§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 ‘[…] Article 6(1) of Directive 93/13 must be interpreted as meaning that a contractual term held to be unfair must be regarded, in principle, as never having existed, so that it cannot have any effect on the consumer. Therefore, the determination by a court that such a term is unfair must, in principle, have the consequence of restoring the consumer to the legal and factual situation that he would have been in if that term had not existed.’ 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 ‘[…] Article 6(1) of the Directive must be interpreted as meaning that an unfair contract term is not binding on the consumer, and it is not necessary, in that regard, for that consumer to have successfully contested the validity of such a term beforehand.’ 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 ‘[…] [t]he protection conferred on consumers by the Directive precludes a national provision which, in proceedings brought by a seller or supplier against a consumer on the basis of a contract concluded between them, prohibits the national court, on expiry of a limitation period, from finding, of its own motion or following a plea raised by the consumer, that a term of the contract is unfair.’ 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 2026-09-07