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universul juridic magazin
Revista Română de Drept Privat

Temporal application of the rules on unfair terms. Injunction for using unfair terms (art. 12-13 of Law no. 193/2000)

The rejection of pleas of unconstitutionality of art. 12-13 of Law no. 193/2000 on unfair terms concluded between professionals and consumers (Decision of the Constitutional Court no. 245 of 19 April 2016) forms a pretext for a broad analysis of the perennial theme of the intertemporal law and of its most dividing segment: the issue of retroactive effect. Starting from the idea that the intertemporal law is a conflict law based on principles similar to the international private law, the paper uses the classification of the injunction provided for under art. 12-13 of Law no. 193/2000, to identify the connecting factors that this institution may have with lex prior or with lex posterior. In order to do so, it is necessary to separate the internal view, which raises the non-retroactive effect to the constitutional rank (art. 15 paragraph 2 of the Constitution) and which resumes the principle in the substantive law (art. 6 of the Civil Code), but also in the procedural law (art. 24-27 of the Code of Civil Procedure), from the European view, which makes the retroactive effect a relative value concept subordinated to the principle of legal security. If the legislative solution is contradicted by the case-law of the Constitutional Court in the internal view, the European view notices that the retroactive effect is an instrument driven with an enormous sense of responsibility and that, paradoxically, it provides guarantees superior to the Romanian national case law. In the specific matter of the law of consumption, the natural connection that the agreement has with lex prior is only removed by the police laws (defined according to the model provided for under art. 9 of the Rome I Regulation, concerning the law applicable to the contractual obligations), which require their application to the ongoing agreements (the case of the loan agreements) and therefore, they involve a retroactive effect. If the roots of these police laws lay down in the laws of the European Union (the national laws of their transposition fall into this category, as well), they have the retroactive power as well, in the domestic law, due to the priority of the European law. If they have national roots, their connection is well defined and refers to lex prior, namely to the law applicable upon conclusion of the agreement; any form of retroactive effect (including also the application of the new law to the ongoing agreements) is not permitted, as it interferes with the fundamental conflict rule (art. 15 paragraph 2 of the Constitution) and with the civil conflict rule (art. 6 of the Civil Code). As the injunction provided for under art. 12-13 of Law no. 193/2000 represents a transposition of art. 7 of the Directive 93/13/EEC on unfair terms in consumer contracts, which has to be classified as an European police law, the application of these legal texts to the ongoing loan agreements has to be admitted, however, not on the basis of constitutional arguments, but on the basis of the European law arguments.