Admissibility of the analysis of the unfairness of the terms of a fully performed contract

JURISPRUDENȚĂ COMENTATĂ ȘI ADNOTATĂ

Abstract

The court is obliged to examine, of its own motion, the unfairness of a contractual term falling within the scope of Directive 93/13/EEC. The provisions of Law 193/2000 do not lead to the conclusion that the examination of the unfairness of a clause is conditional on the existence of ongoing contracts, since, at least until the contracts are concluded, the harmful effect - unfairness - has occurred. Moreover, such a point of view would contradict both Community case law and national case law on the subject, which seems to be in the majority in concluding that the consumer may request the court's censure in order to establish the unfairness of a contractual term, regardless of whether the contract is concluded or in progress.