§3.4.1 The framework for the assessment under Articles 3(1) and 4(1)

Contract terms are to be regarded as unfair under Article 3(1) if, — contrary to the requirements of good faith, — they cause a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. Although the Court has so far not been asked to explain the relationship between those two criteria, the wording of Article 3(1) and of Recital 16 suggest that the absence of good faith is linked to the significant imbalance in the rights and obligations created by a contract term. Recital 16 refers to the bargaining power of the parties and explains that the requirement of ‘good faith’ relates to the question of whether a seller or supplier deals fairly and equitably with a consumer and takes his legitimate interests into account. In this respect, the Court (213) finds it particularly relevant to consider whether the seller or supplier could reasonably assume that the consumer would have agreed to the term in individual negotiations: ‘With regard to the question of the circumstances in which such an imbalance arises “contrary to the requirement of good faith”, it should be stated that, having regard to the 16th recital of Directive 93/13, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations […] (214).’ This confirms that, for the purposes of Article 3(1), the concept of good faith is an objective concept linked to the question of whether, in light of its content, the contract term in question is compatible with fair and equitable market practices that take the consumer's legitimate interests sufficiently into account. It is, thereby, closely linked (215) to the (im)balance in the rights and obligations of the parties. The assessment of a significant imbalance requires an examination as to how a contract term influences the rights and obligations of the parties. Insofar as there are supplementary rules from which the contract term deviates, those will be the primary yardstick for assessing a significant imbalance in the rights and obligations of the parties (216). Where there are no relevant statutory provisions, a significant imbalance will have to be assessed in light of other points of reference, such as fair and equitable market practices or a comparison of the rights and obligations of the parties under a particular term, taking into account the nature of the contract and other related contract terms. Pursuant to Article 4(1) (217), the unfairness of a contract term has to be assessed taking into account — the nature of the goods or services to which the contract relates, — all the other terms of the contract or of another contract on which it is dependent, and — all the circumstances attending the conclusion of the contract. The Member States may deviate from this general unfairness-test only for the benefit of consumers, i.e. only if the national transposition makes it easier to conclude that a contract term is unfair (218). The indicative list of contract terms in the Annex (219) to the UCTD is an essential element on which the assessment as to whether a given term is unfair under Article 3(1) may be based (220). By contrast, where a given contract term is covered by a national ‘black list’, there is no need to carry out a case-by-case assessment based on the criteria of Article 3(1). A similar logic will apply where a Member State has adopted a list of contract terms that are presumed to be unfair.

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