The clause is unfair when it causes a significant imbalance between rights and obligations in the relationship between the consumer and the professional, and the unfairness cannot be a source of compensation.
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A term contained in a random contract concluded between a seller or supplier and a consumer, such as share leasing contracts, must be regarded as unfair where, in the light of the circumstances surrounding the conclusion of the contract in question and taking into account the date on which it was concluded, that term is liable to cause a significant imbalance between the rights and obligations of the parties during the performance of that contract, even where that imbalance is likely to arise only if certain circumstances arise or where, in other circumstances, that term may even be favourable to the consumer. In those circumstances, it is for the national court to ascertain whether a clause fixing in advance the advantage enjoyed by the seller or supplier in the event of early termination of the contract, having regard to the circumstances surrounding the conclusion of that contract, was, from the time it was concluded, capable of creating such an imbalance. The Court held that a professional who, in his capacity as seller, has imposed on a consumer a term declared unfair, and therefore void, by the national court, where the contract could exist without such a term, cannot claim the statutory compensation provided for by a provision of national law of a supplementary nature which would have been applicable in the absence of that term

Corte di Giustizia C-229/19 e C-289/19 (27/01/2021)