§4.3.2 The exception: Filling gaps in the contract to avoid its nullity

According to Article 6(1) UCTD, the remainder of the contract will continue to apply only if the contract ‘is capable of continuing in existence without the unfair terms’. Whether the continuity of the contract is possible without the unfair term requires a ‘legal assessment under the applicable national law (304)’. This implies a case-by-case analysis as to whether the contract can, legally or technically, be performed without the unfair contract term. Therefore, the assessment cannot be based on purely economic considerations. The examination as to whether the contract can continue in existence has to be objective, i.e. it cannot be based on the interests of only one party (305). This will entail that it should not matter whether the seller or supplier would not have concluded the contract without the unfair term or whether the deletion of the term renders the contract less attractive from an economic point of view. A contract cannot be performed, i.e. ‘cannot continue in existence’, if a term defining its main subject matter or a term that is essential for the calculation of the remuneration to be paid by the consumer is removed (306). This applies, for instance, to the designation of the currency in which payments have to be made (307) or to a term determining the exchange rate in order to calculate the repayment instalments for a loan denominated in a foreign currency (308). At the same time, account must be taken of the fact that Article 6(1) aims to restore the balance between the parties through removing unfair terms from the contract while, in principle, preserving the validity of the contract as a whole, and not at the invalidity of all contracts containing unfair terms (309). However, a Member State may provide that a contract containing unfair terms may be declared invalid as a whole where this ensures better consumer protection (310). The nullity of the contract may have negative consequences for the consumer, for instance the obligation to pay back the whole loan immediately rather than in the agreed instalments, which may run counter to the protection intended by the UCTD. Therefore, the Court (311) has recognised that, exceptionally, under certain conditions, national courts may replace an unfair contract term with a supplementary provision of national law in order to avoid the nullity of the contract. In relation to a case where recourse to a supplementary provision avoided the nullity of a loan agreement indexed in foreign currency caused by the unfairness of the currency conversion mechanism, the Court stated: ‘80 However, it does not follow, in a situation such as that in the main proceedings, that Article 6(1) of Directive 93/13 precludes the national court, in accordance with the principles of the law of contract, from deleting an unfair term and substituting for it a supplementary provision of national law. 81 On the contrary, replacing an unfair term with such a provision which, as is clear from the thirteenth recital in the preamble to Directive 93/13, is presumed not to contain unfair terms, in that it leads to the result that the contract may continue in existence in spite of the fact that Clause III/2 has been deleted and continues to be binding for the parties, is fully justified in the light of the purpose of Directive 93/13.’ The Court further explained that ‘the particularly unfavourable consequences’ of the annulment of the contract for the consumer could jeopardise the intended dissuasive effect of the elimination of the unfair contract term (312). Therefore, according to the case law to date (313), before replacing unfair contract terms with ‘supplementary rules of national law’ national courts have to assess whether — objectively the elimination of an unfair contract term would otherwise lead to the nullity of the contract as a whole, — and whether this has particularly negative consequences for the consumer (314), in light all relevant provisions of national law, including the rules of procedure (315). The UCTD neither defines the term ‘supplementary provision of national law’ nor uses it. In a different context, it refers to ‘rules which, according to the law, shall apply between the contracting parties provided that no other arrangements have been established’. This quasi-definition reflects what is generally understood to be the function of supplementary provisions, and, when using this term in connection with Article 6(1), the Court indeed refers to Recital 13 of the UCTD (316). The Court may further expand on the interpretation of the concept of ‘supplementary provisions of national law’. It may clarify, for instance, whether it relates exclusively to provisions which specifically regulate the rights and obligations of the parties to a contract or whether it may also encompass general provisions of contract law (317). Where such general provisions allow for the creative adaption of the contract, the question arises as to whether this is, in fact, equivalent to a non-admissible ‘revision’ of the relevant contract term(s) (318). The Court (319) has indicated that, under specific circumstances, statutory provisions that serve as a model or reference for contract terms but which are not technically supplementary provisions may be used to replace an unfair contract term in order to prevent the nullity of the contract. The Court may also still clarify whether, under very specific circumstances, other forms of filling the gap left by an unfair contract term may be admissible (320). When assessing the particularly negative consequences for consumers, national courts have to take into account the interests of the consumer at the time when the question arises before the national court (321). In cases where the continuation of the contract is legally impossible following the elimination of an unfair contract term and where the continuation of the contract would be contrary to the consumer's interests, the Court has specified that national courts may not preserve the validity of the contract (322). In such cases, national law may thus not prevent consumers from relying on the nullity of the contract under Article 6(1) UCTD (323). To date, the Court has not ruled explicitly (324) on whether the national court has to establish the consumer's interest in the nullity of the contract based exclusively on objective criteria or, rather, on the consumer's preference as expressed within the proceedings. Nevertheless, there are good arguments for respecting the consumer's preference, taking into account that the consumer may even insist, in court proceedings, that an unfair term is applied (325).

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