§5.2.1 Link to Articles 6(1) and 7(1)

In order to compensate for the structurally weaker position of consumers, who may not be aware of their rights and may, therefore, not raise the unfairness of contract terms, national courts, as a neutral instance, play an active role in proceedings involving unfair contract terms. Since its ruling of 4 June 2009 (378), the Court has consistently held that national courts are under an obligation to assess unfair contract terms of their own motion (ex officio), i.e. even if the unfairness of contract terms is not raised by the consumer: ‘1. Article 6(1) of Council Directive 93/13/EEC of 5 April 1993, on unfair terms in consumer contracts, 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. 2. The national court is required to examine, of its own motion, the unfairness of a contractual term where it has available to it the legal and factual elements necessary for that task. Where it considers such a term to be unfair, it must not apply it, except if the consumer opposes that non-application. That duty is also incumbent on the national court when it is ascertaining its own territorial jurisdiction.’ The Court has repeatedly confirmed this requirement (379): ‘[…] the Court has stated on several occasions that the national court is required to assess of its own motion whether a contractual term falling within the scope of Directive 93/13 is unfair, compensating in this way for the imbalance which exists between the consumer and the seller or supplier, where it has available to it the legal and factual elements necessary for that task […] (380).’ Ex officio control aims to achieve the result sought by Article 6(1) in individual cases and contributes to the objective of Article 7 as it may act as a deterrent to the use of unfair contract terms at large (381). The obligation of ex officio control applies a fortiori where a consumer, in substance, challenges the validity or fairness of the contract without, however, referring specifically to the legal provisions on unfair contract terms (382).

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