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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