Commentary on Judgment No. 17055 of 20/06/2024: Forced Execution and Abusive Clauses

The recent judgment No. 17055 of June 20, 2024, issued by the Court of Cassation, sheds new light on the mechanisms of forced execution, especially when it is based on an un-opposed payment order. This case, involving the appellant M. F. against E., highlights the need for ex officio review by the execution judge regarding the potential abusiveness of contractual clauses, in line with Directive 93/13/EEC.

Regulatory and Jurisprudential Context

The central issue of the judgment concerns the interpretation of the principle of effectiveness of judicial protection, which is a fundamental right recognized also at the European level. The Court reiterated that, even in the absence of opposition from the consumer, it is the judge's duty to ex officio examine the nature of the clauses contained in the contract, especially when they may be abusive.

EXECUTABILITY - DUE TO NON-OPPOSITION OR NON-ACTIVITY OF THE OPPOSING PARTY Generally. For the purposes of respecting the principle of effectiveness of judicial protection of consumer rights recognized by Directive 93/13/EEC, if the execution is based on an un-opposed payment order and the monitoring judge has failed to examine the potential abusiveness of the clauses contained in the contract entered into between a professional and a consumer, the abusive nature of the contractual agreements must be detected, even ex officio, by the execution judge, but within the limit of the sale of the foreclosed asset (or assignment of credit), as it cannot oppose the successful bidder with defects in the execution process that were not raised through the remedy of opposition to executive acts.

Implications of the Judgment

This judgment has important implications for consumers and professionals. Among the most relevant, we can highlight:

• The need for judges to examine contractual clauses even if there is no opposition from the consumer, thus ensuring greater protection of consumer rights.
• The responsibility of creditors to use clear and non-abusive contractual clauses to avoid disputes during execution proceedings.
• The strengthening of the role of the execution judge in ensuring justice and fairness in the execution process.

Conclusions

Judgment No. 17055 of 2024 represents a significant step towards greater protection of consumer rights in execution proceedings. The Court has emphasized the importance of ex officio review of abusive clauses, thereby strengthening the principle of effectiveness of judicial protection. This approach not only protects consumer rights but also contributes to a fairer and more just legal system, where parties are treated with equity and respect.