§5.5.1 Fundamental obligations

Ex officio control requires a pro-active intervention by national courts, independently of the parties' submissions (469), both regarding — the examination as to whether a relevant contract term is unfair and, therefore, non-binding, and — the consequences to be drawn from a finding that the term in question is unfair in order to ensure that the consumer is not bound by that term. National courts may apply unfair terms only if, exceptionally, a consumer, who has been informed of his rights, opposes the non-application of unfair contract terms (470). The Court has stated that ‘[t]he 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. […] (471). The full effectiveness of the protection provided for by the directive requires the national court that has found of its own motion that a term is unfair to be able to establish all the consequences of that finding, without expecting the consumer, who has been fully informed of his rights, to submit a statement requesting that that term be declared invalid [… (472)] (473).’ The obligation of ex officio control may also require judges to order interim measures of their own motion where this is necessary for the effectiveness of the remedy and where there is a significant risk that consumers may not apply for interim relief (474). Moreover, judges are obliged to inform the parties on the outcome of the ex officio assessment of a contract term and the conclusions to be drawn so that they can be heard on this question (475).

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