Tecniche di controllo della contrattazione standardizzata fra imprese e consumatori e fra imprese : le Camere di commercio e il mercato

The contemporary regulation of unfair terms in consumer contracts outlines that courts regulation and administrative policy of consumer contracts are working together. Both judicial protection and administrative regulation of unfair terms are contributing to the battle against unfair terms. They provide a much more effective way of protecting consumers. Courts and private law don’t seem sufficient to protect consumer and to effectively oblige professionals to refrain from using unfair terms. Private law enforcement does not provide an effective way of regulating the standard inclusion of unfair terms in adhesion contracts. The success in an individual action will mean that the term is not binding upon that consumer, but its impact beyond that consumer will be limited, and there is no significant pressure on the business to discontinue future use of that term. One possible response to the standard form contract problem would be to provide consumer with administrative control. The administrative model of enforcement is a much more effective way of preventing the continuing use of unfair terms. This involved a public body charged with the task of keeping the consumer scene under permanent review; a body who require to business to provide an undertaking to discontinue the use of the unfair term. For these reasons, according to the duty of member states to implement article 7 of the Unfair Terms Directive 93/13 which required the introduction of “adequate and effective means… to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers”, the vast majority of member states government conferred on administrative body the power to seek an injunction or undertaking against the use of unfair terms. The French parliament was one of the first in Europe to introduce an administrative model of enforcement of unfair terms on consumer regulations with Scrivener Regulation of 1978. This law conferred on an administrative Commission, called “Commission des Clauses Abusives”, the power to control business standard forms in order to invite them to restrain the use of unfair terms. The case of UK government is also important. In fact the Unfair Terms in Consumer Contracts Regulations 1999 conferred on the Office of Fair Trading the power to persuade business to comply with the Regulations. This has been successful in order to guarantee a high level of protection of consumer interests. In Italy, the Chambers of Commerce Regulations of 1993 conferred on Chambers of Commerce the power to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers. Making markets work well and guarantee consumer protection is the Chambers of Commerce new mission. They achieve this by encouraging business to comply with consumer law and empowering consumers with the knowledge and skills to make informed choices and get the best value from market. The powers of Chambers of Commerce to control standard forms and to make model contracts is regulated by article 2, paragraph 4, of law 580/1993 ( replaced by law 23/2010) which give to the Chambers the power to identify unfair terms in consumer contracts and invite the supplier to modify or drop them; and the power to make model-contracts. The Control Commission of Chamber of Commerce can take the initiative to contact business to challenge terms contained in their standard contracts. In addition it is required to consider any complaints made to it about the fairness of any contract terms dawn up for general use. Anyway the Commission has no authority power. Generally companies challenged by the Commission tend either to have accepted its suggested changes or to have negotiated a compromise. If the business doesn’t accept, the Chambers of Commerce is given the power to apply to Court for an injunction to retrain the continued use of unfair terms. These bodies have made effective use of its administrative power and have been able to secure the alteration of contract in several business sectors trough a process of rigorous negotiations, with almost no need to resort to legal action. The administrative powers of Italian Chamber of Commerce, French Commission of Unfair Terms and Office of Fair Trading are expression of the significant growth of public regulation of consumer markets. The particular aspect of the contemporary regulation of consumer markets is the use of new instrument of regulation like the ones used by the administrative bodies above. There is now the discovery of alternatives instruments to classic regulation and the role of co-regulation playes an important role According to Italian, French and English legal doctrine the contemporary regulation of markets give a prominent role to informal measures rather than sanctioning approach to enforcement. In conclusion, it is possible to outline the existence of an integrative model of enforcement of consumer unfair terms. In fact both judicial protection and administrative regulation of unfair terms are contributing to the battle against unfair terms to provide a much more effective way of protecting consumers.