§5.7 Ex officio control of unfair contract terms and out-of-court proceedings

The case law of the Court on procedural guarantees stemming from the UCTD is addressed exclusively to ‘courts and tribunals’ within the meaning of Article 267 TFEU. The Court has held that arbitral tribunals cannot make preliminary references (501). With regard to the UCTD, the Court (502) ruled that its case law on the ex officio duty for national courts does not apply to notaries when affixing the enforcement clause to an authentic document. However, assessment of the procedure in its entirety may take into account the role of notaries, under the relevant national law, when drawing up such documents (503). At the same time, guarantees in the pre-judicial phase cannot replace access to a full judicial assessment by a judge (504). However, the Court has clarified that, in connection with arbitration proceedings initiated by traders against consumers, insofar as they are admissible under the applicable national law, there must be effective judicial control of arbitration awards in appeal and enforcement proceedings (505). Based on the equivalence and effectiveness (506) principles, this may imply an obligation for the courts to assess of their own motion the unfairness of relevant contract terms, including of contract terms allowing the seller or supplier to resort to arbitration, if necessary at the enforcement stage. National rules on such proceedings that jeopardise the application of the principle of effective judicial protection against unfair contract terms must be considered as contrary to the UCTD (507). Contract terms under which traders may impose arbitration proceedings on consumers are likely to be unfair if they exclude or hinder the consumer's right to take legal action or exercise a legal remedy (508), including where they prevent effective judicial control of unfair contract terms. Regarding dispute settlement procedures initiated by consumers, Directive 2013/11/EU on alternative dispute resolution (ADR) for consumer disputes (509) contains important guarantees inter alia for agreements between a consumer and a trader to submit complaints to an ADR entity, as well as for the fairness and legality of proceedings before recognised ADR-entities. Within the scope of Directive 2013/11/EU, an agreement between a consumer and a trader to submit complaints to an ADR entity is not binding on the consumer prior to a dispute if it has the effect of depriving the consumer of his right to bring an action before the courts for the settlement of the dispute. This applies a fortiori where such agreement is contained in a not-individually negotiated contract term.

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