5.3.1. Ex officio control of unfair contract terms

Under the principle of equivalence (389), national courts or tribunals are obliged to consider binding rules of EU law of their own motion in all cases where domestic law obliges them or gives them at least the power or discretion to raise points of law based on binding domestic rules of their own motion. As stated above, the non-binding character of unfair contract terms set out in Article 6(1) and all the provisions of the UCTD essential for attaining this objective must be treated as equivalent to public policy considerations recognised under the law of the Member States. This status will apply to all provisions of the UCTD that are relevant when assessing the unfairness of a contract term and drawing the consequences from this finding. The Court (390) has explained this in the following way, Therefore, national courts have to assess the unfairness of relevant contract terms of their own motion whenever national law obliges them or gives them the possibility to check ex officio compliance with any public policy considerations mentioned in the relevant national provisions, including, for instance, legal prohibitions, basic morality (391), or public policy in general (392). In this respect, the Court (393) has stated, for instance, that, The obligation of ex officio control based on the equivalence principle applies to all types and stages of the procedure, including judgments in default (396), appeal proceedings (397), or enforcement proceedings (398) whenever national law empowers national judges to examine compliance with rules of public policy.

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Source: EUR-Lex (Cellar) · retrieved 2026-09-25 · Text as adopted (Official Journal); later amendments are not incorporated in this text.