President: M. Bertuzzi
Speaker: C. Trapuzzano
The Second Civil Section requested, pursuant to art. 267 of the Treaty on the Functioning of the European Union, the Court of Justice of the Union to rule, by way of preliminary ruling, on the following questions of interpretation of Union law:
«If the art. 6, paragraph 1, and art. 7, paragraph 1, of Council Directive 93/13/EEC of 5 April 1993 concerning unfair terms in contracts concluded with consumers, and art. 47 of the Charter of Fundamental Rights of the European Union must be interpreted:
(a) in the sense that they preclude the application of the principles of national judicial proceedings, by virtue of which preliminary questions, including those relating to the nullity of the contract, which have not been deduced or noted in the context of legitimacy, and which are logically incompatible with the nature of the cassation device, they cannot be examined in the referral proceedings, nor during the legitimacy check to which the parties subject the referral judge’s sentence;
(b) also in light of the consideration regarding the complete liability attributable to consumers, if they have never contested the nullity/ineffectiveness of the unfair clauses, except with the appeal to cassation following the referral proceedings;
(c) and this with particular reference to the detection of the abusive nature of a manifestly excessive penalty clause, of which the remodulation of the reduction according to adequate criteria (quantum) has been ordered, in the context of legitimacy, also due to the lack of relevance of the nature abusive of the clause by consumers (an), if not following the outcome of the ruling adopted during the referral.”