Unfair Terms, Protective Nullityand Court’s Powers: Certain Reference Pointsafter Jőrös’ and Asbeek Brusse’s Rulings

Risultato della ricerca: Articlepeer review

Abstract

Review. The article examines the cases of Jőrös (Case C- 397/11,) and AsbeekBrusse,(case C‑488–11), both dated 30 may 2013, as a starting point for a moregeneral analysis of the ECJ’s approach to the legal consequences to be drawnby the national Court from finding that a contractual term is unfair. The workfocuses on the question of whether the interest of the consumer — at the basisof the remedy under consideration — is compatible with the general public interestand with the duty of the National Court to declare the nullity of its ownmotion, perhaps in contrast with the individual interest of the party. The papercriticizes the “Pannon ruling”, and points out how the more recent Banif Plus judgment(2012) has refined that ruling, even when the partial nullity is concerned.If the duty of the National Court to declare the nullity of its own motion aims toguarantee general interest and the values held by the Constitution — the A. argues— there is no way the consumer can “oppose” the declaration and expresshis own interest to preserve the contract. Consistently with this idea of consumerprotection, in the recent Jőrös judgment the ECJ partially reviewed the so calledPerenicova jurisprudence, and clarifies that the National Court is required to determinewhether or not the contract can continue to maintain its effects on thebasis of objective criteria.
Lingua originaleEnglish
pagine (da-a)130-142
Numero di pagine13
RivistaSENTENTIA
Stato di pubblicazionePublished - 2015

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