Integration and replacement of null clauses for abusives in bank contracts

Abstract

Article 6.1 of the Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts requires that these clause are not binding on the consumer, while the remainder of the contract continues to bind the parties «if it is capable of continuing in existence without the unfair terms». It aims restore the balance between the parties, through removing unfair terms from the contract while and preserve the validity of the contract as a whole. The problem is that the elimination of an unfair contract term could causes the nullity of the contract with negative consequences for the consumer. In this case, exceptionally, with these conditions, national courts can replace an unfair contract term with a complementary provision of national legislation to avoid nullity of the contract. Is the necessary integration of the contract to protect the consumer.