§5.1 The significance of Articles 6(1) and 7(1) UCTD and of the principles of equivalence and effectiveness in general

Article 6 1. Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms. […] Article 7 1. Member States shall ensure that, in the interests of consumers and of competitors, adequate and effective means exist to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers. […] Article 47 of the Charter of Fundamental Rights Right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. […] Articles 6(1) and 7(1) are the provisions of the UCTD laying down in which way consumers are to be protected against unfair contract terms and complement each other (337). The implications of the non-binding nature of unfair contract terms for the rights and obligations of the parties are presented in Section 4 above. This section discusses the implications of Article 6(1), in conjunction with Article 7(1) and the principles of equivalence and effectiveness, for the rules of procedure and the powers and obligations of national courts. Article 7(1) UCTD reflects, with particular regard to unfair contract terms, the general right to an effective remedy against the violation of rights and freedoms guaranteed by EU law enshrined in Article 47 of the Charter of Fundamental Rights of the EU (338). While Articles 6(1) and 7(1) do not contain any specific rules of procedure, their objectives can be accomplished only if national rules of procedure contribute to their achievement and do not raise unjustified obstacles for consumers in order to rely on the protection afforded to them by the UCTD. In the absence of harmonisation of the rules of procedure in an instrument of EU law, the Court has stressed the procedural autonomy of the Member States (339), but also their responsibility for ensuring that rights deriving from EU law are effectively protected (340). The Court has established that, insofar as the Member States' rules of procedure affect the application of rights laid down in EU law, such rules have to comply with the principles of equivalence and effectiveness (341). It has referred to those principles as the embodiment of the general obligation of the Member States to ensure judicial protection of an individual's rights under EU law (342). Equivalence means that the procedural rules for safeguarding rights deriving from EU law must not be less favourable than those applying to the protection of similar rights under domestic law (343) or governing similar domestic actions (344). Effectiveness implies that the national rules of procedure may not make it virtually or in practice (345) impossible or excessively difficult for citizens, including consumers, to exercise rights under EU law (346). The Court has described the meaning of equivalence and effectiveness as follows (347): ‘In the absence of Community rules governing the matter, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law. However, such rules must not be less favourable than those governing similar domestic actions nor render virtually impossible or excessively difficult the exercise of rights conferred by Community law […].’ The Court has developed these principles further with regard to consumer law and especially the UCTD, drawing from them a number of specific procedural requirements in order to ensure that consumers are effectively protected against unfair contract terms also in the reality of court proceedings. Depending on the circumstances of the case and the questions raised by the referring courts, the Court has based those requirements on: — the effectiveness (348) of the non-binding nature of unfair contract terms under Article 6(1) UCTD, — the requirement of adequate and effective means to prevent the continued used of unfair contract terms under Article 7(1) UCTD (349), — the fundamental right to an effective remedy according to Article 47 of the Charter (350), — as well as, depending on the applicable national law, the principle of equivalence (351). The Court refers to Article 7(1), sometimes supported by Article 47 of the Charter, and effectiveness almost interchangeably as a legal source for guarantees related to the effectiveness of the procedural protection against unfair contract terms (352). The procedural requirements relate to the remedies and procedural rights available to consumers, on the one hand, and duties of national courts, on the other hand. Essentially they include the principles that — consumers must have effective remedies to raise the unfairness of relevant contract terms and — that national courts are obliged to assess the unfairness of contract terms of their own motion (ex officio). The Court has further developed these procedural guarantees in light of specific types of procedure and procedural situations, such as ordinary civil proceedings (353), appeal procedures (354), judgments in default (355), actions for the annulment of an arbitration award (356), enforcement of an arbitration award (357), injunctions (358), different kinds of payment order procedures (359), mortgage enforcement procedures (360), voluntary auctions (361), and insolvency procedures (362). The Court has also been requested to consider the relationship between Regulation (EC) No 1896/2006 (363) creating a European order for payment procedure and the procedural guarantees under the UCTD (364). While most preliminary rulings concerned cases where consumers were in the position of the defendant or debtor (365), the Court has applied these principles also to proceedings where the consumer requested to declare a contract term invalid. Although the context and the specificities of each type of procedure have to be taken into account when assessing the compatibility of specific provisions with the UCTD, the standards and tests developed by the Court apply to all types of procedure. The Court has emphasised repeatedly (366), that procedures which give creditors the possibility of a more expedient enforcement of their claims based on titles other than judgments obtained in declaratory proceedings and which entail no or only limited substantive checks by national courts, must not deprive consumers of their right to proper protection against unfair contract terms. This means that the specific type of procedure which a seller of supplier chooses, or which otherwise applies, cannot reduce the fundamental procedural guarantees required by the UCTD for the benefit of consumers. In the words of the Court (367): ‘[…] the specific characteristics of court proceedings cannot constitute a factor which is liable to affect the legal protection from which consumers must benefit under the provisions of Directive 93/13.’ At the same time, it is necessary, in connection with the effectiveness principle (368), to look at the national rules of procedure in their proper context and in their entirety. The Court (369) has expressed this as follows: ‘43 […] with regard to the principle of effectiveness, it should be noted that the Court has consistently held that every case in which the question arises as to whether a national procedural provision makes the application of EU law impossible or excessively difficult must be analysed by reference to the role of that provision in the procedure, its progress and its special features, viewed as a whole, before the various national bodies […] 44 In that context, it is necessary to take into consideration, where relevant, the principles which lie at the basis of the national legal system, such as the protection of the rights of the defence, the principle of legal certainty and the proper conduct of the proceedings[…].’ This means that account has to be taken of the protection which national rules provide against unfair contract terms at different stages of the procedure, for instance in the phase before the issuing of a payment order and at the enforcement or opposition stage (370) or in connection with the remedies against mortgage enforcement based on a notarial deed (371). National courts are obliged to apply these procedural guarantees also where national provisions would otherwise prevent them from doing so, and must disregard case law of national supreme courts insofar as it is incompatible with the UCTD as interpreted by the Court (372). All procedural guarantees stemming from EU law apply to cases involving unfair contract terms, even if they are not specifically mentioned in this Notice. This includes the procedural rights mentioned in Article 47 of the Charter, including the right to a fair hearing (373) and the equality of arms (374). The principle of effective judicial protection of consumers does not, in itself, afford consumers a right to a second level of jurisdiction (375) for the assessment of contract terms. However, such right may be based on Article 7(1) UCTD in conjunction with the principle of equality of arms, guaranteed under Article 47 of the Charter, where, in the same proceedings, sellers or suppliers have the right to appeal a decision regarding the unfairness of contract terms (376).

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