§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, ‘44 […], in view of the nature and importance of the public interest underlying the protection which the directive confers on consumers, Article 6 thereof must be regarded as a provision of equal standing to national rules which rank, within the domestic legal system, as rules of public policy[…]. It must be held that that classification extends to all the provisions of the directive which are essential for the purpose of attaining the objective pursued by Article 6 thereof. 45 It follows that, where the national court has the power, under internal procedural rules, to examine of its own motion the validity of a legal measure in the light of national rules of public policy, […], it must also exercise that power for the purposes of assessing of its own motion, in the light of the criteria laid down in the directive, whether a contractual term coming within the scope of that directive may be unfair. 46 The national court is also under such an obligation where, under the domestic legal system, it merely has a discretion to consider of its own motion whether such a term is in conflict with national rules of public policy […].’ 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, ‘where the court seised with a view to the enforcement of an arbitration award may, of its own motion, discontinue the application of that arbitration award where that award imposes on the party concerned an objectively impossible payment, prohibited by law or contrary to basic morality, that court must, where it has available to it the legal and factual elements necessary for that task, examine, of its own motion, within the context of the enforcement proceedings, also whether a penalty (394) laid down by a credit contract or an arbitration clause (395) is unfair.’ 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. Therefore, national courts are obliged to apply the relevant national provisions on ex officio control mutatis mutandis in order to assess the unfairness of contract terms of their own motion (399). Unlike under the effectiveness principle, this obligation is independent of any further assessment as to whether, without such ex officio control, there is no effective protection against unfair contract terms.

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