§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 2026-09-07