The restrictions on economic freedom/free enterprise. The concept of unfair contractual terms in ECJ case law

Andreea-Teodora-Stanescu-mare.

.
.

.
.
Lecturer, PhD. Andreea-Teodora Stanescu
Faculty of Law, University of Bucharest

I. Relevant provisions

Economic freedom (free enterprise) is regulated at constitutional level by Article 45 of the fundamental law[1]. According to the aforementioned text of law, “free access of persons to an economic activity, free enterprise, and their exercise under the law shall be guaranteed”[2].

In terms of terminology, the Romanian Constitution opted for the wording „economic freedom”. However, other fundamental laws opted for different marginal names for the right similar to the one legislated by Article 45 of the Constitution of Romania. For example, we can mention: the Constitution of Spain – free enterprise, Constitution of Italy – economic initiative, Constitution of Russia – free use of abilities and property, Constitution of Ukraine – the right to entrepreneurial activity[3].

The prohibition to insert unfair terms in consumer contract is governed by special rules and regulations passed by European and national authorities. At European Union level, this prohibition is regulated by Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts[4]. At national level, this prohibition is contained by Law no. 193/2000 on unfair terms in contracts concluded between professionals and consumers [5].

II. The prohibition to insert unfair terms in consumer contracts – restriction on economic freedom/free enterprise

1. Contractual Freedom – facet of the economic freedom/free enterprise

The Constitution of Romania does not provide a definition of economic freedom, but the case law of the Constitutional Court has set the pillars of its content. A facet of economic freedom is the guarantee of the possibility to perform acts of commerce[6]. This pillar instituted by the case law draws a direct line between economic freedom and the contractual freedom.
Therefore, to “perform acts of commerce”, according to the Commercial Code[7], mainly meant to conclude legal acts under Article 3 of the above mentioned regulatory act. Consequently, economic freedom guarantees to its beneficiaries the possibility to enter freely into legal acts. This freedom has received in literature the name of contractual freedom [8].

2. The prohibition to insert unfair terms in consumer contracts – restriction on economic freedom/free enterprise

The prohibition to insert unfair terms in consumer contracts is governed expressly by a special regulation, Law no. 193/2000[9]. According to Article 1(3) of the previously mentioned law, „sellers or suppliers are prohibited to stipulate unfair terms in consumer contracts”. The hypothesis taken into account by Law no. 193/2000 is the one of a contract concluded in absence of negotiation. One of the contracting parties (the seller or supplier) proposed to the other party (consumer) a pre-formulated standard contract. The consumer accepted the contract, the alternative being to refuse to sign the contract. Contractual freedom, as an absolute right, would have made valid such a contract in the idea that contracting parties may stipulate any desired clauses in their contracts[10]. The seller or supplier proposed the desired clauses, and the consumer accepted them, as an expression of its accord to be bound by them.

Law no. 193/2000 introduces restrictions on the propositions of the clauses that can be made by a seller or supplier when he intends to conclude contracts of adhesion (unnegotiated). Therefore, the law does not prohibit[11] him to include in standard contracts any terms that might be accepted by the consumer, but only those clauses that can be qualified as unfair terms[12]. So, we can conclude that the prohibition to stipulate unfair terms in consumer contracts, regulated by Law no. 193/2000, is a limitation of the contractual freedom[13].

Thus, being a restriction on the contractual freedom, the prohibition to include unfair terms in consumer contracts, laid down by Law no. 193/2000, must be compatible with the provisions of the Constitution.

The freedom to conclude contracts („contractual freedom”), as a facet of economic freedom, is not regulated at a constitutional level as an absolute right.

Pursuant to Article 45 of the Constitution, the guarantee of economic freedom is made “under the law”. Thereby, restrictions on the right established by Article 45 of the fundamental law, and by way of consequence on the contractual freedom (infra-constitutional restrictions), can be regulated by laws and regulations that are inferior to the Constitution. This type of limitations on economic freedom/contractual freedom must meet the requirements stipulated in Article 53 of the fundamental law (“Restriction on the exercise of certain rights or freedoms”).

