Effective judicil protection in consumer credit contracts: from 'bare nullity' of unfair terms to contract renegotiation. ECJ, 25 November 2020, Case C-269/19, Banca B.

In the latest ten years, the effects of unfairness declaration inherent to consumer contract terms have raised high attention in preliminary reference proceedings before the Court of Justice. Whereas, since Banco Español de Crédito (C-618/10), the Court has constantly concluded that unfair terms must be set aside without being replaced by other terms based on judicial interpretation of contract rules or on the application of suppletive provisions of statutory law, starting with the ruling in Kásler (C-26/13), exceptions have been gradually identified with special regard to the case in which the contract could not exist without filling in the gaps of the contract affected by terms declared unfair. Providing an overview of the ECJ caselaw in this field, the present Commentary focuses on the Court’s conclusions in Banca B. (C-269/19) as a case in which new remedial approaches have been welcome by the ECJ with a view to ensure high consumer protection, particularly when consumers must be shielded against the prejudicial effects of invalidating the whole contract in loan agreements. The role of general principles is examined as guidance for national courts in the identification of effective, proportionate and dissuasive remedies in the field of consumer protection.