Case summary

Deciding Body
Bologna Tribunal
Tribunale di Bologna
National case details
Date of decision: 02.02.18
Registration ID: 358/2018
Instance: 1st Instance
Area of law
Consumer protection
Unfair practices (BtoC)

Safeguards for access to justice
Right to an effective remedy before a tribunal
Relevant principles applied

Life-cycle diagram

  1. February 2 2018

    Bologna Tribunal Decision

Identification of the case

National law sources
  • Art. 21 of Legislative Decree n. 206/2005 (Consumer Code)

Summary of the case

Facts of the case
The plaintiff asked for the resolution/annulment of a sale contract concerning a set of books which were described (and sold) by the defendant as works of art (as such holding an extremely and increasingly high economic value) whereas they were indeed luxury goods lacking artistic significance. The plaintiff complained, therefore, to have paid a price much higher than what he should have. The plaintiff asked, in the first place, for the resolution of the contract due to an aliud pro alio purchase, in which the object of the sale is different from that agreed between the parties, thus representing a breach of contract. In the second place, the plaintiff held that the contract was subjected to annulment provisions due to the unfairness of the commercial practices engaged in by the seller/defendant. To support such claim, the plaintiff refers to previous decisions of the NCA ascertaining the unfairness of the commercial practices engaged in by that specific subject. The court rejected the first argument, but upheld the second, focusing on the application of provisions about unfair practices.
Type of enforcement
  • Civil judicial enforcement
Measures, actions, remedies claimed/applied
Annulment of the contract
Reasoning (legal principles applied)
The Tribunal holds that the misrepresentation occurred with the commercial practice carried out by the defendant consists of a fraud, thus affecting the validity of the contract. The contractual fraud is determined by the judge on the basis of the practice’s unfairness pursuant to Art. 21 of the Italian Consumer Code. The evaluation of the judge is also based on the ascertainment of the NCA contained in the decision submitted by the plaintiff and presented before the court. The judge, though not mentioning it, applies the same reasoning developed in private antitrust enforcement cases, thus regarding the NCA decision as holding a special evidence value. Though not binding on the court, the administrative decision justifies a presumption, so that once the consumer/plaintiff submits the decision to the court, it is for the defendant to prove that the unfair practice did not affect the will of the consumer in the formation phase of the contractual relation.

Role of the Charter and role of the general principles on enforcement

Safeguards for access to justice
  • Right to an effective remedy before a tribunal
Reference to national provisions
The judge refers to Art. 21 of the Italian Consumer Code in order to assess the unfairness of the practice engaged in by the defendant
Relevant principles applied
  • Effectiveness
Principle of effectiveness
The Tribunal does not explicitly mention the principle of effectiveness, but applies the reasoning developed by the Court of Cassation with regard to private antitrust enforcement and the proof of the causal link between infringement and harm sustained by the consumer. The Court of Cassation, in light of the principle of effectiveness, considered that the decision of the NCA could justify a rebuttable presumption concerning the causal link. In this decision, the Tribunal holds that the NCA decision justifies a rebuttable presumption concerning the existence of a contractual fraud. The administrative decision ascertains the unfairness of the practice carried out but, in the judge’s view, it also founds the application of the civil provisions regarding the annulment of the contract. It is for the defendant to prove the contrary. Therefore, although the court does not mention the principle of effectiveness, its reasoning on the link between NCA decision and the validity of the contract is moved by the necessity to provide a remedy ensuring the effectiveness of consumer law and consumer protection. The connection between administrative decision on unfair practices and follow-on civil judgments had already been established by the Milan Tribunal with decision n. 4500/2013. That decision had ruled that, although not binding in general, the administrative decision could function as a “privileged evidence” of the occurrence of a practice and of its unfairness and illegitimacy.

Elements of judicial dialogue

Dialogue techniques
The Tribunal does not carry out a proper dialogue, whose dimension remains, therefore, implicit in the judge’s reasoning. The decision, however, applies, in the field of unfair practice, a line of thought already established in case law pertaining to private antitrust enforcement and linked by Italian court to the principle of effectiveness.

Additional notes on the decision

Impact on national case law
The application of private antitrust enforcement case law in unfair practices related disputes, indeed, was also upheld by the Italian Court of Cassation with decision n. 29237/2019 which explicitly mentions the important decision n. 11564/2015, which applied the principle of effectiveness in a stand alone antitrust case. It is expected that administrative decisions on unfair practices exert an increasingly strong influence in civil judgments on the validity of contracts stipulated as a result of the practice itself.

Case author

Gianmatteo Sabatino, University of Trento

Published by Gianmatteo Sabatino on 24 February 2020