In addition, as shown in the case law of the Constitutional Court, Article 45 must be read in conjunction with Article 135, constitutional provision that sets forth, inter alia, the State’s obligation to secure “a free trade, protection of fair competition, provision of a favorable framework in order to stimulate and capitalize every factor of production”. The systematic interpretation of the two constitutional provisions leads to the conclusion that the prerogatives provided by Article 45, hence also the freedom of contract, are not unlimited, but are implicitly limited by the State obligations mentioned in Article 135 of the fundamental law (constitutional restrictions). However, State obligations find a material expression in regulatory acts with a force inferior to the fundamental law, which will become a part of the same batch as the provisions of Article 135 of the Constitution. As a result, Article 53 of the fundamental law is no longer applicable.

As an abstract idea, taking into consideration all the above, the restriction on contractual freedom appears to be compatible with the constitutional regime of economic freedom.

Seeing the limitation on the freedom of contract, governed by Law no. 193/2000, from the perspective of the two categories of restrictions – infra-constitutional and constitutional – the case law of the Constitutional Court offers arguments that qualify it as a constitutional restriction. Therefore, at the level of the decisions of the Constitutional Court it can be observed an assimilation of the provisions on consumer protection with those in the field of competition, thus giving expression to the State’s obligations arising out of Article 135 of the Constitution[14].

III. The configuration of the legal regime of the concept of unfair terms under the ECJ case law

Following the references for preliminary rulings[15] , the Court of Justice of the European Union (ECJ) [16] has offered interpretations of the provisions of Council Directive 93/13/EEC, thus clarifying aspects pertaining to the legal regime of the concept of unfair terms[17]. Therefore, in its case law, ECJ ruled upon:
1. the relationship between domestic law and Directive 93/13/EEC, the following being analyzed:
– how to interpret the domestic rules in relation to those of the European Union; and
– which is the level of protection laid down by Directive 93/13/EEC.
2. the elements that set the nature of the provisions on unfair terms, the following being analyzed:
– the period within which the unfair nature of a clause can be pleaded; and
– the persons that can invoke this nature.
3. the scope of application of Directive 93/13/EEC, the following being analyzed:
– aspects that pertain to the sphere of the persons, meaning aspects that refer to the persons (whether legal or natural) that are covered by Directive 93/13/EEC; and
– aspects that pertain to the material sphere, meaning aspects that refer to the contracts that are covered by Directive 93/13/EEC.
4. the concept of unfair terms, the following being analyzed:
– aspects that pertain to the requirements that must be met in order to be in the presence of unfair terms;
– the nature of the list of unfair terms provided by Directive 93/13/EEC; and
– aspects that pertain to the requirements that must be met in order to be in the presence of the unfair terms stipulated in the list provided by Directive 93/13/EEC.
5. the jurisdiction of ECJ in the field of unfair terms, the following being analyzed:
– aspects regarding the role of the European court in the field of unfair terms;
– aspects concerning the role of the national courts in the field of unfair terms.
6. the sanctions that can intervene in case of the existence of unfair terms, the following being analyzed:
– the measures that can be taken in the situation in which a clause is being qualified as unfair with regard to the clause in question; and
– the measures that can be taken in the situation in which a clause is being qualified as unfair with regard to the contract that contains it.
7. the effects of the judgment that finds the unfairness of a clause that is part of the general terms of a contract.

1. The case law of ECJ on the relationship between domestic law and Directive 93/13/EEC

In what the relationship between domestic law and Directive 93/13/EEC is concerned, in its case law, ECJ has formulated two principles.

According to the first principle, the interpretation of the domestic rules must be made so that they are concordant with the rules adopted at the European level[18]. This principle refers both to the regulatory acts that came into force after the Directive 93/13/EEC, as well as to those prior to this Directive.

According to the second principle, the protection of the consumer instituted by Directive 93/13/EEC represents a minimum level[19], the member states having the option to increase the level of protection afforded to consumers.

2. The case law of ECJ on the nature of the provisions on unfair terms

In what the qualification of the nature of the provisions on unfair terms is concerned, the case law of ECJ offers two landmarks. The first landmark relates to the period of time within which the abusive nature of the unfair terms can be brought into question. The second landmark refers to the individuals that can invoke this nature.

With respect to the first landmark, from the ECJ case law follows that the issue of the unfair nature of a clause can be raised at any point in time[20].

With respect to the persons, ECJ has provided for the obligation of the national court to determine of its own motion whether a term in consumer contracts is unfair and to set the appropriate sanctions. However, the national court’s obligation has to be correlated with the observance of the principle of adversarial proceedings[21].

