The ambiguity of terminology (unfair, unfair) shows an uncertainty of the Italian legislator, who, thanks to the Directive n. 13 of 1993, has seen fit to identify a number of safeguards and remedies (including preventative) against the use of unfair terms. In fact, the European legislation of 1993, is moving in a substantial plane, by checking the economic balance sought by the parties and trying to equitably distribute the risks and benefits contract. Passing to the methods of protection, the key distinction lies in highlighting the direct or indirect forms of protection: a) a judicial nature, b) private-self-defence; c) administrative control. Each has shortcomings and deficiencies, the conclusion is that, to ensure more effective protection, you have to activate all three intervention techniques, obtaining a their harmonious relationship. So alongside the judicial protection, which typically comes ex post and can relate to a single hypothesis, it poses the administrative control over unfair and unbalanced clauses that evidently regards a more generalized prevention. In support, the Chambers of Commerce are conducting investigations into contractual practices and conduct a subsequent investigation with the participation of all stakeholders, consumers and businesses predisposing conditions of contract. This form of administrative control is an alternative to court and therefore typically has a preventive purpose. The ability to prepare standard contracts and forms accompanied by an administrative control over unfair terms agreed with the parties concerned is a model of economic cooperation between the parties concerned. These advanced forms of "control" and "mediation", when properly designed, can better safeguard, in a "balance of the contract", not only the interests of consumers and users, but also the interests of those entrepreneurs' good and virtuous, who see in a market, free but guarded, an award if not an incentive to pursue bolder levels of transparency and fair trade.
Battelli, E. (2012). Il controllo amministrativo delle clausole inique. EUROPA E DIRITTO PRIVATO(4), 1093-1148.
Il controllo amministrativo delle clausole inique
BATTELLI, ETTORE
2012-01-01
Abstract
The ambiguity of terminology (unfair, unfair) shows an uncertainty of the Italian legislator, who, thanks to the Directive n. 13 of 1993, has seen fit to identify a number of safeguards and remedies (including preventative) against the use of unfair terms. In fact, the European legislation of 1993, is moving in a substantial plane, by checking the economic balance sought by the parties and trying to equitably distribute the risks and benefits contract. Passing to the methods of protection, the key distinction lies in highlighting the direct or indirect forms of protection: a) a judicial nature, b) private-self-defence; c) administrative control. Each has shortcomings and deficiencies, the conclusion is that, to ensure more effective protection, you have to activate all three intervention techniques, obtaining a their harmonious relationship. So alongside the judicial protection, which typically comes ex post and can relate to a single hypothesis, it poses the administrative control over unfair and unbalanced clauses that evidently regards a more generalized prevention. In support, the Chambers of Commerce are conducting investigations into contractual practices and conduct a subsequent investigation with the participation of all stakeholders, consumers and businesses predisposing conditions of contract. This form of administrative control is an alternative to court and therefore typically has a preventive purpose. The ability to prepare standard contracts and forms accompanied by an administrative control over unfair terms agreed with the parties concerned is a model of economic cooperation between the parties concerned. These advanced forms of "control" and "mediation", when properly designed, can better safeguard, in a "balance of the contract", not only the interests of consumers and users, but also the interests of those entrepreneurs' good and virtuous, who see in a market, free but guarded, an award if not an incentive to pursue bolder levels of transparency and fair trade.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
