Diritto 2

• Market


  A regulatory environment, not separate from the law. Without rules, the market does not work, we need a third party, a public body that dictates the rules
• Functionalization of the market


  Our system differs from the US one in terms of the market being seen as a means to achieve other ends, not only of an economic nature. It aims at full employment, social, scientific and technological progress and respect for the environment
• European contract law


  Part of the market law, the contract must ensure the functioning of competitive markets between markets
• European economic constitution


  Not all standards are equally important, some are fundamental pillars. We have basic principles, and any rules that conflict with them are invalid
• Social market economy model

  • Conceptually created in Germany in the 1920s, after World War I, to create a just economic system
  • An economy based on competition, created in the USA by the Sherman Act in 1890, but competition alone was not enough, it had to be regulated
  • Meritocracy: the deserving entrepreneur can have a great chance, the market looks at what you know how to do, not who you are
  • Weakening of the centers of economic power: not a single subject, but several subjects selling the same product
• Principle of open economy in competition

  • Guarantee of minimum content of the system: no monopolistic systems and rejection of a nationalized economy
  • Indirect guarantee of the freedom of private enterprises: limits for compliance with the principle of competition
  • Protecting the role of the consumer: the consumer must be allowed to play his role as 'arbiter of the market' to the best of his ability, and only in this way can he guarantee competition
• Market


  A set of structural rules that allow us to operate in a certain market
• Competition


  A more dynamic concept, it is about the behaviour of companies in the market and checking whether there are cartels that restrict competition
• Principle of an open economy under competition


  • Structural (internal market) and dynamic profile (competition)
• Aspects covered by the principle of an open economy under competition

  • Protection of the person: recognizing the possibility of living as one believes, satisfying one's own needs and creating a dynamic market
  • Consumer protection: protecting the role of the consumer according to certain needs for the functioning of the system
  • Equality and non-discrimination: citizens must be treated equally
  • Economic and social cohesion and solidarity: economic cohesion makes it possible to intervene to lay down rules in favour of disadvantaged areas, social cohesion like post-pandemic funds
  • Environmental protection: the precautionary principle and the polluter pays principle
  • Property protection: a fundamental right of people, a natural human right
  • Guarantee of the freedom of enterprise: the firm is conceived as property, but it has a social function for a better functioning of the mechanism of competition
  • Autonomous functioning of the market: the Constitution says that it is preferable that markets operate with their own autonomy
  • Prohibition of abuse of rights: to avoid market failures
• Principle of proportionality


  Allows you to control rules according to a scheme made up of 3 levels: 1) Worthiness of the purpose I want to pursue by setting these rules, 2) Instrument with which I intervene, 3) Verify the content of the tool
• Workable Competition


  Competition with the feature that does not have a winner. You need to understand how the various markets work and the level of competition you can expect
• Stages of competition


  • Competition: supply of goods and services
  • Choice: choice of goods and services (by the consumer)
  • Selection: Someone can't keep up with the competition (and goes out of business)
• Competition regime


  The players operate in the market, and the competition varies according to the sectors and even between different countries
• Choice regime


  • Freedom of consumer choice: no false information, and no distorting behaviour
  • Truthful and correct information and transparency: essential information needs to be introduced, and the information can also change depending on the customer
• Selection regime


  Those who cannot stand up to the competition exit the market. The selection system emphasises the competitive formation of prices, it is not direct protection of the consumer, since there is no action on price, it is competition that generates the price
• Principles to temper competition

  • Principle of balanced trade and fair competition: in some sectors it is possible to relax competition in order to ensure the entry of other companies
  • Sustainability principle: It has taken on a very broad scope (ESG) in recent years
• Consumer


  The natural person who acts for purposes not related to the professional or entrepreneurial activity that may be carried out. The consumer is not considered rational, or rather reasonable. It is said to act consciously, based on the information made available
• Fundamental consumer rights


  • Right to health and safety
  • Protection of economic interests, the interests promoted by consumer associations are protected (widespread interests), must be protected in all contractual positions (including as a debtor of the company)
  • Right to information, education and organisation, through this point the consumer is helped to play the role of arbiter of the market
  • Freedom of choice
• Cross-cutting clause


  When the EU issues rules on the consumer, it must take into account consumer protection in all areas
• Domestic Consumer Law


