The Active Role Of The Judge In The Field Of Unfair Terms Litigation

Unfair contract terms mark a delicate area in the field of consumer protection given the premise in which the consumer finds himself. This field of private law stems from the idea that the consumer needs an enhanced protection which from a legal standpoint may consist of introducing of measures of substantial law that can provide support in the precontractual phase, with evidence and even in understanding the legal consequences at hand. At a first glance, these comprise most of the benefits a consumer is granted and may choose to utilize in a litigation procedure against a professional in case on unfair contract terms. However, there is also a lesser known benefit that comes in the form of the obligation of the national courts to sanction on its own motion and in any procedural phase the occurrence of unfair contract terms. This line of thought has support within the Romanian legal system, but the decisive arguments in this sense com in the form of the case law of the Court of Justice of the European Union from the past decades. The purpose of this paper is to analyze the hystorical evolution of the active role of the court in civil law litigation, especially from the perspective of unfair terms cases in which consumers are parties to the proceedings, and to highlight the process that the Romanian judges have to follow in solving this type of cases.