§3.2.2 Contract terms relating to the price and remuneration

Terms relating to the price and remuneration, i.e. the financial obligations of the consumer, are, in principle, subject to the unfairness test under Article 3(1). However, under Article 4(2) (163), the unfairness test may include an assessment of the adequacy of the price and remuneration, or, as expressed in Recital 19, of ‘the quality/price ratio of the goods or services supplied’, only where the relevant terms are not transparent. By contrast, the unfairness of other aspects relating to the price or remuneration, such as the possibility of or the mechanism for unilateral price changes, is to be assessed even if the relevant terms are fully transparent. The Court (164) has described the limitation in the assessment of such contract terms in the following way in relation to a loan contract: ‘Terms relating to the consideration due by the consumer to the lender or having an impact on the actual price to be paid to the latter by the consumer thus do not, in principle, fall within the second category of terms, except as regards the question whether the amount of consideration or the price as stipulated in the contract is adequate as compared with the service provided in exchange by the lender.’ The Court (165) has further clarified that contract terms on price changes are fully subject to the unfairness test under Article 3(1): ‘[…] However, this exclusion cannot apply to a term relating to a mechanism for amending the prices of the services provided to the consumer.’ This is consistent with the fact that the Annex to the UCTD sets out conditions which terms on price changes normally have to meet in order not to be considered unfair (166). Furthermore, the Court considers that the fact that a certain fee should have been included in the calculation of the total cost of a consumer loan under Directive 2008/48/EC does not indicate that the contract term setting out that fee is covered by Article 4(2) UCTD (167). Finally, the Court has clarified that the adequacy of the price or remuneration is excluded from the unfairness-assessment only if the relevant terms lay down a real remuneration for a product or service provided (168). On this basis the Court (169) has ruled ‘[…] that the exclusion cannot apply to terms that […] merely determine the conversion rate of the foreign currency in which the loan agreement is denominated, in order to calculate the repayment instalments, without however any foreign exchange service being supplied by the lender in making that calculation and do not, therefore, constitute “remuneration”, the adequacy of which as consideration for a service supplied by the lender could be assessed to determine its unfairness pursuant to Article 4(2) of Directive 93/13.’

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