§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 ‘[…]is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level of knowledge […] (278).’ 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): ‘[…] Article 6(1) of the directive, according to which unfair terms are not binding on the consumer, is a mandatory provision which aims to replace the formal balance which the contract establishes between the rights and obligations of the parties with an effective balance which re-establishes equality between them.’ 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 Court has, furthermore, held that, in view of the nature and importance of the public interest underlying the protection which the directive confers on consumers, Article 6 thereof must be regarded as a provision of equal standing to national rules which rank, within the domestic legal system, as rules of public policy […]. It must be held that that classification extends to all the provisions of the directive which are essential for the purpose of attaining the objective pursued by Article 6 thereof.’ 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 2026-09-07