5.5.2. Aspects to be examined

The duty for national courts to assess the unfairness of contract terms of their own motion requires that they examine all prerequisites for finding a term unfair (476), including, insofar as the individual steps are necessary under the relevant national transposition, the questions of whether the contract terms falls with the scope of the Directive (477), which requires that there is is a contract between a seller or supplier and a consumer (478), the term in question was not individually negotiated (479), the term in question does not reflect mandatory rules within the meaning of Article 1 (2); whether or not the contract term is covered by Article 4(2) and if that is the case, whether it fulfils the transparency requirements; whether the contract term is unfair, i.e. whether, contrary to the requirement of good faith, it creates a significant imbalance in the rights and obligations of the parties to the detriment of the consumer, including a possible lack of transparency of the relevant terms, or, where appropriate, whether it corresponds to one of the terms contained in a black or grey list.

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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.