The principle of proportionality. A comparative approach from the Italian perspective.

Andrea Bortoluzzi, Università dell'Insubria

Abstract

This Article traces the path taken by legal subjectivity in Italian law, through its decostruction from the citizen to the consumer and then discusses the source of contractual disparity, which is a concept strongly influenced in Community law by the German conception of the contract. This “relational concept” calls for the contractual equilibrium achieved by the parties to be subject to a test to determine whether it complies with predetermined criteria of justice but restrictive measures may not impose excessive limits on the freedom of the individual and must therefore be based on the principle of reasonableness. The principle of proportionality, based on the three sub-principles of adequacy, necessity and proportionality, is the most appropriate judicial criterion for monitoring State intervention in the field of a coordinated economy and is common to the whole of European legal experience: it has entered by the indirect route through the concept of contractual imbalance in the field of domestic civil law, but it is also a principle inherent in administrative action. The monitoring of the unfairness of a clause by reason of a breach of the principle of proportionality becomes the ratio competentiae determined by each individual Member State’s law transposing Directive 93/13/EEC. The Article goes on to discuss the principle of proportionality and civil law and then to consider the contaminations of the principle in the directive. The Article ends by looking at the application of the principle under consumer law in Italy, where the economic freedom of the seller or supplier in consumer contracts is subject not to State-imposed normative limits but rather to judicial assessment based on economic efficiency and compliance with the principles of fair dealing and trust (good faith).