Rechtsleer

Unfair Contract Terms Directive, Article 6, 1.

The author provides a more detailed account of how the sanction of partial nullity of unfair contract terms applies in Belgian court practice. He thereby highlights the existing case law of the ECJ and particularly focuses on the Dziubak-judgement and its stance on the continuing in existence of the contract without the unfair terms. As regards the deterrence effect and the impossibility for a judge to moderate unfair terms in view of aligning them to what is acceptable and/or the replacement of unfair terms making use of national supplementary or default rules, the author indicates that the leeway for judges is further restricted and that the case law of the ECJ taken from a Belgian perspective rather introduces a new European sanction, namely the deletion of an unfair term, instead of the sanction of nullity.