The sanction of the non-binding of unfair terms of contract on consumers: Characteristics of the regulation in art. 385 of the Polish Civil Code in accordance with the jurisprudence of the Court of Justice

Abstract

The implementation of Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts into the Polish legal system led to the development of specific consumer law instruments, focused on the individual protection of consumers against unfair terms of contract. Proper application of the above-mentioned regulations, which guarantees the effective achievement of the objectives of the directive (effet utile), requires reference to both the text of the Directive and its interpretation in the jurisprudence of the Court of Justice of the European Union. This text presents a review of the jurisprudence of the Court of Justice of the European Union, focusing on particularly important guidelines for the process of individual examination of the abusiveness of contractual terms by national courts and the effects of positive findings in this matter.
The presented analysis is a starting point for determining how the Polish regulation should be applied in order to guarantee the achievement of the objectives of Directive 93/13/EEC in the most effective way. As a consequence, the findings provide the basis for the conclusion that the regulation in question is a specific sanction that cannot be equated with any of the sanctions established in Polish doctrine.