§5.5.3 Availability of the necessary legal and factual elements

The main element for the assessment of the unfairness of contract terms is the contract with all its terms. However, as explained above, before the unfairness of a term is to be assessed other elements have to be considered, e.g. whether one party is a consumer, whether a term was negotiated individually, or whether a seller or supplier provided any necessary information to the consumer before the conclusion of the contract. One problem may be that, in a given case, the national court may not have all necessary factual and legal elements in order to rule on the unfairness of a contract term. The Court acknowledges this when employing in many rulings formulations such as ‘where [the national court] has available to it the necessary legal and factual elements’ (480). At the same time, the Court has made it clear that ex officio control implies a pro-active approach to obtain access to the elements necessary for the assessment of contract terms (481), for instance when it used the term ‘investigate’ in relation to examining the prerequisites of Article 3(1) UCTD (482): ‘[…], the Court has held that that national court must investigate of its own motion whether a term in a contract concluded between a seller or supplier and a consumer falls within the scope of the Directive and, if it does, assess of its own motion whether such a term is unfair […] (483).’ The Court (484) has also emphasised that national courts have to obtain the necessary clarifications for the question of whether one party is a consumer if there is at least some indication that this may be the case: ‘[…], the principle of effectiveness requires a national court before which a dispute relating to a contract which may be covered by that directive has been brought to determine whether the purchaser may be classified as a consumer, even if the purchaser has not expressly claimed to have that status, as soon as that court has at its disposal the matters of law and of fact that are necessary for that purpose or may have them at its disposal simply by making a request for clarification.’ Therefore, if there are indications that the relevant contract may be a consumer contract, a national court is under the obligation to investigate this issue even if the parties have not raised it. Such pro-active approach would indeed appear to be required by the mandatory character of Article 6(1). Likewise, if there are indications that a claim may be based on contract terms which were not negotiated individually, but not all elements are immediately available to complete this examination, national courts will have to raise this question with the parties in order to obtain the necessary clarifications and evidence (485). Where sellers or suppliers were obliged to provide specific information to consumers, courts have to check whether consumers received the required information (486). Insofar as particular rules of procedure, e.g. in payment order or enforcement proceedings, do not allow the courts to make a substantive assessment despite the availability of those elements (487) or do not give them access to those elements (488), including the contract on which the claim is based, such procedural restrictions cannot remove the obligation to ensure ex officio control. This interpretation is supported by the following considerations: — Already the formulation used by the Court and the context of the different rulings suggest that the Court acknowledges the fact that, in practice, it will not be possible for a national court to carry out the necessary assessment without access to those elements (489). — In the majority of cases the Court took into account that the referring court did have access to the necessary elements. Furthermore, in several of those rulings, the Court used the formulation ‘… even when/even though (490) it has available to it the matters of law and fact necessary to that end …’, indicating an a fortiori reasoning as opposed to a legal condition. — If national rules of procedure could prevent ex officio control simply by denying courts access to the necessary elements, this would undermine the right to an effective remedy. — Where ex officio control is required because of the equivalence principle, such control could be prevented in practice where national rules of procedure deny the courts access to the necessary elements. The Court (491) confirmed this interpretation, when, after establishing the existence of a significant risk that consumers will not lodge an objection to a payment order (492), it considered that the issuing of a payment order without any prior ex officio examination of the unfairness of contract terms was incompatible with Article 7(1) UCTD. The Court came to this conclusion although it was aware that, under the relevant rules of procedure, national courts did normally not have access to the legal and factual elements for this examination (493) and without mentioning access to such elements as a condition for its finding (494), when it stated that ‘[…] Article 7(1) of Directive 93/13 must be interpreted as precluding a procedure which authorises the issue of an order for payment where the court dealing with an application for an order for payment does not have the power to examine whether the terms of that agreement are unfair, if the detailed rules for exercising the right to lodge an objection against such an order do not enable observance of the rights which the consumer derives from that directive to be ensured.’ Therefore, in cases where the UCTD requires ex officio control, national courts must be obliged to obtain the necessary elements for the ex officio assessment by interpreting national rules in conformity of EU law or, if that is not possible, by, setting aside the conflicting national rules.

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