Gutierrez Naranjo: on limits in law and limits of law

Abstract

While private law defines limits to the effects of contracts, there also are limits to what the law can achieve. This article reflects on the implications of the CJEU’s judgment in the Spanish case of Gutierrez Naranjo, concerning the temporal effects of the nullity of unfair "floor clauses" in mortgage contracts. To what extent can the powers of national highest courts be restricted by the CJEU in fields that are governed by a combination of national rules of private law and EU law, and to what extent should socio-economic factors be taken into account in adjudication? In particular, attention is paid to questions of Kompetenz-Kompetenz, the importance of the socio-economic context of the case, the ideas of justice underlying the interaction of national private law and EU law, and the added value of transnational judicial dialogues for handling complex legal questions on the interface of different legal orders.