Abusiveness of the contractual clauses following the judgement of the Court of Justice of the European Union in case C-260/18

Abstract

This article deals with the issues related to the protection of consumers who are a party to an agreements containing abusive clauses. The main purpose of the of the paper is to answer the question of how, in the light of the CJEU's judgement in C 260/18,  case, the legal position of the consumer is shaped from the moment of concluding an agreement containing abusive clauses to obtaining a final judgment.

Firstly, the authors present the views on the character of the sanction under Article 385(1) of the Polish Civil Code expressed
so far in the Polish literature. Secondly, the justification to the CJEU judgment in case C 260/18 is analysed. The main part of the text focuses on the position of the consumer who is a party to a contract containing abusive clauses. In particular, the paper focuses on the legal character of a statement made by a consumer concerning willingness to take advantage of protection against abusive clauses.

The pro EU interpretation of the rules and the current CJEU case law indicate that it is reasonable to assume the procedural nature of the statement made by the consumer. In a contentious situation, the procedural nature of the statement results directly from the need for the statement to be confirmed by the court and the existence of abusive clauses to be confirmed at the same time. The article is also a contribution in the discussion on the current status of the consumer law both in Poland and in European Union and not only in respect of the indexed or denominated credits.