Corte di giustizia UE e clausole dichiarative nei contratti b-to-c: tra presunzione di “non vessatorietà” e profili di incompatibilità con il diritto interno

Article 1(2) of Directive 93/13/EEC on unfair terms in consumer contracts (UCT Directive), which excludes from its scope contractual terms that reflect mandatory statutory or regulatory provisions, presents several issues and has received considerable attention in the case-law of the Court of Justice of the European Union. Starting from CJEU judgement of 30 May 2024 in case C-176/23, through a critical evaluation of the relevant literature and case-law, the present paper: (i) analyses the approach concerning the irrefutability of the presumption underlying Article 1(2) of UCT Directive emerging from CJEU judgement of 9 July 2020 (C-81/19) and upheld in case C-176/23, in order to highlight its characteristics, its place within the EU case-law on unfair terms in consumer contracts and its critical aspects in relation to the objective of ensuring a high level of consumer protection established in EU primary law; (ii) assesses the impact of the aforementioned case on the Italian transposition of Article 1(2) of UCT Directive in Article 34(3) of “Codice del consumo”, identifying a possible conflict between this provision and Article 1(2) UCT Directive, with specific regard to the application of the Italian exemption to contractual terms that “implement” principles established in international conventions, and advancing some initial reflections on its consequences and the ways to overcome it.