3.4.3. Sanctions or consequences of the consumer's failure to comply with contractual obligations

In order not to cause a significant imbalance to the detriment of the consumer, sanctions or consequences attached to the consumer's failure to comply with contractual obligations have to be justified in light of the importance of the consumer's obligation and the seriousness of the failure to comply with it (233). In other words, they have to be proportionate (234). This assessment has to include the question of whether the contract term derogates from statutory provisions which would apply in the absence of a contract term on that question and, where the term leads to a particular procedure, the procedural means available to the consumer (235). The Court (236) has presented the relevant criteria with regard to so-called ‘acceleration’ or early repayment clauses in mortgage credit agreements which allow the creditor to start mortgage enforcement proceedings in the following way: With regard to default interests, the Court (237) has explained this test as follows: In relation to the proportionality (238) and, thereby, unfairness of sanctions set out in contract terms, the Court has furthermore specified (239) that it is necessary to evaluate the cumulative effect of all the penalty clauses in the contract in question, regardless of whether the creditor actually insists that they all be satisfied in full. Even if only the cumulative effect of the sanctions makes them disproportionate, all relevant contract terms have to be considered as unfair (240), regardless of whether they have been applied (241).

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Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.