372 COMPETITION LAW IN TOURISM them to form a free negotiating will, free of false information37. Negotiation transparency relates to the form, the form of the clauses and the information content. “The main purpose of the new Community-style contract rules is to establish a uniform information platform in contracts. In this way, each contract contains (‘must’ contain) timely, precise and comprehensible information on the most qualified legal profiles of the transaction, so that the contract itself becomes an information tool that facilitates the operation or even the structuring itself of the market”38. As regards the pre-contractual phase, transparency concerns in particular commercial communication, hence commercial practices. It is a fact that these play a strategic role in company marketing policies for the purpose of increasing sales of their services and/or products, conditioning more or less profoundly and more or less legally, the economic choices made by the recipient of the message. However, in order for the practice to remain within the sphere of lawfulness it is necessary that the promotional message remains such and does not go beyond deception. Advertising is protected in the same Consumer Code under Article 20 paragraph 3 which establishes that the common and legitimate advertising practice consisting of exaggerated statements or statements that are not intended to be taken literally. In Italy, the discipline in advertising is rather recent and of European origin. The first intervention in the field of misleading advertising is with Directive 84/450/EEC implemented with Legislative Decree No. 74 of 25 January 1992. Before that, the protection was entrusted to self-discipline39. 37 Regarding Article 1341 of the Civil Code and the transparency and comprehensibility of the conditions see: F. Di Giovanni, La regola della trasparenza (The rule of transparency), in E. Gabrielli & E. Minervini (ed.), I contratti dei consummatori (Consumer contracts), Tourin, 2005, I, p. 330; V. Roppo, Contratti standard. Autonomia e controlli nella disciplina delle attività negoziali di impresa (Standard contracts. Autonomy and controls in the discipline of business negotiation activities), Milan, 1975, p. 184; C.M. Bianca, Diritto civile (Civil rights), III, Milan, 2000, p. 390; C.M. Bianca & F. D. Busnelli, Commentario al capo XIV-bis del Codice Civile: dei contratti del consumatore, Art. 1469-bis 1469-sexies (Commentary on chapter XIV-bis of the Civil Code: consumer contracts, Art. 1469-bis 1469-sexies), Padova, 1999, p. 802. 38 The words are from di E. Guerinoni, La trasparenza contrattuale (Contractual transparency), in G. Cassano, A. Catricalà & R. Clarizia (ed.) Concorrenza, mercato e diritto dei consumatori (Competition, market and consumer law), Vicenza, 2018, p. 1547. 39 The first Advertising Self-Regulation Code was promulgated by industry organisations on 12 May 1966.
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