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Digital archive of theses discussed at the University of Pisa


Thesis etd-04082019-230615

Thesis type
Tesi di dottorato di ricerca
Thesis title
Il controllo sui contratti asimmetrici nel diritto privato europeo. Armonizzazione delle tecniche ed economia dei rapporti di consumo.
Academic discipline
Course of study
tutor Prof.ssa Navarretta, Emanuela
  • clausole abusive
  • clausole vessatorie
  • consumatori
  • consumo
  • contratti
  • contratto
  • integrazione
  • nullità
Graduation session start date
Release date
The thesis investigates the extent to which the integration of private law systems can achieve ad- vantages in terms of greater cross-border trade and well-being for consumers. Obstacles to integration of private law are taken into consideration from the perspective of an account on risks and benefits of the EU single market.
The various harmonization techniques have been reviewed. Then, the research wonders if it would be opportune to refer directly to EU-wide private law principles and categories, consistent with the primary goals of regulation, regardless of how his Member State transposed the directive, even to limit the unreasonable effects of the application of the EU law.
The thesis focuses on the policy implications behind the judicial review in consumer contracts under the Dir. 93/13/EEC, especially on the core terms. It tries to provide an original justification according to the point of view of Law and Economics, enhancing the importance of the Information Economy’s insights, without neglecting the concerns of the more political freedom of contract’s theories.
The research argues that consumer apathy encourages professional parties to offer different prices. This leads to price dispersion up to the point that certain clauses are offered on terms corresponding to those of the monopoly. In these circumstances an asymmetry of information corresponds to an asym- metry of bargaining power, so that the supply side reproduces the behaviour that a party to the contract might assume in presence of a concentration of market power.
An autonomous definition of good faith valid for European private law is then proposed: a given clause is in accordance with good faith as long as an entrepreneur could have offered it in conditions of competition. Good faith becomes a rule of comparison with the reasonable expectations of a correct counterpart.
Moreover, the thesis assesses whether it would be appropriate to widen the scope of the ex officio filling methods in order to get under control the net effect achieved through a declaration of invalidity caused by unfairness.
The analyse suggests to overcome the old instrument inspired by more dating informational approach. It shows how the new EU notion of clearness shall be related to the economic effect of the contract, as well as why intransparency attribute alone cannot mean that a given term is unfair, since a significant imbalance contrary to the good faith is still needed.
The thesis claims that the ECJ is wrong to be sceptical of allowing the national judge to reduce the unfair clause or fill the contract after it is declared partially void due to unfairness. It is still not so clear what is the sense of «essential clause» implied in Art. 6(1). It merely alludes to contracts which cannot survive without the unfair clause, but it does not make it understandable which kind of clauses the contract cannot do without.
The judge is prescribed to assess in a very broad sense whether the contract is capable of continuing in existence without the unfair terms. The contract should be considered incapable of surviving when- ever the judicial review affected a clause that was conferring economic benefit to a party to the contract in accordance to a legal ground that looks consistent with the nature of the goods or services, by taking into account whether the inclusion of that clause is abusive per se or, otherwise, it is unfair only insofar as it was way beyond a reasonable measure.
The ECJ persists on a purely-not-binding rule since it grows the idea that unfairness declaration has a punitive and deterrent rather than rebalancing function. The biggest mistake the ECJ made is to use Art. 7 as a leverage to turn the unfairness test from being substantially an ex post review into an ex ante mechanism. It preferred to look for a merely possible outcome instead of focussing on the outcome of the unfairness declaration.
The judicial review is actually designed to deliver the best adjudication in the particular case. Every alternative use may contradict its aim and clash with the fact that res judicata is not able to affect supplier conducts beyond the contracting parties. After all, private law is only a suboptimal instrument for cleans- ing the market of unfair standard terms, and yet it is being used as such.