GLI OBBLIGHI DI INFORMAZIONE TRA REGOLE DI PROTEZIONE DEL CONSUMATORE E DIRITTO CONTRATTUALE EUROPEO

Less ambitious than the original proposals, the Consumer Rights Directive 2011/83 focuses on the area of information duties and the right of withdrawal in B2C contracts. This article analyses the new rules providing information obligations, and highlights some of the unresolved questions particularly concerning the level of consumer protection, and the remedies for the breach of those obligations. An extensive catalogue of information is now to be given in distance and off-premises contracts; and — according to the existing rules within the Directives on Timeshare Contracts and Package Travel — this catalogue is to be considered an integral part of the contract. According to the Author’s opinion, the option for a detailed provision of the elements that must be disclosed to the consumers, on the one hand, combined with the imposition of formal requirements to be fulfilled in providing informations, demonstrates how the Directive keeps on enhancing the “standardization” of the B2C contractual relationship instead of trying to introduce a more personalized information.Information duties are now to be fulfilled by the trader also in a contract other than a distance or an off-premises one, even if, due to many exceptions, the spectrum of “other” contracts to which this obligation applies is much narrower than at first glance. However, in contrast to the information requirements in distance and offpremises contracts, the Directive does not stipulate that there is a reversal of the burden of proof in “other” contracts; the catalogue of informations to be given doesn’t form, in this case, an integral part of the contract. The Author stresses how the Directive, while going on in implementing the range of information duties, has not chosen — unlike the Proposal — to opt for a more systematic approach. No single rule tells the consumer what remedies can be used to enforce the failing of the information duties by the professional, so that the Directive fails the attempt to bring coherency to existing rules and particularly misses its chance to harmonize the remedies in European contract law for breaches of duties of disclosure. Once again, it’s to the Member States to provide “effective, proportionate and dissuasive penalties”, but, due to the principle of full harmonization, the level of consumer protection could hardly be increased by domestic rules. The main limit of the Directive — under Author’s opinion — is that the European legislator seems to consider in the same way precontractual information duties and those informations that, according to the foreseen provisions, has become content of the contract, and can’t therefore be assumed as “precontractual”, better concerning the formation of a valid contract. The current review of the acquis should have included the strengthening of the available remedies and, as some scholars suggest, should have explored, in the case, the proximity between failure of disclosure and the defect of consent itself. The Green Paper on the Review of the Consumer Acquis, on the other hand, suggested that “there would be different remedies for breaching different groups of information obligations”. On the contrary, the Directive replicates the acquis approach and the option now adopted in the DFCR as well as in the Proposal for a Common European Sales Law: the breach of information obligations seems to be considered only in the framework of precontractual liability, as demonstrate both the insertion on the general good faith principle and the provision of a right of damages for the consumers. The conclusion of the paper is that the Directive fits very well into a scenario which could lead to reduce the role played by consumer law as lex specialis which should derogate to general contract law.