The legal nature of sanction under Art. 385 of the Polish Civil Code in the light of the jurisprudence of the Court of Justice of the European Union

Bibliogr. s. 126-128

In accordance with the principles of primacy and effectiveness of European Union law, the Court of Justice of the European Union (CJEU), when interpreting it, affects the application of national rules. An example of such interference is the influence of European case-law on the application of national provisions regulating the institution of unfair contract terms. Therefore, the article addresses the problem of the impact of CJEU case law issued on the basis of Art. 6 of Directive 93/13/EEC for the interpretation of its Polish counterpart, i.e. Art. 3851 of the Polish Civil Code, which both regulate the sanction affecting an unfair contract term. The analysis covers: (i) presentation of the CJEU judgements; (ii) legal characteristics of the aforementioned sanction, which leads to a conclusion of its uniqueness and autonomic character; (iii) issue of specific consumer rights related to the unfair contract terms (opposition to protection and opposition to the annulment of the contract); (iv) application of sanction in Polish civil proceedings. Analysis of the abovementioned issues leads the Author to the conclusion that Polish law does not meet the requirements set by CJEU. However, there is no need for legislator's intervention in this field. The proper way to ensure that the sanction is effective and proportionate is to develop a uniform, consistent with European standards, case law of national courts.