Pravna literatura

Unfair Contract Terms Directive, Article 1

The author emphasises the meaning of the decision of the High Court in Maribor in the case, Decision I Ip 877/2020, dated 15 December 2020. The court began its legal review on the issue of "unfair contract terms" within Directive 1993/13/EEC. The court had to start the review with the procedural question of whether the notarial deed, which was the basis for the judicial review, has the effect and meaning of an enforceable title. In doing so, the court has creatively developed a new "softened approach" to understanding the principle of formal legality: the court's attachment to the "enforceable title". The court convincingly explains that in the "consumer relationship" contractual conditions if they are not in accordance with the applicable law (i.e., cogent or coercive regulations). The judgement is, in the opinion of the author, an outstanding example of judicial law-making. It means the substantive application of the principle of the social state and the right to social function of property. It constitutes a constitutionally permissible restriction of free economic initiative of banks and their contractual "freedom". It presents effective protection of an individual as a consumer (borrower). It is a major and important step towards greater legal protection of the consumer's right to home and family life. The author has also emphasised that there is no constitutional, legal-theoretical and factual reason for the Supreme Court of the Republic of Slovenia, let alone the Constitutional Court of the Republic of Slovenia, to decide otherwise.