CONDIZIONI GENERALI DI CONTRATTO E TUTELA DELLA CONCORRENZA

The present thesis seeks to inquire the possibility to operate a control on the content of standard contracts through the application of competition law: namely, it aims to identify in which cases an enterprise violates competition law by adopting standard terms and employing them in its contractual relationships; furthermore, it wishes to analyze which remedies are available to the enterprise’s contractual counterparties. The enquiry is particularly relevant in the current socio-economical context, in which new market powers are rising and seem able to defy traditional antitrust law tenets. The reference is to the so-called “Big Tech companies”, i.e. firms (such as Facebook, Google or Amazon) which, by offering apparently free services (which are actually paid for by the exploitation of users’ personal data), have hitherto managed to escape antitrust scrutiny. However, some recent investigations have reversed the trend and have found these firms guilty of infringing antitrust law by adopting terms and conditions particularly prejudicial to the user (especially with regards to protection of its privacy). From another point of view, the “antitrust control” on standard contracts may allow to identify the remedy available to the prejudiced party within contractual relationships where, despite the fact that both parties are technically “professional”, a significant imbalance of bargaining power exists, so that the weak party is forced to enter into a detrimental contract. In order to answer these questions, the thesis analyses the debate between scholars regarding the feasibility of a control of substance of standard contracts, whereas the Italian Civil Code only provides for a formal control; moreover, it examines the different doctrinal opinions on the matter of the relation between antitrust prohibitions and the contracts that the dominant enterprise stipulates with professionals and consumers alike.