European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

As part of the jurisdiction regarding interpretation of European law conferred upon it by Article 267 TFEU, the Court of Justice is empowered to interpret only the general criteria used by the European legislator to define the concept of unfair term. It is not possible for it to rule on the unfair nature of a particular contractual term, unless the situation requires no consideration of all the ci …

Jurisdiction of the European court

As part of the jurisdiction regarding interpretation of European law conferred upon it by Article 267 TFEU, the Court of Justice is empowered to interpret only the general criteria used by the European legislator to define the concept of unfair term. It is not possible for it to rule on the unfair nature of a particular contractual term, unless the situation requires no consideration of all the circumstances in which the contract was concluded, nor any assessment of the advantages and disadvantages that that term would have under the applicable national law . This is the case where the term submitted to its assessment is manifestly unfair since it fulfills all the criteria fixed by the directive .

The Court of Justice has also jurisdiction to determine whether the provision for transposition complies with the provisions of the directive. It has thus held that the domestic rules which introduce a limitation period at the expiry of which the national court may no longer find, of its own motion or following a plea raised by the consumer, that a term is unfair, is contrary to directive No 93/13 . Likewise, a national provision for transposition is more restrictive that the directive and therefore provides less protection, when it intends the contract, where the law of a non-member country is designated as the law applicable to it, to be subject to close ties according to the cumulative criteria laid down by the Rome Regulation, where the directive only mentions close ties with the territory of the Member States. In effect, the European court considers that although concrete effect may be given to the deliberately vague term “close connection” mentioned by the directive by means of presumptions, it cannot, on the other hand, be circumscribed by a combination of predetermined criteria of ties such as the cumulative conditions as to residence and conclusion of the contract referred to in Article 4 of the Rome regulation without introducing a restriction incompatible with the level of high protection of consumer sought by the directive .

Case C-237/02 Freiburger Kommunalbauten [2004] ECR I-3403, LawLex200900000836JBJ.

Case C-240/98 Océano Grupo Editorial and Salvat Editores [2000] ECR I-4941, LawLex200700001615JBJ, for a term which has been included, without being individually negotiated, in a contract between a consumer and a trader, which falls within the category of clauses which exclude or hinder the consumer's right to take legal action, within the meaning of subparagraph (q) of paragraph 1 of the Annex to directive No 93/13 insofar as its purpose is to confer jurisdiction on the court in the territorial jurisdiction of which the trader has his principal place of business; and this causes a significant imbalance in the parties' rights and obligations by reserving all advantages to the trader and all disadvantages to the consumer.

Case C-70/03 Commission v Spain [2004] ECR I-7999, LawLex200900002202JBJ.

European Business Law

220. Jurisdiction of the European court

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

220. Jurisdiction of the European court

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise