§2.2 Other provisions of national law

Other national rules that may apply to cases involving unfair contract terms include general provisions of contract law, in particular on the formation and validity of contracts, as well as the rules of procedure for proceedings before national courts. Such questions are not specifically regulated in the UCTD, but may have a significant impact on its application. For instance, while applying to the assessment of individual contract terms contained in a business-to-consumer contract, the UCTD does not as such regulate the validity of contracts as a whole. It is possible, however, that, under national contract law, the unfairness of one or more contract terms leads to the invalidity of the contract in its entirety, for instance, where the contract cannot be performed without arrangements for essential duties of the parties. This possibility is contemplated in Article 6(1) UCTD and is discussed in Section 4. Furthermore, there are rules in national law which may provide for the invalidity of the contract as a whole, for instance, where it violates a legal prohibition, is usurious or otherwise violates the requirements of basic morality. Moreover, under national law, consumers may be able to avoid contracts because their conclusion was based on fraudulent or aggressive behaviour by the seller or supplier, which may correspond to misleading, aggressive or otherwise unfair commercial practices within the meaning of Directive 2005/29/EC (121). Where such instances coincide with the presence of unfair contract terms, the UCTD will normally be without prejudice to such national rules, as long as such rules do not call into question the effectiveness of the UCTD, in particular its Article 6(1) (122). The Court (123) has indicated that, in principle, the rules on the invalidity of contracts have to be considered under their own logic (124) and that, where they coincide with unfair contract terms, such rules are acceptable under Article 8 UCTD insofar as they lead to more advantageous results for consumers than the minimum of protection required by the UCTD (125). It should be emphasised that, within its scope, EU law takes precedence over national law and that the national authorities, including the courts, are obliged to interpret national law as much as possible in conformity with EU law in order to ensure its effectiveness. In the words of the Court (126), ‘[…] [I]t must be recalled […] that a national court, when hearing a case between individuals, is required, when applying the provisions of domestic law, to consider the whole body of rules of national law and to interpret them, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive [… (127)].’ Where national law, including the rules of procedure, cannot be interpreted in conformity with EU law, national courts, have to set them aside and base themselves directly on Union law (128). The Court (129) has confirmed that national courts have the duty to give full effect to the UCTD, if necessary refusing of their own motion to apply any conflicting provision of national legislation, even if adopted subsequently. It is, therefore, not necessary for the courts to request or await the prior setting aside of such provision by legislative or other constitutional means. This includes cases where national law does not provide for the ex officio assessment of unfair contract terms or even prevents it, whereas such control is required by the UCTD (130), or where national law otherwise infringes the UCTD or the principles of equivalence or effectiveness (131). At the same time, the Member States are obliged to amend rules that do not comply with the UCTD, including in cases where there is uncertainty about their interpretation (132).

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