212 ADRIANA IOANA PÎRVU
consumer will be considered abusive if, by itself or in conjunction with other
provisions of the contract, it creates, to the detriment of the consumer and contrary
to the requirements of good faith, a significant imbalance between the rights and
obligations of the parties”. Further, paragraph (2) provides that "a contractual
clause will be considered as not being negotiated directly with the consumer if it
has been established without giving the consumer the possibility to influence its
nature, such as the pre-formulated standard contracts or the general conditions of
sale practiced by traders on the market of the respective product or service”. In the
annex that forms an integral part of the law, a series of clauses considered by the
legislator to be abusive are listed, as an example.
The law faithfully reproduces the provisions of art. 3 paragraph (1) and
paragraph (2) of the Council Directive 93/13 / EEC of April 5, 1993 regarding the
abusive clauses in the contracts concluded with the consumers. The protection
system created by the directive envisages the consumer who is inferior to a seller
or a supplier in terms of bargaining power and the level of information, a situation
that ends with the former's adherence to the conditions imposed.
The Directive mentions in Article 6 paragraph (1) that it is the responsibility of
the Member States to ensure that the use of abusive clauses inserted in a contract
between a seller or supplier and a buyer, concluded in accordance with national
law, will not create obligations for the consumer, and the contract will continue to
engage the parties only insofar as it can continue to exist without abusive clauses.
Moreover, art. 7 paragraph (1) provides that "States shall ensure that, in the
interests of consumers and competitors, there are adequate and effective means to
prevent the continued use of abusive clauses in contracts concluded with
consumers by sellers or suppliers."
In many cases, the Court held that the inequality between the consumer and
the seller or supplier could only be compensated by a positive intervention,
outside the contracting parties (Judgment of June 27, 2000, Océano Grupo Editorial,
C 240/98, EU:C:2000:346, paragraph 27, as well as the Judgment of 26 October
2006, Mostaza Claro, C 168/05, EU:C:2006:675, paragraph 26). Thus, the Court
considers that in such cases the intervention of the national courts is needed and
they are obliged to assess the abusive nature of a contractual clause ex officio. The
aim of such an intervention is to create a substitution of the formal balance
established through the contract, with a real one (Judgement of 6 October 20092,
Asturcom Telecomunicationes, C-40/08, EU:C:2009:615, paragraph 30).
In this sense, we interpret the provision inserted in art. 1 letter q of the annex
to Directive 93/13 / EEC, which includes among the abusive clauses those clauses
that have as their object or effect "the exclusion or obstruction of the consumer's
2 Judgement of 6 october 2009, Asturcom Telecomunicationes, C-40/08, EU:C:2009:615, available on