Ce urmează după ce se constată caracterul abuziv al clauzei penale? Hotărârea din 27 ianuarie 2021, Dexia Nederland BV, cauzele conexate C-229/19 și C-289/19 - un posibil răspuns
What Follows after a Penalty Clause Has Been Declared Unfair by a National Court? Judgment of 27 January 2021, Dexia Nederland BV, Joined Cases C-229/19 and C-289/19 - A Possible Answer

Summary/Abstract: Identifying the consequences when terms in a contract concluded between a seller or a supplier and a consumer are declared unfair may be a difficult task most of the times, and the penalty clause is no exception. This analysis aims to explore the essential issues concerning unfair contract terms, as they are revealed by the key case law of the Court of Justice of the European Union, the arbiter in interpreting of the Directive 93/13/EEC on unfair terms in consumer contracts. Therefore, the term of ”shall not be binding on the consumer”, used by the directive, has to be defined, whereas the object and the purpose of the contract are most important criteria in order to verify that a continuity of the contract is legally possible. Furthermore, on the matter of the default interest, the national court should decide whether the deletion of the unfair terms is to be followed by a replacement with a supplementary provision of national law. In this regard, the Judgment of 27 January 2021, Dexia Nederland BV, Joined Cases C 229/19 and C 289/19 seems to bring a clarifying answer.

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