GLI OBBLIGHI DI INFORMAZIONETRA REGOLE DI PROTEZIONE DELCONSUMATORE E DIRITTOCONTRATTUALE EUROPEO

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Abstract

Less ambitious than the original proposals, the ConsumerRights Directive 2011/83 focuses on the area of information dutiesand the right of withdrawal in B2C contracts.This article analyses the new rules providing information obligations,and highlights some of the unresolved questions particularlyconcerning the level of consumer protection, and the remedies forthe breach of those obligations.An extensive catalogue of information is now to be given in distanceand off-premises contracts; and — according to the existingrules within the Directives on Timeshare Contracts and PackageTravel — this catalogue is to be considered an integral part of thecontract. According to the Author’s opinion, the option for a detailedprovision of the elements that must be disclosed to the consumers,on the one hand, combined with the imposition of formal requirementsto be fulfilled in providing informations, demonstrates howthe Directive keeps on enhancing the “standardization” of the B2Ccontractual relationship instead of trying to introduce a more personalizedinformation.Information duties are now to be fulfilled by the trader also in acontract other than a distance or an off-premises one, even if, due tomany exceptions, the spectrum of “other” contracts to which this obligationapplies is much narrower than at first glance. However, incontrast to the information requirements in distance and offpremisescontracts, the Directive does not stipulate that there is a reversalof the burden of proof in “other” contracts; the catalogue ofinformations to be given doesn’t form, in this case, an integral part ofthe contract. The Author stresses how the Directive, while going onin implementing the range of information duties, has not chosen —unlike the Proposal — to opt for a more systematic approach. Nosingle rule tells the consumer what remedies can be used to enforcethe failing of the information duties by the professional, so that theDirective fails the attempt to bring coherency to existing rules andparticularly misses its chance to harmonize the remedies in Europeancontract law for breaches of duties of disclosure. Once again,it’s to the Member States to provide “effective, proportionate and dissuasivepenalties”, but, due to the principle of full harmonization, thelevel of consumer protection could hardly be increased by domesticrules.The main limit of the Directive — under Author’s opinion — isthat the European legislator seems to consider in the same way precontractualinformation duties and those informations that, accordingto the foreseen provisions, has become content of the contract,and can’t therefore be assumed as “precontractual”, better concerningthe formation of a valid contract.The current review of the acquis should have included thestrengthening of the available remedies and, as some scholars suggest,should have explored, in the case, the proximity between failureof disclosure and the defect of consent itself. The Green Paper on theReview of the Consumer Acquis, on the other hand, suggested that“there would be different remedies for breaching different groups of informationobligations”.On the contrary, the Directive replicates the acquis approachand the option now adopted in the DFCR as well as in the Proposalfor a Common European Sales Law: the breach of information obligationsseems to be considered only in the framework of precontractualliability, as demonstrate both the insertion on the generalgood faith principle and the provision of a right of damages for theconsumers. The conclusion of the paper is that the Directive fits verywell into a scenario
Lingua originaleItalian
pagine (da-a)311-356
Numero di pagine46
RivistaEUROPA E DIRITTO PRIVATO
Volume1
Stato di pubblicazionePublished - 2013

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