argomento: News del mese - Diritto Internazionale e Comunitario

Articoli Correlati: E.U. - unfair terms - consumer

On 21 December 2021, the E.U. Court, with the ruling in case C-243/20 relating to the purchase of a mortgage by a couple with a Greek bank, ruled that the Directive concerning unfair terms does not prevent the adoption of national provisions that guarantee a higher level of protection for consumers as regards clauses that do not fall within their scope. The case started with the substitution of the currency of the loan contact from the euro to the Swiss franc, following the signing, in 2007, of two amendments by the contractors. In September 2018, consumers referred to the Collegiate Court of First Instance of Athens, in order to obtain the assessment of the unfairness of the clauses which establish that the repayment of the loan must be made either in CHF or in the equivalent in euros based on the interest rate. change in force on the date of payment of the monthly installments or of the entire residual balance due in the event of termination of the loan agreement. The Unfair Terms Directive is applicable in principle to all contractual terms which have not been individually negotiated. However, it does not apply if a contractual term reproduces a mandatory legislative or regulatory provision. The judges then recall that the exclusion of clauses which reproduce a provision of mandatory national law is justified by the fact that it is, in principle, legitimate to assume that the national legislator has established a balance between all the rights and obligations of the parties to certain contracts. Thus, the Court holds that that directive excludes from its scope a contractual term which reproduces a supplementary national provision, that is to say a provision which applies when no other agreement has been agreed between the contracting parties on the matter, even if such clause was not individually negotiated.