§5.6 Implications of ex officio control, effectiveness and equivalence for the national rules of procedure

Where EU law requires ex officio control of the unfairness of contract terms, national courts have to ensure such control by interpreting and applying national law as much as possible in conformity with EU law (497). Where this is impossible and national rules of procedure do not comply with the principle of effectiveness and/or do not guarantee an effective remedy, national courts have to set such national rules aside in order to carry out the ex officio checks required by EU law (498). Moreover, the principles of ex officio control and effectiveness may require the Member States to make certain adaptations or corrections in their legislation insofar as national rules of procedure and substance are in conflict with these principles as described in the sub-sections above. The Member States are, therefore, invited to examine all national provisions that may be in conflict with the guarantees required by the UCTD as interpreted by the Court. Where ex officio control is required by the equivalence principle (499), national courts are obliged to apply the relevant national provisions mutatis mutandis in order to assess the unfairness of contract terms of their own motion. However, if those provisions do not explicitly cover actions based on EU law, there is a risk that national courts may fail to carry out this control based solely on those national provisions. Therefore, compliance with the equivalence principle may require legislative adaptations as well. Finally, the Court (500) has clarified that a decision by a national court adjudicating at last instance which does not comply with its obligation to assess the unfairness of contract terms of its own motion may constitute a sufficiently serious infringement of EU law that could trigger the liability of the Member State for damages caused to consumers.

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