La sostenibilità, una nuova «dimensione» della trasparenza contrattuale? Alcuni spunti dalla Direttiva (UE) 2024/825

This essay offers a reflection on certain developments which, from a sustainability perspective, could affect the rules governing transparency in contractual relationships. \r\nAfter outlining the functional profile of transparency rules – aimed at enabling the contracting party, and in particular the consumer, to make an informed assessment of the consequences of concluding the contract – it is pointed out that the traditional perspective, in line with a conception of market purposes limited to economic efficiency, has restricted the requirements for transparent information to matters relating solely to the convenience (in purely “economic” terms) of the exchange. \r\nAn attempt is therefore made to illustrate how the greater attention now being paid at the regulatory level to the sustainability requirements of market exchanges leads to a reconsideration of the scope of information to which the transparency requirement should apply. Precisely because sustainability is now one of the goals of the legal order of the market, an exchange can only be considered fully “rational” if, in the assessment of opportunities that precedes any contractual choice, the contracting parties have also been able to take into account the socio-environmental consequences (externalities). \r\nFor this reason, it seems appropriate to provide legal instruments which, without functionalising private autonomy for ecological purposes, at least ensure the “quality” of information provided to consumers (as the most disadvantaged contracting parties in terms of information) on matters that may affect the sustainability assessment of market choices. \r\nConsideration is therefore given to some recent EU legislation which, with the aim of empowering consumers in view of the much-desired “ecological transition”, seeks to penalise the behaviour of professionals who disseminate misleading information (especially vague or unverifiable information) about their products in order to present them as sustainable when this is not actually the case (so-called “greenwashing”). In particular, Directive (EU) 2024/825 provides that such conduct is to be classified as misleading commercial practice.\r\nThe second part of the paper then examines the remedies available for breaches of transparency obligations by professionals, with a view to identifying tools that allow, where possible, the sustainability of the contractual transaction to be effectively restored by requiring the entrepreneur to implement what was promised or declared about the sustainable nature of the exchange. To this end, we examine in particular the solutions offered by private enforcement instruments for unfair commercial practices, the guarantee of conformity in the sale of consumer goods, and the possibility (which we seek to support here) of attributing contractual value to advertising statements on sustainability.