolo 49, 51 e 53 D.Lgs. 206/2005Direttiva (UE) 2011/83/UE

Editorial oversight: Avv. Federico Papa·ICAMUpdated 14 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