4.1. The nature and role of Article 6(1) UCTD in the protection against unfair contract terms

The Court (277) regularly emphasises the central role of Article 6(1) in the system of protection of consumers under the UCTD, which The non-binding character of unfair contract terms under Article 6(1) is a mandatory rule through which the UCTD aims to tackle this inequality and create an effective balance (279) between the parties under the contract. In the words of the Court (280): Given that protection of consumers against unfair contract terms under the UCTD is a matter of public interest , the Court (281) has repeatedly stated that Article 6(1) is of equal standing to the rules of public policy laid down in the law of the Member States: The mandatory or imperative character of Article 6(1) means that this provision is binding on all parties and authorities and cannot, in principle, be deviated from. Article 6(2) UCTD confirms this by specifying that consumers cannot lose their rights under the UCTD even if the contract is governed by the law of a country other than a Member State through an agreement on choice of the applicable law (282). The imperative character of Article 6(1) also implies that consumers cannot, in principle, waive this protection, neither by way of contract (283) nor by unilateral declaration, whether directly or indirectly. This certainly applies prior to the settlement of any dispute on specific claims related to the unfairness of contract terms (284). The substantive implications of Article 6(1) are presented in sub-sections 4.2, 4.3 and 4.4 Procedural guarantees stemming from Article 6(1) are discussed in Section 5. The substantive consequences flowing from the unfairness of contract terms apply independently of court proceedings and regardless of whether the unfairness of contract terms is raised by the consumer or ex officio by a court.

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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.