§2.1 Minimum harmonisation and extension of scope (Article 8 and 8a UCTD), including the role of national supreme courts

Under Article 8, Member States may ensure a higher level of consumer protection than the one provided for by the UCTD (110). Article 8a UCTD (111) obliges Member States to notify national rules which contain stricter standards or extend the scope of the national rules transposing the UCTD (112). For instance, Member States may apply the national rules transposing the UCTD also to contract terms that were negotiated individually (113) or to business-to-business relations or to transactions between consumers (114). They may also make them more stringent, in particular by applying a less demanding threshold for considering a contract term to be unfair. They may, for instance, adopt a ‘black list’ of contract terms which are always considered to be unfair without requiring a case-by-case assessment under the general unfairness test of Article 3(1) UCTD (115) and/or different types of grey list(s). Further information regarding the Annex to the UCTD can be found in Section 3.4.7. National law may, for instance, also provide that lack of transparency can lead directly to the invalidity of contract terms without having to apply the unfairness-test under Article 3(1) (116). The Court (117) has also clarified that, because of Article 8, there is no obligation for Member States to require, in accordance with Article 4(2) (118), that the definition of the main subject matter or the adequacy of the price and remuneration can be assessed only if the relevant terms are not in plain intelligible language. The Court (119) has confirmed that the case law of national supreme courts does not come within the ambit of stricter national measures pursuant to Article 8. Nevertheless, where national supreme courts elaborate certain criteria for the assessment of the unfairness of contract terms that lower courts will de facto have to respect if they do not wish to be overruled or which lower courts are even formally bound by, this is, in principle, compatible with the UCTD. However, the criteria used by national supreme courts have to comply with the case law of the Court and must not prevent the competent court from offering consumers an effective remedy for the protection of their rights or from referring a question to the Court for a preliminary ruling (120).

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