§5.2.2 Relationship with principles of civil procedure

Across the Member States, the guiding principle in civil proceedings (383) is party disposition (or party autonomy). This usually implies that it is in the sole discretion of the parties to define the subject matter and extent of the proceedings so that the judge cannot grant a claim that has not been made (ultra petita) or to grant more than was claimed (extra petita). It is also widely accepted that it is primarily the responsibility of the parties to present the facts relied on in order to substantiate their requests as well as to submit the necessary evidence. In general, each party will bear the burden of proof for the facts supporting their submission, unless there are specific provisions shifting or alleviating the burden of proof for certain questions. It is generally recognised that, while the parties have to provide the facts, it is for the court to make the necessary legal qualifications (384), which is expressed in the principles da mihi factum dabo tibi jus and iura novit curia. It is also normal that courts have to consider certain imperative rules, often referred to as matters of public policy, of their own motion, i.e. without having to be prompted by the parties. Within this general framework, there are differences between the Member States regarding the extent to which the courts may or are obliged to adopt a more active role in the proceedings (385), including a more inquisitorial or investigative role, for instance by asking questions, giving hints or feedback, but also regarding the taking of evidence. Ex officio control of the unfairness of contract terms is fundamentally the procedural consequence of the fact that the unfairness of contract terms and their non-binding nature are mandatory rules of public policy which apply ex jure and which are legal aspects that, therefore, do not depend on any party invoking it. Ex officio control of unfair contract terms is, therefore, not in conflict with the fundamental principles of civil proceedings such as party disposition. Nevertheless, specific national provisions may make ex officio control difficult or impossible. For further details on such instances, see Sections 5.4, 5.5 and 5.6.

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