Possibility of continuing the contract if the unfairness of an interest clause is established

DREPT BANCAR

Abstract

The applicant seeks to introduce an interest calculation formula determined by reference to the initial interest rate minus the LIBOR index at the time the loan was granted, unilaterally determining a margin for the Bank, which, however, cannot be accepted, having regard to the case-law of the CJEU, from which it follows that Article 6 of Directive 93/13 precludes legislation of a Member State which allows the national court, where it finds that an unfair term contained in a contract concluded with a consumer is void, to supplement that contract by amending the content of that term.

The supranational case law also allows the court to remove from the contract the clause considered unfair, with the consequence of continuing the contract by applying the other clauses maintained, as is the case here, namely by applying Article 5.1 of the contract.