Lastly, we have to mention the fact that, in its case law, ECJ places the national rules of public order on the same level as those that govern the obligation of sellers and suppliers not to insert unfair terms into contracts[22].

3. ECJ case law on the scope of application of Directive 93/13/EEC

In what the scope of application of Directive 93/13/EEC is concerned, ECJ has analyzed the personal and the material spheres.

With respect to the sphere of the persons, ECJ looked upon the concept of consumer, stating that it must be interpreted as referring exclusively to natural persons[23].

With respect to the material sphere, the case law of ECJ provides for the applicability of Directive 93/13/EEC to certain categories of contracts. Thus, it was instituted the inapplicability of the regulatory European provision to contracts encompassing rules of national law which are applicable to that category of contracts. The rule was individualized based on the converse situation, namely that of the signing of a contract that encompasses rules of national law, but which are applicable to a different contract. In relation to all these latter contracts, ECJ held that Directive 93/13/EEC is applicable. Moreover, it was expressly instituted the applicability of the regulatory European provision to the contracts of lease[24].

4. ECJ case law on the concept of unfair terms

In what the concept of unfair terms is concerned, ECJ, in its case law, has offered several landmarks, both with regards to the general mechanism of qualifying a clause as abusive, but also in relation to the clauses that are deemed as being unfair.

A first set of landmarks refers to the general requirements that must be met in order to be in the presence of an unfair clause. Thus, the concepts of “significant imbalance” and “good faith” were brought the forefront[25]. In order to be in the presence of a significant imbalance, the consumer has to find himself, as a result of the signing of the contract, in a legal situation less favorable than the one in which he would have found himself under the national law rules that would have been applicable in the absence of the contract. Relative to good faith, it is deemed to exist if the consumer’s opposing contracting party could reasonably assume that the consumer would have agreed to such an unfair term in the case in which individual fair and honest negotiations would have taken place.

A second set of landmarks refers to the list of clauses that are regarded as unfair, contained by the annex to Directive 93/13/EEC. Therefore, its nature was assessed and it was determined that the list is indicative and non-exhaustive[26]. Furthermore, one of the clauses contained by the above mentioned list, namely the clause allowing a seller of goods or supplier of services to unilaterally alter the price, was analyzed from the perspective of the requirements necessary to be met for it to become applicable. On one hand, ECJ stated that, for it not to have an unfair nature, such a clause must encompass the method of the variation of those charges and the reasons of this variation, so that the consumer can foresee, on the basis of clear, intelligible criteria, the alterations that may be made to those charges. On the other hand, for it not to have an unfair nature, ECJ pointed out the fact that such a clause must be accompanied by the possibility for the consumer to terminate the contract. It was also emphasized the fact that the possibility to terminate the contract must be actual and real, not being sufficient for the termination to be purely formal[27].

5. ECJ case law on the jurisdiction of ECJ in the field of unfair terms

In what the jurisdiction of ECJ in the field of unfair terms is concerned, in its case law, the European court has ruled upon its own competences on this subject, however, in correlation to those of the national courts.

Thereby, ECJ found that it has jurisdiction to interpret the concept of unfair term and to set forth the criteria that can be or have to be used when assessing a contract clause in relation to the provisions of Directive 93/13/EEC[28].

Correlatively, ECJ stated that it falls within the competence of the national courts to determine the unfairness of a specific contract clause. To this end, the national courts are bound by the criteria established in the case law of ECJ and by the circumstances of each case[29].

In conclusion, ECJ made an abstract qualification of the unfair terms, while the national courts have to rule upon the specific qualification of a certain clause as being unfair or not.

6. ECJ case law on the sanctions that can intervene in case of the existence of unfair terms

In what the sanctions that can intervene in case of the existence of unfair terms are concerned, ECJ has ruled upon the measures that can be imposed in the situation in which a clause in being qualified as unfair. As it follows from the case law of the European court, these measures can be directed exclusively towards the clause or even towards the contract it originates from.

With regard to the sanctions applicable in respect to a clause qualified as unfair, ECJ case law does not establish a certain concrete measure, but rather a principle that would have to be observed by the national courts. Therefore, according to the judgments of the European court, it is for the national courts to establish all the consequences arising, under the national law, from the qualification of a clause as being unfair, to ensure that the consumer is not bound by that clause[30]. Moreover, domestic law must authorize the national courts to order interim measures in order to safeguard the efficiency of the decisions that will impose sanctions with respect to unfair terms[31].

