§4.4 Restitution of advantages obtained through unfair contract terms

Another consequence of the non-binding character of unfair contract terms is that, where consumers have made payments based on unfair contract terms, they must be entitled to the reimbursement of such payments (330): ‘62 It follows that the obligation for the national court to exclude an unfair contract term imposing the payment of amounts that prove not to be due entails, in principle, a corresponding restitutory effect in respect of those same amounts. 63 The absence of such restitutory effect would be liable to call into question the dissuasive effect that Article 6(1) of Directive 93/13, read in conjunction with Article 7(1) of that directive, is designed to attach to a finding of unfairness in respect of terms in contracts concluded between consumers and sellers or suppliers.’ Only provisions related to legal certainty, in particular res judicata and reasonable limitation periods, may limit such restitutory effect (331). At the same time, Member States, including national legislators and courts, may not limit in time the effect of a finding that a given contract term is unfair (332) and thereby, for instance, exclude restitution claims for the time prior to such finding (333): ‘Article 6(1) of Council Directive 93/13/EEC […] must be interpreted as precluding national case-law that temporally limits the restitutory effects connected with a finding of unfairness by a court, in accordance with Article 3(1) of that directive, in respect of a clause contained in a contract concluded between a consumer and a seller or supplier, to amounts overpaid under such a clause after the delivery of the decision in which the finding of unfairness is made.’ In this connection, the Court recalled that it is for the Court alone, in the light of the fundamental requirement of a general and uniform application of EU law, to decide upon the temporal limitations to be placed on the interpretation it lays down in respect of a rule of EU law (334). In general, the interpretation given by the Court of a rule of EU law must be applied by the national courts also to legal relationships arising and established before the Court's judgment since its interpretation establishes how the relevant rule must be, or ought to have been, understood and applied from the time of its entry into force (335). Therefore, the Court may limit the effect in time of its rulings only in ‘altogether exceptional cases’ in application of the general principle of legal certainty if two cumulative conditions are met: (i) the market participants concerned have acted in good faith and (ii) there is a risk of serious difficulties due to the ‘retroactive’ application of the Court's case law (336).

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