2021
Mirela STANCU, Associate professor, Faculty of Law, University of Bucharest, Reflection of the jurisprudence of the Court of Justice of the European Union regarding unfair terms in the field of forced execution in Romanian law, in particular with regard to the regime of contestation against forced execution
DOI: https://www.doi.org/10.31178/AUBD.2021.14
Abstract:
Although the jurisprudence of the Court of Justice of the European Union is
commonly reflected in the practice of the national courts, unfortunately, more
than ten years after Romania's accession to the European Union, there are still
some syncopations at the legislative level.
There are an example in that sense some of the
provisions of the Romanian Code of Civil Procedure relating to the contestation
against the forced execution (contestatia la executare). Indeed, on closer
examination, it appears that these provisions do not fully comply with the
requirements which, according to the jurisprudence of the Court of Justice of
the European Union, must be respected by national legislation in order to stop
the application of unfair terms in contracts concluded by a professional with
consumers.
The present article aims at such an examination of the
provisions of the Romanian Code of Civil Procedure regarding the contestation
against the forced execution from the perspective of the jurisprudence of the
Court of Justice of the European Union in the field of unfair terms.
Thus, after having identified from the jurisprudence
of the Court of Justice the requirements that must be met by national
legislation in order to stop the application of unfair terms in contracts
concluded by a professional with consumers, the provisions of the Romanian Code
of Civil Procedure relating to the contestation against the forced execution,
the stay of execution and the time limit for the contestation will be examined
from the perspective of the said jurisprudence.
Finally, and without claiming to be exhaustive, in
this article, the author also puts forward a possible interpretation of the
national provisions examined from the point of view of the case law of the
Court of Justice.
Keywords: contestation against the forced execution;
enforceable title consisting of a contract concluded by a professional with
consumers; plea consisting of the unfairness of a contractual term;
admissibility; case-law of the Court of Justice of the European Union.
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