PRATICHE COMMERCIALI INGANNEVOLI E CONTRATTI DEL CONSUMATORE.

The present study begins by the analysis of the Directive 2005/29/EC, its ratio, its genesis, and its systemic profile concerning unfair business-to-consumer commercial practices; this Directive establishes minimum criteria for harmonizing the legislation of the Member States through which the EC wanted to contribute “to the proper functioning of the internal market”, and also (according to article 153 EC Tr.) to “achieve a high level of consumer protection” (Directive’s article 1) and also approaches the phenomenon of commercial practices as a exclusive issue of business-to-consumer relationship, demanding the Member States to take into consideration the non direct connected interests of competitors. The cases approached by the Directive discipline are all and only those which can be leaded inside the notion of “business-to-consumer commercial practices”, definition by itself of imprecise boundaries, which can mean (ex art. 2, letter. b e art. 3, par. 1) any professional practice – before, in a given context or also following the contractual relationship between a trader and a consumer – that promotes the conclusion of a contract with a consumer, or even so “directivly connected” to thereof contracts. In reference of those cases, in the first place, the directive establishes to the traders of all Member States a general prohibition of business practice which could be “harming [to] consumers' economic interests” and qualified as “unfair” (art. 5, par.1). In second place, the Directive contemplates and disciplines in an analytical way the complex system of evaluation of the “unfair” characteristic of a business practice, informing the parameters by which one can consider a business practice to be permitted (while fair), inside the whole European Union (art. 5 to 9): such evaluation system is articled around a general (and residual) notion concerning unfair business-to-consumer commercial practices (art. 5, par. 2), two categories of “misleading” commercial practices (artt. 6 e 7) and “aggressive” (artt. 8 e 9) and a so called “black” list of commercial practices which “are in all circumstances unfair” (art. 5, par. 5). In third and last place, the Directive trusts to Member States the task of providing adequate solutions (also procedural) to prevent and repress unfair commercial practices, and also the task of introducting a assemble of strong and effective sanctions on trader's field of activity (art. 11 to 13). Considering the objectives of the above mentioned Community Directive, it has been taken into consideration the meaning of the Italian discipline of reception, analyzing the evaluation system of wrong intentioned commercial practice and, in a particular way, the relationship between general clauses and black lists. So, our main question focused on the discipline of misleading commercial practice, in order to reach a conclusion with detailed analysis of each and single cases of commercial practices which are considered “in all circumstances unfair”, listed on the black list according the article 23.