§5.4.1 The applicable test

Under Article 7(1) UCTD or the effectiveness principle (401), national law has to provide remedies which allow consumers to invoke the unfairness of contract terms, and those remedies have to be effective. This implies that consumers must be able to bring such remedies under reasonable conditions, meaning that there must not be requirements or limitations which make it practically impossible or excessively difficult for them to obtain the required protection. Moreover, consumers may be prevented from using legal remedies not only by procedural obstacles, but also because of their limited knowledge or information. Therefore, in order to establish whether there are effective remedies, the Court (402) applies the overarching test as to whether there is a significant risk that consumers will not benefit from effective protection — either because specific procedural requirements or limitations make it excessively difficult (or even practically impossible) to bring any available remedies, — or , alternatively, because consumers do not have the necessary knowledge of their rights or do not receive the necessary information in order to use the remedies effectively. This test is reflected in several rulings, for instance, with regard to payment order proceedings (403): ‘There is a significant risk that the consumers concerned will not lodge the objection required, be it because of the particularly short period prescribed for that purpose, or because they might be dissuaded from defending themselves in view of the costs which legal proceedings would entail in relation to the amount of the disputed debt, or because they are unaware of or do not appreciate the extent of their rights, or indeed because of the limited content of the application for the order for payment lodged by the seller or supplier, and thus the incomplete nature of the information available to them […].’ As explained in Section 5.1, it is, in connection with effectiveness, necessary to consider the relevant rules of procedure in their entirety, taking into account its different stages (404). Relevant factors for the assessment of effectiveness are discussed in Section 5.4.2 below. Where there is a significant risk that consumers may not object to a payment order, the Court established that national courts must assess the unfairness of contract terms of their own motion at some stage of the procedure and at the latest before the enforcement is carried out against a consumer (405). In the words of the Court (406), ‘Indeed, effective protection of the rights conferred on the consumer by Directive 93/13 can be guaranteed only if the national procedural system allows the court, during the order for payment proceedings or the enforcement proceedings concerning an order for payment, to check of its own motion whether terms of the contract concerned are unfair […].’ That means that, — where there is a significant risk that the consumer will not use remedies against a payment order, the court is obliged to assess the unfairness of relevant contract terms of its own motion before issuing the payment order (407). On the other hand, — where ex officio control did not take place before the order is granted, it has to be carried out, as a last resort, at the enforcement stage (408). Similarly, — if the checks carried out at an earlier stage of the procedure did not cover all relevant contract terms, national courts are obliged to assess other relevant contract terms including of their own motion even if the earlier checks were completed with a decision that has the effect of res judicata under the national rules of procedure (409). The Court (410), has also specified that the fact that the unfairness of contract terms is assessed by a court official below the status of magistrate before a payment order is issued does not provide the required protection. This means that, if there is a significant risk that a consumer will not lodge an objection, a judge still has to assess the unfairness of contract terms, if necessary of their own motion, and, at the latest, at the stage of enforcement. Regarding specifically mortgage enforcement, the Court (411) considered it acceptable, in principle, that enforcement proceedings can be initiated based on a notarial deed without prior judicial ex officio control of unfair contract terms. However, this is compatible with the UCTD only insofar as consumers can take legal action against such enforcement under reasonable conditions, including the availability of interim measures, and if ex officio control of the unfairness of contract terms is guaranteed in the ensuing declaratory proceedings. Therefore, mortgage enforcement based on a notarial deed is not compatible with the UCTD if no effective remedies are available to consumers or if there is a significant risk that consumers will not use them. There are no effective remedies, for instance, where consumers cannot object to the enforcement based on the unfairness of contract terms in the enforcement proceedings, whereas in declaratory proceedings in which the unfairness of contract terms can be assessed they cannot obtain the suspension of the enforcement proceedings (412). The logic of these principles must apply mutatis mutandis to all types of procedure (413).

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