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Luiza Cristina GAVRILESCU: Assessment of the conditions for exercising control over the abusive ...

Abstract: Judicial assessment of the abusive nature of contractual clauses qualified by national courts as ancillary, regarding the fees for drawing up /analysing files and managing /administering credit cannot call into question the consumer's assessment of the adequacy of the price or remuneration for services or goods provided, as well as the indicative criteria for national courts that the judgments of the CJEU refer to, but it is up to the referring court to examine the content of the contract, to assess the evidence and the circumstances of the case before the court. The role of the C.J.E.U. is to establish a uniform standard for the interpretation of the provisions of Directive 93/13 / EEC on unfair terms in consumer contracts, applicable in all Member States, thus eliminating, in fact, the discretion of the national court and the risk of disparity in the application of this mechanism, but it is up to national courts to verify whether a clause causes, contrary to the requirement of good faith, a significant imbalance between the rights and obligations of the parties under that contract, to the detriment of the consumer.

Keywords: file analysis fee; credit management fee; clear and intelligible language; good faith; significant imbalance.


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