In relation to the contract in which are found unfair clauses, to the present time, ECJ has analyzed the possibility for the national courts to make alterations to a contract that comprises unfair terms, as well as the opportunity to void as a whole a contract encompassing unfair clauses.

Regarding the hypothesis of altering the contract, ECJ held that Directive 93/13/EEC opposes to a legal rule that would authorize the national court, when ascertaining the voidance of an unfair term inserted in a contract, to alter the contract in question by changing the text of that clause.

The only applicable sanction, in compliance with the provisions of the European regulatory act, is to remove the unfair clause[32].

With respect to the hypothesis of voiding the contract, ECJ has laid down the principle according to which the sanction of voiding the contract can not be imposed solely on the ground that that is more advantageous for the consumer, if the contract can continue to exist without the unfair terms[33]. However, in this context, it was stated that national legislation may embrace such a possibility.

7. ECJ case law on the effects of the judgment that finds the unfair nature of a clause

Regarding the effects of the judgment that finds the unfair nature of a clause that is part of the general terms of a contract, ECJ ruled that it is in compliance with Directive 93/13/EEC the national legislation that enables the injunction/judicial decision that finds the unfair nature of a clause part of consumer contract general terms and that was issued in an action brought in the public interest, and on behalf of consumers, by a body appointed by national legislation, to produce effects with regard to all consumers who concluded with the seller or supplier concerned a contract to which the same general terms apply, including with regard to those consumers who were not party to the injunction proceedings[34].

IV. Conclusions

The Constitution of Romania does not provide for a definition for the concept of economic freedom. However, in the case law of the Constitutional Court have been established the pillars of its content. A facet of economic freedom, as regulated by Article 45 of the fundamental law, is contractual freedom.

The prohibition to stipulate unfair terms in consumer contracts represents a restriction on contractual freedom, governed by Law no. 193/2000 that transposes Council Directive 93/13/EEC.

As an abstract idea and as a principle, the limiting of the contractual freedom is consistent with the Constitution, as Article 45 does not establish an absolute right. A set of limitations of contractual freedom finds legal justification in the very text of the Constitution. Article 135 lays down the State’s obligations, such as the obligation to secure a free trade, protection of fair competition, provision of a favorable framework in order to stimulate and capitalize every factor of production. All of these find a material expression in regulatory acts with a legal force inferior to the fundamental law which thus restricts, indirectly, economic freedom.

Specifically, limiting freedom of contract by Law no. 193/2000, namely the prohibition to include unfair terms in consumer contracts, may be deemed as being an indirect restriction on economic freedom, giving expression to the State obligations governed by Article 135 of the Constitution.

The concept of unfair clause is defined by Law no. 193/2000, but it must be read in the light of Directive 93/13/EEC as it was interpreted by ECJ in its preliminary rulings.

