Class action si clauzele abuzive [1]

Changes to Law no. 193/ 2000 on unfair terms in contracts concluded between professionals and consumers by Law no. 76/2012 for the implementation of Law no. 134/2010 on the Code of Civil Procedure , seem to configure, by article 12 and 13, in their new formulation, a novel form, that of class action. This can be promoted, only in the case of contracts of adhesion, by The National Authority for Consumer Protection or by the associations for consumers protection, in the absence of any action advertising system and of empowering the initiator of the action by the injured consumers themselves, either of opting out or opting in type. Consequently, the principles governing civil action in Romanian procedural law are , in our opinion, severely affected. The judgment of the court, if it finds unfair terms in the contract, is to force the professionals to modify all adhesion contracts being enforced , by removing null clauses and replacing them with clauses in the rule of the law and to elliminate the unfair terms in the pre-formulated contracts . Therefore, it produces erga omnes effects. Even if, from a consumerist perspective , this type of judicial precedent consecration is desirable, it is difficult to reconcile with the provisions of art. 431, 1st paragraph NCPC which specify structural elements of res judiciata (eadem res, eadem causa petendi and eadem conditio personarum), especially the relativity principle of res judiciata.