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The CJEU recalls that it is “incumbent on national courts finding the unfairness of contractual terms to draw all the consequences arising therefrom according to national law, so that the consumer is not bound by the said terms”.
Then, it decides that “national judges are only required to set aside the application of an unfair contractual term so that it does not produce binding effects with regard to the consumer, without their being empowered to revise the content of it”.
The Court adds that “this contract must subsist, in principle, without any modification other than that resulting from the removal of unfair terms, insofar as, in accordance with the rules of domestic law, such persistence of the contract is legally possible”.
Furthermore, the CJEU indicates that a judge seized of an application for an order for payment cannot assess of his own motion, in limine litis or at any other stage of the procedure, even though he has the elements of law and necessary for this purpose, the abusive nature of a default interest clause contained in a contract concluded between a professional and a consumer, in the absence of opposition filed by the latter.
Maître Grégory Damy , Nice lawyer, consumer law.
