2021

DOI: https://www.doi.org/10.31178/AUBD.2021.14

Abstract: Although the case law of the Court of Justice of the European Union is currently reflected in the judicial practice of Romanian national courts, more than 10 years after Romania’s accession to the European Union, there are, unfortunately, still some gaps in the legislative framework.

One such example is the provision on appeals against enforcement contained in the Code of Civil Procedure, which, upon closer examination, appears not to be fully in line with the requirements that, according to the case law of the Court of Justice of the European Union, must be observed at the national level by civil procedure legislation in order to prevent the use of unfair terms in contracts concluded by a professional with consumers.

This article aims to analyze the provisions of the Code of Civil Procedure regarding appeals against enforcement from the perspective of the case law of the Court of Justice of the European Union on unfair terms.

Thus, after identifying in the Court’s case law the procedural requirements that must be met at the national level to prevent the use of unfair terms in contracts concluded by a seller or provider with consumers, the provisions of the Code of Civil Procedure regarding challenges to enforcement will be examined in light of these requirements, in particular those concerning the rules for raising substantive defenses, the suspension of enforcement, and the time limit for filing an objection to enforcement.

Finally, without claiming to be exhaustive, this article also proposes a possible interpretation of the national provisions analyzed, from the perspective of the case law of the Court of Justice of the European Union regarding the unfair terms discussed in the analysis.

Keywords: challenge to enforcement; enforceable instrument in the form of a contract concluded between a professional and consumers; defense on the merits based on the unfair nature of a clause; admissibility; CJEU case law.