____________________________________

[1] The Constitution of Romania was published in the Romanian Offcial Gazette (further abbreviated as R.O.G.) no 233 of 21.11.1991, and republished in R.O.G. no. 767/31.10.2003. For a commentary on Article 45 of the Constitution of Romania, see: I. Muraru, E.S Tănăsescu (coord.), Constituţia României. Comentariu pe articole (The Constitution of Romania. Commentary on Articles), C. H. Beck, Bucharest, 2008, pp. 460-466.
[2] I. Muraru, E.S. Tănăsescu, Drept constituţional şi instituţii politice (Constitutional Law and Political Institutions), Vol. I, 14th Edition, C.H. Beck, Bucharest, 2011, p. 178: economic freedom is regulated by the Constitution as a first generation freedom. M. Constantinescu, A. Iorgovan, I. Muraru, E.S. Tănăsescu, Constituţia României revizuită – comentarii şi explicaţii (The Revised Constitution of Romania – commentary and explanations), All Beck, Bucharest, 2004, pp. 96-97: economic freedom emerged at the same time with the second generation of rights, however, without having the legal substance of a right of its generation. For the features of the generations of rights, see: I. Muraru, E.S. Tănăsescu, Drept constituţional şi instituţii politice (Constitutional Law and Political Institutions), Vol. I, 14th Edition, C.H. Beck, Bucharest, 2011, pp. 143-148; Şt. Deaconu, Drept constituţional (Constitutional Law), C.H. Beck, Bucharest, 2011, pp. 205-207.
[3] C. Călinoiu, V. Duculescu, Drept constituţional comparat. Tratat (Comparative Constitutional Law. Dissertation), Lumina Lex, Bucharest, 2007, pp. 123, 150, 186, 199, 354; Gh. Iancu, Gh. Glăvan, Noile drepturi fundamentale. Accesul la cultură şi libertatea economică, (The New Fundamental Rights. Access to Culture and Economic Freedom), published in The Yearbook of the University of Bucharest, Law Series no. 1/2004, All Beck, Bucharest, 2004, p. 35; Şt. Deaconu, Constitutional Law, C.H. Beck, Bucharest, 2011, p. 274.
[4] Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95 of 21 April 1993).
[5] Law no. 193/2000 on unfair terms in contracts concluded between professionals and consumers (R.O.G. no. 560/10.11.2000); last published in R.O.G. no. 543/03.08.2012.
[6] Decision of the Romanian Constitutional Court (further abbreviated as DCC) no. 303/2006 on the dismissal of the exception of unconstitutionality of G.O. no. 21/1992, as a whole, of the provisions of Article 18, Article 19 and Article 20 of the same ordinance, as well as those of Article 4 and Article 6 of Government Decision no. 1.039/2003 on labeling and energy efficiency requirements for household electric refrigeration appliances and their placing on the market (R.O.G. no. 393/08.05.2006).
[7] On the legal regime of the acts of commerce, see: St.D. Cărpenaru, Tratat de drept commercial (Dissertation of Commercial Law), Universul Juridic, Bucharest, 2011, pp. 32-69; Gh. Piperea, Drept commercial (Commercial Law), Vol. I, C.H. Beck, Bucharest, 2008, pp. 32-43.
[8] See: St.D. Cărpenaru, Tratat de drept comercial (Dissertation of Commercial Law), Universul Juridic, Bucharest, 2011, pp. 462-466.
[9] The obligation not to include unfair terms in consumer contracts is laid down also in other regulatory provisions. For example, we can mention Government Ordinance (further abbreviated as G.O.) no. 21/1992 on consumer protection (in R.O.G. no. 212/28.08.1992), last republished in R.O.G. no. 208/28.03.2007.
[10] On freedom of contract, see: St.D. Cărpenaru, Dissertation of Commercial Law, Universul Juridic,  Bucharest, 2011, pp. 462-466.
[11] The violation of this obligation and the insertion of unfair terms in contracts of adhesion are sanctioned under Law no. 193/2000. On one hand, the acceptance of a pre-formulated standard contract by the consumer who was not offered the possibility of negotiation does not validate the abusive clause. Pursuant to Article 6 of this law, “the unfair terms included in the contract (…) will not produce effects on the consumer.” On the other hand, the act of including abusive clauses in contract is qualified by Article 16 of Law no. 193/2000 as contravention (as long as this action is not performed in such conditions that would lead it to be qualified as criminal offense under the penal law).
[12] Pursuant to Article 1(1) of Law no. 193/2000 “A contract clause that was not negotiated directly with the consumer will be deemed as unfair if, by itself or together with other contract terms, creates, to the detriment of the consumer and contrary to the requirement of good faith, a significant imbalance in the parties’ rights and obligations.”
