§5.5.4 Conclusions to be drawn from the unfairness assessment

At the end of the assessment, national courts have to draw the consequences stemming from the unfairness of relevant contract terms and their non-binding character, in compliance with the principles set out in Section 4. Depending on the claim, the type of procedure and the nature of the contract term, this could lead, for instance, to the rejection or limitation of a claim against a consumer that is fully or partially based on unfair contract terms or the termination or limitation of the enforcement, or a declaration of invalidity. As stated above, before a national court decides to disapply a contract term which it has assessed of its own motion and which it considers to be unfair, it has to hear both parties on this question (495). Furthermore, consumers may decide not to rely on this protection in court proceedings after having been informed of the unfair nature and the non-binding character of the contract terms in question, in which the competent will have to apply the unfair contract term (496). In light of the mandatory character of Article 6(1) UCTD, such declaration should be valid only where the judge is satisfied that the consumer has fully understood the legal situation and that their declaration is not based on misconceptions or pressure by other parties.

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