— Res judicata
In light of these findings of the Court, the principle of res judicata will generally prevail in cases that have been completed by a final court decision which can no longer be challenged. This applies even if that decision infringed the UCTD and/or where the jurisprudence on the assessment of a specific type of contract term has changed. However, it is still necessary to examine whether the specific res judicata rule in question disproportionately or excessively limits remedies or prevents ex officio control in relation to the unfairness of contract terms. As explained under Section 5.4.1, a national rule on res judicata will not be compatible with the effectiveness principle where it prevents ex officio control of contract terms before a claim is enforced against a consumer while there are no effective remedies or there is a significant risk that consumers will not use the available remedies (459). Likewise, the Court (460) has ruled that, if a court has examined only some relevant contract terms, res judicata cannot prevent the assessment of additional contract terms at a later stage, whether at the consumer's request or of the court's own motion: Furthermore, as discussed in Section 5.3.1, courts may be obliged to assess the unfairness of contract terms of their own motion under the equivalence principle (462) where national rules of procedure empower the courts to examine matters of public policy despite an otherwise applicable res judicata rule.
Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.