  Previously, all regulations concerning the consumer were contained in legislative decrees. But this has been a bit tricky to decipher. Initially, some rights were included in the civil code, then a French decision was made, leaving the civil code intact and creating industry codes. The Consumer Code is a special law characterized by transversality, it applies in all sectors that have consumers
• Definition of consumer


  A natural person acting for extraneous purposes any entrepreneurial and professional activity carried out. A consumer is defined as any person who operates on the demand side
• Elements of the definition of consumer

  • Subjective element (natural person): small craftsmen, small entrepreneurs, legal persons, etc., are not considered consumers
  • Objective element: the Consumer Code applies to the person who buys any goods or services for purposes not related to their professional activity
• Consumer law


  Anchored in competition law. At the level of antitrust law, the concept of a company is different (it includes public bodies, entrepreneurs, companies, private entities, etc.) as long as they offer activities for a fee
• Definition of Consumer Association

  Formations whose statutory purpose is the protection of the rights and interests of their employees. consumers or users. The definition has two elements: 1) Subjective element: the individual is protected both individually and in social formations, 2) Functional element: Consumer associations have the sole purpose of protecting consumers' rights and interests
• Consumers' Individual Fundamental Rights and Interests

  • Health protection
  • Safety and quality of products and services
  • Adequate information and correct advertising (fairness, good faith)
  • Consumer education
  • Fairness in business practices
  • Fairness, transparency and fairness (balance) in contractual relations
  • Promotion of associations
  • Public services with quality and efficiency standards
  • Freedom of choice
• Individual consumer rights do not exhaust the protection of consumer rights, which also includes collective rights, within associations. In order to have certain rights, certain requirements must be met. Associations must be registered in the commerc
• Consumers' Individual Fundamental Rights and Interests

  • Health protection
  • Safety and quality of products and services
  • Adequate information and correct advertising (fairness, good faith)
  • Consumer education
  • Fairness in business practices
  • Fairness, transparency and fairness (balance) in contractual relations
  • Promotion of associations
  • Public services with quality and efficiency standards
  • Freedom of choice
• Rights of Consumer Associations

  • They must be registered in the commercial register and must sit in the CNCU, only in this way is there representativeness
  • They exercise judicial activity as the individual consumer is often not able to know his rights and not to defend them
• Rights of Consumer Associations

  • Functional element: the subject must act for personal purposes, enter into a contract for personal purposes, good or service, there is no limitation
  • Injunction actions: acts and conduct detrimental to the interests of consumers, including abroad (including class actions)
  • Precautionary actions: aimed at correcting or eliminating the harmful effects of the violations exercised
  • Action for damages in specific form: the court orders the trader to publish the judgment
  • The right to initiate the conciliation procedure

  
• Businesses need to be protected

  • On two fronts: freedom to conduct a business is protected by the social function, but the 4 fundamental principles of business must be respected
• Fundamental principles of business

  • Freedom of economic initiative
  • Freedom of association
  • Freedom of business model
  • Freedom of establishment and provision of services
  • Freedom of competition
• Horizontal subsidiarity


  Public policies must intervene where necessary to protect businesses
• Rights of companies


  • Right to operate in a certain regulatory environment and in a framework of timely and quality public services, minimizing the margins of administrative discretion
  • Right to have access to credit with a complete information framework, and transparent and fair and non-vexatious conditions
• Business Associations


  • They have standing to act, companies can take legal action (also in this case we refer to class actions)
  • They can challenge administrative acts that are detrimental to widespread interests
• Transparency is promoted in relations between financial intermediaries and micro, small and medium-sized enterprises and business networks, ensuring conditions of access to informed, correct and non-vexatious credit
• Guarantor for micro, small and medium-sized enterprises


  Associations play the role of guarantor regarding the implementation of the SBA
• Types of supervision


  • Sector-specific supervisory authorities (authorities, autonomous entities)
  • Subjects need authorization to operate in the markets
  • Different types of supervision
  • Regulated markets
• Supervisory Authorities


  • They are real authorities, i.e. autonomous subjects with a series of powers
  • They operate on the basis of mandates, which are bodies of a technical nature
• European Supervisory Authorities


  • ESMA (European Securities and Markets Authority)
  • EBA (European Banking Authority)
  • EIOPA (European Insurance and Occupational Pensions Authority)
  • Joint Committee of European Authorities