Of the attributive clauses of competence inserted in the contracts concluded between professionals and consumers Â
by MuÈ™at & AsociaÈ›ii Â
First of all, we must remember that, as in the case of all abusive clauses in contracts concluded between professionals and consumers, and with regard to attributive clauses of competence inserted in this type of contracts, the court is required to assess whether or not it presents an abusive character.
Considering art. 3 of Directive no. 93/13/EEC of the Council on abusive clauses in contracts concluded with consumers, a clause establishing territorial jurisdiction can be abusive when it is inserted into the contract without having previously been the subject of a negotiation between the professional and the consumer and which, at the same time, assigns exclusive territorial jurisdiction to the materially competent court at the professional’s headquarters.
Another indication of the abusive character of the attributive competence clause is the extent to which it, deliberately, creates a significant imbalance for the consumer, putting the professional in an obvious position of superiority, by reference to the rights and obligations of the contracting parties. Therefore, we must take into account that not every contractual clause that establishes the territorial competence at the professional’s headquarters is abusive , but this circumstance must be analyzed according to the concrete circumstances of the case.
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