§1.2.3 Exclusion of contract terms reflecting mandatory statutory or regulatory provisions (Article 1(2) UCTD)

Under Article 1(2), contract terms which reflect mandatory statutory or regulatory provisions or the provisions or principles of international conventions to which the Member States or the Union are party, are not subject to the provisions of the UCTD. The Court (68) has stressed that, as an exception from the intended protection of consumers against unfair contract terms, Article 1(2) has to be interpreted narrowly: ‘[…] a national court must take account of the fact that, having regard to the purpose of that directive, namely the protection of consumers against unfair terms included in contracts concluded with consumers by sellers or suppliers, the exception provided for in Article 1(2) of the directive is to be strictly construed […] (69).’ In order to exclude assessment under the UCTD, it has to be determined that the contract term reflects a mandatory statutory or regulatory provision. For the purposes of Article 1(2) and in line with Recital 13, a provision is mandatory if — it applies to the parties of the contract independently of their choice, — but also where it is of a supplementary nature and therefore applies by default, that is to say in the absence of other arrangements established by the parties to the contract (70). In those cases, the exclusion from the scope of the UCTD is justified by the fact that ‘[…] in principle, it may legitimately be supposed that the national legislature struck a balance between all the rights and obligations of the parties to certain contracts (71).’ This applies, in principle, also where a mandatory provision is adopted after the conclusion of the contract and imposes an arrangement that replaces an unfair contract term (72). At the same time, the exception in Article 1(2) has to be limited strictly to the question regulated by such mandatory rules (73). Furthermore, mandatory rules of national law applying to particular groups of customers do not constitute a mandatory rule for the purposes of Article 1(2) UCTD insofar as a contract term makes them applicable to other customers (74). The Court (75) has clarified that the exception of Article 1(2) does not apply where national rules give the parties different options, for instance, for determining the competent court. The Court may provide further guidance on Article 1(2) based on three requests for preliminary rulings pending at the time of adoption of this Notice (76). Article 1(2) UCTD, furthermore, excludes from the scope of the UCTD the provisions or principles of international conventions to which the Member States of the Union are party, and refers specifically to international conventions in the transport area (77).

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Source: EUR-Lex (Cellar) · retrieved 2026-09-07