CLAUSOLE VESSATORIE, NULLITÀ DI PROTEZIONE E POTERI DEL GIUDICE: ALCUNI PUNTI FERMI DOPO LE SENTENZE JŐRÖS E ASBEEK BRUSSE

The paper takes the recent cases Erika 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 ECJ’s approach to the legal consequences to be drawn by a national Court from finding that a contractual term is unfair. According to the Author, the approach adopted by the Court is the same that it has already been expressed in Mostaza Claro case. By revisiting the earlier Océno, the Court clarified that national courts have not only the right but even the duty to assess the fairness or unfairness of standards terms of their own motion. Well, beginning from Mostaza Claro judgement and until the last ones, the ECJ has always confirmed its point of view concerning the consumer protection to be considered as a general interest. The article aims at arguing how such an approach gives an important contribution to highlight the Court’s solution concerning the issue related to the fate of the contract once amended from its unfair terms. Consistently with this idea of consumer protection, in the recent Erika Jőrös the ECJ partially reviews the so called Perenicova jurisprudence (according which the contract is to be void as a whole where that will ensure better protection of the consumer ) and clarifies that the national court is required to determine whether or not the contract can continue to produce its effects without the unfair terms, in principle on the basis of objective criteria. From the same point of view should be better appreciated the ruling concerning the power of the national Court to revise the content of contract terms. In Asbeek Brusse , dealing with the same issue as in Banco Espanol , the Court confirms its view that the national court, in order to safeguard the interest of both the parties or even the consumer’s best interest only, cannot modify the contract. But the second statement and its arguments– included the element of deterrence- better explains that the Court would consider in contrast with the rules and the purposes of the Directive 93/13 any revision of the content of the unfair clause (which in some ways lets the trader’s contractual power play a role), but doesn’t exclude that the default rules of national law can apply. 18 Sia consentito rinviare alle nostre considerazioni in R.ALESSI, T