Research program
The Draft Constitutional Treaty, the Eu Charter of Fundamental Rights and the privat autonomy.
University Co-ordinator
Universita' degli Studi di ROMA -
DIRITTO PRIVATO E COMUNITARIO - ROMA(RM)
Research Unit Leader
Giuseppina CAPALDO
Description
The research aims to reconstruct the typical traits of the market's communitary statute, the borders of freedom to conduct a business and the foundamental rights (the respect of which involvs to limit privates' economic and contractual freedom). We will carry out survey having as a starting-point the art. 16 of Bill of foundamental rights that gives and protects freedom to conduct a business.We have already said about the characteristic traits of European economic policy and about the close connection between this policy and contract rules. On this subject, looking at the market in a global perspective, is also suitable to extend the research at the soft law borders and contents of freedom to conduct a business and of freedom of contract. In fact world wide economy needs ultra-national common rules and lex mercatoria (rules of international commercial praxis) flourishes again. These rules are originated by using private freedom of contract, but could be used also by Judges (even if not expressly recalled) to resolv a dispute in case of lacunae in the system. So these rules could have a lot of diffusion.In this perspective (that passes over borders of States and of different economic community like E. C. and Mercosur) is urgent the necessity to single out a group of inviolable common rules, that fixes the limit of private's freedom, but expecially helps the interpreter in his works. So became very important the various Bills of rights both as a common bases to join the different systems, and as a limits at business law. At this time we have to notice the WTO's Statute, founded in 1995 as part of Uruguay Round Agreement into Gatt. Each State Member of WTO has subscribed agreements to simplify free exchange of goods, servicies and intellectual properties. WTO's States Members aren't free to fix rules pertinent production, security, goods and services trade, or to elevate foodstuffs' security standards, or ambient protection when misrepresent competition (or simply increase costs for firms). The violation of these rules involvs high fine. There is an only limit at the absolute sovereign of business way and it is the respect of citizen foundamental rights. This perspective (in a continual join with freedom to conduct a business, open market and foundamental rights' protection) is that we have choose as a giudeline of our survey. The research aims to solve some important questions as: the european law sense of freedom to conduct a business and the co-ordination with home law, freedom of contract and freedom to conduct a business. First of all we have to lay stress on that from the choose of the system (market economy and competition protection) not results immediatly the content of the rules with whom regulating disputes. In fact the economic model is a simplified outline of reality. So it gives indications on market structure, but it doesn't give univocal solutions at the various problems. In the same way we can notice that for economic concepts there isn't an only sense, because it springs from different cases. The most efficient economic solution is pure abstraction; instead, we have to specify the parameters of our reasoning. Moreover the E. C. economic model referring to private relationship doesn't tackle the problem about the various options of distributive justice, from which could derived different rules.The model of market economy is neutral as regard to contents of which could be filled from privates (in spite of transparency and precise rules). In fact the lawgiver isn't an only notary of economic progress, but he can address them according to foundamental rights that he wants defend, or to distributive justice choosing, or to defend weak contracting parties.In this context will be examined closely, at first, structural characters of E. C. economic system; then the research will go deep into Traties' principles that give to firms duties to respect personal foundamental rights. In particlular we will study in depth the principle of prevention and precautionary principle (Vorsorge).Once completed European outline the research will go to define contents and limits of freedom to conduct a business as a E. C. foundamental right, then we will analyse the join with the art. 41 of Italian Constitution and the freedom of contract protection. Afterwards we will deepen specific problems of the discipline and cases decises by Court of Justice to understand contents and limits of art. 16, and to promote its uniform application.
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