4.2. The legal effect of ‘not being binding on the consumer’

The notion of unfair contract terms not being binding on consumers can be translated into different legal concepts at national level as long as the protection sought by the UCTD is achieved. Nevertheless, the invalidity of unfair contract terms would appear to achieve the intended protection most effectively. The Court (285) has emphasised that The non-binding character of unfair contract terms follows directly from the UCTD and does not require any prior declaration of unfairness or invalidity of a contract term by a court or another authorised body. However, such declarations provide legal certainty regarding the (un-)fairness of a given contract term, in particular in cases where there may be different views on its unfairness. Therefore, the non-binding character cannot depend on whether or when a consumer raised the unfairness of a given contract term or contested its validity, as the Court (286) has confirmed when stating that This also implies that consumers cannot be prevented, in principle, from requesting a seller or supplier to remove a given unfair term from the contract, from asking a national court that a contract term be declared invalid or from objecting to claims from sellers or suppliers based on unfair contract terms because of any applicable limitation periods (287). The same applies to the power of national courts to assess the unfairness of contract terms of their own motion. The Court (288) has stated that Where, in connection with an individual dispute or a collective action, a national court finds a given term to be unfair, such finding or declaration applies ex tunc. This means that it must have effect from the conclusion of the contract or the moment when the relevant term was inserted into the contract and not ex nunc from the time of the judgment (289).

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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.