'Unfair terms, protective nullity and Courts powers : some reference points after JőrÖs and Asbeek Brusses judgements.' - 'SENTENTIA. European Journal of Humanities and Social Sciences' - NotaBene.ru
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SENTENTIA. European Journal of Humanities and Social Sciences
Reference:

Rozalba A. Unfair terms, protective nullity and Courts powers: certain reference points after JőrÖs and Asbeek Brusses rulings.

Abstract: The article examines the cases of Jőrös (Case C- 397/11,) and Asbeek Brusse,(case C-488-11), both dated 30 may 2013, as a starting point for a more general analysis of the ECJs approach to the legal consequences to be drawn by the national Court from finding that a contractual term is unfair. The work focuses on the question of whether the interest of the consumer at the basis of the remedy under consideration is compatible with the general public interest and with the duty of the National Court to declare the nullity of its own motion, perhaps in contrast with the individual interest of the party. The paper criticizes 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 to guarantee general interest and the values held by the Constitution the A. argues there is no way the consumer can oppose the declaration and express his own interest to preserve the contract. Consistently with this idea of consumer protection, in the recent Jőrös judgment the ECJ partially reviewed the so called Perenicova jurisprudence, and clarifies that the National Court is required to determine whether or not the contract can continue to maintain its effects on the basis of objective criteria.


Keywords:

European Union, European Union law, European market, European Court, case law, judgment, court rulings, consumer contracts, unfair terms, protective nullity


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