[13] With regards to the qualification of the prohibition to include unfair terms into contracts as a limitation of the freedom of contract, see also: St.D. Cărpenaru, Dissertation of Commercial Law, Universul Juridic, Bucharest, 2011, pp. 462-466.
[14] According to DCC no. 418/2010 (on the dismissal of the exception of unconstitutionality of the provisions of Article 6(a) of Law on competition no. 21/1996), whose considerations are valid also in relation to Decision 1532/2011 (on the dismissal of the exception of unconstitutionality of the provisions of article 98 of G.O. no. 21/1992 on consumer protection), “the legal provisions under scrutiny, which ban the abusive use of a dominant position held by one or more economic agents on the Romanian market or on a substantial share of it, by the means of anticompetitive practices which consist of directly or indirectly enforcing selling or buying prices, unfair fees or other inequitable contract clauses and of the refuse to engage in trade relations with specific suppliers or clients, give expression to the State obligation, instituted by Article 135(2)(a) of the Constitution, to secure a free trade, protection of fair competition, provision of a favorable framework in order to stimulate and capitalize every factor of production. In order to create a favorable framework for capitalizing every factor of production, the State must endorse a fair competition policy due to the fact that it plays an essential role in facilitating free movement of goods, in stimulating the initiative of trading actors, having also the function to secure a free market economy. The criticized provision represents, as previously noted, an expression of this policy and a guarantee that must secure the existence of a real economic freedom under the conditions provided by Article 45 of the Constitution, which entail the guarantee of the free access of economic agents on the market and the protection of the beneficiaries of the respective services and goods. In what the provisions of Article 53 of the Constitution are concerned, also invoked in support of the exception, it is found that they do not apply to this case, being applicable only in the hypothesis in which there is a restriction on the exercise of the citizens’ fundamental rights and freedoms, restriction that has not been observed”.
DCC no. 418/2010 on the dismissal of the exception of unconstitutionality of the provisions of Article 6(a) of Law on competition no. 21/1996 (R.O.G .no. 343/25.05.2010).
DCC no. 1532/2011 on the dismissal of the exception of unconstitutionality of the provisions of article 98 of G.O. no. 21/1992 on consumer protection (R.O.G. no. 850/30.11.2011).
According to DCC no. 89/2006 (on the dismissal of the exception of unconstitutionality of the provisions of Article 5(1)(a), Articles 16, 26, 33, 34 and 36 of the Law on competition no. 21/1996), whose considerations are valid also in relation to Decision 1093/2011 (on the dismissal of the exception of unconstitutionality of the provisions of Article 12 and Article 13 of Law no. 363/2007 on fighting against unfair practices of traders in relation to the consumers and on the harmonization of regulations with the European legislation on consumer protection), “with regard to the allegation on the violation of constitutional provisions of Article 53 corroborated with Articles 40 and 45, the Court finds that in a market economy, governed by competition rules, free access to the economic activity and free initiative, as Article 135(2)(a) of the fundamental law stipulates, “the State must secure: a) a free trade, protection of fair competition, provision of a favorable framework in order to stimulate and capitalize every factor of production”. Moreover, free trade can be secured only by setting a climate of economic discipline which the economic agents must abide by and, as a consequence, the lawmaker has the authority to determine the appropriate sanctions for the inobservance of the established rules. Therefore, by setting the sanction of voiding the acts born out of an anticompetitive practice, prohibited by Law no. 21/1996, the values protected by the Constitution are not harmed in any way, but, conversely, the conduct contrary to the rules adopted in the economic and financial activity is being discouraged and the necessary environment to their deployment is being ensured. In addition, the Court believes that setting by law of certain restrictions does not represent a violation of Article 53 of the Constitution, but on the contrary, offers solid expression to the State’s obligation to secure the protection of fair competition, pursuant to the provisions of Article 135(2)(a) of the Constitution.”
