Pratiche commerciali scorrette, safety net e nuove vulnerabilità: prospettive e limiti

Abstract

The essay starts from an examination of the discipline on unfair com-mercial practices, enucleating those elements that, despite the preva-lence of rules containing to listed practices, nonetheless allow a general clause to be discerned. Having delimited, therefore, the room for ma-noeuvre that such a general clause may be deemed to have been as-signed to and that allows it to be described as a safety net, the Author points out how the combined effect of the following factors, amongst the others, risk to puting it increasingly under strain: on the one hand, the emergence of new phenomena and conduct, which the typified cases increasingly struggle to capture within their range, especially in relation to the spread of digital markets; on the other hand, the increas-ing sensitivity to the acquisitions of Be-havioural Law and Economics, which leads to a critical review of the interpretative paradigm of the av-erage consumer and which promises new approaches to kind of con-ducts, albeit well-known, and even for individual regulatory provisions. The identification of new forms of vulnerability, linked to certain market frameworks, thus tends to assume a general value, and this is wit-nessed by the preliminary reference that the Council of State recently pro-posed to the Court of Justice in the Compass case. Although argu-ing that a critical reconsideration of the classic paradigm of the average consumer as a rational operator is necessary, the A. emphasises, however, the risks inherent in bending that same paradigm to the point of permanently eliding any element of shrewdness and pruden-ce, making the weak subject the generalised term of reference.