Doctrină

Unfair Contract Terms Directive, Article 4, 2. Unfair Contract Terms Directive, Article 6, 1. Unfair Contract Terms Directive, Article 7, 1. Unfair Contract Terms Directive, Article 7, 2.

Not even the most optimistic scenario could have anticipated the impact of Directive 93/13/EEC on unfair terms on Member States' national law 25 years ago. The original formula arranged by the EU legislator (by resorting to the conditions constituting the triple test of establishing the abusive character, (the lack of negotiation of the cause, the significant imbalance between the rights and obligations of the parties and the professional violation of the good faith requirement) was strengthened by the case law of the Court of Justice of the European Union ("CJEU"). The contribution of the Spanish courts to the detailing and refinement of the reading grid of the Directive 93/13 is significant. The judgement of the Grand Chamber of the CJEU of 21 December 2016 in Case Gutierrez Naranjo testifies to this "Spanish judicial activism". The novelty of the case law, however, lies in the unpredictable and misleading analogy used by the Spanish Supreme Court to limit the retroactivity of unfair terms by using the criteria applied by the CJ EU itself to limit the effects of interpretation in its own judgements. No less, we shall reflect on meanings related to the articulation between the collective action and the individual action, the CJEU having the possibility in the present case to refine the reasoning set out in Sales Sinues and Drame Ba regarding the legal nature and the relationship between the two actions. Finally, we shall draw conclusions from the CJEU´s silence this time regarding Article 47 of the Charter of Fundamental Rights and the correct way in which it should be understood.