DCC no. 89/2006 on the dismissal of the exception of unconstitutionality of the provisions of Article 5(1)(a), Articles 16, 26, 33, 34 and 36 of the Law on competition no. 21/1996 (R.O.G. no. 190/28.02.2006).
DCC no. 1093/2011 on the dismissal of the exception of unconstitutionality of the provisions of Article 12 and Article 13 of Law no. 363/2007 on fighting against unfair practices of traders in relation to the consumers and on the harmonization of regulations with the European legislation on consumer protection (R.O.G. no. 787/07.07.2011).
[15] Pursuant to Articles 267 and 280 of the Treaty on the Functioning of the European Union (TFEU): the Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union. The judgments of the Court of Justice of the European Union are enforceable. On the legal regime of the proceedings initiated for the interpretation of the acts of the EU institutions, see: Klaus-Dieter Borchardt, The ABC of European Union Law, pp. 107-110 (http://europa.eu/documentation/legislation/pdf/oa8107147_en.pdf); I.N. Militaru, Dreptul Uniunii Europene (European Union Law), Universul Juridic, Bucharest, 2011, p. 274. On the legal regime of the proceedings initiated for the interpretation of the acts of the EU institutions, prior to the Treaty of Lisbon, see: P. Craig, G. de Búrca, Dreptul Uniunii Europene: comentarii, jurisprudenţă şi doctrină (EU Law: Text, Cases and Materials), Hamangiu, Bucharest, 2009, pp. 576-628. The Treaty on the Functioning of the European Union was published in consolidated version in the Official Journal of the European Union (OJ C 326 of 26 October 2012).
[16] Pursuant to Article 2(7) of the Treaty of Lisbon, in terms of terminology, the words “Court of Justice” shall be replaced by the words “Court of Justice of the European Union”. The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community was published in the Official Journal of the European Union (OJEU) no. C 306 of 17 December 2007.
[17] On the legal regime of the unfair terms, see: J. Goicovici, Dreptul consumaţiei (Consumer Law), Sfera (Publishing), Bucharest, 2006, pp. 74-80; P. Vasilescu (coord.), Consumerismul contractual (Consumer Contracts), Sfera (Publishing), Bucharest, 2006, pp. 117-152.
[18] ECJ Judgment of 27 June 2000, joined cases Océano Grupo Editorial SA v. Roció Murciano Quintero (C-240/98) and Salvat Editores SA v. José M. Sánchez Alcón Prades (C-241/98), José Luis Copano Badillo (C-242/98), Mohammed Berroane (C-243/98) and Emilio Viñas Feliú (C-244/98), in European Court Reports 2000, p. I-04941.
[19] Under this aspect, we can observe a resemblance with the mechanism of the international protection of human rights. See: C.-L. Popescu, Protecţia internaţională a drepturilor omului – surse, instituţii, proceduri (The international protection of human rights – sources, institutions, procedures), All Beck, Bucharest, 2000, p. 11: „Both under the aspect of its establishment and of the guarantee of human rights, the international level of protection is only a minimal standard.” ECJ Judgment (First Chamber) of 3 June 2010, case Caja de Ahorros y Monte de Piedad de Madrid v. Asociación de Usuarios de Servicios Bancarios (Ausbanc) (C-484/08), in European Court Reports 2010, p. I-04785; ECJ Judgment (First Chamber) of 15 March 2012, case Jana Pereničová and Vladislav Perenič v. SOS financ spol. s r. o. (C-453/10), not yet published.
[20] ECJ Judgment (First Chamber) of 26 October 2006, case Elisa María Mostaza Claro v. Centro Móvil Milenium SL (C-168/05), in European Court Reports 2006, p. I-10421; ECJ Judgment (First Chamber) of 3 June 2010, case Caja de Ahorros y Monte de Piedad de Madrid v. Asociación de Usuarios de Servicios Bancarios (Ausbanc) (C-484/08), in European Court Reports 2010, p. I-04785; ECJ Judgment (First Chamber) of 15 March 2012, case Jana Pereničová and Vladislav Perenič v. SOS financ spol. s r. o. (C-453/10), not yet published; ECJ Judgment (Fifth Chamber) of 21 November 2002, case Cofidis SA v. Jean-Louis Fredout (C-473/00), in European Court Reports 2002, p. I-10875.
