§3.4.6 Relevance of lack of transparency for the unfairness of contract terms

Lack of transparency does not automatically lead to the unfairness of a given contract term under Article 3(1) of the UCTD (250). This means that, after establishing that a contract term covered by Article 4(2) (251)‘is not in plain intelligible language’, its unfairness normally still has to be assessed under the criteria of Article 3(1) (252). Conversely, lack of transparency is not an indispensable element in the assessment of unfairness under Article 3(1) (253) so that also contract terms that are perfectly transparent can be unfair under Article 3(1) in light of their unbalanced content (254). However, insofar as contract terms are not plain and intelligible, i.e. where sellers or suppliers do not comply with transparency requirements, this circumstance can contribute to finding a contract term unfair under Article 3(1) or can even indicate unfairness. Point 1(i) of the Annex, in general, and Point 1(j) of the Annex, with particular regard to unilateral changes to contract terms, confirm that lack of transparency may be decisive for the unfairness of contract terms. Several judgments refer to lack of transparency as a(n) (important) element in the assessment of the unfairness at least of particular types of contract terms (255) or refer to the lack of transparency and unfairness of contract terms in one breath (256). The Court has stressed the significance of transparency for the fairness of contract terms, for instance, with regard to clauses which allow the seller or supplier to change the rates to be paid by consumers in long-term contracts (257), terms which determine the consumer's core obligations in loan agreements (258) or with regard to choice-of-law clauses (259). The Court has indicated explicitly that, in relation to a choice-of-law clause that fails to acknowledge the fact that, under the Rome I Regulation consumers can always rely on the more advantageous rules of their Member State of residence (260), this omission of information or the misleading character of the term can imply its unfairness. The Court (261), after recalling the criterion of a significant imbalance in the rights and obligations of the parties, stated that ‘[i]n particular, the unfairness of such a term may result from a formulation that does not comply with the requirement of being drafted in plain and intelligible language set out in Article 5 of Directive 93/13. […]’ One may thus conclude that, depending on the content of the contract term at issue and in light of the impact of the lack of transparency, the possible unfairness of a contract term can be closely related to its lack of transparency or the lack of transparency of a contract term may even indicate its unfairness. This may be the case, for instance, where consumers cannot understand the consequences of a term or are misled. Indeed, where consumers are put in a disadvantageous position based on contract terms which are unclear, hidden or misleading, or where explanations necessary to understand their implications are not provided, it is unlikely that the seller or supplier was dealing fairly and equitably with the consumer and took their legitimate interests into account.

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