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Case Details

Case Details
National ID link
Member State Italy
Common Name Benedetto Romano v. Enel S.p.A.
Decision type Other
Decision date 07/04/1998
Court Tribunale
Subject
Plaintiff
Defendant
Keywords

Unfair Contract Terms Directive, Article 1, 1. Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1.

1. The Tribunale di Palermo has stated that the articles 1, 2, 3, 4 and 6 of the Directive 93/13/EEC should be considered as self-executing in the Italian legal system.
Consequently, a consumer may ask to the Court to declare that are unfair the clauses of a contract for services agreed with Enel (a public-owned company) before the implementation of the Directive 93/13/EEC in the Italian legal system.
Mr. Benedetto Romano sued Enel S.p.A., a public-owned company selling electric energy in Italy, before the Tribunale di Palermo claiming that he agreed with the company on a standard contract of service of electric energy and that the contract contains unfair clauses in contrast with the provisions of the Directive 93/13/EEC.
The company claimed that the standard contract has been agreed between the parties before the implementation of the Directive in the Italian legal system and that the discipline of the Directive 93/13/EEC is not applicable to the agreement with the plaintiff.
The controversy is about the implementation in the Italian Legal System of the Directive 93/13/EEC of 5th April 1993 on unfair terms in consumer contracts.
The Tribunale di Palermo stated that the articles 1, 2, 3, 4 and 6 of the Directive 93/13/EEC should be considered as self-executing in the Italian legal system.
The judge clarified that these provisions of the Directive should be deemed as sufficiently clear and precise and, thus, they apply directly without other specifications (i.e. they are self-executing”).
As a consequence of the above, an Italian consumer, who has agreed on a standard contract after the adoption of the Directive 93/13/EEC, but before its implementation in the Italian legal system, has the right to ask the Court a declaration of invalidity of the unfair clauses contained in that contract.
At this regard, for the Italian Legal System and in accordance with the scope of the Directive, a contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer. And a term shall always be regarded as not individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term, particularly in the context of a pre-formulated standard contract.
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