§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: ‘[…] Article 3(1) and (3) of Directive 93/13 and Points 1(e) and (g) and 2(a) of the annex thereto must be interpreted as meaning that, in order to assess the unfairness of a contractual term accelerating the repayment of a mortgage, […], the following are of decisive importance: — whether the right of the seller or supplier to cancel the contract unilaterally is conditional upon the non-compliance by the consumer with an obligation which is of essential importance in the context of the contractual relationship in question, — whether that right is provided for in cases in which such non-compliance is sufficiently serious in the light of the contractual term and amount of the loan, — whether that right derogates from the rules applicable in the absence of agreement between the parties, so as to make it more difficult for the consumer, given the procedural means at his disposal, to take legal action and exercise rights of the defence, and — whether national law provides for adequate and effective means enabling the consumer subject to such a contractual term to remedy the effects of the unilateral cancellation of the loan agreement. It is for the referring court to carry out that assessment in relation to all the circumstances of the particular case before it.’ With regard to default interests, the Court (237) has explained this test as follows: ‘[…], regarding the term concerning the fixing of default interest, it should be recalled that, in the light of paragraph 1(e) of the annex to the Directive, read in conjunction with Articles 3(1) and 4(1) of the directive, the national court must assess in particular, […], first, the rules of national law which would apply to the relationship between the parties, in the event of no agreement having been reached in the contract in question or in other consumer contracts of that type and, second, the rate of default interest laid down, compared with the statutory interest rate, in order to determine whether it is appropriate for securing the attainment of the objectives pursued by it in the Member State concerned and does not go beyond what is necessary to achieve them.’ 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 2026-09-07