«Clausola abusiva…e poi?» Integrazione e nullità del contratto nella giurisprudenza della Corte di Giustizia

The essay investigates the scenarios that unfold when a term in a consumer contract is regarded as unfair, focusing on the European Court of Justice case law. After providing an overview of the criteria based on which a term may be regarded as unfair - with the aim of identifying which aspects of the judicial assessment are truly harmonized in the European legal systems - the author introduces a distinction based on the features of the term regarded as unfair. When such a term does not lay down essential obligations, the contract will continue to bind the parties, provided it can withstand the deletion of the unfair term. It is submitted that when a term is regarded as unfair it will necessarily be replaced with a legal provision of national law. When the ECJ rules that the unfair term must be removed - and not modified, nor partially saved - it prevents the national judge from adjusting such a term by revising its content or deleting a part of it (the one which is deemed unfair), but not from replacing it with the legal provisions that would have been applied if the term had not be drafted by the seller or the supplier. The situation is different when the unfair term lays down essential obligations, as it may happen when it sets out the features of the goods or services provided by the seller or supplier, or when it sets the price owed by the consumer. Under these conditions, it is up to the consumer to choose between the annulment of the entire contract or the replacement of the unfair term with a legal provision. The essay carries out a critical analysis of the judgements of the ECJ, which under the pressure of preliminary rulings mostly requested by Spanish and Eastern European judges has developed in a few years a new framework of remedies.