[21 ] ECJ Judgment of 27 June 2000, joined cases Océano Grupo Editorial SA v. Roció Murciano Quintero (C-240/98) and Salvat Editores SA v. José M. Sánchez Alcón Prades (C-241/98), José Luis Copano Badillo (C-242/98), Mohammed Berroane (C-243/98) and Emilio Viñas Feliú (C-244/98), in European Court Reports 2000, p. I-04941; ECJ Judgment (First Chamber) of 6 October 2009, case Asturcom Telecomunicaciones SL v. Cristina Rodríguez Nogueira (C-40/08), in European Court Reports 2009, p. I-09579; ECJ Judgment (Grand Chamber) of 9 November 2010, case VB Pénzügyi Lízing Zrt. v. Ferenc Schneider (C-137/08), in European Court Reports 2010, p. I-10847; ECJ Judgment (Fourth Chamber) of 4 June 2009, case Pannon GSM Zrt. v. Erzsébet Sustikné Győrfi, in European Court Reports 2009, p. I-04713 (C-243/08); Order of the Court (Eighth Chamber) of 16 November 2010, case Pohotovosť s.r.o. v. Iveta Korčkovská (C-76/10), in European Court Reports 2010, p. I-11557; ECJ Judgment (First Chamber) of 14 June 2012, case Banco Español de Crédito SA v. Joaquín Calderón Camino (C-618/10), not yet published; ECJ Judgment (First Chamber) of 21 February 2013, case Banif Plus Bank Zrt v. Csaba Csipai and Viktória Csipai (C-472/11), not yet published; ECJ Judgment (First Chamber) of 30 May 2013, case Dirk Frederik Asbeek Brusse and Katarina de Man Garabito v. Jahani BV (C-488/11), not yet published.
[22] ECJ Judgment (First Chamber) of 30 May 2013, case Dirk Frederik Asbeek Brusse and Katarina de Man Garabito v. Jahani BV (C-488/11), not yet published.
[23] ECJ Judgment (Third Chamber) of 22 November 2001, joined cases Cape Snc v. Idealservice Srl (C-541/99) and Idealservice MN RE Sas v. OMAI Srl (C-542/99), in European Court Reports 2001, p. I-09049.
[24] ECJ Judgment (First Chamber) of 30 May 2013, case Dirk Frederik Asbeek Brusse and Katarina de Man Garabito v. Jahani BV (C-488/11), not yet published; ECJ Judgment (First Chamber) of 21 March 2013, case RWE Vertrieb AG v. Verbraucherzentrale Nordrhein-Westfalen eV (C-92/11), not yet published.
[25] ECJ Judgment (First Chamber) of 14 March 2013, case Mohamed Aziz v. Caixa d´Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa) (C-415/11), not yet published.
[26] Ibidem.
[27] ECJ Judgment (First Chamber) of 21 March 2013, case RWE Vertrieb AG v. Verbraucherzentrale Nordrhein-Westfalen eV (C-92/11), not yet published; ECJ Judgment (First Chamber) of 26 April 2012, case Nemzeti Fogyasztóvédelmi Hatóság v. Invitel Távközlési Zrt (C-472/10), not yet published.
[28] ECJ Judgment (Grand Chamber) of 9 November 2010, case VB Pénzügyi Lízing Zrt. v. Ferenc Schneider (C-137/08), in European Court Reports 2010, p. I-10847.
[29] ECJ Judgment (Fifth Chamber) of 1 April 2004, case Freiburger Kommunalbauten GmbH Baugesellschaft & Co. KG v. Ludger Hofstetter and Ulrike Hofstetter (C-237/02), in European Court Reports 2004, p. I-03403; ECJ Judgment (Grand Chamber) of 9 November 2010, case VB Pénzügyi Lízing Zrt. v. Ferenc Schneider (C-137/08), in European Court Reports 2010, p. I-10847; ECJ Judgment (Fourth Chamber) of 4 June 2009, case Pannon GSM Zrt. v. Erzsébet Sustikné Győrfi (C-243/08), in European Court Reports 2009 p. I-04713; Order of the Court (Eighth Chamber) of 16 November 2010, case Pohotovosť s.r.o. v. Iveta Korčkovská (C-76/10), in European Court Reports 2010, p. I-11557.
[30] ECJ Judgment (First Chamber) of 6 October 2009, case Asturcom Telecomunicaciones SL v. Cristina Rodríguez Nogueira (Cauza C-40/08), in European Court Reports 2009, p. I-09579; Order of the Court (Eighth Chamber) of 16 November 2010, case Pohotovosť s.r.o. v. Iveta Korčkovská (C-76/10), in European Court Reports 2010, p. I-11557.
[31] ECJ Judgment (First Chamber) of 14 March 2013, case Mohamed Aziz v. Caixa d´Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa) (C-415/11), not yet published.
[32] ECJ Judgment (First Chamber) of 14 June 2012, case Banco Español de Crédito SA v. Joaquín Calderón Camino (C-618/10), not yet published; ECJ Judgment (First Chamber) of 30 May 2013, case Dirk Frederik Asbeek Brusse and Katarina de Man Garabito v. Jahani BV (C-488/11), not yet published.
[33] ECJ Judgment (First Chamber) of 15 March 2012, case Jana Pereničová and Vladislav Perenič v. SOS financ spol. s r. o. (C-453/10), not yet published.
[34] ECJ Judgment (First Chamber) of 26 April 2012, case Nemzeti Fogyasztóvédelmi Hatóság v. Invitel Távközlési Zrt (C-472/10), not yet published.

Adauga un comentariu

*

Acest site folosește cookie-uri. Continuarea navigării presupune că ești de acord cu utilizarea cookie-urilor. Detalii

The cookie settings on this website are set to "allow cookies" to give you the best browsing experience possible. If you continue to use this website without changing your cookie settings or you click "Accept" below then you are consenting to this.

Close