§3.4.7 Role of the Annex referred to in Article 3(3) UCTD

As stated in Article 3(3) UCTD, the list in the Annex to the UCTD contains ‘only’ an indicative and non-exhaustive list of the terms which may be regarded as unfair. The Court has stressed this on different occasions (262). The non-exhaustive character of the Annex and the minimum harmonisation principle under Article 8 UCTD mean that national law may extend the list or use formulations leading to stricter standards (263). Since the list is only indicative, the terms contained therein should not automatically be considered unfair. This means that their unfairness still has to be assessed in light of the general criteria defined in Articles 3(1) and 4 UCTD (264). The Court has specified that terms listed in the Annex need not necessarily be considered unfair and, conversely, terms not appearing in the list may none the less be regarded as unfair (265). Nevertheless, the Annex is an important element in the assessment of the unfairness of contract terms. In the words of the Court, ‘if the content of the annex does not suffice in itself to establish automatically the unfair nature of a contested term, it is nevertheless an essential element on which the competent court may base its assessment as to the unfair nature of that term (266).’ Where a Member State (267) has adopted a ‘black list’ of terms that are always considered to be unfair (268), contract terms that are contained in such lists will not have to be assessed under the national provisions transposing Article 3(1). Otherwise, national authorities have to examine the term under Article 3(1), using the Annex as indication for what will normally constitute a significant imbalance in the rights and obligations of the parties contrary to the requirements of good faith. In its case law, the Court has referred to the following points of the Annex: — Point 1(e) (269): C-76/10 Pohotovost'; C-415/11 Aziz (270); Joint Cases C-94/17 and C-96/16 Banco Santander Escobedo Cortés, concerning late payment interests; — Point 1(e): C-377/14 Radlinger Radlingerová concerning the cumulative effect of contractual sanctions, — Points i), (j) and (l) in conjunction with point 2(b) and (d): C-92/11 RWE Vertrieb, C-472/10 Invitel (271), Case C-348/14 Bucura (272), concerning price variation clauses, — Points 1(j) and (l) in conjunction with points 2 (b) and (d): — Case C-26/13 Kásler and Káslerné Rábai (273) relating to the exchange rate conversion mechanism for a mortgage loan denominated in foreign currency; — Case C-143/13 Matei and Matei (274) in relation to to unilateral changes in the interest rate; — Point 1(q) (275): — C-240/98 Océano Grupo Editorial; C-137/08 VB Penzügyi Lízing; C-243/08 Pannon GSM; specifying that jurisdiction clauses which oblige the consumer to submit to the exclusive jurisdiction of a court which may be a long way from his domicile and which will make it difficult for him to enter an appearance, are, in principle, covered by point 1(q) (276); Case C-266/18 Aqua Med concerns statutory provisions on jurisdiction; — C-240/08 Asturcom Telecommunicaciones; C-342/13 Katalin Sebestyén in relation to arbitration clauses; — C-415/11 Aziz, paragraph 75, regarding foreclosure clauses in mortgage loan agreements and their assessment in connection with the available legal remedies. One of the merits of the Annex is that it can help to find a common basis when Member States coordinate their enforcement actions in relation to unfair contract terms. The Annex to the UCTD and the different types of annexes in the national transpositions also make it clearer to sellers or suppliers what kind of contract terms are problematic, and can help enforcement bodies to enforce the UCTD in a formal or informal manner.

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