Abuso di dipendenza economica tra diritto dei contratti e tutela della concorrenza
Author(s)
Reale, Orlando
Date Issued
October 22, 2008
Type
Doctoral Thesis
Abstract
The abuse of economic dependence stated in the section 9 of law 192/98 refers to a paradigm of a contract whose force of law is remarkably attenuated, and leads to rethink, under the profile of law of competition, the idea of market power and the purposes that law of competition pursues, extending, as a matter of fact, the field of application of antitrust law to contractual relationships between enterprises.
The abuse of economic dependence is a rule for the protection of the competition and the market, more than a rule directed to the protection of weak contractors, and is a case distinguished and separated from the abuse of dominant position and restrictive agreements of the competition, directed to endorse and correct the imperfections of the market that generate loss of efficiency, a part from whichever appraisal of distributive justice.
On the basis of Law & Economics, the abuse of economic dependence usually arises in contractual relationships characterized by specific and highly difficultly convertible investments, and so in situations in which the risk of hold-up is greater than usually.
The economic dependence is a situation that operates in bilateral sense and that can find the its own source in every type of contractual relationship – even merely potential trade relationships - between enterprises, that operate on either industrially or commercially integrated markets, provided that the relationship is directed to establish a vertical relation between them.
The economic dependence must be estimated considering if at the moment in which the illicit behaviour of the dominant enterprise materializes, the enterprise that is deemed dependent has real and satisfactory alternatives on the relevant market according to a subjective and objective analysis of such market.
The economic dependence consists in the impossibility for dependent enterprises to establish contractual or commercial relationships with enterprises different from the relatively dominant ones without enduring a competitive disadvantage respect to other players in the market.
The section 9 of law 192/98 is a general clause of control of dominant enterprise behaviour, whose amplitude guarantees a great incisiveness of the prohibition, and is suitable to contain a heterogeneous range of possible manifestations, relative both to the phase of the determination of contract’s content and to its execution, and censures also behaviours assumed in absence of any contractual relationship, which find their common denominator in the existence of the dependence of an enterprise, which generates, even if per relationem, a condition of power, susceptible of being misused.
The evaluative criterion to which is possible to make reference in order to determine if a behaviour is effectively illicit or is included in the lawful autonomy, is represented by the principle of objective good faith, to be estimated in economic-legal way.
The authority legally dedicated to know of the figures of abuse of economic dependence and to endorse the same ones is exclusively the ordinary judge competent for territory.
As far as the remedy of the invalidity is concerned, to be considered as a protection invalidity (“nullità di protezione”), such remedy is applicable only in the cases of “contractual” abuse. It is an invalidity necessarily partial (“parziale”) and relative (“relative”).
The responsibility from abuse of economic dependence can, therefore, both for “the contractual” abuses and “the extra-contractual” abuses, be framed in the general clause stated in the section 2043 of the Italian Civil Code, of which it represents a specific application, and according to which will be necessary to estimate the conduct, the unfairness of the damage and the subjective element.
Additional information
Dottorato di ricerca in Diritto dell' economia
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