Literatura jurídica

Unfair Contract Terms Directive, Article 3 Unfair Contract Terms Directive, Article 4

Hacia un concepto autónomo y uniforme de cláusula abusiva: La jurisprudencia del TJUE y su recepción por los tribunales españoles

The Court of Justice of the European Union has been asked to clarify Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts on more than sixty occasions. In interpreting EU law, the Court of Justice has tackled basic issues of this provision such as the concept of consumer, the exclusions from its scope of application, the meaning of the non-binding authority of unfair terms as laid down in article 6(1), or the obligation of national courts to examine, of their own motion, the unfairness of a contractual terms (ex officio control). Over the last years, a significant number of judgements have focused on the concept of unfair terms and established an autonomous and uniform interpretation of the ‘bona fides’, ‘significant imbalance’ and ’transparency’ concepts. Despite this clear case law, the Spanish Supreme Court holds some interpretative criteria in contradiction with those of the CJEU, which might jeopardise the EU law’s protection objectives. This paper addresses the main criteria developed by the Court of Justice and its (partial) reception by the Spanish jurisprudence, especially when dealing with acceleration clauses or the transparency required from terms accessory to the contract. Hence, the Spanish case law ought to be revised with a view to securing compliance with the obligations enshrined in Directive 93/13/EEC.